Lee, R (on the application of) v The General Medical Council [2018] EWCA Civ 99

Case No C1/2016/0687[2018] EWCA Civ 99
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2016] EWHC 135 (Admin)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE DIVISION
MR JUSTICE HADDON-CAVE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/02/2018
Before
LADY JUSTICE RAFFERTYSENIOR PRESIDENT OF TRIBUNALSLORD JUSTICE DAVID RICHARDS
Between
The QueenAppellantThe General Medical CouncilRespondent
Mr M Fordham QC & Mr J Pobjoy (instructed by Bindmans LLP) for AppellantMr D Pievsky (instructed by GMC) for RespondentHearing Hearing dates :17 th October 2017
JudgmentLady Justice Rafferty :Factual background
[1]This is an appeal from the 28th 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.[2]The history is set out in the judgment at paragraphs 5-14 and does not require rehearsal here. A synopsis suffices.[3]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.[4]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.[5]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.[6]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.[7]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

The legal framework

[8]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.[9]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[10]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.[11]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).[12]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

[13]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.[14]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.”
[15]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

[16]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.”
[17]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.[18]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.[19]Haddon-Cave J found her suggestion that as at 17 July 2012 there was no finding capable of triggering the duty in paragraph 58 to be unsustainable. Her case was also inconsistent with wider considerations of candour, probity and integrity.[20]As to the second, the “most recent events” in Rule 4(5) triggering the five year period included the SMC’s findings and/or the Appellant’s failure to notify the GMC. They were not to be equated with the most recent acts of misconduct. In any event the claim was out of time, because power to make a five year determination was exclusive to the Registrar and not open to the FPP. Appellant’s submissions.[21]Grounds of Appeal complain that the Judge wrongly concluded that the Appellant had a duty to notify the GMC after the SDC’s 17 July 2012 determination; should have concluded that in a s35C(2)(e) case the five-year period runs from no later than the date of the last act of misconduct and/or wrongly treated a failure to inform the GMC as a “relevant event” within the scope of that Rule; and wrongly concluded that the FPP had no power to entertain the Rule 4(5) application.

