“102. Derived from Ghosh are the following points as to the nature and extent of the section 40 appeal and the approach of the appellate court: i) an unqualified statutory right of appeal by medical practitioners pursuant to section 40 of the 1983 Act ; ii) the jurisdiction of the court is appellate, not supervisory; iii) the appeal is by way of a rehearing in which the court is fully entitled to substitute its own decision for that of the Tribunal; iv) the appellate court will not defer to the judgment of the Tribunal more than is warranted by the circumstances; v) the appellate court must decide whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate; vi) in the latter event, the appellate court should substitute some other penalty or remit the case to the Tribunal for reconsideration.”
“Absence of the practitioner 21.(1) This rule shall not apply to hearings at which the Committee is considering whether to make, revoke, confirm, vary or replace an interim order. (2) Where the registrant fails to attend and is not represented at the hearing, the Committee: (a) shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant; (b) may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant; or (c) may adjourn the hearing and issue directions.” (a) shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant; (b) may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant; or (c) may adjourn the hearing and issue directions.”
“14. … (R v Jones[2002] UKHL 5 ;[2003] 1 AC 1 ) where Lord Bingham (with whom Lord Nolan, Lord Hoffmann, Lord Hutton and Lord Rodger agreed) approved the guidance set out above (with the specific exception of that contained in [22(5)(viii)]) and emphasised, at [6], that the discretion to continue in the absence of a defendant should be “exercised with great caution and with close regard to the overall fairness of the proceedings”
“I do not think that “the seriousness of the offence, which affects defendant, victim and public”… is a matter which should be considered. The judge’s overriding concern will be to ensure that the trial, if conducted in the absence of the defendant, will be as fair as circumstances permit and lead to a just outcome. These objects are equally important, whether the offence charged be serious or relatively minor.” 15. Lord Hoffmann (agreeing with Lord Rodger) expressed himself (at [19]) “not comfortable” with the notion of waiver which required “consciousness of the rights which have been waived”; he preferred to say that they “deliberately chose not to exercise their right to be present or to give adequate instructions to enable lawyers to represent them”. 16. These principles were considered by the Judicial Committee in Tait v Royal College of Veterinary Surgeons ([2003]UKPC 34, (2003) WL 1822941), which concerned an application for a second adjournment of a disciplinary hearing on the grounds of ill health (hypertension) unsupported by medical evidence. The refusal to adjourn was quashed on the grounds that the direction did not comply with the requirements in Jones. Although citing the Court of Appeal’s checklist in Hayward as approved by the House of Lords on appeal in Jones, the Board identified (at [5]) “the seriousness of the case against the defendant” as a relevant factor. In that regard, it does not appear that the Board’s attention was drawn to the exception that Lord Bingham specifically made in relation to seriousness of the offence constituting an exception to Lord Bingham’s approval. 17. In my judgment, the principles set out in Hayward, as qualified and explained by Lord Bingham in Jones, provide a useful starting point for any direction that a legal assessor provides and any decision that a Panel makes under Rule 31 of the 2004 Rules. Having said that, however, it is important to bear in mind that there is a difference between continuing a criminal trial in the absence of the defendant and the decision under Rule 31 to continue a disciplinary hearing. This latter decision must also be guided by the context provided by the main statutory objective of the GMC, namely, the protection, promotion and maintenance of the health and safety of the public as set out in s. 1(1A) of the 1983 Act. In that regard, the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance. 18. It goes without saying that fairness fully encompasses fairness to the affected medical practitioner (a feature of prime importance) but it also involves fairness to the GMC (described in this context as the prosecution in Hayward at [22(5)]). In that regard, it is important that the analogy between criminal prosecution and regulatory proceedings is not taken too far. Steps can be taken to enforce attendance by a defendant; he can be arrested and brought to court. No such remedy is available to a regulator. 