Irvine v The General Medical Council [2017] EWHC 2038 (Admin)

[2017] EWHC 2038 (Admin)Case No CO/196/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/08/2017
Before
MR JUSTICE HOLROYDE
Between
MR RODERICK EWAN IRVINEAppellantTHE GENERAL MEDICAL COUNCILRespondent
Mr Victor Richard Stockinger (instructed by Stockinger Advocates and Solicitors, London) for AppellantMr Peter Mant (instructed by The General Medical Council Legal Department) for RespondentHearing Hearing dates: 13 th June 2017
Judgment Approved
[1]On 6th 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 16th 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 21st 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.[2]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 23rd February 2012, held practising privileges at Lister Hospital, London without valid indemnity cover in place; b) (allegation 2) between a date in 2007, and 23rd 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 23rd 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 23rd November 2010; ii) 10th December 2010 and 31st 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 14th April 2009 and 23rd 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 23rd February 2012 without valid indemnity cover in place – i) held practising privileges; ii) treated patients; h) (allegation 10) between a date in 2007, and 18th 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 28th November 2013 provided and relied upon a letter from the MDU dated 4th January 2011 as proof of indemnity cover for the period 24th November 2010 to 31st October 2011 to the Lister Hospital; k) (allegation 14B) as at 28th 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 28th 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.[3]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.[4]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.[5]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:

[6]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…” (a) to protect, promote and maintain the health, safety and well- being of the public, (c) to promote and maintain proper professional standards and conduct for members of that profession.

(g) the Medical Practitioners Tribunal Service (“the MPTS”),

[7]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.[8]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.” (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. (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.[9]Section 44C of the Act as amended, with effect from 17th 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 Committee under section 35C(4).” (a) a policy of insurance; (b) an arrangement for the purposes of indemnifying a person; (c) a combination of the two. (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 Committee under section 35C(4).”[10]Although section 44C was not in force during the relevant period, the GMC had in 2006 issued guidance entitled Good Medical Practice. It is common ground in this appeal that the guidance contained in that manual – which came into effect on 13th November 2006 – was applicable to Mr Irvine throughout the relevant period. Good Medical Practice began with this statement:
“The guidance that follows describes what is expected of all doctors registered with the GMC. It is your responsibility to be familiar with Good Medical Practice and to follow the guidance it contains. It is guidance not a statutory code, so you must use your judgment to apply the principles to the various situations you will face as a doctor. … In Good Medical Practice the terms ‘you must’ and ‘you should’ are used in the following ways: ‘You must’ is used for an overriding duty or principle … Serious or persistent failure to follow this guidance will put your registration at risk … .”
[11]In a later section of the manual, headed “Maintaining trust in the profession”, Good Medical Practice set out a number of overriding duties or principles, including (at paragraph 34) – “You must take out adequate insurance or professional indemnity cover for any part of your practice not covered by an employer’s indemnity scheme, in your patients’ interests as well as your own.” For convenience, in this judgment I shall use “insurance” as a compendious term including both adequate insurance and adequate professional indemnity cover.[12]The MPTS has published Sanctions Guidance for members of Medical Practitioners Tribunals. Detailed guidance is given as to taking a proportionate approach when imposing sanctions, and as to the aggravating and mitigating factors which may need to be considered when deciding on the appropriate sanction. Sanctions Guidance emphasises, at paragraph 14, that the main reason for imposing sanctions is to protect the public; at paragraph 16, that sanctions are not imposed to punish or discipline doctors, though they may have a punitive effect; and at paragraph 17, that patients must be able to trust doctors with their lives and their health, and so – “… doctors must make sure that their conduct justifies their patients’ trust in in them and the public’s trust in the profession (see paragraph 65 of Good Medical Practice). Although the Tribunal should make sure that the sanction it imposes is appropriate and proportionate, the reputation of the profession as a whole is more important than the interests of any individual doctor” That guidance echoes the familiar principles stated in Bolton v Law Society [1994] 1 WLR 512, that the sanction imposed by a professional disciplinary body is not primarily directed to punishment but rather to the maintenance of public confidence in the profession, and that failure to act with complete integrity would accordingly attract severe sanctions, with matters of personal mitigation carrying less weight than they would in a criminal case.[13]Section 40 of the Medical Act 1983 gives a medical practitioner a right of appeal to the high court against a decision against a direction for erasure. By section 40(7) on such an appeal this court may – “(a) dismiss the appeal; (b) allow the appeal and quash the direction or variation appealed against; (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Medical Practitioners Tribunal; or (d) remit the case a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court, and may make such order as to costs … as it thinks fit.” and may make such order as to costs … as it thinks fit.”[14]An appeal pursuant to section 40 is by way of rehearing: see paragraph 19.1(2) of Practice Direction 52D. It is not however a rehearing which involves the court’s hearing again all of the evidence given below. Pursuant to CPR 52.21(3), the High Court will allow the appeal only if the decision of the Tribunal was – “(a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings.” Mr Irvine does not complain of any serious irregularity in these proceedings, but does contend that decisions of the Tribunal were wrong.[15]It is well-established that the High Court must give appropriate weight to the fact that the appeal is brought from a specialist tribunal whose understanding of the expectations of the medical profession in matters of medical practice deserves respect, and which had the benefit of hearing and seeing the witnesses: see, eg, Meadow v GMC [2007] QB 462. In addition, as Leveson LJ said at paragraph 47 of his judgment in Southall v GMC [2010] EWCA 407 (Civ) – “As a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable …”.

The background to the proceedings:

