PUBLIC RECORD · 15. Dr Ogbe-Uwen– the Tribunal noted that Dr Ogbe-Uwen has practised medicine...

Record of Determinations –

Medical Practitioners Tribunal

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PUBLIC RECORD Dates: 26/02/2019 - 01/03/2019 and 01/05/2019 - 02/05/2019

Medical Practitioner’s name: Dr Temi OGBE-UWEN

GMC reference number: 5176946

Primary medical qualification: MB BS 1992 University of Benin

Type of case Outcome on impairment New - Misconduct Impaired

Summary of outcome

Erasure Immediate order imposed

Tribunal:

Legally Qualified Chair Mr Graham White

Lay Tribunal Member: Mr Mick Turner

Medical Tribunal Member: Dr Nagarajah Theva

Tribunal Clerks: Mr Sewa Singh (26/02/2019 - 01/03/2019) Ms Jennifer Hatch (01/05/2019 - 02/05/2019)

Attendance and Representation:

Medical Practitioner: Present and represented (26/02/2019 - 27/02/2019) Present and not represented (28/02/2019 - 01/03/2019) Not present and not represented (01/05/2019 - 02/05/2019)

Medical Practitioner’s Representative: Mr Alistair Panton, Counsel, instructed by ROCK Solicitors

GMC Representative: Mr Christopher Hamlet, Counsel



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Attendance of Press / Public In accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 the hearing was held in public. Overarching Objective Throughout the decision making process the tribunal has borne in mind the statutory overarching objective as set out in s1 Medical Act 1983 (the 1983 Act) to protect, promote and maintain the health, safety and well-being of the public, to promote and maintain public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for members of that profession. Determination on Facts - 28/02/2019 Background 1. Dr Ogbe-Uwen graduated in 1992 at The University of Benin, Nigeria. 2. At the time of the matters before the Tribunal, Dr Ogbe-Uwen was working as a locum consultant psychiatrist registered with MIND Professionals, a recruitment agency. 3. In summary the allegations that have led to Dr Ogbe-Uwen’s hearing are that, between 7 March 2017 and 26 June 2017 and between 21 November 2017 and 23 November 2017, she worked as a locum Substance Misuse Psychiatrist at Life Works Community Limited, (‘Life Works’) part of the Priory Group, without having adequate insurance or indemnity in place; and that having been notified of the requirement to have adequate insurance or indemnity cover in place, Dr Ogbe-Uwen confirmed to her employer that such cover was in place when she knew that it was not. It is alleged that Dr Ogbe-Uwen’s actions in this regard were dishonest and that her fitness to practise is impaired by reason of her misconduct. 4. Initial concerns were raised with the GMC in a letter from Dr A, Group Associate Director at the Priory Group, on 2 January 2018. The Outcome of Applications Made during the Facts Stage 5. The Tribunal acceded to an application made by Mr Alistair Panton, Counsel, on behalf of Dr Ogbe-Uwen, pursuant to Rule 17(6) of the General Medical Council (Fitness to Practise Rules) 2004 as amended (‘the Rules’), to amend the Allegation by the addition of the words ‘at the time’ after the word ‘having’ in paragraph 1 of the Allegation. The Tribunal’s full decision on the application is included in Annex A.



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6. The Tribunal also granted an application made by Mr Christopher Hamlet, Counsel, on behalf of the GMC, under Rule 34(13) of the Rules to hear the evidence of Dr B, Consultant Paediatrician, via videolink. The Tribunal’s full decision on the application is included in Annex B. The Allegation and the Doctor’s Response 7. The Allegation made against Dr Ogbe-Uwen is as follows:

1. You worked at Life Works Community Limited (‘Life Works’) as a Substance Misuse Psychiatrist without having at the time adequate insurance or indemnity cover in place between: Amended under Rule 17(6)

a. 7 March 2017 and 26 June 2017;

b. 21 November 2017 and 23 November 2017. Admitted and Found Proved in its entirety

2. You undertook the work described at paragraph:

a. 1 above despite having:

i. specifically discussed with your appraiser in June 2016 the requirement to have adequate insurance or indemnity cover; To be determined

ii. received an email on behalf of your Responsible Officer on 4

July 2016 notifying you that adequate insurance or indemnity cover is now mandatory; To be determined

iii. been in discussions with Mind Professionals (‘Mind’) about the

need to have adequate insurance or indemnity cover; To be determined

b. 1a above despite having signed an agreement with Mind on 24 February 2017 confirming your acceptance to obtain adequate employer’s liability insurance and any other suitable policies of insurance.

