Abuse of Process and Delay in Fitness to Practise Proceedings: When Will a Tribunal Stay a Case?

Do fitness to practise tribunals have power to stay proceedings?

Yes, but the source of the power matters. In Council for the Regulation of Health Care Professionals v General Medical Council and Saluja [2006] EWHC 2784 (Admin), Goldring J confirmed that the Council accepted that the Fitness to Practise Panel had jurisdiction to impose a stay. The judgment noted that in exercising that jurisdiction the panel was purporting to apply the principles of English criminal law, consistent with the agreed procedure of disciplinary hearings when facts are being decided. The power derives from an inherent or implied jurisdiction analogous to that recognised in the criminal courts. As Jowitt’s Dictionary of English Law records, although not conferred by legislation it has been held that the criminal courts have an analogous power to stay proceedings on grounds of abuse of process. Osborn’s Concise Law Dictionary likewise notes the court’s inherent jurisdiction to stay proceedings where there is an abuse of process. The civil formulation was described in Professional Standards Authority for Health and Social Care v General Pharmaceutical Council [2024] as the power any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party, or would otherwise bring the administration of justice into disrepute. Practical consequence: because the jurisdiction is inherent rather than rules-based, you will not find it in the GMC, NMC, GDC or GPhC procedural rules. Do not expect to cite a rule number.

A stay is a final decision — and the PSA can appeal it

This is the most under-appreciated feature of Saluja, and it shapes how regulators fight these applications. Goldring J held that a finding by a Fitness to Practise Panel of abuse of process amounts to a final decision, observing that it would be artificial to find otherwise. By definition, the imposition of a stay for abuse of process means it would be an abuse of process for the case to be tried; once such a decision has been taken it is inconceivable that the case could subsequently be pursued — whether the abuse is on grounds of executive malpractice or delay. The consequence is that erroneous findings of abuse of process are subject to appellate review under section 29 of the National Health Service Reform and Health Care Professions Act 2002. As the court put it, the mischief at which section 29 is aimed occurs just as much where a disciplinary tribunal wrongly brings a case to an end on grounds of abuse of process as where it wrongly concludes that conduct does not amount to professional misconduct, or imposes too lenient a penalty. The effect of such a ruling is that the case against the practitioner can never be decided on its merits and no penalty can ever be imposed. What this means in practice: winning a stay is not the end. The Professional Standards Authority can refer it to the High Court.

What is the test for a stay of proceedings for abuse of process?

The framework comes from R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42 and R v Maxwell [2010] UKSC 48. In Mansfield v DPP [2021], the Divisional Court confirmed there are essentially two categories of case where a stay is warranted:

• Category 1 — a fair trial is impossible. Proceedings will be stayed without more. No question of balancing competing interests arises.
• Category 2 — the circumstances offend the court’s sense of justice and propriety. Here competing public interests come into play. The court must balance the public interest in ensuring that administrative errors or misconduct do not undermine public confidence in the administration of justice, against the public interest in ensuring that those accused of serious wrongdoing are properly tried on the evidence.

In Maxwell, Lord Dyson explained that in the second category the court is concerned to protect the integrity of the justice system: a stay will be granted where in all the circumstances a trial will offend the court’s sense of justice and propriety (per Lord Lowry in ex parte Bennett at 74G) or will undermine public confidence in the justice system and bring it into disrepute (per Lord Steyn in R v Latif and Shahzad [1996] 1 WLR 104 at 112F).

How is the test modified in fitness to practise proceedings?

