Lee, R (on the application of) v The General Medical Council, Court of Appeal - Civil Division, February 06, 2018, [2018] EWCA Civ 99

Resolution Date:February 06, 2018
Issuing Organization:Civil Division
Actores:Lee, R (on the application of) v The General Medical Council
 
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Case No: C1/2016/0687

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

[2016] EWHC 135 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/02/2018

Before :

LADY JUSTICE RAFFERTY

SENIOR PRESIDENT OF TRIBUNALS

and

LORD JUSTICE DAVID RICHARDS

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Between :

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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 :17th October 2017

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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

  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...

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