To be determined

3. In email correspondence with the Medical Director of Mind you confirmed on:



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a. 22 March 2017, that there were “no issues; with regards to my medical indemnity/malpractice insurance cover”;

To be determined

b. 29 March 2017, that your “legal cover has private practice included”. Admitted and Found Proved

4. You knew that your legal cover as described at paragraph 3 did not constitute a policy of adequate insurance or indemnity cover required for the work you undertook as set out in paragraph 1.

To be determined

5. Your actions as described in paragraphs 1 to 3 were dishonest by reason of paragraph 4.

To be determined

And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.

The Admitted Facts 8. On 26 February 2019 (day one) of the proceedings and through her counsel, Mr Alistair Panton, Dr Ogbe-Uwen admitted paragraphs 1 and 3(b) of the Allegation, as set out above, in accordance with Rule 17(2)(d) of the Rules. In accordance with Rule 17(2)(e) of the Rules (‘the Rules’), the Tribunal announced these sub-paragraphs of the Allegation as admitted and found proved. The Facts to be Determined 9. In light of Dr Ogbe-Uwen’s response to the Allegation made against her, the Tribunal was required to determine the non-admitted facts including whether she had acted dishonestly. Factual Witness Evidence 10. The Tribunal received written statements and oral evidence on behalf of the GMC from the following witnesses:

• Dr A, Group Associate Medical Director, The Priory Group, in person. Witness statement dated 8 June 2018;

• Dr C, Medical Director, MIND Professionals Ltd, in person. Witness statement dated 8 June 2018.

• Dr B, Responsible Officer, via videolink. Witness statements dated 6 June 2018 and 13 January 2019.



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11. Dr Ogbe-Uwen provided her own witness statement, dated 5 February 2019, and also gave oral evidence at the hearing. Witness credibility 12. Dr A – the Tribunal found Dr A to be a credible witness. She answered questions put to her in a straightforward manner. She was professional and objective in her evidence and did her best to assist the Tribunal. 13. Dr C – the Tribunal found Dr C to be a credible witness. She came across defensive at times but the Tribunal considered this to be because of the apparent shortcomings in MIND’s compliance processes. Her evidence was supported by a trail of documentary evidence (emails) and she recalled clearly the sequence of events and communications with Dr Ogbe-Uwen. She did her best to assist the Tribunal. 14. Dr B – the Tribunal found Dr B to be a credible witness. He answered questions put to him in a straightforward manner and did his best to assist the Tribunal in relation to the factual matters. He had a good recall of his communications with Dr Ogbe-Uwen, for example, he recalled clearly the circumstances in which he decided to defer Dr Ogbe-Uwen’s revalidation. 15. Dr Ogbe-Uwen– the Tribunal noted that Dr Ogbe-Uwen has practised medicine for some twenty years, and up until 2017, this was exclusively within the NHS. She consistently maintained throughout these proceedings that she was unaware that she did not have Indemnity Insurance when she undertook work for Lifeworks. During her oral evidence, Dr Ogbe-Uwen was, at times, evasive when answering questions put to her at cross examination and when questioned by the Tribunal. She said that she had never heard of, or discussed with her colleagues or her appraisers, the issue of Indemnity Insurance. The Tribunal felt that she demonstrated ‘selective recall’, maintaining a stance that she never reads all of the contents of any important documents. For example, she told the Tribunal that she did not read the entire content of the contract sent to her by MIND nor which parts of it she did read. She told the Tribunal that she had read Good Medical Practice (GMP) only on a couple of occasions since beginning her medical career in 1995, and then not fully. Dr Ogbe-Uwen did however say that she could recall the exact content of important conversations which took place a number of years ago. The Tribunal did not find her to be consistently credible witness. Documentary Evidence 16. The Tribunal had regard to the documentary evidence provided by the parties. This evidence included, but was not limited to:

• Terms of engagement dated April 2016;



