QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Dr Temi Ogbe Uwen
||Claimant / Applicant
|- and -
|The General Medical Council
||Defendant / Respondent
Miss Nicola Greaney (instructed by GMC Solicitors) for the Defendant/Respondent
Crown Copyright ©
The Hon. Mr Justice King:
"please note that apart from her work with Priory Group, Dr Uwen's work had always been with the NHS and her patients are fully covered under NHS indemnity."
"This doctor provided locum consultant cover to Life Works on the dates detailed above. She confirmed in writing (via email which is attached) to Mind Professionals in March 2017 that she had indemnity cover including that for private practice, however she has never provided an indemnity certificate to prove this (this has been requested on several occasions).
She asked that her payments be processed via Mind Professionals but on contacting Mind Professionals we were informed of the following that she does not have a contract with them and she does not have and has never had the appropriate indemnity.
Priory Group received a letter from her solicitors on 14.12.17 and at one point in the letter stated: 'You are unlawfully demanding indemnity insurance from our client several weeks after the work has been executed. There is clearly no obligation on our client's part to provide an indemnity insurance as this request was never part of the contract'."
"Last appraisal on record – 26/6/16. Dr Uwen advised at appraisal re: ensuring adequate indemnity insurance is in place to cover her scope of work. This was reiterated in my email prior to deferment (lack of sufficient information) in July 2016. Dr Uwen was clearly advised to address this mandatory requirement. Previous appraisal 2014 – no declaration re: indemnity insurance."
"4. In relation to the response from the Responsible Officer, it is Dr Uwen's position that she did provide her legal cover to him and he completed her revalidation with the legal cover. It is extremely worrying that the Responsible Officer did not mention in his statement that Dr Uwen provided him with a copy of her legal cover…
It is apparent from all the communications referred to in the referral decision that Dr Uwen had not stated that she had indemnity insurance. She stated that she had a legal cover which covered her."
The Duration of the Order
"In terms of the appropriate duration of this order, it is submitted that 13 months duration is appropriate in the particular circumstances of this case…
The investigation is at an early state… the next part of the investigation will be the likely obtaining of witness statements. This can take up to three months, depending on the engagement of particular witnesses.
Once the evidence is collected, the GMC will inform the doctor of the allegations and it is anticipated that the drafting of these allegations can take approximately one month. She would then have one month to respond to the allegations. The case will then be considered by the GMC case examiners… that consideration can take up to one month.
… Should the case be referred to a Medical Practitioners Tribunal a suitable listing date would be identified for the hearing, and then this can take place, it is anticipated, within six months of a referral decision being made.
… Should (the IOT) make the order for 13 months the doctor will not be prejudiced to an extent that outweighs the public interest to an extent that does not ensure protection to the public.
… Should the circumstances giving rise to the necessity of the order materially change, the GMC or the doctor can request an early review of the interim order…"
The legal framework
"that it is necessary for the protection of members of the public or is otherwise in the public interest…"
"The tribunal has determined that based on the information before it today, (emphasis is the emphasis of the court) there are concerns regarding Dr Ogbe Uwen's fitness to practice which pose a real risk to members of the public and which may adversely affect the public interest. After balancing Dr Ogbe Uwen's interests and the interests of the public, the tribunal has decided that an interim order is necessary to guard against such a risk."
"… in the context of imposing an interim suspension order on this particular basis, it does seem to me… that the bar is set high; and I think that, in the ordinary case at least, necessity is an appropriate yardstick. That is so because of the reasons of proportionality. It is a very serious thing indeed for a… doctor to be suspended. It is serious in many cases just because of the impact on that person's right to earn a living. It is serious in all cases because of the detriment to him in reputational terms. Accordingly, it is in my view, likely to be a relatively rare case where a suspension order will be made on an interim basis on the grounds that it is in the public interest… ultimately, of course, all these things have to be decided on the facts of each particular case."
"Suspension is concerned to protect against a real continuing risk. It is looking to the future, albeit in the light of what is alleged to have occurred in the past. It can, however, do nothing to affect or undo what may have append in the past."