19. There are other differences too. First, the GMC represent the public interest in relation to standards of healthcare. It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process. The consequential cost and delay to other cases is real. Where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed. 20. Second, there is a burden on medical practitioners, as there is with all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession. 21. Third, in relation to medical practitioners, it is significant that under s. 31(4) of the 1983 Act, it is the duty of the Registrar to keep the registers correct and to make the necessary alterations in the addresses, qualifications and other registered particulars of registered persons. Accordingly, the GMC requires doctors to provide a current registered address. Not doing so is itself a significant failure and risks removal from the register (although it is clear that erasure in these circumstances is quickly remedied by application and the provision of a current address: see The General Medical Council (Restoration following Administrative Erasure) Regulations Order of Council 2004). Therefore, the fact that a practitioner has not updated contact details with the GMC (particularly when he is aware that he is then subject to disciplinary investigation) is unlikely to provide a reasonable explanation for failure to participate in the process, sufficient to require the Panel to adjourn consideration of a fixed disciplinary hearing. 22. This conclusion is underlined by the fact that Rule 31 specifically mandates that “all reasonable efforts” to have been made to serve the practitioner with notice of the hearing in accordance with 2004 Rules. Thus, in Jatta v Nursing and Midwifery Council[2009] EWCA Civ 824 , the respondent was no longer at the address which he had registered but failed to provide a current address. The Court of Appeal held that it was open to the relevant disciplinary committee to proceed to hear the case when he did not appear. Lloyd LJ put the matter (at [31]): “… in the absence of a notified fresh address the council was bound to send notice to the old registered address and could not be thwarted in its desire to take or continue these disciplinary proceedings by knowing that the only address they had was an address at which the document would not come to his attention.” 23. Thus, the first question which must be addressed in any case such as these is whether all reasonable efforts have been taken to serve the practitioner with notice. That must be considered against the background of the requirement on the part of the practitioner to provide an address for the purposes of registration along with the methods used by the practitioner to communicate with the GMC and the relevant tribunal during the investigative and interlocutory phases of the case. Assuming that the Panel is satisfied about notice, discretion whether or not to proceed must then be exercised having regard to all the circumstances of which the Panel is aware with fairness to the practitioner being a prime consideration but fairness to the GMC and the interests of the public also taken into account; the criteria for criminal cases must be considered in the context of the different circumstances and different responsibilities of both the GMC and the practitioner.” “I do not think that “the seriousness of the offence, which affects defendant, victim and public”… is a matter which should be considered. The judge’s overriding concern will be to ensure that the trial, if conducted in the absence of the defendant, will be as fair as circumstances permit and lead to a just outcome. These objects are equally important, whether the offence charged be serious or relatively minor.” “… in the absence of a notified fresh address the council was bound to send notice to the old registered address and could not be thwarted in its desire to take or continue these disciplinary proceedings by knowing that the only address they had was an address at which the document would not come to his attention.”
