Case No: C1\/2016\/0687
\nNeutral Citation Number: [2018] EWCA Civ 99<\/p>\n
IN THE COURT OF APPEAL (CIVIL DIVISION)
\nON APPEAL FROM THE HIGH COURT
\nADMINISTRATIVE DIVISION
\nMR JUSTICE HADDON-CAVE
\n[2016] EWHC 135 (Admin)<\/p>\n
Royal Courts of Justice
\nStrand, London, WC2A 2LL
\nDate: 06\/02\/2018<\/p>\n
Before :
\nLADY JUSTICE RAFFERTY
\nSENIOR PRESIDENT OF TRIBUNALS
\nand
\nLORD JUSTICE DAVID RICHARDS
\n– – – – – – – – – – – – – – – – – – – – –
\nBetween :
\nThe Queen
\n(on the application of Susan Lim Mey Lee)
\nAppellant
\n– and –
\nThe General Medical Council
\nRespondent
\n– – – – – – – – – – – – – – – – – – – – –
\n– – – – – – – – – – – – – – – – – – – – –
\nMr M Fordham QC & Mr J Pobjoy (instructed by Bindmans LLP) for the Appellant
\nMr D Pievsky (instructed by GMC) for the Respondent
\nHearing dates :17th October 2017
\n– – – – – – – – – – – – – – – – – – – – –
\nJudgment<\/p>\n
Lady Justice Rafferty :<\/strong><\/p>\n Factual background<\/strong><\/p>\n 1. This is an appeal from the 28th January 2016 decision of Haddon-Cave J who found against the Appellant surgeon and for the General Medical Council (\u201cGMC\u201d). The Appellant surgeon was registered and practised in\u00a0Singapore, for several years treating a member of the royal family of\u00a0Brunei. 94 proved allegations of professional misconduct were that she excessively charged her patient and issued misleading invoices.<\/p>\n 2. The history is set out in the judgment at paragraphs 5-14 and does not require rehearsal here. A synopsis suffices.<\/p>\n 3. On 17 July 2012 the Singapore Medical Council (\u201cSMC\u201d) published the Singapore Disciplinary Council (\u201cSDC\u201d)’s reasoned determination which described the misconduct as particularly serious. It suspended the Appellant from practice for three years, censured her, imposed a $10,000 penalty and required an undertaking she should in future charge fair and reasonable fees. When on 16 August 2012 she appealed to the Singapore High Court (\u201cSHC\u201d) against findings and sanction the SDC order was suspended and was not published pending appeal. She continued to practise in\u00a0Singapore\u00a0without restriction.<\/p>\n 4. The SHC’s judgment published on 1 July 2013 dismissed her appeal. Her three-year suspension from the register in\u00a0Singapore\u00a0began on 2 July 2013.\u00a0On 15 July 2013 the SMC notified\u00a0the GMC. On 19 July 2013 the GMC notified her, invited her to respond, and set out her failure to inform it of the determination, referring her to paragraph 58 of GMC’s Good Medical Practice (2006) (\u201cGMP\u201d). On 14 August 2013 her legal representative wrote to the GMC contending that her failure to inform was contending that her failure to inform was not an act of misconduct since she considered her GMC membership effectively honorary and that as the final misconduct was in August 2007, GMC rule 4(5)\u00a0(the Five Year Rule)\u00a0operated to prevent the matter from proceeding.<\/p>\n 5. On 28 August 2013 the GMC disavowed operation of the\u00a0Five Year\u00a0Rule since the most recent event triggering the allegation was the SHC’s decision of 1 July 2013 and the GMC\u2019s Registrar was entitled to direct an investigation. On 13 September 2013 the claimant repeated to the GMC her contention.\u00a0On 11 November 2013 she was told that the Case Examiners had considered the Five Year Rule and found that no prohibition arose.<\/p>\n 6. On 16 May 2014 the GMC notified her she was to face charges before a Fitness to Practise Panel (\u201cFPP\u201d) based on the finding of guilt and on her failure to notify. On 21 January 2015 after a\u00a0three day\u00a0hearing a FPP found the Five Year Rule was not engaged but that a notification duty arose on 17 July 2012 upon the SDC determination.<\/p>\n 7. The claim for judicial review begun on 26 March 2015 was on two fronts: Did\u00a0paragraph 58\u00a0GMP require the Appellant to inform the GMC of the 2012 findings without delay notwithstanding a\u00a0suspensive\u00a0appeal to the SHC determined\u00a0on\u00a01 July 2013? Where s35C(2)(e) Medical Act 1983 applies, does the Five Year Rule run from the last date of proven misconduct (her case), or from the date of the relevant determination referred to in s35C(2)(e) (the GMC\u2019s)?<\/p>\n The legal framework<\/strong><\/p>\n Singaporean legislation.