[16]Mr Irvine is an experienced medical practitioner, having qualified in 1980. He became a fully registered member of the GMC in August 1981, and acquired specialist registration in obstetrics and gynaecology in April 2011. He became a consultant in 2002. In addition to his NHS practice, he saw and treated a number of patients privately. In that regard, the Tribunal accepted evidence (which was for the most part unchallenged) that Mr Irvine held practising privileges at the hospitals named in the allegations during the periods in respect of which those allegations were proven. It should be noted that the Tribunal found that although Mr Irvine had been granted practising privileges at Chelsfield Park Hospital between the dates stated, he had not applied for those privileges and did not make use of them; and that the Tribunal accepted that a time may have come when Mr Irvine regarded his practising privileges at the Wellington Hospital as having lapsed, and so did not make use of them.[17]No issue has arisen in these proceedings as to Mr Irvine’s NHS practice, which was at all material times covered by a separate indemnity arrangement. The issues as to whether he held any insurance in respect of his private practice turn in effect on whether he was during the relevant period a member of either the Medical Defence Union (“MDU”) or the Medical Protection Society (“MPS”). Each of those professional bodies provides services to its members which include the provision of indemnity cover.[18]The GMC called as a witness Mr David Cardno, the Head of Operations at MDU since 2010, whose evidence the Tribunal accepted. By reference to MDU records he stated that Mr Irvine was a member of that organisation during two periods between 1980 and 1989, and again from 24th February 2012 until 12th December 2012. Amongst the benefits of his membership were the right to request assistance or indemnity from MDU in the event of a claim by a patient, and a policy of insurance between Mr Irvine and a third party insurer in respect of any such claim. However, on Mr Cardno’s evidence, Mr Irvine was not a member of MDU at any time during the relevant period.[19]No witness was called from MPS (a surprising omission, though not one which in the end affects the outcome of this appeal). It was however the GMC’s case that Mr Irvine was not a member of that organisation either during the relevant period.[20]Mr Irvine gave evidence that he had been a member of MDU until he achieved consultant status in 2002, but then decided to change to MPS. He was able to produce annual membership certificates issued by MPS for the five years from 1st October 2002 until 30th September 2007, each of which stated the period of membership as being a year, from the 1st October to the following 30th September. He was not able to produce a certificate for any later period. It may be noted that during the first four of those years, the annual subscription rose from £665 to £906; but in the fifth year it rose steeply to £19,135. As will be seen, membership of MPS for the year 2010-2011 would have cost Mr Irvine £23,434.[21]On 21st May 2007 MPS wrote to Mr Irvine informing him that his membership had been terminated for non-payment of his subscription. Regrettably, no copy of that letter could be found. Mr Irvine’s evidence was that he did not remember this letter, but he did not deny that he had received it. It appears that MPS believed that Mr Irvine had cancelled the direct debit which he had established with his bank in favour of MPS. The Tribunal however found that was not the case: they accepted that the true position, as described in a letter from Mr Irvine’s bank, was that he did not cancel the direct debit but it “became inactive due to the fact that it had not been collected in a substantial amount of time”.[22]On 20th October 2009 a former patient of Mr Irvine, to whom I shall refer as “Ms X”, commenced a claim for damages for alleged professional negligence in his treatment of her in 2006. Mr Irvine had hoped that MPS would indemnify him against that claim. He forwarded the court documents to MPS in October 2007 and sent further documents in May 2008, and he hoped that MPS would conduct the proceedings on his behalf. MPS however did not deal with the claim and refused to provide an indemnity. On 15th March 2010, Ms X obtained judgment in default of acknowledgement of service. Some months later, Mr Irvine instructed solicitors to apply to set that judgment aside. They issued such an application on 10th November 2010. It was unsuccessful, and Ms X’s claim was ultimately settled on terms which required Mr Irvine to pay £35,000 to Ms X by 10th January 2011. He did not pay the whole of that sum by the due date, though he did so at a later stage.[23]It is relevant to note two features of Mr Irvine’s correspondence with MPS challenging their refusal to indemnify him against Ms X’s claim. On 1st December 2010, Mr Irvine wrote that he had been notified by the Membership Services department of MPS that his membership had terminated in December 2005. He disputed that assertion, saying that he had documentary evidence of his membership until 2007. He added that he had continued to pay his subscriptions throughout 2006, and identified (by reference to a copy page from his bank statement) his final payment in the sum of £1,393.84 on 20th December 2006. Then in a letter dated 12th December 2010, Mr Irvine stated plainly to MPS that “My indemnity with you ceased in January 2007”.[24]Against that background of a refusal by MPS to indemnify him against Ms X’s claim, Mr Irvine applied in late 2010 for membership of MDU. On 27th October 2010 he made a request by telephone for a quote. Mr Cardno’s evidence was that on the basis of the information given by Mr Irvine over the telephone, he was quoted an illustrative figure of just over £4,500. He thereafter sent two separate application forms. That appears to have been because the first was delayed in course of post, and was not received by MDU until after the second. However, the two application forms were in substantially the same terms as each other, and nothing turns on the fact that there were two of them. I will therefore refer only to the first, which was dated 24th November 2010: about two weeks after the solicitors instructed by Mr Irvine had applied to set aside the default judgment in favour of Ms X, and – as will be seen below – at a time when he was being pressed by one of the hospitals at which he held practising privileges to provide documentary proof that he was insured.[25]In answering the questions posed on the application form, Mr Irvine identified MPS as his previous insurer, but left blank the section in which he was required to indicate the dates of his membership of that organisation. Mr Stockinger submitted that that omission may simply have been an oversight on Mr Irvine’s part, notwithstanding that the section which he failed to complete was on the same line of the printed form as a section which he did complete. Mr Irvine then answered “No” to each of a series of questions which included the following:
“Are you aware of any complaints or claims, irrespective of their merits or seriousness, that have been brought or threatened against you, or of any incidents which could lead to such a complaint or claim? Has any medical defence organisation declined to offer you membership or refused to renew your membership or terminated your membership?”
[26]In the section of the application form relating to subscription payments, the following appeared:
“Please be aware that subject to the information you provide and the date you submit your application, your subscription rate may change. If this is the case, you will be informed prior to being accepted into membership. … Please note that processing of your application does not constitute acceptance of your application for membership. Your payment will be refunded if your application is not successful.”
[emphasis added] Mr Irvine ticked a box to select the option of payment by monthly instalments pursuant to a direct debit. The form indicated that where that option was selected, “no immediate payment is required - a separate form will be sent to you”.[27]In the final section of the form, entitled “Declaration and agreement”, the following appeared:
“I hereby apply for membership of the Medical Defence Union (the MDU), in accordance with its memorandum and Articles of Association and apply to SCOR UK Company Limited (SCOR) and International insurance Company of Hannover Limited (Inter-Hannover) for professional indemnity insurance. I understand and acknowledge that … a condition of membership of the MDU is that any misrepresentation or misstatement in, or omission of any information which is likely to influence the acceptance or assessment of this application, whether intentional or not, is cause for immediate rejection of this application or termination of membership and that in such circumstances all benefits of membership of the MDU may be withdrawn or denied. I declare that to the best of my knowledge and belief the information provided in connection with this proposal, whether in my own hand or not, is true and I have not withheld any material facts. …”
[emphasis added][28]On 9th December 2010 the membership department of MDU wrote to Mr Irvine thanking him for returning his completed application form and saying – “I am delighted that you have chosen us to provide you with professional indemnity and would like to take this opportunity to inform you of what happens to your application from this point. Please note that this letter is not confirmation of membership so if you have indemnity elsewhere, please do not cancel it until you have received your membership card from us. I have initially reviewed your application and based on the information you have provided I am pleased to provide you with details of the subscription most appropriate to your working circumstances.” [emphasis added] The letter then set out an “illustration of subscription fees” for the period 24th November 2010 to 31st October 2011, noting that Mr Irvine had not advised MDU of his expenses of private practice and that an assumption had accordingly been made in that regard. The illustrative figure was £23,434: much higher than the figure initially quoted over the telephone, because by this stage Mr Irvine had been asked for, and had provided, further information. The letter concluded by referring to the telephone advisory service which was one of the benefits of membership, and said – “As you are entitled to discretionary benefits whilst we finish processing your application, this facility is available for you to use now.”[29]Mr Cardno’s evidence was that MDU then received information from MPS which led them to write asking Mr Irvine whether he had been working without indemnity since 2005. The letter was followed by a telephone call on 30th December 2010, in which Mr Irvine asserted that all his work since 2005 had been indemnified by the NHS and he had not done any non-indemnified work.[30]Payment was not received from Mr Irvine, and on 25th January 2011 MDU cancelled his application and wrote to inform him that they had done so. Mr Irvine therefore did not become a member of MDU in 2010 or 2011. In January 2012 he made a website enquiry about joining MDU, and in February 2012 he made a fresh application for membership of MDU, which he asked to commence on 1st January 2012. MDU requested further information, including whether Mr Irvine had any indemnity in place between 2005 and February 2012, and whether he had undertaken any private work since 2005. In his reply dated 12th April 2012 Mr Irvine indicated (without giving any dates) that he had stopped private practice for a time because of the demands of his NHS work and domestic responsibilities, but said he was now in a position to resume private work. He said “In the interim I have been relying on NHS indemnity”. On 27th April 2012 his application was accepted subject to payment of the annual fee of £23,923 for the period 24th February 2012 to 1st February 2013. Mr Irvine provided a direct debit mandate on 30th April 2012.[31]It is relevant to note that on 28th November 2012 MDU wrote to Mr Irvine stating plainly that he did not become a member of MDU in 2010. A year later, on 28th November 2013, in correspondence with the CEO of the Lister Hospital, Mr Irvine wrote – “I can confirm that 2008-2010 I did not have indemnity. The GMC are already fully aware of this fact. It was a complete oversight on my part, totally unintentional, and I have already apologised to the GMC for this.”[32]Mr Peter Harris, the Executive Director of the BMI Blackheath Hospital, gave evidence that between 2008 and 2011 Mr Irvine was admitting 45-50 patients a year to that hospital for surgical procedures. He had held practising privileges since 2003, but they were terminated on 23rd November 2010 because Mr Irvine failed, despite a protracted course of correspondence over many months, to supply proof that he held valid indemnity cover. Many of the letters and e mails sent by Mr Harris received no reply. On 5th July 2010 Mr Irvine wrote that he would “sort this out on my return from holiday on July 19”. Mr Harris still did not receive the necessary proof, and felt constrained to send Mr Irvine a personal e mail which began “This is becoming embarrassing …”. In his reply dated 4th October 2010 Mr Irvine said that he was “on the case”. He still did not send the required documentation, and on 12th and 15th November 2010 he was warned that unless he provided it by 19th November his privileges would be suspended. On 15th November 2010 Mr Irvine wrote that he would “forward forms accordingly”. He did not do so, but he continued to book patients in for private treatment at the hospital after the date on which he had been warned that his privileges would be suspended. The hospital later had to rearrange those appointments when the privileges were indeed suspended.[33]Mr Harris subsequently renewed the privileges when he received what he believed to be proof of indemnity dated 9th December 2010, but then terminated them for a second time on 13th December 2011 when Mr Irvine again failed to provide proof that his indemnity cover had been renewed.[34]The document which Mr Irvine had sent to Mr Harris, and which Mr Harris initially accepted as proof of indemnity cover, was in fact MDU’s letter of 9th December 2010 from which I have quoted at paragraph 30 above. Mr Irvine sent a copy of that letter under cover of his own letter to Mr Harris of the same date, in which he said “Herewith enclose all completed documentation. As I have changed to the MDU I have been advised that I am fully covered by them at this time with the formal certificate back-dated. This is of as much importance to me as to you. If you are happy with the documentation to renew my privileges I would be grateful if you could inform me … so that I can go ahead with a clinic on Monday Dec 13.” In his evidence to the Tribunal, Mr Harris recognised that with the benefit of hindsight he should not have accepted the MDU letter as evidence of indemnity cover.

