Adverse inferences and misinterpreting allegations: An analysis of the General Medical Council v Udoye [2021] EWHC 1511

29 June 2021

Introduction

Dr Azubuike Valentine Udoye (“Dr U”) appeared before the Medical Practitioners Tribunal (“the Tribunal”) facing allegations of dishonesty relating to his route of qualification as a General Practitioner (“GP”) in the United Kingdom. On 30 January 2020, the Tribunal found that his fitness to practise was not impaired, dismissing allegations of misconduct against Dr U. The General Medical Council (“the GMC”) appealed to the High Court against this decision, under its powers set out in section 40A of the Medical Act 1983. The appeal was upheld and a number of allegations were remitted to the Tribunal to be redetermined in light of the High Court’s judgment, and to proceed to determine, if appropriate, misconduct, impairment and sanction.

Background

Dr U qualified as a doctor in 1999 in Nigeria, working as a hospital doctor upon his arrival in England in 2005, before then applying for a GP training post in 2010. He undertook his first year of training in Scotland, but was unable to complete the second year of training as his immigration status did not allow him to continue. Dr U then explored alternative routes of qualification as a GP in the UK, namely by obtaining a Certificate of Eligibility for GP Registration (“CEGPR”). Dr U applied to the NHS’s National Recruitment Office (“the NRO”) to join the NHS’s GP Induction and Refresher Scheme (“the I&R scheme”) in May 2016, before making his application to the GMC for a CEGPR in September 2016. The I&R scheme was designed for those doctors previously included in the GP register, whereas Dr U had never been included. Under the I&R scheme, Dr U was offered a placement for 6 months under supervision of the North Cumbria GP Training Programme Director.

Dr U undertook this placement between August 2017 and March 2018. Meanwhile, Dr U’s application to the GMC for a CEGPR was refused in April 2017 and a review of that decision was later refused in June 2018. It was therefore evident that Dr U undertook the placement under the I&R scheme, knowing that he had been refused a CEGPR and whilst still awaiting the outcome of his request for a review of that decision.

 

Tribunal proceedings

Dr U was first referred to the GMC in relation to his work placement at the Mansion House Surgery following his participation in the I&R scheme. At a hearing on 15 June 2018, the Interim Orders Tribunal (“IOT”) imposed conditions on his registration which included a requirement that he should not work as a GP. In December 2018, the IOT lifted that condition because it was satisfied that there was no real risk of Dr U working as a GP at that time. In September 2018, the GMC received a referral from Health Education England regarding monetary claims made by Dr U in relation to his placement under the I&R scheme. 

In summary, the allegations of dishonesty were that Dr U:

  1. Declared on his registration form for the I&R scheme that he was a GMC registered GP when he knew he was not registered as such;
     
  2. Whilst on the I&R scheme, practiced as a GP when he knew that he was not eligible to do so; and
     
  3. Submitted ten claims to the NRO arising from his placement whilst on the I&R scheme for a contribution to the cost of indemnity cover, his GMC Annual Retention Fee and monthly bursary payments, when he was not eligible to make those claims.

Dr U admitted that he had completed a registration form for the I&R scheme where he confirmed that he was on the GP register and that his status entitled him to work as a GP, whilst accepting that this was untrue. Dr U also admitted his participation on the placement under the I&R scheme, and the subsequent claims submitted in respect of the placement. The Tribunal thereby found these allegations proven. Dr U made submissions that there was no case to answer in relation to the remaining disputed allegations.

The Tribunal agreed with Dr U in respect of whether he knew that his “status” entitled him to work as a GP and that he had been dishonest in that respect. It was decided, however, that there was a case to answer in respect of the remaining allegations - Dr U did not provide evidence to the Tribunal.

The Tribunal found that Dr U had not practised as a GP whilst on the placement under the I&R scheme, as it was held that he was working under supervision and as such had not “practised as an independent GP”. It was also found that the GMC had failed to prove on the balance of probabilities that Dr U had acted dishonestly when completing his registration form to the NRO for the I&R scheme. The Tribunal then decided that the allegations admitted by Dr U did not amount to misconduct, and as a result, impairment was not considered.

 

Appeal to the High Court

The GMC appealed to the High Court on two grounds:

  1. Firstly, that the Tribunal had misinterpreted the wording in the allegation that Dr U had not practised as a GP, giving particular focus to whether he had acted as an ‘independent GP’ when the allegation focused on Dr U practising as a GP whilst on placement under the I&R scheme; and
     
  2. Secondly, that the Tribunal had failed to apply the correct law, as set out in Kuzmin v General Medical Council [2019] EWHC 2129, in that an adverse inference should have been drawn from Dr U’s decision to not give evidence at the Tribunal.