<\/p>\n The Singapore Medical Act 1998<\/p>\n 8. S53 empowers the SDT when the practitioner has been found guilty of professional misconduct to take action which includes suspension, censure, and imposition of a financial penalty.<\/p>\n The Singapore Medical Registration Act 1998.<\/p>\n 9. S55 reads where relevant:<\/p>\n A registered medical practitioner\u2026dissatisfied with a decision of the DT \u2026may within 30 days after the service of \u2026\u2026the notice of the order, appeal to the High Court against the order\u2026..<\/p>\n (11) In any appeal\u2026.the High Court shall accept as final and conclusive any finding of the DT relating to any issue of \u2026\u2026.standards of professional conduct unless such finding is in the opinion of the High Court unsafe unreasonable or contrary to the evidence.<\/p>\n (12)\u2026\u2026where a \u2026.practitioner has appealed to the High Court against an order referred to in section 53(2)\u2026the order shall not take effect unless the order is confirmed by the High Court or the appeal is \u2026\u2026dismissed \u2026.or is withdrawn<\/p>\n Domestic Legislation.<\/p>\n The Medical Act 1983<\/strong><\/p>\n 10. The over-arching objective of the GMC is to protect, promote and maintain the health, safety and wellbeing of the public, promote and maintain public confidence in the profession, and promote and maintain proper professional standards and conduct for members of the profession.<\/p>\n 11. Impaired fitness to practise is defined in S35C which reads where relevant:<\/p>\n 35C Functions of the Investigation Committee<\/p>\n \u2026.<\/p>\n (2) A person\u2019s fitness to practise shall be regarded as \u201cimpaired\u201d for the purposes of this Act by reason only of\u2014<\/p>\n (a) misconduct;<\/p>\n (b) deficient professional performance;<\/p>\n (c) a conviction \u2026.which, if committed in\u00a0England\u00a0and\u00a0Wales, would constitute a criminal offence;<\/p>\n (d) adverse physical or mental health; or<\/p>\n (e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect\u2026.<\/p>\n (4) The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Fitness to Practise Panel.<\/p>\n (5) If the Investigation Committee decide that the allegation ought to be considered by a Fitness to Practise Panel\u2014<\/p>\n \u2026<\/p>\n (b) the Registrar shall refer the allegation to a Fitness to Practise Panel; and<\/p>\n (c) the Registrar shall serve a notification of the Committee\u2019s decision on the person who is the subject of the allegation and the person making the allegation (if any).<\/p>\n 12. A FPP may erase a practitioner’s name from the register, suspend her or impose conditions on registration. If the right to appeal to the High Court is not invoked, absent an order suspension or erasure will take place after 28 days. If the doctor does invoke the right it will take effect when the appeal is dismissed or withdrawn.<\/p>\n The GMC (Fitness to Practise) Rules 2004<\/strong><\/p>\n 13. The GMC (Fitness to Practise) Rules 2004 (\u201cthe Rules\u201d) set out three stages:\u00a0Initial consideration by the Registrar under Rule 4, investigation and consideration by Case Examiners under Rule 8 and determination of whether the allegation should proceed, and if relevant determination of the allegation by the FPP.<\/p>\n 14. Rule 4 where relevant reads:<\/p>\n \u201c(1) An allegation shall initially be considered by the Registrar.<\/p>\n (2) Subject to paragraphs (3) to (5) and Rule 5, where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8.<\/p>\n \u2026<\/p>\n (5) No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed.\u201d<\/p>\n 15. Rule 17 requires a FPP to consider allegations, hear evidence, make findings of fact, determine whether fitness to practise is impaired,\u00a0announce its finding, and if relevant consider further evidence and submissions on sanction.\u00a0Rule 34(4) provides that certification from a regulatory body which has determined fitness to practise shall be conclusive evidence of facts found proved.<\/p>\n GMC Guidance<\/strong><\/p>\n 16. Paragraph 58 GMP\u00a0reads:<\/p>\n \u201cYou 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.\u201d<\/p>\n 17. Paragraph 3 GMC\u2019s Supplementary Guidance: Reporting Criminal and Regulatory Proceedings Within and Outside the UK (\u201cSG\u201d) reads where relevant:<\/p>\n \u201cYou must inform the GMC without delay if, anywhere in the world, you: \u2026have had your registration restricted, or have been found guilty of an offence, by another medical or other professional regulatory body.