The GMC proceedings:

[35]The GMC’s action against Mr Irvine began because by a letter dated 16th March 2011, Ms X reported his conduct to them. She referred amongst other things to the fact that Mr Irvine did not have insurance to meet her claim, and that as a result she was having to wait an unreasonable time to receive her compensation.[36]The GMC’s case before the Tribunal was that during the relevant period Mr Irvine did not hold any insurance in respect of his private practice; was thereby in breach of his professional obligation as stated in Good Medical Practice; and continued to hold his practising privileges at the various hospitals mentioned above, when he should not have done so because he was not insured to treat his private patients. The GMC relied on the evidence that Mr Irvine’s membership of MPS ceased in 2007, and on the evidence of Mr Cardno that, although an application form was completed late in 2010, Mr Irvine did not become a member of MDU until February 2012.[37]In stark contrast, Mr Irvine’s case was that he had entered into a valid and binding contract of insurance with MPS, had established a direct debit so that the appropriate premiums could be collected by MPS, and had therefore done everything that was required of him to complete the contract. He was thus in fact and in law covered by adequate insurance between 2007 and 2010, and any failure by MPS to collect premiums via the direct debit did not alter that position. It was further his case that he entered into a valid and binding contract of insurance with MDU in 2010.[38]So far as MPS is concerned, the Tribunal at paragraphs 67-74 of their determination of the facts made the following findings. They accepted that on 21st May 2007 MPS wrote to Mr Irvine informing him that his membership had been terminated for non-payment of his subscription. They accepted Mr Irvine’s evidence that MPS had acted in error, because he had not cancelled his direct debit. Partly for that reason, and partly because the precise terms of the letter of 21st May 2007 were not available, the Tribunal did not accept the argument that the effect of that letter was to cancel Mr Irvine’s membership with retrospective effect as from December 2005. The Tribunal were however satisfied that that letter had conveyed to Mr Irvine that MPS no longer regarded him as a member; that MPS was under no obligation to continue his membership after the then-current certificate of membership expired on 30th September 2007; and that no further payments were made after a payment taken by direct debit on 20th December 2006. They therefore concluded that Mr Irvine did not have insurance as a member of MPS after 30th September 2007.[39]Mr Irvine’s evidence was that he sent a completed direct debit mandate when he applied for membership of MDU. The Tribunal however accepted Mr Cardno’s evidence that no such mandate was received at MDU. Having made that finding, the Tribunal at paragraph 76 found – “You were sent a chaser letter on 17 January 2011 and a further letter on 25 January 2011 stating that your application for membership was cancelled. No actual payment was ever made and no certificate of membership was issued to or received by you. In the Tribunal’s judgment you never became a member of the MDU at this period. Mr Cardno confirmed that in January 2012 you again enquired about joining the MDU: this application was successful and you became a member on 24 February 2002. 77. Accordingly, the Tribunal rejects Mr Stockinger’s argument that the MDU was obliged to indemnify you in relation to any period before February 2012.”[40]The effect of those findings, clearly, was that the Tribunal found that Mr Irvine had no insurance in respect of his private practice between 1st October 2007 and 23rd February 2012.[41]The Tribunal went on to consider whether Mr Irvine was aware during the relevant period that he was not insured. They noted his evidence that he did not recall receiving the letter of 21st May 2007 and did not regularly check his bank statements, but found it implausible that he did not notice that monthly payments approaching £1,500 were no longer being drawn from his bank account. Moreover, the Tribunal accepted Mr Harris’ evidence as to his correspondence and dealings with Mr Irvine. Taking all the evidence into account, the Tribunal were satisfied on the balance of probabilities that Mr Irvine knew he did not have insurance.[42]At paragraphs 109-119 of their determination on the facts, the Tribunal set out their reasons for concluding that Mr Irvine had been dishonest in a number of respects. Adopting the two-stage test of dishonesty set out in R v Ghosh [1982] QB 1053, the Tribunal concluded that Mr Irvine’s conduct was dishonest by the standards of reasonable and honest persons, and that he must have realised that what he was doing was dishonest by those standards. They were satisfied on the balance of probabilities that Mr Irvine knew he did not have insurance, but did not disclose that fact to any of the hospitals at which he continued to hold practising privileges. They found – though Mr Stockinger submitted that they were wrong to find - that as a matter of common sense, no hospital would have extended those privileges to Mr Irvine if he had informed them he was not insured. As part of his challenge to the finding of dishonesty, Mr Stockinger submitted that there was no direct evidence of dishonesty. That submission was no doubt correct as far as it goes. It is however very commonly the case that a finding of dishonesty is a matter of inference from proven facts rather than the subject of direct evidence such as an admission by the person accused.[43]It should be noted that, when considering a number of complaints as to Mr Irvine’s conduct towards his patients, the Tribunal for the most part accepted the evidence of Mr Irvine and his witnesses, in preference to the evidence of the complainants and their witnesses. It is thus clear that they carefully considered all of the evidence and rightly examined the evidence relating to each allegation separately before making their findings.[44]Having made those findings of fact, and having found Mr Irvine to be guilty of serious misconduct and of acting dishonestly, the Tribunal considered whether his present fitness to practise was impaired. In the light of Mr Irvine’s own evidence, both in relation to the fact-finding stage of proceedings and on the issue of impairment, the Tribunal noted that he still sought to blame others for the fact that he had no insurance in respect of his private practice during the relevant period, and showed no real insight into his own failings. They noted that his practising without indemnity cover over a lengthy period exposed his patients to the risk that any clinical error that did occur might go uncompensated. Such misconduct brought the profession into disrepute. They concluded that Mr Irvine had breached “the fundamental professional tenet of probity” and had demonstrated that his integrity could not be relied upon. They also concluded that public confidence in the medical profession and in its regulation would be undermined if a finding of impairment were not reached on the grounds of Mr Irvine’s misconduct. Mr Stockinger challenges that conclusion.[45]The Tribunal also found impairment by reason of deficient professional performance. That finding is not the subject of any appeal, and I therefore say no more about it.[46]In considering the appropriate sanction, the Tribunal had regard to the evidence and submissions of Mr Irvine to the effect that he had remediated his misconduct, would never repeat it, and had received a considerable body of support from former patients and from some medical colleagues. They rightly considered the various sanctions available to them by beginning with the least onerous sanction and working upwards through the levels of gravity. The Tribunal considered in particular the GMC’s Sanctions Guidance (“SG”) in relation to the level of insight and the risk of any repetition of the misconduct. At paragraphs 36-38 of their decision as to sanction, the Tribunal said – “36. … as set out earlier, whilst the Tribunal is satisfied that you have insight into your deficient professional performance, it is not satisfied that you have insight into your misconduct. You have given evidence to the Tribunal on three separate occasions, but even after the Tribunal found you had been deliberately dishonest in relation to indemnity matters, you still refused to accept that you acted dishonestly.37. The Tribunal made it clear in its determination on facts that it found your actions to have been deliberately dishonest, and a breach of the trust placed in you by hospitals and patients. Despite this finding, you have continued to claim in evidence that this was an error caused by your ‘sloppy’ paperwork. In addition, you have acknowledged that your failure to hold indemnity cover placed patients at risk, given your lack of insight into your dishonest conduct, the Tribunal is not satisfied that you would not act dishonestly again.38. The Tribunal further had regard to paragraph 91( e) of the SG, which sets out that suspension is likely to be appropriate where there is no evidence to suggest that remediation is unlikely to be successful. In the Tribunal’s view, remediation is not possible as you do not accept that there is a problem with your honesty.”[47]Having for those reasons rejected either suspension or any lesser sanction as being appropriate in the circumstances of Mr Irvine’s case, the Tribunal concluded that – “Bearing in mind your persistent lack of insight into, and failure to acknowledge, your dishonesty, combined with the other reasons set out above, the Tribunal has determined that erasure is the only appropriate and proportionate sanction in your case.”[48]Turning to the submissions of the parties, it is convenient to divide these into three topics. The first is the issue as to whether Mr Irvine at the material times had taken out adequate insurance for his private practice: for convenience, I shall refer to this as “practising without insurance”. The second topic relates to the Tribunal’s findings as to impairment by virtue of misconduct due to dishonesty: for convenience, I shall refer to this as “impairment/dishonesty”. The third topic – “sanction” - relates to the Tribunal’s conclusion that nothing less than erasure from the register would be an appropriate sanction.

The submissions of the parties: (1) practising without insurance:

