Irvine v The General Medical Council

A medical practitioner must maintain adequate insurance or professional indemnity cover for private practice. Completing an application form or payment mandate does not itself create insurance cover where acceptance, risk assessment and payment remain outstanding. Annual insurance renewals are new contracts and are not automatic. The obligation applies where practising privileges are held as well as when private treatment is actually provided. A specialist disciplinary tribunal’s factual findings, particularly findings based on witness credibility, attract substantial respect on appeal. Persistent dishonesty, failure to acknowledge wrongdoing and lack of insight may justify erasure where lesser sanctions would not protect patients or maintain public confidence.

A Medical Practitioners Tribunal found that a consultant obstetrician and gynaecologist had held practising privileges and conducted private practice for almost five years without insurance or professional indemnity cover. It found dishonesty, impairment of fitness to practise and deficient professional performance, and directed erasure from the medical register.

The practitioner appealed against disputed factual findings, the finding of impairment by reason of dishonest misconduct, and the sanction. The central issues were whether insurance contracts had been formed or renewed through applications and payment arrangements, whether holding practising privileges itself required insurance, whether the dishonesty finding was sustainable, and whether erasure was proportionate.

1. The appeal was dismissed. Under section 40 of the Medical Act 1983, read with CPR 52.21(3) and Practice Direction 52D, the appeal was by way of rehearing, but the High Court could interfere only if the Tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity. Appropriate weight had to be given to the specialist Tribunal’s expertise and its opportunity to hear and see the witnesses.

2. The Tribunal was entitled, and correct, to find that the practitioner’s MPS cover had ended in 2007 and that MDU cover did not begin until 2012. The application form and direct debit mandate were an offer to pay for services, not acceptance by the professional organisation. Acceptance required the organisation to assess the risk and terms and was evidenced by membership documentation, subject to payment. Each annual renewal was a new, time-limited contract; cover did not renew automatically merely because a payment mandate remained in force.

3. The absence of a statutory definition of adequate insurance did not assist the practitioner because the Tribunal found that he had no insurance at all during the relevant period. A jointly owned property was not an adequate substitute for insurance. The professional obligation to insure applied even where practising privileges were held but not exercised, because the privileges were sought to enable private practice and would not have been granted had the lack of cover been disclosed.

4. The Tribunal had properly applied the two-stage dishonesty test in R v Ghosh [1982] QB 1053. Dishonesty could be inferred from the proved facts. The practitioner’s repeated failure to provide proof of insurance, continued booking of patients, and assertion that he was fully covered when an MDU letter expressly stated that it was not confirmation of membership supported the finding of deliberate dishonesty.

5. The Tribunal was entitled to find impairment. The practitioner’s persistent lack of insight and refusal to accept the dishonesty finding meant that remediation was not realistically established. Erasure was proportionate because lesser sanctions would not adequately protect the public or maintain confidence in the medical profession. The practitioner’s skill, testimonials and personal consequences could not outweigh the public interest in circumstances involving prolonged uninsured practice and dishonesty.

The judgment does not state a separate lower-court decision. The appeal was brought from decisions of a Medical Practitioners Tribunal, which had found misconduct, deficient professional performance and impairment and had directed erasure. The High Court dismissed the appeal.