The Bennett/Maxwell framework applies in regulatory proceedings, but with material modifications. Drawing on Saluja and Professional Standards Authority v General Pharmaceutical Council [2024], five limiting principles emerge:

1. A stay is exceptional. This is repeated in both authorities.
2. There is no state involvement. Disciplinary proceedings are brought against a registrant by the regulator in order to protect the public, uphold professional standards and maintain confidence in the profession. Those are, to a significant degree, different considerations from those applying to a criminal prosecution and the misuse of executive powers by the state’s agents.
3. The rationale of the doctrine is largely absent. The principle behind abuse of process stays is the court’s repugnance at permitting its process to be used in the face of the executive’s misuse of state power by its agents. By definition, no question arises in regulatory cases of the state seeking to rely on evidence which by its own misuse of power it has effectively created. The rationale of the doctrine in its strictest sense is therefore absent.
4. Failing to have these differences in mind is an error of law. It would be an error of law for a tribunal considering an abuse application not to have these differences well in mind, and it would not be appropriate for a tribunal to approach matters as though non-state actors were agents of the state.
5. The overarching objective must be weighed. A stay is an exceptional and final step: the case against the registrant can never be considered on its merits and no action can be taken even if the allegations are well-founded. The public interest in the statutory objectives of protecting the public and maintaining professional standards and public confidence must be weighed in the balance, together with the public interest in the integrity of the disciplinary process.

The test where the abuse alleged is delay

For applications based specifically on delay, Attorney General’s Reference (No 1 of 1990) [1992] QB 630 continues to govern both criminal and regulatory proceedings. A stay on grounds of delay is to be imposed:

• only in exceptional circumstances, even where the delay is unjustifiable;
• even more rarely in the absence of fault on the part of the complainant or prosecution;
• never where the delay is due to the complexity of the case or the actions of the registrant.

No stay will be imposed unless the registrant establishes that they will suffer serious prejudice because of the delay, to the extent that no fair hearing could be held. This test has not been displaced by regulatory-specific authority. It remains the applicable test, applied with recognition of the different considerations in the regulatory context. In Attorney General’s Reference (No 2 of 2001) [2003], the House of Lords confirmed that proceedings may be stayed for violation of the Article 6(1) reasonable time requirement only if (a) a fair hearing is no longer possible, or (b) it is for some compelling reason unfair to try the defendant. The court emphasised that the threshold for proving breach of the reasonable time requirement is a high one, not easily crossed, and that tribunals should not be vexed with applications based on lapses of time which, even if they should not have occurred, arouse no serious concern. Note also the distinction drawn in the practitioner literature: an application to stay for abuse of process on grounds of delay, and a submission of no case to answer, are two different issues and should receive distinct and separate consideration.

Is the second limb realistically available in a delay case?

In short, no. The second limb is theoretically available but operates under severe constraint. As Saluja explains, its rationale in criminal cases is the court’s repugnance at permitting its process to be used in the face of the executive’s misuse of state power. In regulatory proceedings there is no state involvement and the regulator is not an agent of the state. The authorities leave open a successful application founded on misconduct by non-state agents — but only where the conduct is so gross that reliance on the resulting evidence would compromise the tribunal’s integrity. There has been no reported case of the higher courts, domestic or European, in which such “commercial lawlessness” has founded a successful application for a stay. For pure delay, as distinct from deliberate manipulation or misconduct, the second limb appears to have extremely limited if any application in regulatory proceedings. The focus remains on the first limb: whether delay has caused such prejudice that a fair hearing is no longer possible. — let alone unreasonable delay in prosecuting charges — should not be capable of mitigating the penalty. The court was careful to qualify this: it is not mandatory that delay must mitigate in every case, nor does it necessarily mean a lesser penalty than erasure is appropriate. Selvarajan itself was not a borderline erasure/suspension case where mitigation based on delay may well have been compelling as to outcome. The underlying logic is important and quotable: it is common sense that the longer the threat of erasure has hung over a professional person, terminating their ability to practise their vocation, the more severe the sanction will be and the more punitive it will appear to the recipient — even though in disciplinary proceedings the purpose of sanction is not intended to be punitive. Collins J also observed that if delay causing an Article 6 breach were irrelevant to penalty, the consequence should be that more proceedings involving delay would have to be stayed, because disciplinary proceedings would have less capacity to remedy delay by adjusting penalty. Both the GMC’s Indicative Sanctions Guidance (time lapsed since the incident as potential mitigation) and the NMC Sanctions Guidance (mitigating features as aspects showing the case is less serious) support this route. Selvarajan also contains a benchmark worth citing: proceedings taking nearly four years from charge to penalty, plus further years to final determination on appeal, is unacceptable and unreasonable — and where there has already been delay, there is an added imperative to proceed promptly.