Ground 1 The Notification Duty

[22]The Appellant argues that the duty to notify is framed as applicable where another professional body has made a finding against registration as a result of fitness to practise procedures as opposed to where a practitioner has been charged before another professional body. It applies not to an interim position but to outcome. The SG is what its title suggests, supplementary, so the paragraph 58 requirement remains and it requires a finding against registration. Adverse findings are given practical effect through action against registration. The GMC’s April 2014 Indicative Sanctions Guidance reads of action against registration and of findings actioned or effected against registration. Thus upon an interim finding there can be no finding against registration. The same is true where findings have no legal effect against registration pending appeal, as she suggests bites in this case.[23]The Judge found her duty to notify the GMC arose from the date of determination, 17 July 2012. He held that “finding against registration” means a finding adverse or inimical to registration even when the resulting order is stayed. The only thing which takes no effect is the order.[24]He described her argument, which he considered involved semi-sophisticated legal language as to orders, the embodiment of adverse findings, was defeated by plain and pellucid language. The SG he said supported his approach as did reasons of probity and policy. Any paragraph 58 duty arose when the SDC made its determination on 17 July 2012, triggering her duty immediately to inform the GMC.[25]The Appellant argued before us that findings are adverse to registration only when actioned or effected against it. She submits that they were not, as from 21 June 2012 when the question was not addressed. S55(12) 1998 Act precluded action taking effect until the appeal was dismissed. The findings but for the appeal would have been adverse to registration from 17 July 2012, and they were adverse from 1 July 2013.[26]Haddon-Cave J, having held that the adverse finding was the decision suspended pending appeal, considered that s.55(11) confirms the tenacity of first instance findings of fact, which made good sense in the light of probity and policy. The Appellant contends that its function is instead to identify the threshold for overturning findings on appeal. The other professional body’s decision involved no action taking effect – there was no interim suspension - and protected her against publicity. Discussion and conclusion on the notification duty.[27]Paragraph 58 GMP obliges a doctor to inform the GMC without delay if, worldwide, another professional body makes a finding against her registration. Reference is not to sanction or order but to finding. In my view “against your registration” means that the finding must be adverse to a doctor’s position as a registered professional. I am not persuaded that it converts the trigger for notification from finding into anything other.[28]If I were in doubt about what paragraph 58 means (and I am not) it would be resolved by reading SG paragraph 4 where I find explained that the duty bites, in particular, when registration has been restricted or the doctor is found guilty of an offence by another medical or other professional body. The SG requires such a doctor to notify the GMC without delay whether or not a sanction be imposed. I find it difficult to see what else is meant by “…or have been found guilty of an offence by another professional regulatory body”. If the Appellant be right, and a doctor need notify the GMC only when registration is restricted by action, I would expect in paragraph 4 to read a noun reflecting imposition of a sanction.[29]The Appellant points out, correctly, that the SG is what its title suggests, supplementary. That said its purpose can only be help for doctors seeking to comply with the duty rehearsed in paragraph 58, since that is what the SG sets out.[30]This case is productively viewed in context. The facts found are accepted as serious professional misconduct. The GMC’s overriding duty is protection of the public and the upholding of standards. It is against that backdrop that what Haddon-Cave J described as the candour and probity requirement is to be seen. He found the GMC’s approach to the notification duty consonant with that descriptor and I agree. Candour is a noun which eschews the technical but imports a requirement of openness. It does not permit of hiding behind, or, put more kindly, reliance upon strained or artificially stratified construction. Plainly – and, I would add, simply – a doctor is expected timeously to notify the GMC of a finding of guilt elsewhere.[31]To make the point good from another direction, it would be surprising were it permissible let alone acceptable that the Appellant should have been found guilty of professional misconduct but had no obligation to notify the GMC. It cannot be or have been in contemplation that a practising doctor, in whom statute contemplates the public being entitled to repose its trust, could identify and advance a technical approach whose sole purpose was her own advantage.[32]Further to reinforce the central importance of the motif of candour and probity, identified by Haddon-Cave J, is the express requirement that the GMC begiven prompt notice of any adverse findings by other regulators. The object is easily understood: the GMC is thus equipped to make an informed decision consequent upon adverse findings. Findings by definition precede sanction, and choice of the adjectival “any” adverse findings is important. It would be open to a foreign regulator to conclude adversely but to eschew sanction, even for very serious misconduct, where mitigatory factors are potent.[33]Haddon-Cave J’s description of candour and probity as defining what should found the behaviour of the practitioner is entirely apt and I gratefully adopt it.[34]The Appellant argued that her position is right in law and that of the GMC wrong in law. The difficulty she faces emerges from examples distant from these facts. Serious professional misconduct might be found against a doctor who, it was to be discovered post-finding, at considerable professional and personal cost had provided evidence of widespread wrongdoing involving other practitioners.Or a doctor might seek to adduce support, post-finding, for personal and/or professional stressors. If the SMC took time to reflect, post-adverse finding, so as to receive material information going to sanction but neither germane to nor admissible as to liability, on the Appellant’s argument the GMC could permissibly remain uninformed for the duration of that reflective exercise. That cannot be right. Not only is it defeasible by the application of good sense but it would also fly in the face of syntax imposing promptitude.[35]Her argument also requires exhaustion of the appellate route in Singapore before she is fixed with the duty to notify. The flaw in that reasoning emerges once it is read within the context of the legal framework. Appeal hearings are not renowned for timeous listing. Is the GMC to be left unacquainted with the serious professional misconduct found against her, during which intervening period, we should remember, she could be practising without let?[36]I am not persuaded that findings, questioned in a suspensive appeal, are not secure and do not warrant action against the doctor. Were that argument tenable a doctor found guilty of several charges of misconduct but not suspended and timeously challenging only two of them would be absolved of a duty of notification. That does not withstand scrutiny either. A notification duty cannot depend on what a doctor chooses to do after adverse findings.[37]I note, finally, that Singapore legislation does not assist the Appellant. The Singapore Medical Registration Act 1998 distinguishes “findings” and “orders”. For example S55(12), silent as to findings, reads in part:
“….the order shall not take effect unless confirmed by the High Court.”
[38]The distinction is reinforced upon a reading of S53(1), referring to orders but not to sanctions, in contrast to S53(2) which refers to orders by way of sanction.[39]I would reject Ground 1.