“Preliminary meetings 18.(1) Before any allegation is considered by a Committee at a hearing in accordance with the provisions of this Part, that Committee or the Chair of the Committee may hold a preliminary meeting if such a meeting would, in its or her opinion, assist the Committee to perform its functions. (2) A preliminary meeting referred to in paragraph (1) shall be: (a) chaired by the Chair of the Committee considering the allegation; (b) held with a legal assessor in attendance; and (c) held in private with the parties, their representatives and any person the Chair or Committee considers appropriate. (3) The Chair of the preliminary meeting may give the directions mentioned in article 32(3) of the Order. (4) The Chair of the preliminary meeting shall give the parties not less than 14 days notice of any preliminary meeting. (5) Directions given by the Chair of the preliminary meeting may include, but shall not be limited to: (a) time limits for the service of evidence and disclosure of expert evidence (if any); (b) a requirement that each party provide an estimate as to the length of the hearing and any dates on which they or any witnesses would not be able to attend the hearing; (c) where facts are not in dispute, or the issue of misconduct is admitted, a requirement that the parties produce a statement of agreed facts; (d) save in the case of an allegation of a kind referred to in article 22(1)(a)(iv) of the Order, a requirement that the parties state whether or not the health of the practitioner will be raised as an issue in the proceedings, and if so, whether, in their view, medical reports should be obtained; (e) a requirement that a party call the author of any expert report; (f) where agreed between the parties, a direction that the witness statement of a witness shall stand as the evidence in chief of that witness; (g) where the Committee is considering— (i) an allegation that the registrant’s fitness to practise is impaired by reason of her physical or mental health, or (ii) whether to make, revoke, confirm, vary or replace an interim order, whether the proceedings should be held in public or private; (h) special measures to be put in place at the hearing for vulnerable witnesses; (i) a direction for an adjournment of the preliminary meeting or that a further preliminary meeting should be held; and (j) a direction that the registrant, within such period as the Chair may specify in the written confirmation referred to in paragraph (8),— (i) undertake an examination or other assessment of the registrant’s knowledge of English as specified in the written confirmation referred to in paragraph (8), and (ii) provide the [Fitness to Practise]129 Committee with evidence of the result of that examination or other assessment in the form required by rule 6B(3C).] 130 (6) At the preliminary meeting, the legal assessor may give a preliminary opinion for the purpose of resolving questions of law or admissibility of evidence. (7) Notwithstanding paragraph (6), decisions as to whether or not any evidence is to be admitted at the hearing shall be taken by the Committee considering the allegation. (8) The Chair of the preliminary meeting must— (a) keep a record of the directions given; (b) send written confirmation of such directions to the parties promptly; and (c) where a direction is made pursuant to paragraph (5)(j), inform the registrant of the matters set out in rule 6B(3D).” (a) chaired by the Chair of the Committee considering the allegation; (b) held with a legal assessor in attendance; and (c) held in private with the parties, their representatives and any person the Chair or Committee considers appropriate. (a) time limits for the service of evidence and disclosure of expert evidence (if any); (b) a requirement that each party provide an estimate as to the length of the hearing and any dates on which they or any witnesses would not be able to attend the hearing; (c) where facts are not in dispute, or the issue of misconduct is admitted, a requirement that the parties produce a statement of agreed facts; (d) save in the case of an allegation of a kind referred to in article 22(1)(a)(iv) of the Order, a requirement that the parties state whether or not the health of the practitioner will be raised as an issue in the proceedings, and if so, whether, in their view, medical reports should be obtained; (e) a requirement that a party call the author of any expert report; (f) where agreed between the parties, a direction that the witness statement of a witness shall stand as the evidence in chief of that witness; (g) where the Committee is considering— (i) an allegation that the registrant’s fitness to practise is impaired by reason of her physical or mental health, or (ii) whether to make, revoke, confirm, vary or replace an interim order, whether the proceedings should be held in public or private; (h) special measures to be put in place at the hearing for vulnerable witnesses; (i) a direction for an adjournment of the preliminary meeting or that a further preliminary meeting should be held; and (j) a direction that the registrant, within such period as the Chair may specify in the written confirmation referred to in paragraph (8),— (i) undertake an examination or other assessment of the registrant’s knowledge of English as specified in the written confirmation referred to in paragraph (8), and (ii) provide the [Fitness to Practise]129 Committee with evidence of the result of that examination or other assessment in the form required by rule 6B(3C).] 130 (a) keep a record of the directions given; (b) send written confirmation of such directions to the parties promptly; and (c) where a direction is made pursuant to paragraph (5)(j), inform the registrant of the matters set out in rule 6B(3D).”