[49]In his very detailed written and oral submissions, Mr Stockinger accepted that Mr Irvine was at all material times required, by the provisions of Good Medical Practice, to have insurance in respect of his private practice. He submitted that Mr Irvine did in fact have such insurance throughout the relevant period: he had entered into a valid and binding contract of insurance with MPS which continued in force even though MPS did not issue any certificates of insurance to Mr Irvine after 2006, and did not collect any premiums after December 2006. Mr Stockinger submitted that Mr Irvine’s private practice was then covered under a valid policy of insurance with MDU from 2010 (when he completed the application form, and – on his evidence - provided a direct debit mandate), even though MDU did not collect any subscriptions until after he had made a further application in 2012. Thus Mr Stockinger submitted that there was continuous insurance cover through one or other of the professional organisations, even though Mr Irvine – during the relevant period of nearly 5 years - did not make any payment to, or receive any certificate of membership or insurance from, either organisation. He argued that the Tribunal wrongly treated Mr Irvine’s inability to produce insurance certificates for the relevant period as conclusive evidence that he was in breach of his obligation to take out adequate insurance: they should have accepted his submission that a valid contract of insurance could have been, and had been, concluded between the insurer and the insured without documentary evidence of that contract having been forwarded by the insurer to the insured.[50]As part of his challenge to the allegation of practising without insurance (and not solely as to the finding of dishonesty or the decision as to sanction), Mr Stockinger submitted that Mr Irvine had at all material times honestly believed he was insured, having taken all necessary steps to effect, and pay for, insurance cover from MPS or, latterly, MDU.[51]In support of his submissions, Mr Stockinger relied heavily on the well-known case of Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256. The Defendants in that case published an advertisement stating that a reward of £100 would be paid to any person who contracted influenza or colds after using their product three times daily for two weeks in accordance with the printed directions supplied with the product. On the faith of that advertisement, the Plaintiff purchased one of the products, used it for the specified period in accordance with the directions, but nonetheless contracted influenza. She sued for £100. The Court of Appeal held that in those circumstances there was a contract by the Defendants to pay the Plaintiff £100 in the events which had happened. Mr Stockinger argued that in this case, Mr Irvine’s contracts of insurance with each of the professional organisations in turn were formed when the organisation concerned made an offer of insurance and Mr Irvine accepted that offer by completing the application form and the direct debit mandate or other form of payment authority. He submitted that Mr Irvine “had done everything required to accept the insurer’s offer of cover”, and that once the direct debit mandate had been completed “the ball is in the insurers’ court”. The contract thus formed, he argued, continued in force unless and until Mr Irvine cancelled the direct debit, whether or not the insurer continued to collect premiums until that date. Mr Stockinger encapsulated his submission in these terms:
“the contract automatically renews each year”
. Having set up his direct debit (by which term I include any other relevant form of payment authority such as an instruction to his credit card provider), Mr Irvine was entitled to leave it to the professional organisation to draw the relevant premiums.[52]Mr Stockinger derived support for his submissions from the following matters:(a) The absence from the relevant section of Good Medical Practice of any definition of what is meant by “adequate” insurance.(b) The evidence of Mr Cardno to the effect that where a direct debit was in place, a member would receive a renewal notice about 6 weeks before the renewal date, stating the subscription for the coming year, and then the direct debit “just rolls over and they pay, that is pretty much an end to it”: Mr Stockinger relied on this as showing that Mr Irvine had done all he was required to do by setting up the direct debit, and it was then up to the professional organisation whether it chose to draw payment for its continuing services.(c) The fact that on an unspecified date, MPS sent to Mr Irvine an invoice dated 16th January 2016 showing a subscription of £99 due for membership during the period “14/12/10 – 00/00/00”.[53]Thus Mr Stockinger’s principal submission was that Mr Irvine was insured by either MPS or MDU throughout the relevant period, and that the Tribunal were wrong to find otherwise. In the alternative, Mr Stockinger advanced a further submission to the effect that during the relevant period, Mr Irvine was sufficiently indemnified against claims, in accordance with his professional obligations, because he was the joint owner of a property which could be used as security, or sold, in order to meet any future claim.[54]In his submissions on this first topic, Mr Stockinger repeatedly made strong criticisms of MPS for refusing to indemnify Mr Irvine against Ms X’s claim. He emphasised that the allegedly negligent medical treatment had taken place during 2006, and therefore at a time when Mr Irvine was on any view a member of MPS: Mr Irvine was accordingly entitled to be indemnified against Ms X’s claim, and MPS were in breach of contract in refusing to indemnify him. In addition, Mr Stockinger mounted a separate argument to the effect that the terms on which both MPS and MDU provided insurance to medical practitioners during the relevant period (and before later changes in their arrangements) were not adequate. He pointed in this regard to the evidence that although membership of one of the organisations entitled a medical practitioner to make a claim to be indemnified, he or she had no absolute right to an indemnity because the organisations reserved a discretion to make their own decision as to whether to provide indemnity in relation to a particular claim.[55]Mr Stockinger further submitted that although Mr Irvine was required to have adequate insurance if he in fact conducted private practice at one of the hospitals where he held practising privileges, he was not required to have insurance merely because he held those privileges and regardless of whether or not he exercised them.[56]Mr Mant submitted that the evidence clearly pointed to the findings, which the Tribunal were entitled and correct to make, that Mr Irvine’s membership of MPS had ended in 2007 and that his membership of MDU did not begin until 24th February, 2012.[57]As to MPS, Mr Mant relied on statements made by Mr Irvine himself. Mr Mant pointed to the correspondence between Mr Irvine and MPS in relation to the latter’s refusal of an indemnity against Ms X’s claim, and in particular to Mr Irvine’s letters of 1st December 2010 (“I continued to pay my subscriptions throughout 2006 with a final payment in December 2006”) and 12th December 2010 (“My indemnity with you ceased in January 2007”), to which I have referred in paragraph 23 above. He pointed out that neither those letters, nor any other letter provided to the Tribunal, made any claim or suggestion that Mr Irvine continued to pay for membership of MPS until 2010. Mr Mant also relied on submissions made by Mr Irvine to an Interim Orders Panel on 13th April 2012. Mr Irvine told that Panel that his insurance with MPS “ran out in the end of September 2007”; that he fully accepted that he was not indemnified until 2009/10; that he accepted that was an oversight, but he had other things on his mind at that time; that he recognised in 2009 that he was not fully indemnified and then obtained insurance with MDU; but that he admitted there was a gap before he actually obtained cover from MDU.[58]As to MDU, Mr Mant submitted that on a proper interpretation, the correspondence (including the application form) in late 2010 did not constitute a binding agreement. He argued that MDU did no more that indicate a willingness to provide insurance to Mr Irvine in return for his actual payment of the specified premiums. He argued that no contract was formed until after Mr Irvine had submitted a further application form in 2012. Mr Mant relied on the fact that Mr Irvine had not paid any premium to MDU between 2010 and 2012.[59]Moreover, Mr Mant pointed out that when Mr Irvine filled in the application form in 2010 he quite wrongly failed to provide MDU with any information about the claim which had been brought against him by Ms X, and in respect of which he knew that MPS were refusing to indemnify him. He relied on the fact that, only about a fortnight after instructing solicitors to apply to set aside the judgment which Ms X had entered against him, Mr Irvine had simply answered “no” to the questions which I have quoted in paragraph 25 above. Mr Stockinger’s response to this point was that at the relevant time, Mr Irvine had honestly believed that MPS were liable to and would indemnify him against Ms X’s claim, and therefore felt that it was unnecessary to mention a claim which he would not have to meet.[60]Mr Mant argued against Mr Stockinger’s submission that the contract of insurance with one of the professional organisations would “renew automatically” each year. He submitted that such an interpretation would have the consequence that the professional organisation’s liability would continue indefinitely, so long as the medical practitioner concerned did not cancel his or her direct debit, regardless of any changes in his or her medical practice and therefore regardless of the risk to which the professional organisation would be exposed in successive years. Mr Mant submitted that the parties cannot reasonably be taken to have intended such a consequence: it was clear that each policy was intended to provide insurance cover for no more than 12 months, with the possibility of renewal thereafter. In support of that argument he relied on the following features: a) Each certificate of membership was stated to be for a specific period; b) The required subscription varied annually; c) The subscription was determined by the insurer taking into account the doctor’s earnings from private practice, which would fluctuate from year to year.[61]Mr Mant declined to make any general submissions as to the principles of insurance law applicable to the formation of contracts of insurance in circumstances such as these. He relied on the simple contention that the evidence before the Tribunal showed that Mr Irvine’s insurance with MPS ended in 2007, that his insurance with MDU did not begin until 2012, and that accordingly he was not insured by either organisation during the relevant period.

