The Queen (on the application of Susan Lim Mey Lee) v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice David Richards,Lord Justice Ryder,Lady Justice Rafferty |
| Judgment Date | 06 February 2018 |
| Neutral Citation | [2018] EWCA Civ 99 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2016/0687 |
| Date | 06 February 2018 |
Neutral Citation Number: [2018] EWCA Civ 99
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE DIVISION
MR JUSTICE HADDON-CAVE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty
SENIOR PRESIDENT OF TRIBUNALS
and
Lord Justice David Richards
Case No: C1/2016/0687
Mr M Fordham QC & Mr J Pobjoy (instructed by Bindmans LLP) for the Appellant
Mr D Pievsky (instructed by GMC) for the Respondent
Hearing dates: 17 th October 2017
Factual background
This is an appeal from the 28 th January 2016 decision of Haddon-Cave J who found against the Appellant surgeon and for the General Medical Council (“GMC”). The Appellant surgeon was registered and practised in Singapore, for several years treating a member of the royal family of Brunei. 94 proved allegations of professional misconduct were that she excessively charged her patient and issued misleading invoices.
The history is set out in the judgment at paragraphs 5–14 and does not require rehearsal here. A synopsis suffices.
On 17 July 2012 the Singapore Medical Council (“SMC”) published the Singapore Disciplinary Council (“SDC”)'s reasoned determination which described the misconduct as particularly serious. It suspended the Appellant from practice for three years, censured her, imposed a $10,000 penalty and required an undertaking she should in future charge fair and reasonable fees. When on 16 August 2012 she appealed to the Singapore High Court (“SHC”) against findings and sanction the SDC order was suspended and was not published pending appeal. She continued to practise in Singapore without restriction.
The SHC's judgment published on 1 July 2013 dismissed her appeal. Her three-year suspension from the register in Singapore began on 2 July 2013. On 15 July 2013 the SMC notified the GMC. On 19 July 2013 the GMC notified her, invited her to respond, and set out her failure to inform it of the determination, referring her to paragraph 58 of GMC's Good Medical Practice (2006) (“GMP”). On 14 August 2013 her legal representative wrote to the GMC contending that her failure to inform was contending that her failure to inform was not an act of misconduct since she considered her GMC membership effectively honorary and that as the final misconduct was in August 2007, GMC rule 4(5) (the Five Year Rule) operated to prevent the matter from proceeding.
On 28 August 2013 the GMC disavowed operation of the Five Year Rule since the most recent event triggering the allegation was the SHC's decision of 1 July 2013 and the GMC's Registrar was entitled to direct an investigation. On 13 September 2013 the claimant repeated to the GMC her contention. On 11 November 2013 she was told that the Case Examiners had considered the Five Year Rule and found that no prohibition arose.
On 16 May 2014 the GMC notified her she was to face charges before a Fitness to Practise Panel (“FPP”) based on the finding of guilt and on her failure to notify. On 21 January 2015 after a three day hearing a FPP found the Five Year Rule was not engaged but that a notification duty arose on 17 July 2012 upon the SDC determination.
The claim for judicial review begun on 26 March 2015 was on two fronts: Did paragraph 58 GMP require the Appellant to inform the GMC of the 2012 findings without delay notwithstanding a suspensive appeal to the SHC determined on 1 July 2013? Where s35C(2)(e) Medical Act 1983 applies, does the Five Year Rule run from the last date of proven misconduct (her case), or from the date of the relevant determination referred to in s35C(2)(e) (the GMC's)?
The legal framework
Singaporean legislation .
The Singapore Medical Act 1998
S53 empowers the SDT when the practitioner has been found guilty of professional misconduct to take action which includes suspension, censure, and imposition of a financial penalty.
The Singapore Medical Registration Act 1998.
S55 reads where relevant:
A registered medical practitioner…dissatisfied with a decision of the DT …may within 30 days after the service of ……the notice of the order, appeal to the High Court against the order…..
