Lee, R (on the application of) v The General Medical Council

This judicial review raises three issues of law and construction relating to the General Medical Council’s Fitness to Practice Rules, in particular relating to Rule 4(5) (the Five Year Rule). The Claimant challenges decisions of the General Medical Council’s Fitness to Practice Panel made between 19^th and 21^st January 2015 on the first two issues (the ‘Five Year Rule Issue’ and the ‘Notification Duty Issue’). The Respondent, the General Medical Council (“GMC”), subsequently raised a third issue (the ‘Delay Jurisdiction Issue’).

The claimant is a surgeon and a leading expert in the use of laparoscopic and robotic-assisted surgery and stem cell research. She was a registered medical practitioner in Singapore and practised there for over 25 years until July 2013.

For periods in 2001 and between 2004 to 2007, the Claimant acted as the physician responsible for co-ordinating the care and treatment of a member of the Royal Family of Brunei who had been diagnosed with breast cancer. The last day of treatment was 16^th July 2007. The last invoice sent by the Claimant to the patient was dated 1^st August 2007.

On 3^rd December 2007, the Ministry of Health Singapore received a letter from the patient complaining that the Claimant’s charges were excessive. It was alleged that the Claimant had charged the patient $24 million Singapore Dollars for work carried out over a period of 6 months. The Singapore Medical Council (“SMC”) commenced disciplinary proceedings against the Claimant.

On 21^st June 2012, a Disciplinary Committee (“SDC”) of the SMC found the Claimant guilty of professional misconduct and published summary grounds for its conclusion. The Claimant was found guilty on 94 counts relating to the level and mode of charging of private medical fees in relation to the Brunei patient. The misconduct was held to have occurred over a period ending on 1^st August 2007.

On 17^th July 2012, the SMC published the SDC’s detailed formal determination with written reasons for its conclusion. The Claimant was found in breach of an ethical obligation to charge fair and reasonable fees (charges 1 to 83 proven). The Claimant was found guilty of having issued invoices which were misleading in that they failed to disclose a mark-up payable to the Claimant for work done by third-party doctors (charges 84-94 proven). The determination commented that the misconduct was “particularly serious”. The SDC suspended the Claimant from practice for 3 years, censured the Claimant, imposed a $10,000 penalty on the Claimant and required the Claimant to give an undertaking to charge fair and reasonable fees in future.

On 16^th August 2012, the Claimant exercised a statutory right of appeal by filing an appeal to the Singapore High Court against the SDC’s findings and sanction. Accordingly, by reason of s.55 of Singapore’s Medical Registration Act 1998, the SDC’s decision was suspended and did not take effect pending appeal (see below). The SDC’s decision was also not published pending appeal. The Claimant continued to practise in Singapore without restriction.

By its decision dated 28^th June 2013, the Singapore High Court dismissed the Claimant’s appeal. The High Court’s judgment was published on 1^st July 2013. The High Court upheld the SDC’s findings (see Lim Mey Lee Susan v Singapore Medical Council[2013] SGHC 122[2013] 3 SLR 900). The High Court of Singapore held that (i) the Claimant had charged grossly excessive fees to her patient, (ii) the Claimant had issued invoices in an unsystematic, arbitrary and opportunistic manner, (iii) the Claimant had shown no remorse for doing so, and (iv) the penalty of $10,000 was the maximum that could be imposed under the legislation then in force, but a far larger fine would in principle have been warranted given the “egregious” circumstances of the case. The Claimant’s three-year suspension from the register in Singapore commenced on 2^nd July 2013.

On 15^th July 2013, the SMC wrote to the GMC notifying the GMC of its findings and sanction against the Claimant, stating that “this information is for GMC’s further follow-up as necessary”. On 19^th July 2013, the GMC wrote to the Claimant informing her that it had been notified by the SMC of its findings and sanction and inviting her to respond. The GMC also pointed out that the Claimant had failed to inform the GMC of the SMC’s adverse determination in accordance with paragraph 58 of the GMC’s Good Practice Guide (2006) (“GMC’s Guidance”).

On 24^th July 2013, the GMC wrote to the Claimant notifying her that a Case Examiner under Rule 8 had decided that the matter should be considered by an Interim Orders Panel, in particular because of the Claimant’s failure to comply with paragraph 58 of the GMC’s Guidance. On 14^th August 2013, the Claimant’s legal representative wrote to the GMC contending that (i) an interim order was not necessary; (ii) the reason for the Claimant not having informed the GMC was that she had regarded her GMC membership as “effectively honorary”, and had not therefore focussed on “her obligation to inform the GMC of the result of the SMC’s [sic] disciplinary processes”; and, (iii) that the last act of misconduct took place in August 2007, so that Rule 4(5) of the GMC’s Rules precluded the matter from proceeding further.