The submissions of the parties: (2) impairment/dishonesty:

[62]Mr Stockinger submitted that, even if the Tribunal were entitled to find that Mr Irvine was not in fact insured during the relevant period, they were wrong to find that he had acted dishonestly and that his fitness to practise was impaired. He submitted that Mr Irvine had always accepted that he had been sloppy in dealing with the administration of his practice, and that the Tribunal should have accepted that as an accurate admission and should not have made any finding of dishonesty. He argued that Mr Irvine had always honestly believed that he had done everything which was required of him to take out, and pay for, adequate insurance, and that he was insured. He submitted that Mr Irvine had been very badly treated by MPS, who had wrongly refused to indemnify Mr Irvine against Ms X’s claim and had allowed Ms X to obtain a default judgment (which ultimately could not be set aside) at a time when Mr Irvine reasonably expected MPS to be dealing with the claim on his behalf. Mr Irvine’s response to that breach of contract on the part of MPS had been to meet Ms X’s claim out of his own funds, thereby providing a clear demonstration of his honesty and of his determination to do right by his patients.[63]In those circumstances, submitted Mr Stockinger, the Tribunal should have accepted that Mr Irvine held an honest and reasonable belief that he was insured. On a proper application of the two-stage test in Ghosh, they should not have found him to have acted dishonestly.[64]Mr Mant submitted that the evidence showed that Mr Irvine at all material times knew he was not insured, but nonetheless maintained and exercised his private practising privileges at various hospitals. He relied on the evidence of Mr Harris as showing that Mr Irvine had initially failed to provide any documentary confirmation of insurance, and had then misled Mr Harris by forwarding a document which Mr Irvine must have known did not provide such confirmation. He pointed to the correspondence and application forms to which I have referred above, and submitted that it showed on Mr Irvine’s part a pattern of inaccurate, disingenuous and false answers – including (see paragraph 29 above) a denial of any private work after 2005, which was proved to be false by the evidence of Mr Harris and representatives of other hospitals – and thus contributed to the finding of dishonesty.

The submissions of the parties: (3) sanction:

[65]Mr Stockinger submitted that the sanction of erasure from the register was disproportionate and unnecessary in the public interest. He pointed out that, with the exception of Ms X (the merits of whose claim would have been disputed if Mr Irvine had been able to set aside the default judgment), Mr Irvine had a long record of successful medical practice. He relied on a substantial number of references and testimonials which spoke highly of Mr Irvine’s abilities and fitness to practise. He suggested that the Tribunal, in relation both to impairment and to sanction, had given undue and unfair weight to the fact that Mr Irvine had denied the allegations of dishonesty. He relied on Bijl v GMC [2001] WL 1135145 as an example of a case in which an appellate court (in that case, the Judicial Committee of the Privy Council) found erasure to be a disproportionate penalty.[66]Mr Stockinger criticised a passage at paragraph 33 of the Tribunal’s ruling on sanction, in which they said – “Dishonesty is an attitudinal failing which is not easily addressed by conditions. Throughout your evidence you maintained that your failure to hold valid indemnity insurance arose out of administrative ‘sloppiness’. The Tribunal has received no evidence that you have taken remediative steps such as reflecting on your dishonesty. You have not accepted that your conduct was deliberately dishonest, as found proved by this Tribunal. Accordingly, the Tribunal considered that, given your lack of insight into your dishonest conduct, conditions would not be sufficient to meet the public interest in upholding standards and maintaining confidence in the profession, and would not be an appropriate sanction in your case.” Mr Stockinger submitted that the Tribunal there failed to take into account, in Mr Irvine’s favour, the many allegations which they had not found proved, and in particular the allegations of dishonesty which they had not found proved. He argued that if dishonesty be an “attitudinal” failing, the favourable findings in relation to the unproven allegations showed that Mr Irvine did not hold such an attitude.[67]Mr Stockinger submitted that in all the circumstances of the case – involving, he suggested, matters relating to the administration of the small private practice of a skilled surgeon who practised mainly in the NHS – erasure would end an otherwise-unblemished medical career and was excessive. The Tribunal failed to give due weight to the period of years when Mr Irvine had been under investigation and had been suspended from practice (including for a time suspended from his NHS practice). A period of suspension for one year would have been sufficient at the conclusion of that long process.[68]Mr Mant relied on the principle in Bolton v Law Society, and many other cases, that an appeal such as this is not an exercise in re-sentencing: a professional disciplinary tribunal is the body best equipped to assess the seriousness of professional misconduct, and an appellate court should not interfere with its sentence except in a very strong case. He referred to paragraph 102 of Sanctions Guidance, in which the GMC give a non-exhaustive list of factors, the presence of any one of which may indicate that erasure is appropriate. Mr Mant submitted that in this case, four of those factors were present:
“a deliberate or reckless disregard for the principles set out in Good Medical Practice and/or patient safety”; “abuse of position/trust”; “dishonesty, especially where persistent and/or covered up”; and “persistent lack of insight into the seriousness of their actions or the consequences”
. Mr Mant distinguished Bijl v GMC on the facts, and referred to Naheed v GMC [2011] EWHC 702 (Admin) as an example of a case in which dishonest conduct combined with a lack of insight was held to justify erasure. In the present case, he submitted, Mr Irvine’s failure to make full disclosure when making applications for membership of MDU showed that he was not to be trusted.[69]Mr Mant referred also to paragraph 118 of Sanctions Guidance:
“Although it may not result in direct harm to patients, dishonesty related to matters outside the doctor’s clinical responsibility (eg providing false statements or fraudulent claims for monies) is particularly serious. This is because it can undermine the trust the public place in the medical profession. Health authorities should be able to trust the integrity of doctors, and where a doctor undermines that trust there is a risk to public confidence in the profession. Evidence of clinical competence cannot mitigate serious and/or persistent dishonesty.”