\u201d<\/p>\n It is important that the GMC takes prompt and appropriate action to protect patients when a doctor\u2019s fitness to practise is in question\u2026\u201d<\/p>\n The challenged decision.<\/strong><\/p>\n 18. Haddon-Cave J dismissing both aspects of the judicial review claim held as to the first that the Appellant\u2019s interpretation of paragraph 58 GMP ignored a distinction between an adverse finding and an adverse order. He distilled the approach of the FPP as that only the order, that is the sanction against registration, was held in abeyance pending appeal and that the finding of the SDC remained extant. It had found that the GMC\u2019s SG obliged her to inform the GMC where her registration had been restricted or she had been found guilty by another regulatory body, in this case the SDC and, in this case, of professional misconduct. This offence, it concluded, did not go into abeyance consequent upon the appeal. The order of sanction was at no stage quashed or otherwise revoked.<\/p>\n 19. Haddon-Cave J found her suggestion that\u00a0as at 17 July 2012 there was no finding capable of triggering the duty in paragraph 58 to be unsustainable.\u00a0Her\u00a0case was also inconsistent with wider considerations of candour, probity and integrity.<\/p>\n 20. As to the second, the \u201cmost recent events\u201d in Rule 4(5)\u00a0triggering the\u00a0five year\u00a0period\u00a0included the SMC\u2019s findings and\/or the Appellant\u2019s failure to notify the GMC. They were not to be equated with the most recent acts of misconduct. In any event the claim was out of time, because power to make a five year determination was exclusive to the Registrar and not open to the FPP.<\/p>\n Appellant\u2019s submissions.<\/strong><\/p>\n 21. Grounds of Appeal\u00a0complain that\u00a0the Judge wrongly concluded that the Appellant had a duty to notify the GMC after the SDC\u2019s 17 July 2012 determination; should have concluded that in a s35C(2)(e) case the five-year period runs from no later than the date of the last act of misconduct and\/or wrongly treated a failure to inform the GMC as a \u201crelevant event\u201d within the scope of that Rule; and wrongly concluded that the FPP had no power to entertain the Rule 4(5) application.<\/p>\n Ground 1 The Notification Duty<\/strong><\/p>\n 22. The Appellant argues that the\u00a0duty to notify is framed as applicable where another professional body\u00a0has made a finding against registration as a result of fitness to practise\u00a0procedures as opposed to where a practitioner has been charged before another professional body. It applies not to an interim position but to outcome. The SG\u00a0is\u00a0what its title suggests, supplementary, so the paragraph 58 requirement remains and\u00a0it\u00a0requires a finding\u00a0against registration. Adverse\u00a0findings\u00a0are given practical effect through\u00a0action against registration. The GMC\u2019s April 2014 Indicative Sanctions Guidance\u00a0reads\u00a0of action\u00a0against registration and\u00a0of\u00a0findings\u00a0actioned\u00a0or\u00a0effected\u00a0against registration. Thus upon\u00a0an interim finding there can be no finding against registration. The same is true\u00a0where findings have no legal effect against registration pending appeal, as she suggests bites in this case.<\/p>\n 23. The Judge found her duty to notify the GMC arose from the date of determination, 17 July 2012.\u00a0He held that\u00a0\u201cfinding against registration\u201d\u00a0means a\u00a0finding adverse or inimical to registration\u00a0even when\u00a0the resulting order is stayed. The only thing which\u00a0takes no effect is the\u00a0order.<\/p>\n 24. He described her argument, which he considered involved\u00a0semi-sophisticated legal language\u00a0as to\u00a0orders,\u00a0the\u00a0embodiment\u00a0of adverse findings, was defeated by\u00a0plain and pellucid language. The SG\u00a0he said supported his approach as did reasons of probity and policy. Any paragraph 58 duty arose when the SDC made its determination on 17 July 2012, triggering her\u00a0duty immediately to inform the GMC.