Mr Justice Holgate upheld the appeal:

  1. Dealing with the first ground, it was held that the language used in the allegation relating to Dr U “was perfectly straightforward and clear” and that the Tribunal had been “wrongly persuaded” to misinterpret the wording of the allegation, “despite the fact that it had been set out by [the GMC’s] counsel with complete clarity”; and
     
  2. Regarding the second ground, it was held that the Tribunal’s approach to whether an adverse inference should be drawn from Dr U failing to give evidence “was legally flawed for several, separate reasons”.

 

Adverse Inferences

Mr Justice Holgate drew particular focus to the decision in Kuzmin, where it was held that there is a burden on a Registrant to engage with their regulator, and a refusal to give evidence can result in an adverse inference being drawn. Mr Justice Holgate noted that, “where a professional person faces serious allegations, he would be expected by the public to give an account of his actions. There is a burden on medical practitioners, as with all professionals, to engage with the regulator, both in relation to any investigation and the ultimate resolution of any allegations made against them. That is part of the responsibility to which they signed up when they joined the profession. These principles are reflected in paragraph 73 of the GMC's “Good Medical Practice.” The Tribunal is thereby entitled to draw adverse inferences from such silence by a Registrant, where appropriate.

That said, an adverse inference may not be relied upon “dependent on the particular circumstances of the case” where it may be viewed to be “procedurally unfair” on the Registrant involved. In Kuzmin, Mr Justice Hickinbottom set out the following criteria where it would be appropriate for an adverse inference to be drawn:

  1. A prima facie case to answer has been established;
     
  2. The individual has been given appropriate notice and an appropriate warning that, if he does not give evidence, then such an inference may be drawn; and an opportunity to explain why it would not be reasonable for him to give evidence and, if it is found that he has no reasonable explanation, an opportunity to give evidence;
     
  3. There is no reasonable explanation for his not giving evidence; and
     
  4. There are no other circumstances in the particular case which would make it unfair to draw such an inference.

It was held that the Tribunal failed to address the criterion set out in (iv) in that it did not identify any “other circumstances in the particular case” that would make it unfair to draw an adverse inference as a result of Dr U’s decision to not give evidence to the Tribunal. The Tribunal’s approach in a full evaluation of the merits of the allegations led to a complete disregard as to whether an adverse inference should be drawn.

The second flaw related to the Tribunal identifying that it would be “unfair immediately” to draw an adverse inference that Dr U was unable to answer the case wholly or partially without determining whether a reasonable explanation existed for such an omission. The Tribunal, however, then failed to address this question and whether any reasonable explanation was ever raised by Dr U.

The final flaw related to the Tribunal’s disregard and failure to evaluate the lack of any opportunity, through Dr U’s decision to not give evidence, to test in cross-examination the credibility of his case and/or the merits of any innocent explanation provided that had been put forward by way of submissions alone. Mr Justice Holgate also highlighted the absence of cross-examination of Dr U in relation to the points raised by the GMC in its skeleton argument provided and subsequent submissions.

 

Commentary

The Tribunal’s decisions to disregard the wording of the allegation and apply its own interpretation materially led to the GMC’s successful appeal.

The Tribunal sought to add its own slant to the interpretation of the allegation, despite the case being clearly put by the GMC. Understandably, the High Court found this was unnecessary and flawed in the circumstances.

Where a Registrant relies upon an innocent explanation, and the Tribunal is faced with determining that against possible dishonesty, the importance in testing the evidence of a Registrant cannot be understated. That said, where the Tribunal is not given the benefit of a Registrant giving evidence, it must carefully follow the approach set out in Kuzmin, when determining whether it is procedurally fair to rely upon an adverse inference for a failure to give evidence.

FURTHER INFORMATION

Should you have any queries regarding the issues raised in this blog please contact Shannett Thompson or any member of our Regulatory team.

 

ABOUT THE AUTHORS

Tommy Dominguez is a Legal Assistant in the Regulatory team. Tommy investigates and prepares fitness to practise cases relating to professional misconduct, conviction, ill-health, and lack of competence on behalf of the Health and Care Professions Council (HCPC), Education Workforce Council (EWC) and General Pharmaceutical Council (GPhC). During these investigations, Tommy interviews witnesses and drafts statements on their behalf, instructs experts and liaises with various other parties, such as the police, for further documentary evidence.

Shannett Thompson is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors. Shannett has vast experience advising  regulated individuals,  businesses such as clinics and care homes and students in respect of disciplinary investigations. She is a member of the private prosecutions team providing advice to individuals, business and charities in respect of prosecutions were traditional agencies are unwilling or unable to act. In addition Shannett has built up a significant niche in advising investors and businesses in the cannabis sector.

 

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