Lee, R v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | MrJustice Haddon-Cave |
| Judgment Date | 28 January 2016 |
| Neutral Citation | [2016] EWHC 135 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 January 2016 |
| Docket Number | Case No: CO/1473/2015 |
[2016] EWHC 135 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Haddon-Cave
Case No: CO/1473/2015
M. Fordham QC and J. Pobjoy (instructed by Bindmans LLP) for the Claimant
D. Pievsky (instructed by GMC Legal) for the Defendent
Hearing date: 24 November 2015
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 FACTS
Background Facts
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.
Singapore proceedings 2012–2013
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.
GMC proceedings — 2013–2015
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.
FPP proceedings
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.
Judicial review proceedings
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
THE LAW
Singapore legislation
Section 53 of Singapore's Medical Registration Act 1998 provides:
"(1) Where a registered medical practitioner is found by a Disciplinary Tribunal —
(a) to have been convicted in Singapore or elsewhere of any offence involving fraud or dishonesty;
(b) to have been convicted in Singapore or elsewhere of any offence implying a defect in character which makes him unfit for his profession;
(c) to have been guilty of such improper act or conduct which, in the opinion of the Disciplinary Tribunal, beings disrepute to his profession;
(d) to have been guilty of professional misconduct; or
(e) to have failed to provide professional services of the quality which is reasonable to expect of him,
the Disciplinary Tribunal may exercise one or...
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