Mr Roderick Ewan Irvine v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holroyde |
| Judgment Date | 14 August 2017 |
| Neutral Citation | [2017] EWHC 2038 (Admin) |
| Docket Number | Case No: CO/196/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 August 2017 |
[2017] EWHC 2038 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holroyde
Case No: CO/196/2017
Mr Victor Richard Stockinger (instructed by Stockinger Advocates and Solicitors, London) for the Appellant
Mr Peter Mant (instructed by The General Medical Council Legal Department) for the Respondent
Hearing dates: 13 th June 2017
Approved Judgment
On 6 th December 2016 a Medical Practitioners Tribunal Panel established pursuant to the General Medical Council's Fitness to Practise Rules 2004 ("the Tribunal") found a number of factual allegations proved against the appellant Mr Roderick Irvine, a consultant obstetrician and gynaecologist ("Mr Irvine"). In essence, those allegations related to his private practice over a period of almost 5 years whilst not holding any insurance or professional indemnity cover in respect of such work. On 16 th December 2016 the Tribunal found that Mr Irvine's fitness to practise was impaired by reason of misconduct and by reason of deficient professional performance. On 21 st December 2016 the Tribunal determined that the only appropriate and proportionate sanction they could impose was a direction that Mr Irvine's name be erased from the register of medical practitioners. Mr Irvine now appeals against a number of the factual findings, against the finding of impairment by reason of misconduct due to dishonesty, and against the Tribunal's decision as to sanction.
Although I have summarised the essence of the allegations against Mr Irvine in a few words, the Tribunal was called upon to determine no fewer than 66 factual allegations. Some were admitted, and there is therefore no appeal against the findings that those allegations were proved. It is unnecessary to say more about them, or about other factual matters which were found proved but are no longer in dispute. The disputed allegations which were found proved, and which are challenged in this appeal, were that Mr Irvine –
a) (allegation 1) between a date in 2007, and 23 rd February 2012, held practising privileges at Lister Hospital, London without valid indemnity cover in place;
b) (allegation 2) between a date in 2007, and 23 rd February 2012, held practising privileges at the London Clinic, London without valid indemnity cover in place;
c) (allegation 3) between a date in 2007, and 23 rd February 2012, held practising privileges at Fawkham Manor Hospital without valid indemnity cover in place;
d) (allegation 5) held practising privileges at Blackheath Hospital without valid indemnity cover in place between the following dates:
i) a date in 2007, and 23 rd November 2010;
ii) 10 th December 2010 and 31 st October 2011;
e) (allegation 6) on dates during the periods described at paragraph 5, was treating patients at Blackheath Hospital without valid indemnity cover in place;
f) (allegation 7) between 14 th April 2009 and 23 rd November 2010 held practising privileges at Chelsfield Park Hospital without valid indemnity cover in place;
g) (allegation 8) at Portland Hospital between a date in 2007 and 23 rd February 2012 without valid indemnity cover in place –
i) held practising privileges;
ii) treated patients;
h) (allegation 10) between a date in 2007, and 18 th June 2010, held practising privileges at Wellington Hospital without valid indemnity cover in place;
i) (allegation 11B) failed to inform Blackheath Hospital that he did not hold indemnity cover;
j) (allegation 14A) on 28 th November 2013 provided and relied upon a letter from the MDU dated 4 th January 2011 as proof of indemnity cover for the period 24 th November 2010 to 31 st October 2011 to the Lister Hospital;
k) (allegation 14B) as at 28 th November 2013 did not hold membership or indemnity cover with the MDU in respect of the period described in paragraph 14A;
l) (allegation 15B) on an undefined date, did not hold membership or indemnity cover with the MDU;
m) (allegation 16) in a letter dated 28 th November 2013 to Lister Hospital held himself out as having valid indemnity cover for the period 2011 to 2012;
n) (allegation 17) his conduct as described in the preceding paragraphs was dishonest because he –
i) knew or ought to have known that he did not have the benefit of indemnity cover during the periods described in paragraphs 1, 2, 3, 5, 8A, 10 and 16;
ii) knew or ought to have known, in relation to paragraphs 6, 8B and 11B, that he should not treat patients privately without indemnity cover in place;
iii) knew or ought to have known that the letter described in paragraph 14 was not proof of membership or indemnity cover being in place.