“57. It is clear to me that the Panel were not provided with the material which they needed to perform the necessary balancing exercise. Although it is now conceded that the statements of Ms 1 and Ms 2 was the sole and decisive evidence on all but one of the charges, the Panel were not told that at the time. The Panel were not given the opportunity to read the Appellant's witness statement before they took their decision and would not have been aware of the the potential motives which he had suggested these two witnesses might have to lie. The issues raised by the Appellant were not outlined to the Panel. Insufficient consideration was given to the fact that, despite some reference to ill health, the witnesses did not appear to have good reasons for their failure to attend. Their reluctance to attend in itself was capable of undermining the credibility of their evidence. There was no consideration of the further steps which could have been taken to compel the attendance of the witnesses. There was no reference to the serious consequences for the Appellant if the evidence was admitted and accepted. 58. There was a second material error. In my view, the Panel should have been provided at the fact-finding stage with all of the documents which the Claimant had submitted. The relevance and admissibility of character evidence for the purpose of assessing facts can be controversial. However, as Donkin v Law Society shows, there are cases where character evidence goes to the credibility of the allegation itself. In my judgment, in the circumstances of what was being alleged in the present case many of the statements submitted by the Appellant were relevant and admissible for that purpose. 59. However, whether or not this view is correct, the error in this case was more fundamental. The decision on admissibility was a judgment for the Panel to make, not the Legal Assessor or the Case Presenter. In the absence of the Appellant, the only proper way for the Panel to judge the relevance and admissibility of the statements was to read them for themselves. That was not done. The transcript shows that, on the advice of the Legal Assessor, the Panel left it to the Case Presenter to decide whether or not they should read the statements.”
“[110] In the present case, there is in my view nothing which begins to warrant the correction of the relevant findings of fact that the MPT made. The MPT heard live evidence from various witnesses who were present at the material time, and its factual conclusions were based upon the evidence of those witnesses and contemporaneous documents. Dr El-Huseini did not himself give evidence to the MPT, and did not provide a witness statement pursuant to the orders made by the MPTS. Although reliance is now placed by Dr El-Huseini upon an e-mail sent to Dr Borman on23 June 2011 , I was not shown any documentation which supported the proposition that this e-mail was ever shown to the MPT. It is therefore not surprising that the MPT did not refer to it. [111] It is clear from other parts of the MPT's decision, however, that the MPT did not simply accept the case advanced by the GMC, relying on the evidence of witnesses called by the GMC, without regard to Dr El-Huseini's case as expressed in the materials which existed. For example, paragraph 31 of the decision (which dealt with an allegation that the MPT held was not proven) referred to an account of events that Dr El-Huseini had given at a disciplinary hearing of the UHCW in February 2013. If the e-mail of23 June 2011 had been provided to the MPT, it is likely that the MPT would have considered it. However, it was under no obligation to carry out an exercise of sifting through large quantities of unindexed or uncategorised documentation provided by a doctor in order to determine what if any relevance it might have: see Sanusi v General Medical Council[2019] EWCA Civ 1172 , para [84]. [112] It is also important to bear in mind that the nature of the proceedings before the MPT is adversarial, not inquisitorial: see R (Russell) v General Medical Council[2008] EWHC 2546 (Admin) para [35]. If as in the present case, a doctor does not provide a witness statement, does not attend the hearing so as to explain his position on the facts and give evidence about them, and does not cross-examine the relevant witnesses, then there will usually be little prospect of a successful challenge to MPT's fact-findings, on disputed issues, based on evidence from witnesses who did actually give statements and oral evidence to the tribunal. This is so whether or not the doctor had made statements on disputed issues in documents after the event.”
“3. EU Directive 2011/24 ("the Directive") requires each member state to put in place appropriate professional liability insurance, or a similar arrangement, for medical treatment provided on its territory. The Directive was implemented in the UK by theHealth Care and Associated Professions (Indemnity Arrangements) Order 2014 . It amended the NMC Order to add a new requirement for nurses and midwives to have indemnity arrangements in place. 4. Article 12A(1) of the NMC Order provides that a practising registrant must have "an indemnity arrangement which provides appropriate cover". Paragraph (3) defines "appropriate cover" for a nurse or midwife as "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". A registrant who fails to comply with this requirement may be refused registration or removed from the register or may be subject to a charge of impairment of fitness to practise by reason of misconduct.”