<\/p>\n 25. The Appellant argued before us that findings are\u00a0adverse to registration\u00a0only when actioned or effected against it. She submits that they were not, as from 21 June 2012 when the question was not addressed. S55(12) 1998 Act precluded action\u00a0taking effect\u00a0until\u00a0the appeal was dismissed. The findings but for the appeal would have been adverse to registration from 17 July 2012, and they were adverse from 1 July 2013.<\/p>\n 26. Haddon-Cave J,\u00a0having held that the adverse finding was\u00a0the decision suspended pending appeal, considered\u00a0that s.55(11) confirms the tenacity of\u00a0first instance findings of fact, which made good sense in\u00a0the light of probity and policy. The Appellant contends that its function\u00a0is instead to identify the threshold for overturning findings on appeal. The other\u00a0professional body\u2019s decision involved no action taking effect \u2013 there was no interim suspension – and protected her against publicity.<\/p>\n Discussion and conclusion on the notification duty.<\/strong><\/p>\n 27. Paragraph 58 GMP obliges\u00a0a doctor\u00a0to\u00a0inform the GMC\u00a0without delay\u00a0if,\u00a0worldwide, another professional body makes a finding against her registration.\u00a0Reference is not\u00a0to sanction or order\u00a0but\u00a0to\u00a0finding. In my\u00a0view\u00a0\u201cagainst your registration\u201d\u00a0means\u00a0that\u00a0the finding must be\u00a0adverse\u00a0to a doctor\u2019s position as a registered professional.\u00a0I am not persuaded that it\u00a0converts\u00a0the trigger for notification from finding into\u00a0anything other.<\/p>\n 28. If I were in doubt about what paragraph 58 means\u00a0(and I am not) it\u00a0would be\u00a0resolved by reading SG paragraph 4 where I find explained that the duty bites, in particular, when\u00a0registration has been\u00a0restricted or\u00a0the doctor is found guilty of an offence by another medical or other professional body. The SG requires\u00a0such\u00a0a doctor to notify the GMC without delay whether or\u00a0not a sanction be imposed. I find it difficult to see what else\u00a0is meant by \u201c\u2026or have been found guilty of an offence by another professional regulatory body\u201d. If the Appellant be\u00a0right, and a doctor need notify the GMC only when registration is\u00a0restricted\u00a0by\u00a0action,\u00a0I would expect in paragraph 4 to read a noun reflecting imposition of a sanction.<\/p>\n 29. The\u00a0Appellant points out, correctly, that the\u00a0SG\u00a0is what its title suggests,\u00a0supplementary.\u00a0That said its purpose can only be help\u00a0for\u00a0doctors\u00a0seeking\u00a0to comply with\u00a0the duty rehearsed in paragraph 58, since that is what the SG sets out.<\/p>\n 30. This case is productively viewed in context. The facts found are accepted as serious professional misconduct.\u00a0The GMC\u2019s\u00a0overriding duty\u00a0is\u00a0protection of\u00a0the public and\u00a0the\u00a0upholding of\u00a0standards. It is against that backdrop that what Haddon-Cave J described as the candour and probity requirement is to be seen. He found the\u00a0GMC\u2019s approach to the notification duty consonant with that\u00a0descriptor and I agree. Candour is a noun which eschews the technical but imports a requirement of openness. It does not permit of hiding behind, or, put more kindly, reliance upon strained or artificially stratified construction. Plainly \u2013 and, I would add, simply \u2013 a doctor is expected timeously to notify the GMC of a finding of guilt elsewhere.<\/p>\n 31. To make the point good from another direction, it would be surprising were it permissible let alone acceptable that the Appellant should have been found guilty of professional misconduct but had no obligation to notify the GMC. It cannot be or have been in contemplation that a practising doctor, in whom statute contemplates the public being entitled to repose its trust, could identify and advance a technical approach whose sole purpose was her own advantage.<\/p>\n 32. Further to reinforce the central importance of the motif of candour and probity, identified by Haddon-Cave J, is the express requirement that the GMC be given prompt notice of any adverse findings by other regulators. The object is easily understood: the GMC is thus equipped to make an informed decision consequent upon\u00a0adverse findings. Findings by definition precede sanction, and choice of the adjectival \u201cany\u201d adverse findings is important. It would be open to a foreign regulator to conclude adversely but to eschew sanction, even for\u00a0very serious misconduct, where mitigatory factors are potent.