The Duty to Report Foreign Misconduct Findings
In February the Court of Appeal handed down its judgment in the case of Lee v General Medical Council [2018] EWCA Civ 99.
Susan Lee was a registered medical practitioner in Singapore and the United Kingdom. Proceedings were brought against her in Singapore for charging excessive fees. In July 2012 she was found guilty of professional misconduct and, among other sanctions, was suspended from practice for three years. She appealed to the High Court and remained in practice until her appeal was heard and rejected in July 2013.
The Singapore Medical Council wrote to the GMC a fortnight later to inform the GMC of the findings and sanction against the surgeon. That was the first that the GMC had heard of the matter. Before a Fitness to Practice Panel Dr Lee faced charges arising out of (a) the fact that she had been found guilty of professional misconduct by the Singapore Medical Council and (b) the fact that she had failed to notify the GMC of the determination against her. She argued that given the lapse of time since the underlying misconduct, the Five Year Rule (Rule 4(5)) precluded the panel from considering the matter. In any event no notification duty arose under paragraph 58 of the GMC’s Guidance prior to the High Court of Singapore’s July 2013 judgment. The panel ruled against the practitioner on both issues. Her judicial review likewise failed and she pursued the argument to the Court of Appeal.
The Court of Appeal in its turn rejected both arguments. Time did not run from the conduct (or misconduct) that had been the subject of the foreign regulatory proceedings, but from the finding of misconduct by the foreign disciplinary tribunal. It held that “Put simply and stripped of unhelpful repetition, Rule 4(5) precludes, on terms, progress of an allegation. Rule 2 defines “allegation” as that fitness to practise is impaired. The grounds sufficient to sustain that allegation are, for these purposes, set out in s35 C(2) (e), a determination by a foreign regulatory body that fitness to practise is impaired”. As a result the panel at first instance were properly seized of the case and were not time-barred as a result of the rule.
As far as the second ‘obligation’ argument is concerned; paragraph 58 of the GMC’s Good Medical Practice (2006) (‘GMP’) states “You must inform the GMC without delay if, anywhere in the world, you have accepted a caution, been charged with or found guilty of a criminal offence, or if another professional body has made a finding against your registration as a result of fitness to practise procedures.”
The Court of Appeal found that the obligation to inform the GMC without delay of a finding against a doctor’s registration meant exactly that. It rejected the doctor’s argument that a professional ought to be permitted to exhaust appeals against the finding before being required to notify the GMC. In the underlying Judicial Review case Haddon Cave J had held that the doctor came under a duty immediately to inform the GMC. He found that this was consonant with the duties of candour, probity and integrity which are emphasised generally in the GMC’s regulations and guidance. The Court of Appeal agreed, holding that ‘candour is a noun which eschews the technical but imports a requirement of openness. It does not permit of hiding behind, or … reliance upon strained or artificially stratified construction. Plainly – and simply – a doctor is expected timeously to notify the GMC of a finding of guilt elsewhere’.
The case demonstrates, if demonstration were needed, the need for medical professionals to notify their regulator of findings and then seek to argue that no action should be taken, rather than advance technical points having failed to notify at an early stage.
Leon Kazakos
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