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

A doctor’s duty to notify the GMC of an overseas professional regulator’s adverse finding arises when the finding is made, not only when a sanction takes effect. Against your registration means adverse to the doctor’s position as a registered professional. A suspensive appeal does not postpone that duty. For an allegation based on a foreign regulator’s determination that fitness to practise is impaired, the five-year period under rule 4(5) of the GMC (Fitness to Practise) Rules 2004 runs from events giving rise to the allegation, including the determination itself. The rule is not confined to the underlying misconduct. The Fitness to Practise Panel proceeds on the foreign regulator’s proved findings rather than reopening the underlying allegations.

The appellant was a surgeon registered and practising in Singapore. A Singapore disciplinary body found her guilty of serious professional misconduct, imposed sanctions, and required an undertaking concerning fees. Her appeal to the Singapore High Court was dismissed, after which the GMC proceeded in relation to the foreign findings and her failure to notify it.

The Fitness to Practise Panel rejected reliance on the five-year rule and found that the notification duty arose on the date of the Singapore disciplinary determination. The High Court dismissed the judicial review claim: [2016] EWHC 135 (Admin). The appeal concerned whether the notification duty was deferred until a sanction took effect or an appeal ended, whether the five-year period ran from the underlying misconduct or the foreign determination, and whether the Panel could entertain the time-limit issue.

Lady Justice Rafferty gave the judgment. Lord Justice Ryder and Lord Justice David Richards agreed. The appeal was dismissed.

1. Notification duty. Paragraph 58 of Good Medical Practice required a doctor to inform the GMC without delay when another professional body anywhere in the world made a finding against the doctor’s registration. The phrase against your registration referred to a finding adverse to the doctor’s position as a registered professional. It referred to the finding, rather than to a sanction or order.
2. Effect of the suspensive appeal. The Singapore Medical Registration Act 1998 and the Singapore Medical Act 1998 reinforced the distinction between findings and orders. Section 55(12) postponed the effect of the order pending confirmation or dismissal of the appeal, but did not postpone the finding. The notification duty therefore arose on the Singapore disciplinary determination and did not depend on the outcome or duration of the appeal. The requirement reflected candour, probity, public protection and the GMC’s ability to respond promptly to adverse regulatory findings.
3. Five-year rule. Rule 4(5) of the GMC (Fitness to Practise) Rules 2004 precluded an allegation from proceeding where more than five years had elapsed since the most recent events giving rise to it, subject to the public-interest exception. Rule 2 defined an allegation as that fitness to practise was impaired. In a case under section 35C(2)(e) of the Medical Act 1983, the foreign regulatory determination was itself an event giving rise to the allegation. The period was therefore not confined to the underlying misconduct. Rule 34(4) did not assist the appellant: the Panel began with the foreign regulator’s proved findings and did not reopen the underlying conduct allegations.
4. Remaining ground. It was unnecessary and academic to decide the third ground concerning delay jurisdiction, because the appellant had failed on the five-year-rule ground. The appeal was rejected.

• Court of Appeal (Civil Division): Appeal dismissed.
• High Court, Administrative Division: Haddon-Cave J dismissed the judicial review claim in [2016] EWHC 135 (Admin).