Discussion:

[70]With respect to Mr Stockinger, it seemed to me that his emphatic submissions on two matters were not relevant to the real issues in this case. First, it is not relevant in the circumstances of this case to debate the broad question of whether, during the relevant period, the insurance cover provided by MPS and MDU was adequate to provide protection for the public. Interesting though that debate may be, it is not relevant for present purposes, because it is common ground that if Mr Irvine had been a member of one of the professional organisations during the relevant period, the GMC would have accepted his membership as providing adequate insurance for his private practice. Thus if he had had the benefit of the cover provided by either of the professional organisations, the GMC would not have brought the relevant allegations against him. Mr Mant was therefore correct to describe the broad question raised by Mr Stockinger as a red herring. For the purposes of this appeal, the important question is whether the Tribunal were wrong to find that Mr Irvine was not a member of either organisation during the relevant period.[71]Secondly, it is not relevant here to debate the question of whether MPS was entitled to refuse to indemnify Mr Irvine against Ms X’s claim, or the associated question of whether Mr Irvine was entitled to expect MPS to conduct the defence to the claim on his behalf. I have heard nothing of MPS’s side of that debate. I am in no position to make any finding, or even to express any provisional view, and I make clear that I do not purport to do so. The debate is irrelevant because – as Mr Mant correctly submitted - it relates to Mr Irvine’s practice in 2006, and therefore predates the period relevant to the allegations and findings which are the subject of this appeal. Whether or not MPS were entitled to refuse to indemnify Mr Irvine against Ms X’s claim, they were on any view entitled to decline to insure him during any subsequent period; and Mr Irvine on any view remained under his professional obligation to take out adequate insurance for subsequent periods. Thus even if – hypothetically - MPS were in breach of contract, that breach could not assist Mr Irvine on the issue relating to the relevant period.[72]The broader debate as to the conduct of MPS might have an indirect relevance on the issues of impairment/dishonesty and sanction, because a belief on Mr Irvine’s part that he was covered by insurance could in principle be relevant to those issues. However, the point does not arise, because the Tribunal found that Mr Irvine knew he was not insured.[73]Similarly, Mr Stockinger’s submissions based on the absence of any definition of “adequate” insurance cannot assist Mr Irvine, because the Tribunal found that he did not have any insurance at all in respect of his private practice during the relevant period.[74]I therefore turn to the important issue of whether the Tribunal were wrong to find that Mr Irvine was not covered by adequate insurance during the period 2007 – 2012. It is in my judgment entirely clear that they were not wrong so to find. The evidence pointed overwhelmingly to the simple conclusion that insurance with MPS ended in 2007 and insurance with MDU did not begin until 2012, and the Tribunal were undoubtedly entitled to make the findings they did.[75]I am unable to accept Mr Stockinger’s submissions as to the application of principles of insurance law to the circumstances of this case. In considering whether any and if so what contract had been formed between Mr Irvine and either MPS or MDU, it is necessary to focus on the intention of the parties as to the risk to be covered, the extent and duration of the cover, and the amount and manner of payment of the premium. I reject Mr Stockinger’s submission that the parties intended that a valid and binding contract of insurance would be concluded when Mr Irvine filled in an application form and signed a direct debit mandate. That submission would render the professional organisation liable to provide cover for an applicant who was not a registered medical practitioner at all; or who had deliberately provided false information about his practice; or – coming to the facts of this case – who had withheld obviously important information as to a claim for damages which had been made against him. Even in the case of an application which had been honestly and truthfully made, it would render the professional organisation liable before it had any opportunity to assess the information provided in the application form or to assess what premium to charge.[76]Mr Stockinger was not able to identify any case law in support of his submission other than Carlill. His reliance on the decision in that case was in my view mistaken. It is important to note that in that case, the offer made by the Defendants’ advertisement was addressed to the world at large, and was subject to no condition other than the requirement that the purchaser should use the product in the specified manner for the specified period. Here, in contrast, the professional organisations were inviting applications from registered medical practitioners, with a requirement that they provide specific details of their practice so that there could be a proper assessment of whether to accept the risk, and if so on what terms. The evidence in this case showed, in my view, that the submission of the completed application form and direct debit mandate was an offer by Mr Irvine to pay the subscription in return for the provision by the organisation of services by the professional organisation, including insurance, in accordance with their stated terms and conditions. The professional organisation could accept that offer, but was not obliged to do so. It indicated its acceptance of the risk by issuing a membership card or certificate, but only on the condition that Mr Irvine had paid, or would during the course of the year pay, the full subscription. The terms of MDU’s letter of 9th December 2010, quoted at paragraph 28 above, made this clear by telling Mr Irvine that although they were acknowledging receipt of his application, “…this letter is not confirmation of membershipso if you have indemnity elsewhere, please do not cancel it until you have received your membership card from us”. In short, the Tribunal were entitled, and in my view correct, to reject the submission that the professional organisation was bound to provide insurance once Mr Irvine had completed and returned the application form and direct debit mandate.[77]I am also unable to accept Mr Stockinger’s submission that a contact of insurance, once formed, would automatically renew, year after year, for so long as the direct debit remained in force. Again, I find it impossible to accept that the parties intended such a one-sided and impracticable arrangement. Such an arrangement would require the insurer to provide cover indefinitely, regardless of any change in the risk which it was insuring: the fact that the direct debit mandate remained in force would not in itself enable the insurer to review the premium on any basis other than a general increase in premiums to reflect inflation or increased costs. Indeed, as Mr Mant pointed out, the logical conclusion of the submission is that Mr Irvine – whose evidence was that he has never cancelled his direct debit – is still insured by MPS to this day. There is no basis here for suggesting that the professional organisations, having once accepted the risk of insuring a medical practitioner, were obliged to continue doing so indefinitely. It is in my judgment clear that the parties intended that the contract would last for no more than a year and would then be capable of being renewed if the professional organisation – having had the opportunity to make any enquiries it wished, and having decided what premium was appropriate – was willing to accept the risk. As a matter of law, each renewal was a new contract, limited in time to a period of one year. I appreciate of course that in the ordinary way, no great formality would attach to annual renewals, and the renewal of cover might seem to a medical practitioner to be a matter of course; but in law, there is in my judgment nothing “automatic” about it.[78]It follows, from my rejection of those submissions of principle, that Mr Irvine could only succeed in his appeal against the findings that the relevant allegations were proved if he is able to show that the Tribunal were wrong to make those findings on the evidence before them. He is, in my judgment, quite unable to do so. Mr Irvine’s own statements in correspondence with MPS, and to the Interim Orders Tribunal, are sufficient to defeat him in this regard. As I have indicated in paragraph 23 above, he asserted in correspondence with MPS that his cover ended in 2007. In April 2012 he told the Interim Orders Tribunal that his cover with MPS ran out in 2007, that he recognised in 2009 that he was not fully indemnified, and that there was a gap in his insurance cover until 2009 or 2010: see paragraph 57. In November 2013 he confirmed to a hospital that he did not have insurance in 2008 – 2010: see paragraph 31. The case which he now advances, that he always honestly believed that he was covered by insurance throughout, cannot be reconciled with those statements. The discrepancy cannot be explained on the basis that Mr Irvine mistakenly thought his insurance cover had ended, but has subsequently been advised that in law it had not, because he now asserts that he held the same belief, namely that he was insured, throughout the relevant period. His own statements show that he held no such belief after 2007.