No indemnity cover: a costly omission

18 Aug 2017

Earlier this week the High Court handed down judgment in Irvine v General Medical Council [2017] EWHC 2038 (Admin), dismissing Mr Irvine’s appeal against a Medical Practitioners Tribunal Service’s finding of impairment by reason of misconduct and his erasure from the register of medical practitioners, having found he practised without indemnity cover for a number of years.

Mr Irvine, a consultant obstetrician and gynaecologist, had been found to have no insurance in respect of his private practice between October 2007 and February 2012.

Mr Irvine sought to argue that his failure to hold valid indemnity insurance arose out of administrative sloppiness – he had not noticed that subscriptions had not been taken from his bank account and did not remember a letter from the defence organisation terminating his membership for non-payment of his subscription.  However, the High Court upheld the Tribunal’s finding that Mr Irvine’s failure went beyond administrative sloppiness and was in fact dishonest.  Mr Irvine made a determined effort to avoid responding to hospital requests for documentary evidence of insurance and asserted that he was “fully covered” when he supplied correspondence from a defence organisation confirming receipt of his application for membership.

Mr Irvine maintained his view that the failure to have insurance was due to administrative disorganisation, but this stance led the Tribunal, and the High Court, to find that by failing to accept his dishonesty, Mr Irvine lacked insight into his misconduct and the Tribunal was not satisfied that he would not act dishonestly again.  Consequently, sanctions less than erasure would not offer sufficient protection to the public.

Mr Irvine’s argument that his share in a jointly-owned property would be sufficient indemnity against a claim was rejected by the Tribunal as the nature of Mr Irvine’s practice, as an obstetrician and gynaecologist, meant that an error on his part could give rise to a very substantial claim, possibly of several millions of pounds, and there was no evidence to suggest the value of the property would be sufficient to meet such claims.

It is interesting to note that Mr Irvine’s annual membership subscription rose from £665 in 2002/2003 to £19,135 in 2006/2007, and he was quoted a fee of £23,923 for 2012/2013.  There may well be factors influencing this increase, which were not discussed within the judgment, such as an increase in the amount of private work undertaken and in Mr Irvine’s income from private practice.  Nevertheless at a time when the rising costs of indemnity cover are receiving much press coverage and publicity, this case serves as an example of these rises in practice.

Whilst adequate indemnity cover is expensive, the consequences of not having cover in place are even more costly: personal liability to meet damages awards in the event of a successful claim for clinical negligence and the loss of a career and a livelihood should the failure lead to erasure, as in this case.

BLM has extensive experience in dealing with GMC investigations and Fitness to Practise hearings and can provide advice and assistance on the issues arising out of this case or any similar issues.

For further information please contact Clare Chapman or Judith Davison

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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