On 27^th August 2013, the GMC informed the Claimant that a Case Examiner had agreed an interim order was not necessary. However, by a further letter dated 28^th August 2013, the GMC informed the Claimant that its position was that Rule 4(5) (the Five Year Rule) was not engaged because “the most recent events” giving rise to the allegation was the High Court’s decision of 1^st July 2013 and the Registrar was, therefore, “entitled to direct that an investigation be carried out”. On 13^th September 2013, the Claimant’s representative wrote to the GMC repeating, inter alia, the contention that Rule 4(5) precluded the GMC from taking any regulatory action in respect of the SMC determination.

On 23^rd September 2013, the GMC informed the Claimant that the investigation had concluded and gave notice of the matters to be considered by the Case Examiners. On 11^th November 2013, the GMC informed the Claimant that the matter would be referred to a Fitness to Practise Panel (“FPP”). On 16^th May 2014, the GMC formally notified the claimant that she was to face charges before the GMC’s FPP based on (a) the fact that the Claimant had been found guilty on 17^th July 2013 of professional misconduct by the SMC and (b) the Claimant’s failure to notify the GMC of the Singapore SDC’s determination.

On 25^th June 2014, an FPP was convened to consider the Claimant’s case. The Panel considered an application made on the Claimant’s behalf for the matter to be adjourned because her counsel could attend. The Panel agreed not to proceed and adjourned the hearing. On 19^th January 2015, a second FPP was convened to consider the Claimant’s case. The Panel sat for three days and considered the two issues raised by the Claimant. First, the Claimant contended that the Five Year Rule in Rule 4(5) precluded the Panel from considering the determination further (the ‘Five Year Rule Issue’). Second, the Claimant contended no notification duty arose under paragraph 58 of the GMC’s Guidance prior to the High Court of Singapore’s July 2013 Judgment (the ‘Notification Duty Issue’). The FPP ruled against the Claimant on both issues. On 20^th January 2015, the FPP stated its view that the time limit in Rule 4(5) was not engaged. On 21^st January 2015, the FPP rejected the Claimant’s paragraph 58 application and stated its view that a notification duty first arose on 12^th July 2012 when the SDC made its determination.

On 26^th March 2015, the Claimant commenced the present proceedings in which it challenges the FPP’s decisions on both issues. On 18^th May 2015, Kenneth Parker J gave permission to the Claimant to bring judicial review proceedings in relation (a) the ‘Notification Duty Issue’ and (b) but observed that nothing in his permission Order was intended to preclude the GMC from raising at the substantive hearing the argument set out in its Summary Grounds to the effect that the Claimant’s JR application was out of time

Section 53 of Singapore’s Medical Registration Act 1998 provides:

Section 55 of Singapore’s Medical Registration Act 1998 provides:

Section 35D(2) of the Medical Act 1983 provides:

Section 35C(2) of the 1983 Act provides:

Rule 4(5) of the GMC’s 2004 Rules provides:

Paragraph 58 of the GMC’s Guidance provides under the heading “Probity” and “Being honest and trustworthy”:

Paragraph 3 of the GMC’s Supplementary Guidance provides the following guidance as to “how to comply with [the paragraph 58] duty”:

have had your registration restricted, or have been found guilty of an offence, by another medical or other professional regulatory body.”

There are three issues of law for determination:

The first issue (the Notification Duty Issue) was formulated by the Claimant as follows: Is the condition precedent for paragraph 58 of the GMC’s Guidance notification duty triggered by SMC findings and action which are under challenge on a Medical Registration Act 1998 s.55 suspensive statutory appeal? I prefer to put the question more simply:

The question raises a short point of construction in relation to paragraph 58 of the GMC’s Guidance. The GMC said that the Claimant had a duty under paragraph 58 of the GMC Guidance to notify the GMC without delay on publication of the SDC’s determination of 17^th July 2012 but she failed to do so. The Claimant contended that the effect of her statutory appeal was to suspend entirely the SDC’s determination, and she only came under a duty to notify the GMC of the SDC’s determination once her appeal had been dismissed by the Singapore High Court nearly a year later on 28^th June 2013.

