Two bites of the apple- limitation in professional negligence cases
R (on the application of Lee) v General Medical Council  EWCA Civ 99
The Appellant, Dr Lim Mey Lee, sought to appeal against Haddon-Cave J’s decision made on 28 January 2016. Haddon-Cave J had found that the Appellant was under a duty to report adverse findings by the Singapore Medical Council (“SMC”) in relation to her fitness to practise to the General Medical Council (GMC) without delay, pursuant to paragraph 58 of the GMC’S Good Medical Practice (2006) (“GMP”). This was notwithstanding a substantive appeal to the Singapore High Court against the SMC’s decision. Haddon-Cave J also dismissed the Appellant’s argument that Rule 4(5) (“the Five Year Rule”) ran from the last date of proven misconduct, as opposed to the date of the Singapore Disciplinary Council’s (“SDC”) determination. The appeal was lodged on the basis that Haddon-Cave J’s decision was wrong in law.
The Appellant was registered in Singapore and for several years her practice included the treatment of a member of the royal family of Brunei. On 17 July 2012, the SMC found proved 94 allegations of professional misconduct, in that she had excessively charged her patient and issued misleading invoices. The SDC deemed the misconduct particularly serious. In turn, the Appellant was suspended from practice, censured, handed a $10,000 penalty and required to adhere to an undertaking that she should in future charge fair and reasonable fees. The SDC order was subsequently suspended and not published pending the Appellant’s appeal against the findings and sanction made against her. She continued to practise in Singapore during this time without restriction.
The Singapore High Court published its dismissal of the appeal on 1 July 2013 and the 3-year suspension commenced the following day. On 15 July, the GMC was notified by the SMC and subsequently notified the Appellant on 19 July, setting out her failure to inform the GMC of the determination, referring her to the GMP 2006 and inviting her to respond.
The Appellant’s response on 14 August contended that her failure to inform was not an act of misconduct since she considered her GMC membership effectively honorary and that as the final incident of misconduct took place in August 2007, the Five Year Rule prevented the matter from proceeding. The issue of her failure to notify was referred to a Panel which, on 21 January 2015, found that the Five Year Rule was not engaged and that a notification duty arose upon the SDC’s determination on 17 July 2012. Judicial review proceedings were commenced against this decision and the Court ruled in favour of the GMC.
The Appellant challenged the decision on two grounds: (1) the five-year period ought to have run from the date of the last act of misconduct and, given that it had been more than 5 years since this date, the GMC was not entitled to continue proceedings; and (2) there was no duty to notify the GMC promptly about adverse findings by a regulator abroad, in light of her appeal against those findings.
The Appellant submitted that in order for the duty to notify to arise, a finding against her registration (i.e. an outcome) was required, as per paragraph 58 of the GMP. The GMC’s April 2014 Indicative Sanctions Guidance made references to findings as “actioned or effected against registration”, indicating that an order must have been effected for a finding to be more than an interim position. Her order was stayed pending appeal, and so there could be no adverse finding against registration. As such, no notification duty arose.
The judge was “not persuaded” by this argument. Reference was not to sanction, but to a finding adverse to a doctor’s professionalism as a Registrant. Put plainly, therefore, in the interests of openness, “a doctor is expected timeously to notify the GMC of a finding of guilt elsewhere”; “it would be surprising” if the Appellant would have no obligation to notify the GMC upon a finding of professional misconduct.
Further, it would be nonsensical that the GMC could be “left unacquainted with the serious professional misconduct found against her, during which…period, she could be practising without let”, should the listing of the appeal hearing be delayed, or if “the SMC took time to … receive material information going to sanction” but not to liability after a finding was made. The Singapore Medical Registration Act 1998 also distinguishes between “findings” and “orders”. Ground 1 of the appeal was therefore rejected.
Under Ground 2 the Appellant stated that s35(C)(2)(e) of the Medical Act 1983 focussed on the substance of the determination and therefore must be referential to the “relevant events” leading to the finding of “impaired fitness to practise”. She argued that her misconduct (her invoicing in August 2007) solely was caught by the term “relevant events” and the Five Year Rule.
Rafferty LJ also rejected this submission. As the Appellant conceded, “in conviction cases ‘events’ must include the conviction”. The most recent event, likewise, is to be taken to occur on the date the professional body made its findings.
Once more assessing the argument from the other perspective, Rafferty LJ noted that “another regulator’s tardiness in determining allegations” could result in the GMC remaining ignorant of proceedings abroad for a considerable time. If the Appellant’s argument was to be validated, it would mean that in her case, the “GMC was precluded from considering the matter absent reliance on exceptional circumstances”. Again, this was not accepted by Rafferty LJ and the appeal on this ground was also dismissed. Ryder LJ and Sir Ernest Ryder SP both assented to Rafferty LJ’s judgment.
This case illustrates the importance of candour and openness. It is important that doctors in the UK are aware of their obligations to notify the GMC of adverse findings in accordance with paragraph 75 of the most recent GMP guidance. If under any doubt, it is advisable that specialist advice is sought to help manage this process and engage with the regulator. The Appellant’s arguments involved “semi-sophisticated legal language as to orders”. However, in keeping with the theme of upholding candour, the judge favoured a plainer reading of the relevant legislation and a common-sense approach in considering the consequences of applying the Appellant’s interpretations of the rules.
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