A Duty to Notify Decisions under Appeal

A case, R (Lee) v GMC [2016] EWHC 135 (Admin), which originated in Singapore found its way to the Administrative Court, which is a specialist court of the Queen’s Bench Division of the High Court, this year. The case concerned the duty of a doctor to notify the General Medical Council (“GMC”) of a finding of professional misconduct in another jurisdiction while this decision was under appeal.

The Claimant was a registered medical practitioner with 25 years practise experience and was the physician responsible for co-ordinating the care and treatment of a member of the Royal Family of Brunei for periods in 2001 and between 2004 and 2007.

In December 2007, the Ministry of Health Singapore received a letter from the patient complaining of excessive charges. It was alleged that the Claimant had charged the patient $24 million Singapore Dollars.

The Singapore Medical Council (“the SMC”) commenced discliplinary proceedings and in 2012 the Claimant was found guilty of professional misconduct, suspended for 3 years, censured and fined the maximum penalty of $10,000 Singapore Dollars. The Claimant was also required to give an undertaking to charge fair and reasonable fees in the future.

The Claimant appealed this to the Singapore High Court who dismissed the appeal and upheld the Singapore Disciplinary Committee’s (“the SDC”) findings.

In 2013, the SMC wrote to the GMC notifying them of their findings and the sanctions against the Claimant. The GMC wrote to the Claimant informing her of the SMC’s correspondence and pointing out that she had failed to notify them of the SMC’s adverse determination in accordance with the GMC’s Good Practice Guide (“the GMC’s Guidance’).  Following a preliminary investigation by the GMC this matter was sent forward to a Fitness to Practise Panel (“the FPP”).

The Claimant contended that the ‘Five Year Rule’ in the GMC’s Rules precluded the FPP from considering the determination in Singapore and further that no notification duty arose under the GMC’s Guidance prior to the High Court of Singapore’s judgment. Rule 4(5) of the GMC’s rules states that 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.

The FPP found that a duty to notify the GMC of the SDC’s determination did arise. Leave to bring judicial review proceedings was sought and granted with the following three issues of law for determination:-

1. Duty to Notify: Did a duty exist on a doctor to notify the GMC promptly of adverse disciplinary findings contained in a foreign regulator’s decision, whilst that decision was under appeal?

2. The Five Year Rule: Whether the time limit, as set out in Rule 4(5) of the GMC’s rules, (where there is an inquiry by a regulator in another jurisdiction) starts to run from the last act of misconduct abroad or the date of the SDC’s determination?

3. The Delay Jurisdiction Issue: The GMC argued that the Claimant should have sought leave for judicial review of the GMC Registrar’s decision in relation to the Five Year Rule at the initial stage of the proceedings. The Claimant contended that she was entitled to wait for the FPP decision and then to subsequently judicially review the FPP’s decision.

The Court resolved all three issues in favour of the GMC; the registrant had a duty to notify of the adverse finding, the five years ran from the date of the SDC’s determination; and judicial review proceedings should have been issued at the initial stage of the proceedings in relation to the five year rule.

While UK case law is not binding on Irish Courts, it is persuasive in this jurisdiction.

A copy of the full judgment is available here. 

Author: Elaine Morrissey and James Roddy