Public acknowledgement of an Article 6 breach

Where delay breaches the Article 6(1) reasonable time requirement without rendering a fair hearing impossible, the remedy may be a declaration. In Attorney General’s Reference (No 2 of 2001), Lord Bingham’s reasoning for the majority was that breach of the reasonable time requirement does not automatically result in a stay, because there are other ways of vindicating the breach: public acknowledgement, release on bail, financial compensation, and reduction in the sentence otherwise appropriate. It is because the trial process may address the breach in these ways that a stay is not automatic and is restricted to cases where the process cannot cure the breach and a fair trial is no longer possible. In Selvarajan, Collins J declared and publicly acknowledged the breach of the Article 6 right, and indicated that if the GMC applied for costs the court would consider the breach further in exercising its costs discretion. Where breach is established retrospectively after a hearing, the appropriate remedy may be public acknowledgement, a reduction in penalty, or compensation. The public interest in the final determination of proceedings requires that a matter should not be stayed or dismissed if any lesser remedy will be just and proportionate.

Procedural protection

Where delay has occurred, the tribunal should bear in mind the powers of the tribunal and the process itself to provide protection from prejudice. Where an application on grounds of delay fails, the proceedings should continue and the point should be argued as part of any appeal. The regulators’ procedural rules give tribunals powers to manage proceedings fairly — including excluding evidence, drawing adverse inferences, and awarding costs where a party without good reason fails to comply with a direction.

Regulator-by-regulator: where the procedural rules sit

None of the following rules contains an express power to stay for abuse of process. The jurisdiction is inherent or implied throughout.

General Medical Council / Medical Practitioners Tribunal Service (MPTS)

General Medical Council (Fitness to Practise) Rules 2004, as extensively amended. Medical Practitioners Tribunals were established under the General Medical Council (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015, which substituted references to Fitness to Practise Panels with Medical Practitioners Tribunals throughout Schedule 4 to the Medical Act 1983. The MPTS was constituted under rules made under paragraph 19F of Schedule 1 to the Act. Where a party fails to comply with the Rules or a direction of the Tribunal or Case Manager, a Medical Practitioners Tribunal may draw adverse inferences, refuse to admit evidence, and award costs.

Nursing and Midwifery Council (NMC)

Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended. The Nursing and Midwifery Council (Fitness to Practise) (Amendment) Rules 2017 consolidated the Health Committee and Conduct and Competence Committee into a single Fitness to Practise Committee. The Committee acts in accordance with Part 5 of the Rules and disposes of allegations under articles 22(4) and 29(4)–(8) of the Nursing and Midwifery Order 2001.

General Dental Council (GDC)

General Dental Council (Fitness to Practise) Rules 2006, defining “allegation” as an allegation that the fitness to practise of a registered dentist or registered dental care professional is impaired, and establishing the role of Case Examiners and interim orders procedures. Section 29 of the 2002 Act provides for references to court of directions by the Professional Conduct Committee, Professional Performance Committee or Health Committee.

General Pharmaceutical Council (GPhC)

General Pharmaceutical Council (Fitness to Practise and Disqualification etc.) Rules 2010. A “fitness to practise allegation” is a complaint to, or concern of, the Council which is an allegation for the purposes of article 52(1), 53(1) or 54(1) of the Pharmacy Order 2010. The Fitness to Practise Committee is established by virtue of article 4(6)(b) of the Order. Section 29 of the 2002 Act as amended provides for references to court of directions under article 54 of the Pharmacy Order 2010 or section 80 of the Medicines Act 1968.

Health and Care Professions Council (HCPC) and General Optical Council (GOC)

These regulators operate under equivalent statutory frameworks and their committees possess the same inherent or implied jurisdiction. In R (on the application of Le Bosquet) v General Optical Council [2002], the claimant relied on delay in pursuing the matter and delay in notifying her of evidence, arguing prejudice to her defence such that a fair trial was no longer possible — confirming that delay-based abuse arguments are advanced before the GOC.

Table of authorities