(11) In any appeal….the High Court shall accept as final and conclusive any finding of the DT relating to any issue of …….standards of professional conduct unless such finding is in the opinion of the High Court unsafe unreasonable or contrary to the evidence.
(12)……where a ….practitioner has appealed to the High Court against an order referred to in section 53(2)…the order shall not take effect unless the order is confirmed by the High Court or the appeal is ……dismissed ….or is withdrawn
Domestic Legislation .
The Medical Act 1983
The over-arching objective of the GMC is to protect, promote and maintain the health, safety and wellbeing of the public, promote and maintain public confidence in the profession, and promote and maintain proper professional standards and conduct for members of the profession.
Impaired fitness to practise is defined in S35C which reads where relevant:
35C Functions of the Investigation Committee
….
(2) A person's fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of—
(a) misconduct;
(b) deficient professional performance;
(c) a conviction ….which, if committed in England and Wales, would constitute a criminal offence;
(d) adverse physical or mental health; or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect….
(4) The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Fitness to Practise Panel.
(5) If the Investigation Committee decide that the allegation ought to be considered by a Fitness to Practise Panel—
…
(b) the Registrar shall refer the allegation to a Fitness to Practise Panel; and
(c) the Registrar shall serve a notification of the Committee's decision on the person who is the subject of the allegation and the person making the allegation (if any).
A FPP may erase a practitioner's name from the register, suspend her or impose conditions on registration. If the right to appeal to the High Court is not invoked, absent an order suspension or erasure will take place after 28 days. If the doctor does invoke the right it will take effect when the appeal is dismissed or withdrawn.
The GMC (Fitness to Practise) Rules 2004
The GMC (Fitness to Practise) Rules 2004 (“the Rules”) set out three stages: Initial consideration by the Registrar under Rule 4, investigation and consideration by Case Examiners under Rule 8 and determination of whether the allegation should proceed, and if relevant determination of the allegation by the FPP.
Rule 4 where relevant reads:
“(1) An allegation shall initially be considered by the Registrar.
(2) Subject to paragraphs (3) to (5) and Rule 5, where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8.
…
(5) No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed.”
Rule 17 requires a FPP to consider allegations, hear evidence, make findings of fact, determine whether fitness to practise is impaired, announce its finding, and if relevant consider further evidence and submissions on sanction. Rule 34(4) provides that certification from a regulatory body which has determined fitness to practise shall be conclusive evidence of facts found proved.
GMC Guidance
Paragraph 58 GMP reads:
“You must inform the GMC without delay if, anywhere in the world, you have accepted a caution, been charged with or found guilty of a criminal offence, or if another professional body has made a finding against your registration as a result of fitness to practise procedures.”
Paragraph 3 GMC's Supplementary Guidance: Reporting Criminal and Regulatory Proceedings Within and Outside the UK (“SG”) reads where relevant:
“You must inform the GMC without delay if, anywhere in the world, you: …have had your registration restricted, or have been found guilty of an offence, by another medical or other professional regulatory body.”
It is important that the GMC takes prompt and appropriate action to protect patients when a doctor's fitness to practise is in question…”
The challenged decision.
Haddon-Cave J dismissing both aspects of the judicial review claim held as to the first that the Appellant's interpretation of paragraph 58 GMP ignored a distinction between an adverse finding and an adverse order. He distilled the approach of the FPP as that only the order, that is the sanction against registration, was held in abeyance pending appeal and that the finding of the SDC remained extant. It had found that the GMC's SG obliged her to inform the GMC where her registration had been restricted or she had been found guilty by another regulatory body, in this case the SDC and, in this case, of professional misconduct. This offence, it concluded, did not go into abeyance consequent upon the appeal. The order of sanction was at no stage quashed or otherwise revoked.
Haddon-Cave J found her suggestion that as at 17 July 2012 there was no finding capable of...
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