Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
Dr Uwen and The General Medical Council (GMC)  EWHC 2484 (Admin)
Dr Uwen (‘the Applicant’) made an application to the High Court pursuant to section 41A(10) of the Medical Act 1983 (‘the Act’) seeking termination of an interim suspension order imposed by the Interim Orders Tribunal (‘IOT’) in April 2018. It is of note that the Applicant did not attend the IOT hearing, and therefore the order was made in her absence.
During two periods in 2017 the Applicant had practised without indemnity cover. During these periods the Applicant had worked as a locum consultant psychiatrist in a private capacity. Prior to these periods, she had worked almost exclusively for the NHS. From correspondence provided to the GMC, it was clear that the Applicant was aware of the requirement to have appropriate cover for any private practice. In written submissions to the IOT, the Applicant’s solicitors stated as follows:
“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.”
Doctors who are registered with a license to practise must ensure that they have an ‘indemnity arrangement which provides appropriate cover for practising as such’ – section 44C(1) of the Act. Subsection (2) states 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’. The cover must be ‘appropriate’, although appropriate is not defined in the Act, it states that appropriate cover must ‘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’.
Paragraph 63 of Good Medical Practice equally does not define what appropriate cover is, but provides as follows: “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”.
At paragraph 31 of the judgement, Mr Justice King made clear that the Court’s determination of whether the decision of the IOT was wrong must be based on the information it had before it at the time. This was poignant as the Applicant had submitted further documentation to the Court which the IOT had not been privy to. This information related to the Applicant’s personal and domestic circumstances, including that she is a mother of three and the sole earner of the family.
Counsel for the Applicant stated that correspondence relied upon by the GMC as demonstrating probity concerns was in fact demonstrative of the Applicant’s: ‘honest, if erroneous, belief that her ‘legal cover’ was sufficient’.
Before the IOT was an email from one of the organisations the Applicant had worked for which asked her to confirm that there was no issue with her ‘indemnity/malpractice insurance’, to which the Applicant responded:
“… 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.”
There was on-going correspondence with the Applicant to ascertain whether the legal cover extended to private practice, and in an email dated 29 March 2017, the Applicant confirmed the same stating: “Thanks for your email. Yes, I have confirmed that my legal cover has private practice included.”
In December 2017, the issue arose again. As set out in paragraph 52 of the Court’s decision, the Applicant was by this stage aware of the difference between legal cover and indemnity insurance, but appeared to be taking the position that since her legal cover had always previously been accepted, the absence of any specific request from her employer or a contractual requirement for an indemnity cover certificate meant that she was not required to make such arrangements. Notwithstanding, on 12 December 2017 the Applicant sent an email stating 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…”
The correspondence sent to the GMC by the Applicant’s solicitors sought to distinguish the difference between her confirmation that she had legal cover, rather than indemnity insurance. Further, that her documentation had been reviewed by the employers and she had been permitted to work. In response, Counsel for the GMC submitted as follows 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”.
At the IOT, Counsel for the GMC submitted that the Applicant must have been aware that her legal cover was not adequate to meet her professional obligations. Counsel for the Applicant before the Court submitted as follows:
1. The risk to patients who were treated when inadequate indemnity was an issue was not a relevant consideration as to continuing risk because the likelihood of her continuing to practise without adequate indemnity cover was extremely low;
2. The IOT failed to properly assess the weight of the evidence relied upon by the GMC in relation to probity, in that the correspondence relied upon was capable of bearing a different interpretation to that of being ‘knowingly misleading’; and
3. The IOT’s imposition of an interim suspension order was disproportionate taking into account the Applicant’s personal circumstances.
Mr Justice King specifically stressed that based on the information that was before the IOT, he was not able to conclude that the decision by the IOT that an interim suspension order was necessary for the protection of the public was wrong. Whilst the Applicant had accepted before the Court that she had made a mistake in believing that her legal cover was adequate, no such contrition or acknowledgement was before the IOT. In fact, the correspondence before the IOT was suggestive of the Applicant failing to understand how her working without indemnity insurance or other adequate indemnity cover was a matter of concern, and if any fault existed, it lay with the employer for failing to specifically ask her to make such arrangements.
As to probity, Mr Justice King accepted that there was some ambiguity in the correspondence relied upon by the GMC, and had he not concluded that there was a proper basis for a finding “of a real and serious continuing risk to members of the public”, he “would have been minded to find there was force in Mr Standing’s submission that the weight of the information regarding the allegations against the Applicant’s probity, was on careful analysis not sufficient to justify a decision that public confidence in the profession was likely to be seriously damaged if the doctor was allowed to continue in practice during and pending the outcome of the GMC’s investigation…”.
The application was therefore dismissed.
Whilst regulatory lawyers like myself have long questioned what is meant by ‘adequate’ indemnity cover, the Applicant in this case clearly did not have any indemnity cover at all, which was not only in breach of her professional duties, but could have caused significant difficulties for any patient wishing to make a claim in relation to the requisite period.
This case also demonstrates the importance of engagement with any regulatory process, even in the very early stages. We often find that our early input in relation to a case leads to an outcome which is better than expected. In this case, the IOT was left with an impression that the Applicant lacked insight into the arising concerns, such that there may be continuing risk. Further, the IOT had no information before it as to the Applicant’s personal circumstances, which meant that the interim suspension order would have severe consequences for her family. Had the Applicant been present and represented, submissions could have been made to deal with these matters.
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