“14. Between 2002 and30 June 2014 self-employed independent midwives were unable to obtain professional indemnity insurance but had legal expenses insurance. 15. In 2003 the NMC Code was amended to recommend that independent midwives should hold indemnity cover, and to require them to advise their clients if they did not have cover in place. 16. According to a Department of Health Impact Assessment (dated 1.1.12), in 2005 harm was caused to a mother and baby by an independent midwife, resulting in permanent disability for the child and reconstructive surgery for the mother. The midwife had not informed her client that she had no cover, and she did not have sufficient assets to pay compensation. 17. At some stage between 2004 and 2009 (there were conflicting dates in the evidence before me), the Department of Health made a policy decision to introduce a requirement for mandatory indemnity cover for all health professionals. However, concerns were expressed that the market would be unable to offer cover for some groups of self-employed registered healthcare professionals. 2009 The Finlay Scott report 18. In 2009 the Secretary of State for Health commissioned an independent review led by Mr Finlay Scott, former Chief Executive of the General Medical Council. It recommended that making insurance or indemnity a condition of registration for health professionals was the most cost-effective and proportionate means of achieving the Government's stated policy objective that all healthcare professionals must have indemnity cover. The review also stated that there were groups of self-employed professionals who could not obtain insurance or indemnity in the market, and an affordable solution should be facilitated for them. 2010 19. In December 2010 the Government confirmed its intention to proceed to introduce legislation requiring all registered healthcare professionals to hold mandatory indemnity cover, without facilitating a solution to the problem identified in the Finlay Scott report. 2011 20. On9 March 2011 the European Union Directive 2011/24/EU was passed, introducing a mandatory requirement for all EU healthcare professionals to have professional liability insurance or a similar arrangement in place. The Flaxman report 21. The NMC and the Royal College of Midwives jointly commissioned Flaxman Partners Ltd to prepare a report setting out the feasibility of a model for supporting the continuity of independent midwifery. In September 2011 Flaxman Partners Ltd produced a report called "The Feasibility and Insurability of Independent Midwifery in England", which concluded that independent midwives could only viably secure insurance by becoming an employee of a social enterprise or corporate structure entity regulated by the Care Quality Commission. 2012 – NHSLA "Ten Years of Maternity Claims" 22. In October 2012, the NHS Litigation Authority ("NHSLA") published "Ten Years of Maternity Claims, An Analysis of NHS Litigation Authority Data" (hereinafter referred to as "the NHSLA study"). The Introduction stated: "Maternity claims account for the highest value, and the second highest number, of claims under the Clinical Negligence Scheme for Trusts (CNST), a risk pooling scheme for NHS organisations managed by the NHSLA. By the end of March 2011, more than 13,000 obstetrics and gynaecology claims, with a total estimated value in excess of£5.2 billion , had been notified to the NHSLA under the CNST since it started in 1995…." 23. The report set out the findings of a study into 5,087 claims on the NHSLA's database between 2000 and 2010. During a similar time period there were 5.5 million births in England, so less than 0.1% of these births had become the subject of an NHS claim. However, the total value of this small percentage of claims was extremely high:£3.1 billion . Of these claims, about 37% did not succeed. 24. The ten most frequent types of claims, out of 21 categories, were those relating to the management of labour (14.05%); caesarean section (13.24%); cerebral palsy (10.65%); perineal trauma (8.66%); antenatal care (7.68%); stillbirth (4.93%); shoulder dystocia (4.91%); CTG interpretation (5.89%); antenatal investigations (7.68%) and retained swabs (3.65%). 