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Cite as: [2018] EWHC 2484 (Admin)

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		Neutral Citation Number: [2018] EWHC 2484 (Admin)
		Case No: CO/1765/2018

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

26/09/2018

B e f o r e :

THE HON. MR JUSTICE KING
____________________

Between:

	Dr Temi Ogbe Uwen	Claimant / Applicant
	- and -
	The General Medical Council	Defendant / Respondent

____________________

Mr Michael Standing (instructed by R.O.C.K Solicitors) for the Claimant/Applicant
Miss Nicola Greaney (instructed by GMC Solicitors) for the Defendant/Respondent
____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

The Hon. Mr Justice King:

This is an application by Dr Uwen, a locum consultant psychiatrist, made pursuant to Section 41A(10) of the Medical Act 1983 ('the Act') in which she seeks termination of an interim suspension order imposed by the Respondent's Interim Orders Tribunal (IOT) dated the 13^th April 2018 and made following a hearing on the same day.

The Applicant has practised in the United Kingdom since 1995. It is not in dispute that she has an unblemished work record with no relevant fitness to practise history.

Background

The background to the matter coming before the IOT was set out at the hearing by counsel for the GMC. The case concerns an allegation that during two periods in 2017 the applicant had practised as a locum for a private company without appropriate professional indemnity insurance cover being in place and notwithstanding (according to the allegation) her purportedly claiming at the time that she had indemnity insurance including that for private practice, by reference to the legal cover provided through her solicitors.

The two periods in question were between 7 March 2017 and June 2017 and between 21 and 23 November 2017. During these periods, the Applicant provided locum cover at Life Works (part of the Priory Group, a provider of mental health care). The first period of shifts had been arranged through a locum agency called Mind Professionals. The second period had been arranged directly with the Priory Group but the doctor was to be paid through Mind.

Prior to these periods it would appear that the Applicant had worked almost exclusively for the National Health Service (NHS) which provided the requisite indemnity. In paragraph 4 of written submissions which were before the IOT the Applicant's solicitors had stated:

"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."

On the 2 January 2018 the GMC had received an email referral from Dr Hayley Van Zwanenberg, a Responsible Officer at the Priory Group, regarding concerns about the Applicant's indemnity insurance. That referral contained the following summary of concerns: (emphasis is the emphasis of this court)

"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'."

A further Response to Fitness to Practice Concerns was received by GMC in February 2018 from Dr Sumil Raga, a Responsible Officer at Medicure Ltd, another employment agency, through whom the Applicant had provided locum cover. This made reference to recorded appraisals and to two occasions in 2016 when the Applicant had apparently been advised to ensure adequate indemnity insurance was in place. The precise terms used by Dr Raga were as follows in the section headed "Appraisals, reviews or evaluations – provide details of any appraisals… that may be relevant to our investigation":

"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."

Again in paragraph 4 of the written submissions before the IOT, to which I have already referred, her solicitors addressed these matters as follows in a response which drew a distinction between the Applicant's legal cover and any 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."

I add that in the Particulars of Claim instigating this application at paragraph 6 it is pleaded in relation to this Dr Raga response that "he alleged that she was advised on two occasions in 2016 to ensure she adequate indemnity insurance. However she was working with the NHS which had their patients indemnified already".

I should observe at once that this distinction between legal cover and indemnity insurance is one which pervades the material correspondence in this case prior to the referral to the IOT.

Mr Standing, on behalf of the Applicant, submitted to me that this correspondence which was relied on by the GMC as giving rise to concerns over probity, in fact suggests that the Applicant held an honest, if erroneous, belief that her 'legal cover' was sufficient and her comments in the correspondence "may well constitute a genuine oversight". To quote his Skeleton Argument: "She does not at any stage actually claim she has indemnity insurance cover separate from her solicitor's legal cover, but rather appears erroneously to conflate the two."