The FPP held that the Claimant’s paragraph 58 obligation to report the SDC’s determination to the GMC arose on 17^th July 2012. The FPP’s reasoning was as follows. First, it was only “the order” (i.e. the sanction against the Claimant’s registration) that was held in abeyance pending her appeal pursuant to s.55(12) of the Singapore’s Medical Registration Act 1998; and, accordingly, the finding of the Disciplinary Committee made against her as a registered practitioner “remained extant” (paragraph 12). Second, paragraph 4 of the GMC’s Supplementary Guidance stated that the obligation to inform arose where the practitioner’s registration “has been restricted or the practitioner has been found guilty of an offence by another medical or other professional regulatory body”. In the present case, the Claimant had been found by the SDC “to be guilty of an offence, namely professional misconduct, which offence did not go into abeyance by reason of the appeal” (paragraph 14). Third, the FPP accordingly held that “the order of sanction was at no stage quashed or otherwise revoked” (paragraph 14).

The Claimant challenged the FPP’s finding and reasoning. Mr Fordham QC for the Claimant submitted that the FPP misunderstood the effect of s.55 of Singapore’s Medical Registration Act 1998 and what he called the ‘true suspensive effect’ of a statutory appeal. His argument can be briefly summarised as follows: (i) orders made under s.53(2) were the ‘embodiment’ of adverse findings made under s.53(1); (ii) challenging an order was the vehicle for challenging the finding; (iii) findings were ‘part and parcel’ of the order and it would be ‘absurd’ to disentangle the two; (iv) s.55(11) simply dealt with when findings will be overturned; (iv) the Claimant’s appeal had been an appeal against both the findings and the order which ‘embodied’ those findings; and, accordingly, (v) the effect of the statutory appeal was to suspend both the findings and the order.

Mr Pievsky for the GMC submitted that paragraph 58 should be interpreted straightforwardly, a finding of guilt of professional misconduct was not somehow cancelled or suspended by an appeal and the underlying duty of candour owed by a doctor meant that it should be disclosed without delay after that finding had been made.

Neither side called evidence of Singapore law, or sought to suggest that the rules of statutory interpretation were any different from English law. In the absence of evidence of foreign law, the court will apply English law (see Dicey on Conflicts of Laws, Rule 18 and Bumper Developments Corpn v. Commissioner of Police of the Metropolis [1991] 1 WLR 1362, 1369 (CA)).

Mr Fordham QC’s essential argument can be boiled down to one proposition: the SDC’s finding of professional misconduct on 17^th July 2012 was not a “finding” capable of triggering the paragraph 58 duty because the Claimant’s s.55(12) appeal had the effect of suspending both the SDC’s “order” and “findings”. This argument does not, however, survive even a brief examination of the Singapore legislation. The Singapore Medical Registration Act 1998 draws a clear distinction between a “finding” and an “order”. These concepts are separately and distinctly referred to in e.g. s.55(11) and s.55(12) respectively. S.55(12) refers only to orders:“… the order shall not take effect unless confirmed by the High Court” etc. This the classic language of (mere) stay of execution (c.f our White Book). Further, s.55(12) only applies to an appeal against “…an order referred to in section 53(2) or 54”. S.53(2) refers solely to orders by way of sanctions (as does s.54). S.53(2) is to be contrasted to s.53(1) which refers to “findings” not orders. S.54(7) provides in similar language to s.55(12) that “an order… for removal… or suspension… shall not take effect” for 30 days (to allow time for the lodging of an appeal). There is no suggestion in s.55(11) that a “finding” of the SDC is capable of being suspended pending an appeal. Indeed, s.55(11) confirms the tenacity of first instance findings of fact by making it clear that the High Court “must accept as final and conclusive any finding of the Disciplinary Tribunal” unless it is unsafe, unreasonable etc.

Mr Fordham QC sought to wrap the findings and order together using semi-sophisticated legal language (e.g. ‘the orders were the ‘embodiment’ of adverse findings’). This is no answer, however, to the plain and pellucid language of the 1998 Act which makes a clear distinction between orders and findings (see above). A finding is no less a finding merely because the order resulting from it is stayed. The SDC’s finding was plainly a “finding against registration”within the meaning of paragraph 58 of the GMC’s Guidance (see above). It was adverse or inimical to the Claimant’s registration.