<\/p>\n 33. Haddon-Cave J\u2019s description of candour and probity as defining what should found the behaviour of the practitioner is entirely apt and I gratefully adopt it.<\/p>\n 34. The Appellant argued that her position is right in law and that of the GMC wrong in law. The difficulty she faces emerges from examples distant from these facts. Serious professional misconduct might be found against a doctor who, it was to be discovered post-finding, at considerable professional and personal cost had provided evidence of widespread wrongdoing involving other practitioners. Or a doctor might seek to adduce support, post-finding, for personal and\/or professional stressors. If the SMC took time to reflect, post-adverse finding, so as to receive material information going to sanction but neither germane to nor admissible as to liability, on the Appellant\u2019s argument the GMC could permissibly remain uninformed for the duration of that reflective exercise. That cannot be right. Not only is it defeasible by the application of good sense but it would also fly in the face of syntax imposing promptitude.<\/p>\n 35. Her argument also requires exhaustion of the\u00a0appellate\u00a0route in\u00a0Singapore\u00a0before she is fixed with the duty to notify. The flaw in that reasoning emerges once it is read within the context of the legal framework. Appeal hearings are not renowned for timeous listing. Is the GMC to be left unacquainted with the serious professional misconduct found against her, during which intervening period, we should remember, she could be practising without let?<\/p>\n 36. I am not persuaded that findings, questioned in a suspensive appeal, are not secure and do not warrant action against the doctor. Were that argument tenable a doctor found guilty of several charges of misconduct but not suspended and timeously challenging only two of them would be absolved of a duty of notification. That does not withstand scrutiny either. A\u00a0notification duty cannot depend on what a doctor chooses to do\u00a0after\u00a0adverse findings.<\/p>\n 37. I note, finally, that Singapore\u00a0legislation does\u00a0not assist the Appellant. The Singapore Medical Registration Act 1998 distinguishes \u201cfindings\u201d and \u201corders\u201d. For example S55(12), silent as to findings, reads in part:<\/p>\n \u201c\u2026.the order shall not take effect unless confirmed by the High Court.\u201d<\/p>\n 38. The distinction is reinforced upon a reading of S53(1), referring to orders but not to sanctions, in contrast to S53(2) which refers to orders by way of sanction.<\/p>\n 39. I would reject Ground 1.<\/p>\n Ground 2 The Five Year Rule<\/strong><\/p>\n 40. Haddon Cave J held that since\u00a0the trigger\u00a0for\u00a0S35(C)(2)(e)\u00a0is\u00a0a determination,\u00a0five years ran\u00a0from\u00a0the SMC\u2019s findings on 17 July 2012. The\u00a0Appellant argues that the\u00a0misconduct was the\u00a0over-charging\u00a0to August 2007, not the determination.<\/p>\n 41. She submits that Haddon-Cave J recognised that misconduct should in principle be established in reliance on conduct but then elided the two\u00a0charges, impermissibly introducing the wrong conduct. She accepts that the\u00a0most recent event\u00a0in a failure to notify is the date of the default in conduct and has never said the Five Year Rule is infringed as to that allegation.<\/p>\n 42. The Judge she argues failed to recognise that\u00a0paragraph (e), focused\u00a0on the substance of the\u00a0determination, is\u00a0uniquely referential. It\u00a0must refer back to one of the other limbs which define\u00a0impaired\u00a0fitness to practise\u00a0and which\u00a0constitute\u00a0\u201crelevant events\u201d. What\u00a0is\u00a0in play here, she argues, is solely her invoicing up to August 2007.<\/p>\n 43. She argues that as a matter of law the\u00a0referential\u00a0nature of S35(C)(2)(e) makes the function of the\u00a0regulatory body\u2019s determination evidential and illuminative of the subject-matter but not itself the subject-matter.\u00a0She relies for support on\u00a0R34(4).<\/p>\n 44. The FPP\u2019s view was that\u00a0were the charges the subject-matter of\u00a0misconduct\u00a0before it the case would\u00a0be time-barred under the\u00a0Five Year\u00a0rule. The Appellant argues that in law that was correct. She relies on the\u00a0GMC\u2019s Guidance on the\u00a0Five Year\u00a0Rule\u00a0(May 2010): ventilation of subject-matter\u00a0before other regulatory bodies is relevant to the Five Year Rule\u00a0on the\u00a0premise that the substance is that subject-matter.