25. The ten most expensive types of claim, out of 21 categories, together with the value expressed as a percentage of the total value of the claims, were as follows: i) Cerebral palsy:£1,263,581,324 ; 40.52%. ii) CTG interpretation:£466,393,771 ; 14.95%. iii) Management of labour:£424,039,651 ; 13.60%. iv) Caesarean section:£216,167,223 ; 6.93%. v) Antenatal investigations:£149,986,770 ; 4.81%. vi) Antenatal care:£144,811,665 ; 4.64%. vii) Shoulder dystocia:£103,520,832 ; 3.32%. viii) Uterine rupture:£103,264,627 ; 3.31% ix) Operative vaginal delivery:£93,659,223 ; 3.00% x) Perineal trauma:£31,202,836 ; 1.00% 26. The NHSLA study helpfully indicated the nature of the risks, and the number and size of claims, but as it did not distinguish between negligence on the part of midwives and other medical professionals, it did not provide evidence of claims against midwives as a group. Moreover it was based on NHS hospital maternity care, so it included surgical procedures, interventions such as forceps, drugs to induce labour, and CTG monitoring which independent midwives, who only attended home births, and favoured low-intervention care, would not be involved in. 2013 27. On22 February 2013 the Department of Health issued a consultation document on the proposed UK legislation. 28. At this time, IMUK decided to pursue a self-insure solution. It proposed setting up a protected cell named "Lucina" within a Protected Cell Company named Windward Insurance PCC Ltd, to be registered in Guernsey. In 2013, IMUK made an application to the Guernsey regulator for a licence to form the Lucina captive cell.” … “32. On17 July 2014 the NMC Order was amended to introduce the new article 12A requiring registrants to have an indemnity arrangement which provided appropriate cover. NMC Guidance 2014 33. In July 2014 the NMC issued a document entitled "Professional Indemnity arrangement: A new requirement for registration". It explained that whilst the majority of registrants would be covered by their employers' schemes, self-employed registrants would need to obtain their own cover, either as part of a membership of a professional body or from a commercial provider. It was made clear that registrants would have to make a declaration that they had obtained cover, and they could be subject to compliance checks. In answer to the question "what is appropriate cover?" it stated as follows: "Appropriate cover is an indemnity arrangement which is appropriate to your role and scope of practice and its risks. The cover must be intended to be sufficient to meet an award of damages if a successful claim is made against you. Determining what appropriate cover is for you will be influenced by: - what your job involves and where you work; - who you provide care to and the level of care you provide; - the risks involved with your practice. We are unable to advise you about the level of cover that you need. We consider that you are in the best position to determine, with your indemnity provider, what level of cover is appropriate for your practice. You should seek advice as appropriate from your professional body, trade union or insurer to inform your decision…. If you have made your own professional indemnity arrangements, you should make sure that you understand how your cover will work. For example, most indemnity insurance will be offered on a 'claims-made' basis, this means that the cover would need to be in place both when the event causing the claim occurred and when the claim was made (which may be years later). This also includes understanding any requirements to disclose relevant information to your indemnity provider which would influence a provider's decision whether or not to offer cover." 34. In July 2014, IMUK took out an insurance policy with Elite Insurance ("Elite") on behalf of its members which provided cover of only£400,000 per claim.”
“54 Having considered all of the information carefully, I have concluded that Lucina does not have available to it sufficient financial resource to meet its liabilities, having regard to the nature and extent of the risks. This was a conclusion which I had reached previously on a provisional basis on4 August 2016 on the information available to me at the time. Since that date, despite extensive representations from Lucina and IMUK, I have not received the assurance I needed to conclude that the Lucina scheme provides appropriate cover to IMUK members having regard to the nature and extent of the risks.”
“Insight I understand there is no professional identity insurance available in France I understand that a woman has bodily autonomy including the right to make choices in childbirth such as where she births how she births who she births with etc. I understand that women are free to choose to birth outside the hospital system. I understand that we owe a duty of care to our neighbour and this duty of care is increased in healthcare relationships such as Midwifery. I understand that I need proper training and experience in the areas of work that I find myself engaged such as community-based maternity care and home birth I have significant ongoing training and experience in this area. Paul Golden Registrant Nurse / Midwife Appellant”
“the Ockendon Report” and “the Kirkup report” and the “UNCEDAW reports and shadow reports”