These submissions are to be contrasted with the submission made by Counsel for the GMC (transcript 8D onwards) to the IOT in support of the need for an Interim Suspension Order both for the protection of the public and in the public interest, which strongly advocate the view that the Applicant "must have known" that the legal cover upon which she relied was inadequate to meet her professional obligations "both due to her own professional knowledge of these matters and because the issue had been raised at a previous appraisal as is documented in the Responding to Fitness to Practice referral form".

In other words at the heart of the submissions made to me by first Mr Standing for the Applicant and then Miss Greaney for the GMC, on the approach of the IOT to the issue of probity, has been a dispute as to whether the material correspondence suggests innocent confusion on the part of the Applicant as between legal cover and professional indemnity insurance, as distinct from her being prepared knowingly to mislead when relying on her legal cover as evidence of appropriate professional indemnity insurance.

It is with this distinction in mind that the material correspondence which I set out below, has to be considered.

Before considering the factual background further, I turn to set out some additional preliminary matters going to the nature of the hearing, the duration of the Order, and the legal framework.

The Hearing

The Order was made in the Doctor's absence. Although she had notice of the hearing, the Applicant did not attend and made no application for an adjournment. It is clear that the Applicant through her solicitors took the view that the referral to an IOT was premature given that she had been given until the 13 April to respond to allegations made against her in the response of Dr Raga. The IOT did however have before it the written submissions made on the Applicant's behalf, to which I have referred, addressing in part the substantive issues which had been raised against her.

The Duration of the Order

The Order was made for a duration of 13 months but to be reviewed within 6 months (in accordance with Section 41A(2)1(a) of the Act).

It was made for this period because as counsel for the GMC told the IOT at the hearing, the investigation into the Applicant's conduct was at a very early stage. To quote the material section of the Transcript:

"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

The Order was made pursuant to section 41A(1) of the Act which empowers the IOT to make such an order where it is satisfied, material to this case, of one or both of the following:

"that it is necessary for the protection of members of the public or is otherwise in the public interest…"

It is clear from their Determination that the IOT in this case imposed the Order under both limbs referred to, that is, it was both necessary for the protection of the public and was otherwise in the public interest. To quote the Determination:

"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."

It can be seen from this passage that the IOT purportedly applied a 'necessity' test to both limbs of the empowering subsection, albeit on its face the subsection does not so qualify the public interest. This is in accordance with judicial guidance, in particular the decision in Sheikh v GMC [2007] EWHC 3972 (Admin) at [15] per Davis J:

"… 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."

As to judicial guidance on the approach to the first limb ('necessary for the protection of the public'), I was referred to the observations of Burnett J. (as he then was) in Harry v GMC [2012] EWHC2762 (QB) at [15]:

"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')

The IOT does not and in this case did not make any finding of fact (see the Guidance at [22]: "It is important to keep in mind that the IOT does not make findings of fact or to resolve disputes of fact"). Its task is and was to assess risks when applying either of the statutory limbs for imposing an Interim Order, that is the risk to public safety and the risk to public confidence in the medical profession.

The MPTS Guidance provides written guidance on how an IOT should approach its task under either limb. Material to this case is the following at paragraphs 23 to 25 (any emphasis is the emphasis of this court):

"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…

and

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)."

On the assessment of risk to public confidence at this interim stage the Guidance says amongst other things the following at [39] (in the context of deciding what sort of interim order to make if one is in principle appropriate):

"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

Once the IOT had determined that the empowering provisions of sections 41A(1) were satisfied, it had to decide upon the type of interim order to be made, namely (section 41A(1)(a) and (b)), an order for interim conditional registration ("(b) that his registration shall be conditional on his compliance… with such requirements so specified as the (Tribunal) think fit to impose") or as was imposed in this case, an interim suspension order ("(a) that his registration in the register shall be suspended (that is shall not have effect)").

In either instance the duration of any order is for such period as specified in the Order not exceeding eighteen months.