All of the proven allegations related to a period of almost five years between 2007 and 2012. That is the relevant period for the purposes of this appeal.
Remarkably, the Tribunal sat on no fewer than 46 days. Mr Irvine himself gave evidence over a period of 5 days during the fact-finding stage of the proceedings (albeit not continuously, as his evidence was interrupted by hearing other witnesses who could not be available at any other time, and by hearing legal argument), and again at the two subsequent stages of the proceedings. The Tribunal therefore had a very full opportunity to hear and see Mr Irvine, and to assess his evidence, before making their findings.
On Mr Irvine's behalf, his advocate Mr Stockinger has drafted 23 grounds of appeal. There is a substantial degree of overlap, as was readily acknowledged in Mr Stockinger's oral submissions. For that reason, although I have considered every one of the many points raised by Mr Stockinger in reaching my decision, it is not necessary in this judgment for me to deal separately with each of them. The core submission is that during the relevant period Mr Irvine, as a matter both of law and of fact, did have valid indemnity cover, and did not act dishonestly in any respect in relation to his private medical practice.
The statutory framework:
Section 1 of the Medical Act 2003 (as amended) provides in part as follows:
"(1) There shall continue to be a body corporate known as the General Medical Council (in this Act referred to as "the General Council") having the functions assigned to them by this Act.
(1A) The over-arching objective of the General Council in exercising their functions is the protection of the public.
(1B) The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives—
(a) to protect, promote and maintain the health, safety and well—being of the public,
(b) to promote and maintain public confidence in the medical profession, and
(c) to promote and maintain proper professional standards and conduct for members of that profession.
(3) The General Council shall have the following committees –
…
(g) the Medical Practitioners Tribunal Service ("the MPTS"),
(h) one or more Medical Practitioners Tribunals…"
Section 35 c of the 1983 Act provides that an allegation that the fitness to practice of a registered medical practitioner is impaired shall initially be investigated by an Investigation Committee, to decide whether it should be considered by a Medical Practitioners Tribunal.
The functions of a Medical Practitioners Tribunal are set out in section 35D, which provides in part as follows:
"(1) Where an allegation against a person is referred under section 35C(5)(b) above to MPTS—
(a) the MPTS must arrange for the allegation to be considered by a Medical Practitioners Tribunal, and
(b) subsections (2) and (3) below shall apply.
(2) Where the Medical Practitioners Tribunal find that the person's fitness to practise is impaired they may, if they think fit —
(a) except in a health case or language case, direct that the person's name shall be erased from the register;
(b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or
(c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Tribunal think fit to impose for the protection of members of the public or in his interests.
(3) Where the Tribunal find that the person's fitness to practise is not impaired they may nevertheless give him a warning regarding his future conduct or performance."
Section 44C of the Act as amended, with effect from 17 th July 2014 (see the Health Care and Associated Professions (Indemnity Arrangements) Order 2014, SI 2014/1887), sets out the indemnity arrangements which are required of a medical practitioner. It provides in part –
"(1) 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.
(2) For the purposes of this section, 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.
(3) For the purposes of this section, "appropriate cover", in relation to practice as a medical practitioner, means cover against liabilities that may be incurred in practising as such which is appropriate, having regard to the nature and extent of the risks of practising as such.
…
(9) Where a person who holds a licence to practise is in breach of subsection (1) …
(a) a licensing authority may withdraw that person's licence to practise; or
(b) the breach … may be treated as misconduct for the purposes of section 35C(2)(a), and the Registrar may accordingly refer the matter to the Investigation...
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