The MPTS (Medical Practitioners Tribunal Service) Guidance on Imposing Interim Orders ('the Guidance')
"23. The IOT must consider in accordance with section 41A, whether to impose an interim order. If the IOT is satisfied that:
a. In all the circumstances that there may be impairment of a doctor's fitness to practise which imposes a real risk to the members of the public, or may adversely affect the public interest…
b. After balancing the interests of the doctor and the interests of the public, that an interim order is necessary to guard against such risks
the appropriate order should be made.
24. In reaching a decision… an IOT should consider the following issues:
a. The seriousness of risk to members of the public if the doctor continues to hold unrestricted registration. In assessing the risk the IOT should consider the seriousness of the allegations, the weight of the information, including information about the likelihood of a further incident or incidents during the relevant period.
b. Whether public confidence in the medical profession is likely to be seriously damaged if the doctor continues to hold unrestricted registration during the relevant period.
25. In weighing up these factors, the IOT must carefully consider the proportionality of their response in dealing with the risk to the public interest (including public safety and public confidence)."
39. The public has a right to know about a doctor's fitness to practise history to enable them to make an informed choice about where to seek treatment. To balance this with fairness to the doctor, allegations leading to the imposition of interim conditions are not published or disclosed to general enquirers. It is therefore the responsibility of the IOT to consider whether, if allegations are later proved, it will damage public confidence to learn that the doctor continued working with patients while the matter was investigated."
Interim conditions / interim suspension
"33. In deciding the appropriate action, the Tribunal must very carefully consider the issue of proportionality in weighing the significance of any risk to patient and public safety or public confidence, for example in not suspending the doctor against the damage to him by preventing him from practising…
35. When considering the imposition of conditions the IOT must ensure that any conditions are workable, enforceable and will protect the public, the wider public interest…"
The Jurisdiction of this Court under section 41A(10)
The Professional Obligation as regards Indemnity arrangements
Section 44C Medical Act 1983 (any emphasis is that of this Court):
Good Medical Practice
The information before the IOT
… No issues with regards to my medical indemnity / malpractice insurance cover. I have already forwarded my solicitor's letter of legal cover for me if there are any issues when practising. I have been with this solicitor for years and always submitted their name as legal cover. I tried to explain to Ella but she didn't understand this same legal cover was accepted by the GMC for my revalidation."
"TO WHOM IT MAY CONCERN
RE Dr Temi Uwen.
We continue to act as solicitors for Dr Temi Uwen.
This cover includes acts or omissions in the course of her practice which includes medical malpractice, negligence and legal matters arising from her work.
We confirm we have been acting for Dr Uwen in these respects over the last 2 years and this is continuing.
Should you have any enquiries on the above, please do not hesitate to contact us.
"Thank you for this, much appreciated, that's fine.
One thing though, is your solicitor aware and accepting of the fact that your services for Life Works are outside of (not covered by) the NHS indemnity Scheme – they essentially deemed as being 'private practice' as far as insurers are concerned. The GMC may have accepted your solicitor's representations as indemnity insurance for revalidation purposes on the basis of your work to date only having been within the NHS services (i.e. covered by NHS Indemnity insurance scheme).
Would it be possible to seek assurance from your solicitors that your legal cover extends to private practice work outside the NHS?"
"Thanks for your email. Yes, I have confirmed that my legal cover has private practice included."
The December correspondence
"I have spoken to my solicitor, Rock Solicitors; as you are aware this legal cover from my solicitors was accepted by Lifeworks when I worked some months ago. This legal cover is continuing and covered 2 days I also worked in Lifeworks in November 2017.
Asking me to take an indemnity policy now from an insurance company will not be valid because the insurance company does not provide back dated indemnity cover; hence it will not be back dated to the period (the 2 days) I worked for Lifeworks in November 2017. In view of any future job with Priory, I can make provision for that as an additional requirement (based on Priory request) to my legal cover already in place which has been adequate and accepted in previous jobs."
"As per my email this morning, your solicitor's letter is noted.
