General Medical Council v Udoye [2021] EWHC 1511 (Admin) (07 June 2021)

The General Medical Council’s appeal was upheld in the case of Dr Azubuike Udoye whose fitness to practise was found not impaired by the MPTS.

In the case, Dr Udoye appeared before the Medical Practitioners Tribunal (MPTS) facing allegations of misconduct.  The case before the MPTS stemmed from Dr Udoye’s alternative route of obtaining a Certificate of Eligibility for GP Registration which he sought to obtain via the NHS’s GP Induction and Refresher Scheme.

Under this scheme, Dr Udoye was offered a placement for 6 months on the scheme under the supervision.  He was initially referred to the GMC following his participation in the scheme.  At a hearing on 15 June 2018 the Interim Orders Tribunal (IOT) imposed conditions on his registration which included a requirement that he should not work as a GP. In December 2018 the IOT lifted that condition because it was satisfied that there was no real risk of Dr Udoye working as a GP at that time.

In September 2018 the GMC received a referral from Health Education England concerning monetary claims made by Dr Udoye in relation to his placement under the I&R scheme.  In summary, the allegations alleged dishonesty in that he:

  1. declared his was a GMC registered GP when he knew he was not);
  2. practised as a GP when he knew that he was not eligible to do so; and
  3. submitted ten claims to the NRO arising from his placement for a contribution to the cost of indemnity cover, his GMC Annual Retention Fee and monthly bursary payments, when he was not eligible to make those claims.

The MPTS took place initially between 24 June and 2 July 2019.  Dr Udoye admitted certain allegations but made submissions that there was no case to answer in relation to the remaining disputed allegations.

The MPTS decided that there was no case to answer in respect of that Dr Udoye knew that his statement that his “status” entitled him to work as a GP was untrue and he had acted dishonestly in that respect but taking the GMC’s case at its highest, there was a case to answer in respect of the other allegations.

For a variety of reasons explained in Mr Justice Holgate’s judgement, the MPTS decided that the allegations admitted by Dr Udoye did not amount to misconduct.

GMC appeal

The GMC’s first ground of appeal relates to the misinterpretation by the MPTS of the GMC’s case.  Briefly stated, the MPTS “found that GMC’s evidence failed to support its “case”, because that evidence had not shown that Dr Udoye had worked as an independent GP.”

Holgate J found that the MPTS’ interpretation of allegation 5 (i.e. he practised as a GP whilst on the placement) was legally flawed because the MPTS “failed to take into account GMC’s case on the meaning of allegation (5), despite the fact that it had been set out by its counsel with complete clarity.”

Regarding the second ground of appeal, the GMC submits that when the MPTS erred in law on whether an adverse inference should be drawn from the Dr Udoye’s decision not to give evidence.

On this issue, Holgate J, commented that “Drawing an adverse inference from the silence of a practitioner in disciplinary proceedings does not involve any reversal of the burden of proof borne by the professional body.”

“Disciplinary proceedings are civil and not criminal proceedings. Even so, procedural fairness sometimes requires specific steps to be taken just as in a criminal trial, for example, ensuring that the practitioner is properly informed about the nature of the disciplinary charges he faces…But beyond certain common norms (e.g. the allegations against an individual must be made known to him and clear and he must not bear the burden of proof), the requirements of procedural fairness in any particular case are fact-sensitive. Whether proceedings are fair involves looking at the process as a whole.”

In light of the particular merits of this case, Holgate J found “In my judgment the Tribunal’s approach to the adverse inference issue, and hence its decision on whether the allegation was proved, was legally flawed for several, separate reasons.”

Consequently, Holgate J ruled that the GMC’s appeal must be allowed and remitted the matter to be redetermined in the light of the Court’s judgment and to proceed to determine, if appropriate, misconduct, impairment and sanction.

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