On the choice of order, the Guidance in addition to that which I have already set out, gives general guidance material to this case at paragraph 33:

"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)

Under section 41A(10), in the case, as here, of an Interim Suspension Order, the court may terminate the Order or substitute a different period for its duration, but the court has no power to be substitute for the Interim Suspension Order an Interim Conditional Registration Order.

It is well established that under this section, the court exercises an original jurisdiction and is not confined to a review or to exercising a judicial review. However, it will show respect for and give appropriate weight to the decision of the IOT, given it is an expert body well acquainted with the requirements that a particular profession needs to uphold, and with issues of public perception and confidence. The Court has to bear in mind that it is faced with an Extant Order and will terminate it only if it is satisfied that it is wrong. In this context I was referred to the observation of Arden LJ in GMC v Hiew [2007] 1 WLR 2007, at [27] and those of Nicol J in Sandler v GMC 2010 EWHC 1029.

I should add that in my judgment, this Court, in considering whether the decision of the IOT was wrong, has to have regard to the information which was before the IOT at the time. I say this because submissions have been made to me by Mr Standing which in part depend on information which was not before the IOT, in particular as to the personal and domestic circumstances of the Applicant who, I was told, was the sole bread winner for her family. She is the mother of 3 children with a husband who is out of work. In these circumstances it has been submitted that the impact of the Order upon the Applicant's ability to provide for her family has been particularly serious.

As a further example of new information not before the IOT, on the issue of continuing risk to the public of the Applicant failing in the future to obtain professional indemnity insurance, Mr Standing placed before me email correspondence between the Applicant and a Medical Protection Insurance provider (MPS) in which the insurer thanked the Applicant for her "application to join MPS" but informed her that they were unable to consider her application "at this time" as the GMC register was showing that she was in an interim suspension period. The email from MPS is dated the 25 April 2018.

In this context I observe that in addition to the provision for review of an Interim Suspension Order within six months of it being made, section 41A(2)(b) provides that an IOT may review it at any time "when new evidence relevant to the order has become available after the making of the order". The Guidance at paragraph 48 is to like effect.

The Professional Obligation as regards Indemnity arrangements

Two other provisions concerning professional indemnity insurance are material to this case. One is statutory. The other is to be found in the 'Good Medical Practice' issued by the GMC.

Section 44C Medical Act 1983 (any emphasis is that of this Court):

Section 44C(1) of the Act provides that "a person who holds a licence to practise as a medical practitioner, and practises as such, must have in force in relation to him an indemnity arrangement which provides appropriate cover for practising as such'.

Subsection (2) provides that an "indemnity arrangement" may comprise (a) a policy of insurance; (b) an arrangement for the purposes of indemnifying a person; (c) a combination of the two.

Subsection (2) provides that for the purposes of the section, "appropriate cover" in relation to practice as a medical practitioner, means "cover against any liabilities that may be incurred in practising as such which is appropriate, having regard to the nature and extent of the risk of practising as such".

In submission to the IOT, counsel for the GMC submitted that the Applicant's legal cover with her solicitors (R.O.C.K. Solicitors) (see paragraph 47 below) did not appear to satisfy these requirements as "the legal cover appears to be an agreement to act on the doctor's behalf in the event of any negligence claim being brought".

No submission was made to me that this was a submission made in error.

Good Medical Practice

The Good Medical Practice Guidance at paragraph 3 states that the practice "describes what is expected of all doctors registered with the (GMC)" and that "it is your responsibility to be familiar with Good medical practice and the explanatory guidance which supports it, and to follow the guidance they contain".

On the question of indemnity cover, paragraph 63 of the practice provides that "you must make sure that you have adequate insurance or indemnity cover so that your patients will not be disadvantaged if they make a claim about the clinical case you have provided in the UK".

The information before the IOT

I have already set out the terms of the January 2018 referral to the GMC from Dr Van Zwanenberg of the Priory Group and the further Response from Dr Raga of Medicure Ltd dated 21 February 2018.

The supporting documentation before the IOT included the following.