Mr Fordham QC also placed reliance on the GMC Supplementary Guidance (see above). In my view, however, it contains no comfort for the Claimant. The GMC Supplementary Guidance provides in clear and simple terms that a practitioner must inform the GMC without delay if, anywhere in the world, he or she has been found “guiltyof an offence” by another professional body. The SDC did so find. The SDC’s Decision found in terms: “This DC accordingly finds unanimously that Dr Lim is guilty of professional misconduct…” (see paragraph 6.1 of the SDC decision). Accordingly, in my judgment, the Claimant came under a duty immediately to inform the GMC after the SDC’s decision on 17^th July 2012. This conclusion is consonant with the duties of candour, probity and integrity which are emphasised generally in the GMC’s regulations and guidance. There is, moreover, every reason why the GMC would wish to have immediate notice of a FTP finding by a foreign professional body, not least because the GMC might wish to commence its own timely investigation, disciplinary proceedings and/or interim order proceedings. As Ms Rowland of the GMC said in her helpful statement, it is plainly in the public interest that the GMC has early notice of matters which potentially impact on medical practitioner’s fitness to practice and, therefore, has the opportunity to take appropriate interim action.

For these reasons, in my judgment, the first issue should be answered in the affirmative:

The second issue (The Five Year Rule Issue) was formulated by the Claimant as follows: The question is whether, in a case involving alleged professional misconduct (Medical Act 1983s.35C(2)(a)) as determined by another regulatory body (s.35C(2)(e)), the “most recent events” for the purposes of the Five Year Rule (rule 4(5)) are those concerning the practitioner’s alleged professional misconduct or whether they are and include the regulatory body’s determination? I prefer again to put the question more simply:

The FPP ruled that the words in Rule 4(5) “…the most recent event giving rise to the allegation…” referred to the SDC determination itself dated 17^th July 2012. The Claimant challenged this ruling.

Mr Fordham QC submitted on behalf of the Claimant that words “the most recent event” in Rule 4(5) referred to the actual misconduct found by the regulatory body, not the regulatory body’s determination itself. His argument can briefly be summarised as follows:(i) the rationale of the Five Year Rule was to avoid hearings regarding stale events; (ii) the FPP has to determine whether a practitioner’s “fitness to practise … is impaired” under s.35C(2)(e) by reference to a list of matters in s.35C(2)(a)-(da), which was, therefore, always ‘referential’ in nature; (iii) the regulatory body’s determination is evidential and ‘illuminates the subject-matter’ but it is not itself the subject-matter; (iv) were it otherwise, the GMC could allow more than five years to elapse in relation to s.35C(2) fitness to practise events and the practitioner could find him or herself on the receiving end of an allegation before a FPP, based on the very same subject-matter and the very same events - and without any consideration of exceptional public interest, i.e. the five year period restarting again from the date of the determination of some other body which has made its own decision and applied the time limits under its own scheme.

Mr Pievsky submitted on behalf of the GMC that the words “the most recent event” in Rule 4(5) referred to the regulatory body’s determination, not the historic misconduct itself. He submitted that in determination cases under s.35C(2)(e), just as in conviction cases under s.35C(2)(c), it does not make sense to regard the “events” in question as solely the doctor’s conduct. They logically must include the conviction, caution, or determination itself, because those are the very things which under the statute are the reason for the allegation of impaired fitness.

In my view, a short examination of the plain words of Rule 4(5) show Mr Fordham QC’s argument is wrong. Rule 4(5) states that, absent exceptional circumstances, no “allegation” shall proceed further if more than five years have elapsed since “the most recent events giving rise to the allegation” absent exceptional circumstances. If one asks the question ‘What is the allegation in question?’, the answer is clear: the index allegation is that levelled against the Claimant by the GMC and referred to in the GMC’s letter to the Claimant dated 19^th July 2013 and Notice of Hearing dated 16^th May 2014, namely “On 17 July 2012 you were found guilty of professional conduct by Singapore Medical Council (“SMC”)… and the following penalty was ordered…”. If one then asks the question ‘What are the most recent events giving rise to the allegation in question?’, the answer again is clear: the most recent event giving rise to the allegation is that, on being informed of the SMC’s determination dated 17^th July 2012, the Claimant did not inform the GMC without delay.

Further, s.35C(2) provides that a person’s fitness to practice is impaired by inter alia “(a) misconduct…”, “(c) a conviction or caution…” or “(e) a determination by a [foreign] regulatory body…”. In this case, sub-paragraph (e) applied: the determination by the foreign regulatory in question was that of the SMC dated 17^th July 2012. The most recent event giving rise to the allegation impairing fitness to practice is, therefore, the failure to inform the GMC of the “determination” by the foreign body, not the facts giving rise to the determination itself. Contrary to Mr Fordham QC’s argument, there is nothing unique about sub-paragraph (e). The trigger for the application of s.35(C)(2) was “a determination” as opposed to e.g. “a conviction” or “a caution”.