Ground 2 The Five Year Rule

[40]Haddon Cave J held that since the trigger for S35(C)(2)(e) is a determination, five years ran from the SMC’s findings on 17 July 2012. The Appellant argues that the misconduct was the over-charging to August 2007, not the determination.[41]She submits that Haddon-Cave J recognised that misconduct should in principle be established in reliance on conduct but then elided the two charges, impermissibly introducing the wrong conduct. She accepts that the most recent event in a failure to notify is the date of the default in conduct and has never said the Five Year Rule is infringed as to that allegation.[42]The Judge she argues failed to recognise that paragraph (e), focused on the substance of the determination, is uniquely referential. It must refer back to one of the other limbs which define impaired fitness to practise and which constitute “relevant events”. What is in play here, she argues, is solely her invoicing up to August 2007.[43]She argues that as a matter of law the referential nature of S35(C)(2)(e) makes the function of the regulatory body’s determination evidential and illuminative of the subject-matter but not itself the subject-matter. She relies for support on R34(4).[44]The FPP’s view was that were the charges the subject-matter of misconduct before it the case would be time-barred under the Five Year rule. The Appellant argues that in law that was correct. She relies on the GMC’s Guidance on the Five Year Rule (May 2010): ventilation of subject-matter before other regulatory bodies is relevant to the Five Year Rule on the premise that the substance is that subject-matter.[45]The Judge concluded that given potential lack of knowledge or control over other bodies and wide variation, Five Years ran from the determination. He found the answer to “What is the allegation?” was that on 17th July 2012 she was found guilty of professional misconduct by the SMC and a penalty imposed. The answer to “What are the most recent events giving rise to the allegation?” he found was that albeit told of the SMC’s determination the Appellant failed to inform the GMC without delay. The most recent event was that failure, not the fact triggering the SDC determination. He rejected the submission that S35C(2)(e) was unique. The trigger for application of S35(C)(2)(e) was a determination.[46]The Appellant’s answer is that the Five Year Rule is not a complete bar. It allows the Registrar to consider whether public interest exceptionality justifies proceeding even when the conduct is old and the case stale. The analysis of the Five Year Rule cannot be based on compelling public interest cases which should proceed on their particular facts and circumstances. Discussion and conclusion on the Five Year Rule.[47]I am not persuaded that the most recent events could only include misconduct up to August 2007. In my view the Judge was correct that the most recent events must include the determination referred to in s35C(2)(e). Put simply and stripped of unhelpful repetition, Rule 4(5) precludes, on terms, progress of an allegation. Rule 2 defines “allegation” as that fitness to practise is impaired. The grounds sufficient to sustain that allegation are, for these purposes, set out in S35C(2) (e), a determination by a foreign regulatory body that fitness to practise is impaired.[48]In determination cases “events” include conviction, caution, or determination because they give rise to the allegation. Absent a determination there would be no event capable of constituting a s35C(2)(e) allegation. Indeed the Appellant concedes that in conviction cases “events” must include the conviction.[49]The primary purpose of the Five Year Rule emphasises that timeous complaint is a precursor to prompt reaction and action so as to achieve fairness to all. Whilst on the one hand a doctor might by delay be compromised in answering allegations about matters years ago, in the Appellant’s case the facts were comprehensively examined and determined in proceedings brought in good time before the SMC. The position was then reviewed in the SHC.[50]Rule 34(4) does not assist the Appellant. In a determination case, any misconduct found proved by another regulator will be the starting point for the GMC. The FPP does not begin again, and reconsider the underlying conduct allegations: – Rule 34(5).[51]As Haddon Cave J found and as I have accepted the GMC might be unaware of and lack control over the length of foreign regulatory proceedings. It would be surprising if, as a result of another regulator’s tardiness in determining allegations of impaired fitness to practise, the GMC’s response should be restricted. 6 years after the misconduct in this case the GMC remained ignorant of the SMC’s proceedings. Given that Rule 4(5) protects doctors against the stale or the slow, on these facts it is hard to see why it should operate. If the Appellant be correct, as early as July 2013 the GMC was precluded from considering the matter absent reliance on exceptional circumstances. I find that difficult to accept.[52]I would reject Ground 2.53. Since the Appellant has not succeeded on Ground 2 it is unnecessary to reach a conclusion on Ground 3,delay jurisdiction. It would be academic to contemplate whether, had she succeeded on Ground 2, the GMC could successfully have resisted her appeal by persuading this court that she lacked entitlement to advance her otherwise successful argument.54. I would reject this appeal. Lord Justice Ryder:55. I agree. Lord Justice David Richards:56. I also agree.

Cited in 1 later judgment