On the 24 February 2017 the Applicant signed a contract with Mind Professional Limited (Mind) to provide locum services as a substance misuse psychiatrist on a sessional basis with Life Works Community Limited (Priory Group). She confirmed her acceptance of Mind's terms and conditions for self employed consultants. These included (at paragraph 14.1.2) the obligation ('the Consultancy shall') to "obtain adequate… professional indemnity insurance…".

By email of 22 March 2017, Dr Juliet Whittaker, Medical Director of Mind, asked the Applicant if they could speak "with regard to your medical indemnity / malpractice insurance – i.e. MPS / MDU" and asking "Is there an issue with this? Can you update me". In reply the Applicant by email of the same date stated:

"Dear Juliet,

… 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."

The solicitor's letter referred to is dated 7 December 2016 and was in these terms:

"TO WHOM IT MAY CONCERN

Dear Sirs,

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.

Yours faithfully,

Sonia Clark

R.O.C.K. Solicitors"

In an email reply of 27 March 2017 Dr Whittaker sought further clarification referring expressly to indemnity insurance in private practice, and asking whether the legal cover extended to private practice. I set out the precise terms of the email below but I record in advance that Mr Standing relied on the contents of this email with its reference to both indemnity insurance and legal cover, and appearing to accept that the cover provided by the Applicant's solicitors might be capable of providing appropriate cover, in support of a submission that the use by Dr Whittaker of the term "legal cover" when "indemnity insurance" was presumably meant, was "indicative of the confusion that exists in this area".

The email of Dr Whittaker was as follows:

"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?"

The reply of the Applicant by email of 29 March 2017 was short and confirmatory:

"Thanks for your email. Yes, I have confirmed that my legal cover has private practice included."

So in summary, in the March correspondence between the Applicant and Mind, the Applicant when asked to clarify her position was saying there were no "issues with regards her medical indemnity / malpractice insurance cover" and was in this regard clearly relying on her solicitor's legal cover which she confirmed extended to private practice.

The December correspondence

The scene now moves to December following the Applicant carrying out her November shifts with the Priory. The trigger for further correspondence relating to the Applicant's indemnity insurance position was the submission of an invoice to Priory for the Applicant's fees for the sessions between 21 and 23 November 2017. A dispute arose as to whether these payments were to be paid directly by Priory or via Mind. In the course of the correspondence between the Applicant's solicitors and Priory, the issue of the Applicant's indemnity insurance again arose, with Priory taking the stance that without production of a certificate of indemnity cover, no payments would be made.

The correspondence between the Applicant and Dr Whittaker in early December suggests that, by that month at least, the Applicant was aware of the difference between legal cover and indemnity insurance, but appeared to be taking the stance that since her legal cover had always previously been accepted "as adequate", then absent any specific request from her employer or a contractual requirement for an indemnity cover certificate she had been under no obligation to make such arrangements. She also prayed in aid of her position the fact that in all her many years of practice she had never faced an allegation of negligence or malpractice.

Her solicitors in their correspondence when they subsequently in December onwards took up the fight for payment on the Applicant's behalf, appeared to be taking a like position – and even in such representations as were made to the GMC on the Applicant's behalf in response to the referral of 2 January 2018.

The starting point is the Dr Whittaker email of 11 December to Dr Uwen, headed "Subject re Legal Cover" in which Dr Whittaker referred to the solicitors' legal cover letter and observed that although the letter "confirms the solicitors firm 'acts for you' (i.e. legally represents you) for matters of negligence, malpractice etc, it is not an insurance policy or a certificate of insurance cover" and accordingly asked Dr Uwen to ask her solicitor "to provide your full policy documentation – the actual terms, conditions and value of cover you are insured for (and by whom) in the event of a claim, by way of an insurance policy certificate". She indicated that "Lee" (a reference to Lee Houghton of Priory) had specifically requested confirmation of this before the contract could be authorised by Priory since "as you are aware Priory group like all other independent providers are not included within the scope of the NHS indemnity Scheme".

