Lee, R (on the application of) v The General Medical Council

A professional regulator’s disciplinary finding remains capable of triggering a duty of notification even where the sanction is suspended pending appeal. A time limit may run from a foreign regulator’s determination where that determination is the statutory basis of the domestic fitness-to-practise allegation. Where a rule combines a prohibition with an exceptional public-interest discretion, the power to determine whether the rule applies belongs to the officer entrusted with that discretion. Judicial review should be brought promptly after that decision.

The claimant, a surgeon, was found guilty of professional misconduct by the Singapore Medical Council. The resulting sanction was suspended pending her statutory appeal to the Singapore High Court, which dismissed the appeal in June 2013. The claimant did not notify the GMC of the Singapore finding.

A GMC Fitness to Practise Panel rejected her arguments that the notification duty had not arisen while the Singapore decision was under appeal and that the GMC’s five-year rule prevented the proceedings. The claimant sought judicial review. The GMC argued that the five-year-rule challenge was out of time and that only the Registrar had power to determine its application.

1. Notification duty. The claimant had to notify the GMC without delay of the Singapore disciplinary finding, notwithstanding that the resulting sanction was suspended pending appeal. The Singapore legislation distinguished between a finding and an order. The suspensive provision applied to the order, not to the finding. The finding therefore remained a finding against registration within paragraph 58 of the GMC’s Guidance.
2. Five-year rule. Under rule 4(5) of the GMC’s 2004 Rules, the relevant allegation was that the claimant had been found guilty by the Singapore Medical Council and subjected to a penalty. The most recent event giving rise to that allegation was the Singapore determination, not the historic conduct leading to it. The five-year period therefore ran from the date of the foreign body’s findings.
3. Jurisdiction and delay. Rule 4(5) comprised both a prohibition and an exception permitting proceedings in exceptional public-interest circumstances. Only the Registrar had power to exercise that discretion and determine whether the rule applied. The Fitness to Practise Panel was wrong to conclude that it had that power. A challenge to the Registrar’s decision should have been brought promptly and within three months of the GMC’s notification on 28 August 2013.
4. The court upheld the Panel’s decisions on the notification-duty and five-year-rule issues, but found that the Panel was wrong in law on the delay and jurisdiction issue. The judicial review challenge therefore failed.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment.