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UK FTP case had origins in Singapore

11 Feb 2016

Ed Madden, BL, looks at a recent England and Wales High Court case in which a leading surgeon sought judicial review against the General Medical Council concerning matters with an origin in disciplinary proceedings in Singapore.

Last month, the England and Wales High Court issued its judgment in judicial review proceedings brought by a world-class surgeon against the General Medical Council (GMC). In 2012, she was found in breach of “an ethical obligation to charge fair and reasonable fees” by a Disciplinary Committee of the Singapore Medical Council (SMC).

When the matter came on for hearing, the Court was told that Dr Susan Lim Mey Lee (Dr Lim) was a leading expert in the use of laparoscopic and robotic-assisted surgery as well as in stem cell research. She was a registered medical practitioner
in Singapore and practised there for more than 25 years until she was suspended for three years in July 2013.

For a number of years, Dr Lim was responsible for coordinating the care and treatment of a member of the Royal Family of Brunei who had been diagnosed with breast cancer.

In December 2007, the Ministry of Health in Singapore received a letter complaining that Dr Lim’s charges were excessive. It was alleged that she had charged $24 million Singapore Dollars (approximately €15 million) for work carried out over a period of six months between January and June 2007. In due course the SMC brought disciplinary proceedings against Dr Lim.

On June 21, 2012, a Disciplinary Committee of the Council found her guilty of professional misconduct and published summary grounds for its conclusion. This was followed on July 17, 2012, by the publication on the part of the SMC of the formal determination of the Disciplinary Committee, together with written reasons for its conclusion.

Dr Lim was found to be in breach of an ethical obligation to charge fair and reasonable fees. She was also found guilty of having issued invoices that were misleading in that they failed to disclose “a mark-up” payable to her for work done by third-party doctors. She was censured and suspended from practice for three years. In addition, she was required to pay the then maximum penalty of $10,000 (approximately €6,394) and to give an undertaking to charge fair and reasonable fees in future.

Pic: Getty Images

In August 2012, Dr Lim exercised a statutory right of appeal to the Singapore High Court. This meant that the decision of the Disciplinary Committee was suspended (and not published) pending the outcome of the appeal. Dr Lim, as was her entitlement, continued to practise in Singapore without restriction.

On June 28, 2013, the Singapore High Court dismissed the appeal and upheld the findings of the Disciplinary Committee. Dr Lim had argued that there was an agreement in place entitling her, contractually, to charge the fees that she had invoiced. She maintained that there was no ethical obligation to charge “a fair and reasonable fee” for services rendered.

The Singapore High Court disagreed. It held that all doctors who practised medicine in Singapore were under an ethical obligation to charge a fair and reasonable fee for services provided. This obligation operated “over and above contractual and market forces, and thus cannot be superseded by an agreement between a doctor and his or her patient”.

As a professional, a doctor “cannot rely solely on the morals of the marketplace”. As a member of “an honourable profession, which is rooted in the ideal of public service, a doctor has higher ethical obligations, which are founded on a relationship of trust and confidence…”

In a situation where there is a conflict between contractual and ethical considerations, the latter must prevail. Dr Lim’s three-year suspension from the register in Singapore commenced on July 2, 2013.

On July 15, 2013, the SMC wrote to the General Medical Council (GMC) notifying that body of its findings and sanction, and stating that “this information was for the GMC’s further follow-up as necessary”. Shortly thereafter, the GMC wrote to Dr Lim, who is on the GMC register, informing her of the correspondence and inviting her to respond. It was also pointed out to her that she had failed to inform the GMC of the adverse finding in accordance with the requirement contained in paragraph 58 of the 2006 version of the GMC Publication Good Medical Practice (the Good Practice Guide).

Five-Year Rule
In due course, on January 19, 2015, a Fitness to Practise (FTP) Committee was convened to consider the matter. The Committee sat for three days and considered the following two issues raised by Dr Lim. She contended that as the last act of alleged misconduct on her part took place in August 2007, the “Five-Year Rule” in Rule 4(5) of the GMC Rules (2004) precluded the Committee from considering the determination of the Singapore Disciplinary Committee (SDC).

She also contended that there was no duty on her to notify the GMC of the adverse finding against her prior to the publication of the judgment of the Singapore High Court.

The Committee ruled against Dr Lim on both of these issues. It decided that the time limit in Rule 4(5) was not engaged and that the Committee was entitled to continue with the case. It also decided that a duty to notify the GMC arose in July 2012 when the Singapore Disciplinary Committee made its determination.

Giving the decision of the England and Wales High Court, Mr Justice Haddon-Cave held that under the GMC Rules, the five years run from the date the professional body made its findings — in the present case July 2012. Consequently, the Five-Year Rule did not prevent the Committee from dealing with the matter.

The judge also held that a doctor had a duty under paragraph 58 of the Good Practice Guide to notify the GMC immediately of an adverse finding by a foreign regulatory body, notwithstanding that the finding in question was suspended pending appeal. The duty on Dr Lim to notify the GMC arose immediately after the decision of the Singapore Disciplinary Committee was published on July 17, 2012.

The decision of the High Court would appear to clear the way for the FTP Committee to resume its consideration of Dr Lim’s case.

References: [2016] EWHC 135 (Admin); Lim Mey Lee Susan v Singapore Medical Council [2013] SGHC 122


Click here to view the full article which appeared in Irish Medical Times: Opinion