The reply of Dr Uwen was in these terms (email 11 December):

"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."

Dr Whittaker responded by email the same day as follows:

"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…"

Dr Uwen's response and subsequent responses to Dr Whittaker are instructive on the issue whether she was aware of the difference between legal cover and indemnity cover (she clearly was at this time at least) and whether she was aware of any statutory or good practice obligation to make arrangements for appropriate indemnity cover regardless of any contractual requirement of any particular employer (the answer would on the face of things appear to be in the negative).

Thus her immediate email reply of 12 December 2017 (timed at 00:07) was as follows:

"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."

Dr Whittaker's reply (emailed 12 December at 09:25) contained, among other things, the following:

"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."

Dr Uwen, as regards the second issue, replied (email 12 December 12:43) in these terms:

"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

The Applicant's solicitors then sent to Priory a pre-action letter before claim on her behalf in relation to the non-payment of her fees for the locum services provided on the 21 to 23 November 2017. This letter is dated the 14 December 2017. It is referred to by Dr Zwanenberg in the Referral of 2 January. Amongst other things, the solicitors assert the following:

"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

By letter of the 29 January 2018 the Applicant's solicitors in response to the Priory complaint wrote stating, amongst other things, that:

"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."

On 16 February 2018 the GMC, through its Investigation Officer, Mr Sweeney, wrote to the solicitors stating that as they were aware, Dr Uwen was under investigations as a result of an allegation made by Priory that the doctor worked at the Priory Group without valid medical indemnity, and asking them to ask their client if she had medical indemnity for the periods identified and to provide him with a copy of the indemnity document.

The solicitors replied by email dated 2 March 2018, stating that as regards the period 7 March to 26 June 2017:

"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."

As counsel for her GMC was to submit to the IOT, "R.O.C.K. Solicitors' response focuses on the Priory accepting Dr Uwen's legal cover before she commenced work, but does not address the issue that ultimately Dr Uwen should have had sufficient indemnity insurance".

The solicitors written submissions of 13 April 2018

As I have already indicated, the solicitors also sent written submissions which were before the IOT. For the most part they concentrate on submissions that the referral to the IOT was premature, but at paragraph 4 the substantive complaint is addressed. I have already set out extracts but for completeness I set out the entirety:

"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

As I have already indicated, the IOT determined that the interim suspension Order was both necessary to protect the public, and in the public interest. It found that there were no workable conditions which could provide the necessary protection under either head.

It is the determination under both heads which is challenged in this appeal.

GMC Counsel's submissions to the IOT

The reasoning of the IOT (see below) demonstrates that it had taken on board the submissions of Counsel for the GMC that although an allegation that a doctor had worked without adequate insurance or indemnity insurance might not when considered in isolation, raise a fitness to practise concern, the Applicant's claims that she had appropriate cover, and her ongoing reliance upon her solicitors' letter as evidence of this cover, raised concerns regarding both (i) the protection her patients would have should they bring a claim of negligence against her, which meant that an Interim Order was necessary to protect the public pending the conclusion of the GMC's investigation into the matters; and (ii) her probity which went to the issue of the public interest.

On the issue of the public interest, Counsel had submitted, as I have already indicated, that the evidence provided, raised serious allegations regarding the Doctor's probity. Dr Uwen had informed Mind that she had legal cover for her practice in direct response to enquiries about her insurance or indemnity cover, which she "must have known" was inadequate to meet her professional obligations "both due to her professional knowledge of these matters and because the issue had been raised at a previous appraisal." It was submitted that in the light of the above, "a reasonably informed member of the public would be surprised and offended to learn that Dr Uwen was permitted to practise unrestricted during the GMC's investigation of these matters and an Interim Order is necessary to maintain public confidence in the profession".

