Acting to stop harm: the FCA and Appointed Representatives
Irvine v General Medical Council
 EWCA Civ 1296
The Appellant is an experienced medical practitioner specialising in obstetrics and gynaecology. He became a consultant in 2002.
It is a requirement, as set out in paragraph 63 of Good Medical Practice 2013, that doctors with a licence to practise, must have adequate insurance or indemnity cover. The Appellant had a substantial private practice.
Until he became a consultant, the Appellant was a member of the Medical Defence Union (MDU). In 2002, he changed membership to the Medical Protection Society (MPS) and remained with the MPS for five years until 30 September 2007, during which time his annual subscription rose from £665 to £19, 135.
It was alleged that the Appellant did not have insurance or indemnity cover for the period 1 October 2007 to 23 February 2012 and he was dishonestly aware that, as a result, he was not insured for the work he performed privately.
At the hearing before the MPTS, the Appellant’s primary contention was that he had adequate cover at all times and insofar as he did not have cover for any period, he was unaware of that fact. He could not recall receiving correspondence from the MPS in May 2007 informing him that his membership had been terminated for non-payment, nor did he notice that his subscription payments ceased in December 2006. The MPTS rejected this explanation and found he was not covered by adequate insurance/indemnity during the period 2007 and 2012 and that he had not merely been slipshod in dealing with paperwork but had been actively dishonest.
The key appeal arguments were:
i.Indemnity contracts with the medical defence organisations are annual, and, once accepted, continue on a rolling basis, automatically renewing year-by-year provided the organisation does not terminate the arrangement by notice. As such, the Appellant was reasonably entitled to believe that it had renewed and that he was covered.
ii.Regardless of the above, the Appellant was adequately covered, as he had realisable assets which could be used to satisfy professional claims.
iii.The MPTS were wrong to find dishonesty; and
iv.Erasure from the register was a disproportionate sanction.
Mr Justice Hinkinbottom refused permission to appeal on all grounds. He found, as a matter of law, that each indemnity renewal was a contract limited to one year and the MPTS were entitled to find that the last contract went up until 2007. He took the view that the Appellant’s obligation was to take out adequate cover, not simply to have sufficient assets to cover a claim. Mr Justice Hinkinbottom also agreed that the MPTS were entitled to find the Appellant’s actions had been dishonest and concluded ‘on the facts as found, the inference that the applicant had been dishonest was, indeed, overwhelming’. In finding dishonesty, the MPTS took account of the following:
i.After his MPS certificate expired in September 2007, the Appellant did not receive any further certificates or renewal letters. No payments were taken from his bank account over three years and given the cost of indemnity cover, the MPTS found it implausible that he would have failed to notice the extra funds in his account which would have totalled around £60,000;
ii.The Appellant had been sent a chaser letter on 17 January 2011 and a further letter on 25 January 2011 stating that his application for membership to the MDU was cancelled. The Appellant did not respond to these letters, no payments were ever made and no certificate was ever issued. In evidence, he stated that he was not very good at paperwork or at checking his post, however, the MPTS found this to be ‘implausible’ and were satisfied that he must have been aware that he did not have membership of the MDU at that time.
In respect of the sanction imposed, Mr Justice Hinkinbottom agreed that ‘given the findings of dishonesty, which the Applicant still refuses to accept and the risk of further misconduct as found by the tribunal, that conclusion was perhaps unsurprising’.
This case stands as a stark reminder to practitioners of the consequences which can arise from a regulatory perspective should they fall foul of indemnity/insurance obligations. Regulators take this issue seriously, as one of the key purposes of such cover is to ensure that patients can be adequately compensated should they make a claim. This case also serves as an example of the types of issues which regulators consider to be dishonest, that may not be evident to regulated professionals.
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