As mentioned, although the letter references the word 'cover' for matters associated with negligence and malpractice, the document itself is not an insurance policy schedule or a certificate of insurance cover – it does not state the level or value of indemnity cover provided in the event of a claim or the terms and conditions of this covered value amount.
LifeWorks had previously accepted your written assurance that this cover provided via your solicitors did indeed provide indemnity cover, both for matters of negligence and malpractice – all we have asked for is for your solicitor to provide your full indemnity cover documentation as evidence of this fact…
… Neither Lee or anyone at Mind Professional has requested that you take up a back dated insurance policy… we are merely collating documentary evidence of information that we had your written assurance, was in place via your solicitors…"
"My solicitor does not provide an indemnity certificate but provide cover for all legal aspect of my medical practice. Neither can an insurance company provide this certificate in a back dated format because cover cannot be backdated.
I had accepted to do Priory job because I knew I was fully compliant with my relevant docs including legal cover. Priory should have told me before I was called to do that job that I needed an additional document, indemnity certificate in addition to my solicitor letter which was adequate and accepted by Priory when I worked with them some months ago…
Priory should have made it known to me that I needed an indemnity certificate as an extra requirement specific to Priory prior to taking the job. Further still on arrival on Priory site, any member of staff would have requested this before granting me access to services if this was Priory pre-requiste for carrying out my duties.
Thank you Juliet, I will be expecting Lee to authorise my timesheet."
"As per my previous mail there are two issues here, both of which need to be resolved before any payment can be processed.
1. The first is… that you have engaged with Priory directly outside of any communication with Mind Professionals and have provided services to Priory outside of any contractual arrangement being in place with Mind…
2. The second issue is that it now turns out that despite your written assurances both to Mind professional and to Lifeworks (who also requested your assurance of the same0 back in February, you never had any indemnity insurance cover in place at all. My communication to you at that time specifically requested your confirmation that your 'legal cover' was inclusive of 'indemnity insurance cover for private work' work carried outside of the NHS Indemnity scheme, as Lifeworks / Priory being an independent provider, are wholly outside the scope of the NHS Indemnity scheme. You categorically assured me this was the case.
As you are unable to provide evidence of this indemnity insurance cover, please kindly advise who will foot the bill for damages in the event of a substantial legal claim of £3M (for example) is made against you for medical negligence arising from your work for Priory / Lifeworks…
… It is a mandatory obligation for any doctor working outside of the NHS Indemnity scheme, to have adequate indemnity and medical malpractice insurance in place to cover these costs, if such events arose against them."
"Juliet I did not deceive as you have indirectly alleged… because I have legal cover ongoing with my solicitors for my medical practice. Did you think I was expecting Mind Professional to foot a legal bill for me if there was ever one as you have indicated? As if I deceived you? Was Mind… or Priory going to stand for me anyway even if there was a legal issue.
Has mind professional or Priory been sued for 3 million pounds or any money because of error or omission in my legal practice? You imagined the worst scenario but did that happen? I have graduated over 20 years and practiced for most of the years and never had issues with my clinical practice."
The Applicant's solicitors' correspondence
"Our client accepted the work offer and attended LifeWorks to commence the job. At no time before or during her work was she asked or requested to provide an indemnity insurance…
… You are unlawfully demanding indemnity insurance from our client several weeks after the work has been executed. There is clearly no obligation on our client's part to provide indemnity insurance as this was never part of the contract."
The Solicitors' correspondence with the GMC
"She did not inform Mind Professionals that she had indemnity insurance. She informed Mind that she had legal cover for her practice. Prior to commencing the job with Lifeworks (Priory Group) Mind had requested copies of her documents to ensure compliance with their terms. She provided all the documents she had including the letter from R.O.C.K. Solicitors confirming her legal cover. When Mind emailed her to ask if her legal cover included private practice, she emailed back to confirm that it did, this was correct. However she did not in any way state that her legal cover was the same as indemnity insurance."