Counsel had also submitted that there were no workable conditions that could be applied in this case. Counsel's reasons for this submission relied both on the terms of the Doctor's legal cover with R.O.C.K. Solicitors which did not appear to satisfy the requirements of Good Medical Practice or the Medical Act, and the matters going to the issue of probity. It was said that "the responsible officer's comments also strongly indicate that Dr Uwen was aware of concerns about her insurance and indemnity and had been aware for some time" and hence a condition of suspension was "both necessary and proportionate to maintain public confidence in the profession and to protect the public".

The reasoning of the IOT

The reasoning of the IOT for its determination both as to the need for an Interim Order and the need for a Suspension Order, is to be found in five relatively short paragraphs of its Determination, namely paragraphs 13 to 16, as follows:

"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

Mr Standing, on behalf of the Applicant, has in summary pursued three heads of challenge to the determination of the IOT.

The issue of continuing risk

First, as regards the determination that the Order was necessary for the protection of the public, Mr Standing challenged the adequacy of the reasoning on the essential question of continuing risk.

He submitted that there was a failure on the part of the IOT properly to assess the weight of the information as to the "likelihood of a further incident or incidents during the relevant period" (see again paragraph 24(a) of the Guidance). The risk to those patients who were treated when adequate indemnity was not in place, was not relevant to the consideration of continuing risk (see again Harry at paragraph 15). He submitted that the IOT did not identify a causal link between the previous lack of indemnity insurance and any ongoing risk to the public.

At the core of this ground of challenge is the submission (to quote Mr Standing's Skeleton Argument) "that the likelihood of the Claimant continuing in practise without required insurance cover, having now been put so firmly on notice of this is extremely low". Mr Standing characterised the current matter as relating to an "administrative failing" on the part of Dr Uwen which could be easily remedied to allow safe future practice. This has echoes of the assertion made on the Applicant's behalf by her solicitors in the Particulars of Claim seeking the Order's termination, that "in light of there now being a referral to the GMC, there is little to suggest that Dr Uwen would realistically continue in private practice without indemnity insurance".

In short form, the submission is that there is "simply no evidence" to suggest that the Applicant would make "the same mistake again".

The public interest ground

Next, as regards the determination based on the public interest limb of section 41A(1),the submission is again a challenge to the adequacy of the reasoning of the IOT which Mr Standing submitted was flawed.

The IOT had made clear that this part of their Determination was founded on the information raising issues as to the Applicant's probity (see again the Determination at paragraph 14: "There are therefore allegations of probity before the tribunal which had the potential for causing harm to members of the public") and what they said in this regard would appear to reflect counsel for the GMC's submission to them on probity, that "Dr Uwen informed Mind that she had legal cover for her practice in direct response to enquiries about her insurance or indemnity cover, which she 'must have known' was inadequate to meet her professional obligations 'both due to her professional knowledge of these matters and because the issue had been raised at a previous appraisal".

Miss Greaney before me accepted that the references to allegations concerning the Applicant's probity was an allegation that the Applicant had been dishonest in knowingly misleading Mind that her legal cover was adequate to meet her obligations as regards indemnity insurance in private practice, when she knew the contrary was the case.

Mr Standing's point under this head of challenge is that the IOT failed properly to assess the weight of the evidence relied on by the GMC on the issue of probity; that the correspondence relied on was ambiguous on the issue being capable of bearing a different interpretation from that of being knowingly misleading, namely that the Applicant had been in confusion both as to the nature of the professional requirements in private practice with Priory as regards indemnity insurance, and as to the adequacy of her legal cover to meet what was being required of her by Mind / Priory.

It is prayed in aid of such interpretation that, as stated to the GMC in the solicitors' submissions of 13 April, the work the Applicant had undertaken for the Priory Group in 2017 was the first time the Applicant had not been working with the NHS when the NHS Indemnity Scheme for the protection of patients was always in place, and that the matters raised by Medicure (Dr Raga) as to what was drawn to the attention to the Applicant in 2016, upon which significant reliance was placed by the IOT, had to be seen in this context. Moreover, the Case Examiner in the Referral to the IOT had said in his decision of 27 March:

"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.