In my view, this construction makes good sense. The GMC would have no knowledge of, let alone control over, how long particular foreign professional bodies might take to bring disciplinary proceedings, which might vary widely. Mr Fordham QC’s construction requires a re-writing of both the Singapore legislation and the GMC Rules and Guidance.

For these reasons, in my judgment, the second issue should be answered in the affirmative:

The third issue (The Delay and Jurisdiction Issue) can be formulated as follows:

On this issue turns the question of whether the Claimant’s application for judicial review was a year out of time. The Defendant contends that the Claimant’s Rule 4(5) challenge is out of time because the Claimant failed to bring judicial review proceedings when the GMC refused to discontinue the proceeding on 28^th August 2013. The Claimant contends that she was entitled to wait until the matter came before the FPP to raise the Rule 4(5) point definitively. The Defendant’s response is that the FPP has no Rule 4(5) jurisdiction and only the Registrar has the power to make a Rule 4(5) determination; and that, accordingly, the Claimant’s sole remedy was to bring judicial review proceedings against the decision of 28^th August 2013 but was now well out of time.

The Panel accepted that it did have power to entertain a Rule 4(5) submission from the doctor. The GMC disagree with that conclusion.

Mr Fordham QC for the Claimant submitted that the Panel did have power to rule on Rule 4(5). He further submitted that the fact that the Claimant could have brought judicial review proceedings earlier does not mean that the Claimant was not entitled to wait for the FPP to determine the issue. He submitted that, for the purpose of judicial review proceedings, time only started to run from the date of the FPP’s ruling on Rule 4(5), namely 20^th January 2015.

Mr Pievsky submitted that the Claimant accepted that she was aware of the Registrar's decision that Rule 4(5) did not preclude the allegations from proceeding and, indeed, the decision was vigorously disputed in correspondence in August 2013. The GMC refused to discontinue the case on 28^th August 2013, giving reasons but there was no attempt to challenge the continuation of the case by way of judicial review. Thereafter, the matter proceeded to a substantive hearing. The Rules do not provide for any right of appeal from, or review of, a Registrar's decision on a Rule 4(5) issue. Therefore, the appropriate way to challenge such a decision, if it is believed to be unlawful, is by way of judicial review. In this case, the grounds to challenge the Rule 4(5) decision “first arose” in August 2013, so any such judicial review should have been commenced within three months of August 2013. It followed, Mr Pievsky submitted, that the Claimant’s judicial review application commenced on 26 March 2015 was over a year out of time.

In my view, it is clear that the power to decide whether the Five Year Rule applies under Rule 4(5) is granted to the Registrar and the Registrar alone. The reason is simple: only the Registrar has the discretion to decide whether the ‘exceptional circumstances’ exception applies, i.e. whether the public interest justifies allowing the case to proceed notwithstanding the expiration of five years since the events in question. Nowhere in the Rules it is suggested that anyone else – whetherthe Assessors or the FPP – has this discretion. Rule 4(5) comprises a package i.e. a prohibition with an exception. Rule 4(5) cannot operate shorn of the exception (the ‘exceptional circumstances’ discretion). Accordingly, only the Registrar has the Rule 4(5) power.

This reasoning is consonant with the decision in R (Peacock) v. GMC [2007] All ER (D) 294 where Gibbs J explained that it was appropriate for the Court to consider a challenge to a Registrar’s Rule 4(5) decision because there was no later stage in the proceedings, i.e. subsequent to the Registrar’s Rule 4(5) decision, at which any GMC tribunal would be able to consider ‘exceptional circumstances’ (see paragraph 25).

This reasoning is also consistent with my decision in R (Chaudhuri) v General Medical Council[2015] EWHC 6621 (Admin)where I held that the Registrar has the power to correct fundamental mistakes or misunderstanding as to the application of the five-year rule at any stage of the process (see paragraph 56).

For these reasons, in my judgment, the third issue should be answered as follows:

For the above reasons, I find in favour of the GMC in relation to each of the Issues. I uphold the FPP’s decisions on the first two issues (the ‘Five Year Rule Issue’ and the ‘Notification Duty Issue’) but find the FPP was wrong in law in relation to the third issue (the ‘Delay Jurisdiction Issue’).

As to the third issue, a challenge to a Rule 4(5) decision should be made ‘promptly’ after the Registrar’s decision (see R (Hayward) v. GMC [2007] EWHC 2236 (Admin), R (Kashyap) v. GMC [2009] EWHC 2873 (Admin). It follows that the Claimant could and should have brought judicial review proceedings within three months of the GMC’s notification on 28^th August 2013 of its refusal to apply Rule 4(5). The Claimant’s Rule 4(5) challenge was, therefore, well over a year out of time.