[79]Moreover, the Tribunal were entitled to find that Mr Irvine did not in fact make any payments to MPS, because he did not complete a direct debit mandate or take any other steps to pay his premiums, between 2007 and 2012. I have indicated above that I cannot accept the argument that insurance cover nonetheless continued, without payment, on the basis that the direct debit remained in force and it was up to MPS to draw payments if they wished any payment. The Tribunal were entitled to take the view that Mr Irvine cannot have believed that his insurance cover was somehow continuing at no cost to him, and despite the absence of any annual certificate. They were entitled to reject as incredible his evidence that he had not noticed that significant monthly sums were no longer being drawn from his account under the direct debit: as Mr Mant submitted, Mr Irvine would have needed to ascertain the expenses of his private practice in order to complete his tax returns. Mr Irvine cannot derive any assistance in this regard from the MPS invoice referred to at paragraph 52c above: I agree it is a puzzling document for MPS to have sent to him in 2016, but it is plainly an aberration and could not sensibly be said to have contributed to a belief that insurance with MPS continued after 2007.[80]The Tribunal were clearly entitled, and in my view correct, to reject the argument that Mr Irvine’s share in a jointly-owned residential property was a sufficient indemnity against any prospective claim. As the Tribunal pointed out, there was no evidence of any formal arrangement with the other joint owner that the property could be used for that purpose; and in any event, there was no evidence to suggest that the property was of such high value as to be capable of providing indemnity in respect of any claim which might be made. It was in the nature of Mr Irvine’s practice that an error on his part might potentially give rise to a very substantial claim: the Tribunal rightly “bore in mind that claims for clinical negligence might, in some cases, come to several millions of pounds, and that there might be a number of claims”.[81]I reject the argument that there was no obligation to be insured when Mr Irvine merely held, but did not exercise, practising privileges. He surely sought those privileges because he wished to be able to make use of them from time to time; and the Tribunal were entitled to find as a matter of common sense that no hospital would have granted him such privileges if he had disclosed that he was uninsured. Mr Stockinger accepted that no hospital would have done so, but sought to argue that it did not follow that Mr Irvine was obliged to inform hospitals at which he already held practising privileges when he became uninsured. I cannot accept that argument.[82]As to impairment/dishonesty, I see no error on the part of the Tribunal in their application of the Ghosh test. The correspondence to which I have referred fully justified the Tribunal’s finding that Mr Irvine had not merely been slipshod in dealing with paperwork but had been dishonest. Mr Harris began making requests for documentary evidence of insurance in mid-2010, at a time when Mr Irvine knew that he had not been insured with MPS since 2007 (see paragraph 23 above), and knew that he had not yet even applied to MDU. He knew that he could not provide the evidence which Mr Harris needed, because, as he later stated in his letter to the CEO of the Lister Hospital, quoted in paragraph 31 above:
“I can confirm that 2008-2010 I did not have indemnity”
. There was in those circumstances an overwhelming inference, which the Tribunal were entitled and correct to draw, that Mr Irvine had not simply overlooked Mr Harris’ repeated requests, but was making a determined effort to avoid having to respond to them. The fact that Mr Irvine nonetheless continued to book patients in for treatment at the Blackheath Hospital and elsewhere suggests a worrying attitude to his professional obligation. That attitude was one of the factors amply justifying the Tribunal’s decisions as to impairment and sanction. When Mr Irvine belatedly did supply a document to Mr Harris, it was MDU’s letter of 9th December 2010 which said in terms that it was not confirmation of membership. Mr Stockinger submitted that by sending a copy of that letter, Mr Irvine was merely providing such documentary evidence as he had received from MDU, and leaving it to the hospital to assess the sufficiency of that evidence. I reject that argument as disingenuous. Mr Irvine’s covering letter asserted that he was “fully covered” when that was not the case. In my view, Mr Harris’ acceptance of MDU’s letter as proof of cover – mistaken though it was - is an indication of the trust placed in Mr Irvine by the hospitals at which he held practising privileges. The breach of that trust was one of the factors which the Tribunal were entitled to consider in making their decisions as to impairment and sanction.[83]I see no merit in the submission that the decisions were inconsistent with the Tribunal’s favourable findings in relation to a number of other complaints which had been made against Mr Irvine: the fact that the Tribunal made those favourable findings is in my view a clear indication that they properly considered the evidence in relation to each allegation. The simple reality is that some of the allegations were stronger than others, and the Tribunal in my view properly discriminated between the separate allegations. The fact that the Tribunal accepted Mr Irvine’s evidence on a number of points does not mean they were wrong to reject his evidence on other points. It was not wrong or unfair for the Tribunal to take into account, when considering impairment, that Mr Irvine was doggedly maintaining an account of administrative sloppiness when they had found that his misconduct was much more serious than that. On the contrary: it would have been illogical, and wrong, for the Tribunal to find that Mr Irvine was still maintaining an untruthful account but then to ignore that finding when considering whether there was a realistic prospect of remediation.[84]As to sanction, the reasons which the Tribunal gave for their conclusion that erasure was necessary are in my view unassailable. I do not accept Mr Stockinger’s criticism, summarised at paragraph 66 above, of the Tribunal’s reference to “an attitudinal failing”. The Tribunal were not condemning Mr Irvine in respect of any unproven allegation, nor were they failing to recognise his professional skill or the high regard for him which character witnesses had expressed. They were making the point, as they were entitled to do, that after the finding of dishonesty, and in the light of Mr Irvine’s continuing refusal to accept that finding, sanctions less than erasure would not offer sufficient protection to the public. They were entitled to take the view that there was a risk of further misconduct if Mr Irvine returned to practice.[85]Bijl, on which Mr Stockinger relies, can and should be distinguished in its facts. That was a case involving a failure of clinical performance in circumstances which were regarded as a serious error of judgment but one which would not be repeated. It was a case of “honest failure”. The present case is very different. The stark facts are that for nearly 5 years Mr Irvine conducted his private practice knowing that he was not insured if circumstances arose in which a claim was made against him. No doubt he trusted his own skill, and did all he could to avoid any clinical error. But that is not a valid reason for failing to comply with his professional obligation - imposed in the interests of both doctor and patient – to insure against the possibility that something might go wrong. Moreover, the Tribunal were entitled, and in my view correct, to take the view that the correspondence and application forms which I have quoted did show the pattern of inaccurate, disingenuous and untruthful statements which Mr Mant suggested. The Tribunal were clearly entitled, and in my view correct, to decide that public confidence in the medical profession would be undermined if Mr Irvine, who had denied the relevant allegations throughout, could simply resume his practice, either immediately or after a period of suspension. I recognise of course that the sanction of erasure bears very hard on Mr Irvine; but as the Sanctions Guidance indicates, the Tribunal had to keep in mind that the maintenance of public confidence in the medical profession is more important than the effects of a sanction upon an individual doctor.[86]For those reasons, there is in my judgment no basis on which it could be said that the challenged decisions of the Tribunal were wrong. It follows that this appeal fails and is dismissed.

Cited in 5 later judgments