R (Lee) v GMC [2016] EWHC 135 (Admin)

The High Court (Administrative Court) has ruled that a doctor who was suspended by a disciplinary committee in Singapore should have notified the GMC of the suspension immediately, notwithstanding that the suspension was stayed while an appeal was being determined. The court also determined that, for the purposes of the 'Five-Year Rule', time began to run from the date of the Singapore disciplinary committee's decision, rather than the date of the last misconduct considered by that committee.

Background – FTP proceedings in Singapore and the UK

In June 2012, L, a doctor, was found guilty by a disciplinary committee (the committee) of the Singapore Medical Council (SMC) of 94 counts relating to the level and mode of charging private medical fees. The committee found that L's misconduct had been "particularly serious" and suspended her from practice for three years, imposed a fine of $10,000 and required her to give an undertaking to charge fair and reasonable fees in future.

L appealed that decision and, by reason of s55 of the Singapore Medical Registration Act 1998 (section 55), the committee's decision was suspended, and L continued to practise in Singapore. In June 2013, the Singapore High Court dismissed L's appeal, and the committee's decision to suspend L took effect.

In July 2013, the SMC notified the UK General Medical Council (GMC) of the committee's finding and sanction. The GMC investigated and L's case was ultimately referred to an FTP panel for a hearing, which took place in January 2015. The GMC's allegations included a charge that L had failed to inform the GMC of the SMC's adverse determination (i.e. the committee's finding in 2012) in accordance with paragraph 58 of the GMC's Good Practice Guide 2006 (the Guide).

At the panel hearing, L contended that the Five YearRule as set out in rule 4(5) of the GMC (Fitness to Practise) Rules 2004 (the Rules) precluded the panel from hearing the case, as the facts underlying the complaint considered by the SMC committee dated back to 2007 or earlier. L contended further that no duty to notify the GMC had arisen under para 58 of the Guide prior to June 2013, the date of the Singapore High Court's determination in respect of L's appeal.

The panel, however, rejected both these arguments, saying firstly that the Five Year Rule was not engaged, and that the duty to notify the GMC of the committee's finding arose in July 2012. L then brought judicial review proceedings in order to challenge those findings.

Judicial review – the "notification duty issue"

The first issue considered by the HC was formulated by the court as follows: "Does a doctor have a duty under paragraph 58 of [the Guide] to notify the GMC of an adverse finding by a foreign regulatory body notwithstanding that that decision is suspended pending appeal?"

Paragraph 58 of the Guide states: "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".

L argued that her appeal in Singapore had the effect of suspending both the committee's "order" and "findings", and accordingly, as a matter of interpretation, the obligation in paragraph 58 was not triggered. However, the court rejected this argument, finding that "orders" and "findings" were clearly distinguished in section 55 and there was no suggestion that the committee's "findings" were suspended by the appeal. Accordingly, L came under an immediate duty to inform the GMC of the committee's decision in July 2012. The court found that this conclusion was consistent with the duties of candour, probity and integrity which were emphasised generally in the GMC's regulations and guidance.

Judicial review – the "Five Year Rule issue"

The court formulated this issue as follows: "Under Rule 4(5) of the [Rules] (the Five Year Rule), does the five years run from the date of last episode of misconduct found by another professional body or from the date that that body actually makes its findings?"

Rule 4(5) provides: "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 event 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."

L argued that the "most recent events" in this case were the most recent instances of misconduct which had been considered by the Singapore committee. As those instances all dated to 2007 or earlier, she contended that the GMC's case was out of time. However, the court found that the "allegation" in the GMC's case was the fact of the SMC committee's determination in 2012 and, accordingly, that determination was also the "most recent event giving rise to the allegation".

The court also had regard to section 35C(2) of the Medical Act 1983, which lists reasons for findings that doctors' fitness to practise are impaired including a "determination" by a regulatory body outside of the UK that the doctor's fitness to practise is impaired. The court found that it was the determination of the SMC committee, rather than the facts underlying it, which triggered s35C.

Judicial review – the delay jurisdiction issue

During the GMC's investigation L had argued that the case should not have been permitted to proceed, due to the application of the Five Year Rule. However, in August 2013 the GMC decided to continue the proceedings against L. She then challenged that decision at the panel hearing, but the panel ruled against her and the hearing continued.

The GMC argued before the HC that L's judicial review proceedings in respect of this issue were out of time, and that she should have challenged the GMC's decision of August 2013 (in respect of the Five Year Rule) within three months of that decision. The GMC argued that the FTP panel had no jurisdiction to decide whether the Five Year Rule applied. The court formulated the issues as follows:

"Does the [panel] have Rule 4(5) jurisdiction or does only the GMC Registrar have the power to make a Rule 4(5) determination? Were these JR proceedings brought… out of time?"

The court found that, because only the Registrar has the power pursuant to Rule 4(5) to decide whether the "public interest exception" applied, it must also be the case that only the Registrar had the power to make determinations pursuant to Rule 4(5) generally. Accordingly, the GMC's appeal succeeded.