Newsletters Professional Discipline 19th Feb 2020

Dishonesty re-visited

Uwen v General Medical Council [2019] EWHC 3483 (Admin)

On December 20th 2019, Mrs Justice McGowan heard an appeal brought by Doctor Uwen against a decision of the Medical Practitioners’ Tribunal that she had behaved dishonestly and erasing her from the register.

The facts of the case were very simple: Dr Uwen, a consultant psychiatrist had been asked to confirm that she had adequate insurance or indemnity cover in place. She asserted she did and repeatedly relied on a solicitor’s letter which referred to her having “legal cover”.  She had apparently considered this meant she had adequate indemnity cover in place. The question for the MPTS was whether she had mistakenly believed that she had such cover or whether she had lied. On this issue the Tribunal noted:

The Tribunal considered that Dr Ogbe-Uwen intended to represent the content of her solicitor’s letter as her having adequate Indemnity Insurance cover. However, the Tribunal was of the view that the content of the letter does not lend itself to be interpreted in that way. The content of the letter only confirms the terms of their engagement as Dr Ogbe-Uwen’s solicitors acting in legal matters if and when the need arises.

Therefore, on the balance of probabilities, the Tribunal determined that Dr Ogbe-Uwen knew at all material times that her legal cover did not constitute a policy of adequate insurance or indemnity cover required for the work she undertook at Life Works. During cross-examination evidence, Dr Ogbe-Uwen was clear she understood what constitutes an insurance policy

The appeal to the High Court was brought on the basis that the MPTS had incorrectly applied the test for dishonesty as set out in Ivey v Genting Casinos (UK) Limited [2017] UKSC 67. Dr Uwen argued the Tribunal had got the test the wrong way round – it had conducted an objective assessment, and then gone on to the subjective test.

In her judgment upholding the finding of the MPTS McGowan J reiterated that the Ivey test includes an objective assessment of the reasonableness of the beliefs which the person claims to have held:

The reasonableness or otherwise is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held

The judgment upheld the MPTS determination. It had found:

i)  That the Registrant intended to represent to enquirers that the letter from the solicitor amounted to providing adequate cover, an assessment of her subjective state of mind,

ii) The letter was incapable of such an interpretation and her claimed belief was unreasonable, an objective test, and therefore,

iii)  She was dishonest when she represented the letter as providing adequate cover because she did not genuinely believe that to be the case.

Having rejected this ground of appeal, McGowan J then went on to consider sanction and stated that erasure from the register is not an inevitable consequence of a finding of dishonesty. However, rather alarmingly, at paragraph 43 of the judgement she stated:

“The law is well established. The sanction to be imposed has more than one function, it is not simply to impose punishment upon the Registrant but also to protect the public and to maintain public confidence in the medical profession and its ability to regulate practitioners.”

The suggestion that sanctions in Regulatory proceedings contain any punitive element is surprising and incorrect. The law is well established on this point and it says diametrically the opposite. Hopefully this will be taken for the simple mistake it is, and not a new line of authority that Tribunals and/or regulators will try to follow.

Vivienne Tanchel


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