<\/p>\n 45. The Judge\u00a0concluded that given potential lack of knowledge or control over other bodies and\u00a0wide variation, Five Years ran from the\u00a0determination. He found the answer to \u201cWhat is the allegation?\u201d was that on 17th July 2012 she was found guilty of professional misconduct by the SMC and a penalty imposed. The answer to \u201cWhat are the most recent events giving rise to the allegation?\u201d he found was that albeit told of the SMC\u2019s determination the Appellant failed to inform the GMC without delay. The most recent event was that failure, not the fact triggering the SDC determination. He rejected the submission that S35C(2)(e) was unique. The trigger for application of S35(C)(2)(e) was a determination.<\/p>\n 46. The\u00a0Appellant\u2019s\u00a0answer is\u00a0that\u00a0the Five Year Rule is not a complete bar. It allows the Registrar to consider whether public interest exceptionality justifies proceeding\u00a0even when\u00a0the conduct is old\u00a0and the case stale. The analysis of the Five Year Rule cannot be based on compelling public interest cases which should proceed on their particular facts and circumstances.<\/p>\n Discussion and conclusion on the\u00a0Five Year\u00a0Rule.<\/strong><\/p>\n 47. I am not persuaded that the\u00a0most recent events\u00a0could only include misconduct up to\u00a0August\u00a02007. In my view the Judge was correct that the most recent events must include\u00a0the\u00a0determination\u00a0referred to in\u00a0s35C(2)(e). Put simply and stripped of unhelpful repetition, Rule 4(5) precludes, on terms, progress of an allegation. Rule 2 defines \u201callegation\u201d as that fitness to practise is impaired. The grounds sufficient to sustain that allegation are, for these purposes, set out in S35C(2) (e), a determination by a foreign regulatory body that fitness to practise is impaired.<\/p>\n 48. In determination cases \u201cevents\u201d include conviction, caution, or determination because they give rise to the allegation. Absent a determination there would be no\u00a0event capable of constituting a s35C(2)(e) allegation. Indeed the Appellant concedes that in conviction cases \u201cevents\u201d must include the conviction.<\/p>\n 49. The primary purpose of the Five Year Rule emphasises that timeous complaint is a precursor to prompt reaction and action so as to achieve fairness to all. Whilst on the one hand a doctor might by delay be compromised in answering allegations about matters years ago, in the Appellant\u2019s case the facts were comprehensively examined and determined in proceedings brought in good time before the SMC. The position was then reviewed in the SHC.<\/p>\n 50. Rule 34(4) does not assist the Appellant. In a determination case, any misconduct found proved by another regulator will be the starting point for the GMC. The FPP does not begin again, and reconsider the underlying conduct allegations: \u2013 Rule 34(5).<\/p>\n 51. As Haddon Cave J found and as I have accepted the GMC might be unaware of and lack control over the length of foreign regulatory proceedings. It would be surprising if, as a result of another regulator\u2019s tardiness in determining allegations of impaired fitness to practise, the GMC\u2019s response should be restricted. 6 years after the misconduct in this case the GMC remained ignorant of the SMC\u2019s proceedings. Given that Rule 4(5) protects doctors against the stale or the slow, on these facts it is hard to see why it should operate. If the Appellant be correct, as early as July 2013 the GMC was precluded from considering the matter absent reliance on exceptional circumstances. I find that difficult to accept.<\/p>\n 52. I would reject Ground 2.<\/p>\n 53. Since the Appellant has not succeeded on Ground 2 it is unnecessary to reach a conclusion on Ground 3, delay jurisdiction. It would be academic to contemplate whether, had she succeeded on Ground 2, the GMC could successfully have resisted her appeal by persuading this court that she lacked entitlement to advance her otherwise successful argument.<\/p>\n 54. I would reject this appeal.<\/p>\n Lord Justice Ryder:<\/strong><\/p>\n 55. I agree.<\/p>\n Lord Justice David Richards:<\/strong><\/p>\n 56. I also agree.<\/p>\n