"Our client had a legal cover which she submitted to Mind Professionals (the Employment Agency). The Agency perused through the documents and liaised with Priory before she was asked to commence this job. She would not have been allowed to commence the job if her documents did not meet their requirements and procedure. They were in full possession of all the document she had and they proceeded to accept the documents before she was asked to commence the job. They chose to give our client the job despite being aware that she only had legal cover. It was therefore based on their discretion as to whether they accepted our client for the work or not."
And as regards the period 21 November to 23 November 2017:
"This was a direct job with Priory Group with no Employment Agency involved. Our client was contacted directly by Priory Group and she was asked to commence the job. At no point was she requested to provide an indemnity insurance or any other document."
The solicitors written submissions of 13 April 2018
"I relation to the response from the Responsible Officer, it is Dr Uwen's position that she did provide her legal cover to him and he completed her revalidation with the legal cover. It is extremely worrying that the Responsible Officer did not mention in his statement that Dr Uwen provided him with a copy of her legal cover. This surely should call his probity into question.
It is apparent from all the communications referred to in the referral decision that Dr Uwen had not stated that she had indemnity insurance. She stated that she had a legal cover which covered her.
Please note that apart from her work with the Priory Group, Dr Uwen's work had always been with the NHS and her patients are fully covered under the NHS Indemnity.
Indeed Dr Uwen has been registered with the GMC for over 20 years with no case of clinical negligence, malpractice, omission or errors ever been brought against her.
Her length of clear practice is a proof of her honesty and integrity, and also in regards to patient safety and her clinical practice."
The decision of the IOT
GMC Counsel's submissions to the IOT
The reasoning of the IOT
"13. The Tribunal has determined that based on the information before it today, there are concerns regarding Dr Ogbe Uwen's fitness to practise which pose a real risk to members of the public and which may adversely affect the public interest. After balancing Dr Ogbe Uwen's interests and the interests of the public, the Tribunal has decided that an interim order is necessary to guard against such a risk.
14. In reaching its decision, the Tribunal noted that, in the course of her appraisal in 2016, Dr Ogbe Uwen was reminded that indemnity insurance was a requirement and that she must check that she was adequately covered. Dr Ogbe Uwen was repeatedly asked to provide her indemnity insurance by her employers at the Priory Group and repeatedly failed to do so, repeatedly stating that she had 'legal cover'. The tribunal has taken the view that Dr Ogbe Uwen may have breached one of the tenets of Good Medical Practice as well as the statutory requirements under the Medical Act. There are therefore allegations of probity before the Tribunal which had the potential for causing harm to members of the public. Furthermore, the Tribunal has determined that, in the circumstances of this case, public confidence in the profession could be damaged if no order was made during the course of the GMC's investigation into these serious allegations.
15. Whilst the Tribunal notes that the order has removed Dr Ogbe Uwen's ability to practise medicine it is satisfied that the Order imposed is the proportionate response. There is an allegation before the Tribunal that Dr Ogbe Uwen might have breached one of the tenets of Good Medical Practice and the information presented suggests that she has little insight into the serious nature and risks of such a breach. The Tribunal concluded there were no workable nor adequate conditions which could address such risks. The Tribunal determined that an order of suspension was therefore proportionate.
16. The Tribunal decided on the period of 13 months because it noted that the GMC may seek witness statements before it can proceed with its investigation in accordance with the Rules."
The Grounds of the application
The issue of continuing risk
The public interest ground
"It seems clear that Mind Professional did not have a clear understanding of their own or the Priory Groups requirements or Dr Ogbe Uwen's professional obligations when she first worked for the Priory (LifeWorks).",
upon which Mr Standing relied on in support of his submission that the information before the IOT was capable of being seen as indicative of the confusion which existed in this case. In this context, I have already set out the terms of the letter to the Applicant from Dr Whittaker in March 2017, in which Dr Whittaker asked for assurance that the Applicant's "legal cover" extended to private practice outside the NHS.
Interim suspension as being necessary for the protection of members of the public
The probity issue; the public interest issue; the risk of damage to public confidence in the profession
The pending review