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• Extracts from Dr Ogbe-Uwen’s Appraisal dated 26 June 2016; • Email correspondence between Dr Ogbe-Uwen and Dr B; and between Dr

Ogbe-Uwen and Dr C and the compliance team at MIND; • Letters from ROCK Solicitors dated 7 December 2016 and 28 December 2016; • Contract of engagement between MIND and Dr Ogbe-Uwen dated 24

February 2016 • Email correspondence from Medical Protection Society (MPS) and Insync

Insurance; • Dr Ogbe-Uwen’s Indemnity Insurance document; • Correspondence between Dr Ogbe-Uwen’s legal representatives and the GMC; • Certificates of courses attended by Dr Ogbe-Uwen entitled ‘Educational and

Clinical Supervision’ on 12 and 13 November 2016; and ‘Leadership & Management in the NHS including Politics in the NHS Workshop’ on 24 and 25 September 2016;

• Testimonials from Dr Ogbe-Uwen’s colleagues and acquaintances attesting to her clinical work, honesty and general good character.

The Tribunal’s Approach 17. In reaching its decision on facts, the Tribunal has borne in mind that the burden of proof rests on the GMC and it is for the GMC to prove the Allegation. Dr Ogbe-Uwen does not need to prove anything. The standard of proof is that applicable to civil proceedings, namely the balance of probabilities, i.e. whether it is more likely than not that the events occurred. 18. It is alleged that Dr Ogbe-Uwen’s actions in relation to paragraphs 1 – 3 of the Allegation were dishonest. The Tribunal adopted the test for determining dishonesty which is set out in the case of Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] UKSC 67, which states: ‘1. First ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. 2. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.’



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Summary of the case presented by the parties 19. The GMC’s case is that at the time she undertook the work at Life Works, Dr Ogbe-Uwen knew she did not have adequate Indemnity Insurance cover. 20. Dr Ogbe-Uwen’s case is that she had always thought, given the letter she had been provided by her solicitor, that she had adequate Indemnity Insurance cover. The Tribunal’s Analysis of the Evidence and Findings 21. The Tribunal then considered the outstanding facts in dispute in regards to each paragraph of the Allegation. Paragraph 2

2. You undertook the work described at paragraph:

a. 1 above despite having:

i. specifically discussed with your appraiser in June 2016 the requirement to have adequate insurance or indemnity cover; Found Not Proved

22. The Tribunal had regard to Dr Ogbe-Uwen’s Appraisal dated 26 June 2016 undertaken by Dr D. In Section 19 of the document it states: ‘Dr Ogbe-Uwen was advised to have appropriate level of indemnity insurance for her clinical work.’ 23. In her evidence, Dr Ogbe-Uwen told the Tribunal that Dr D did not discuss this with her. There was no face to face meeting regarding her appraisal. The Tribunal did not receive oral evidence from Dr D. 24. The Tribunal was of the view that being’ advised’ did not constitute a discussion. It therefore found paragraph 2(a)(i) of the Allegation, not proved.

ii. received an email on behalf of your Responsible Officer on 4 July 2016 notifying you that adequate insurance or indemnity cover is now mandatory; Found Proved

25. The Tribunal had regard to an email from Dr B to Dr Ogbe-Uwen dated 4 July 2016, in which Dr B stated, amongst other things:



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‘I have decided to defer for 6 months with the following addressed prior to your new revalidation date: ….. 4) Acquiring adequate indemnity insurance immediately as this is now mandatory.’ 26. In her evidence, Dr Ogbe-Uwen accepted that she had received the email. 27. The Tribunal therefore found paragraph 2(a)(ii) of the Allegation proved.

iii. been in discussions with Mind Professionals (‘Mind’) about the need to have adequate insurance or indemnity cover; Found Proved

28. The Tribunal had regard to the trail of email correspondence between Dr Ogbe-Uwen and Dr C and between Dr Ogbe-Uwen and Ms E of MIND Professional’s compliance team. In particular, it noted the following emails from Ms E: Dated 15 March 2017: ‘Following our telephone conversation I can confirm that ….. In addition, the letter from your solicitors does not confirm your medical cover for medical malpractice indemnity insurance. ….’ Dated 17 March 2017: ‘Following my previous email regarding your indemnity insurance, lease may I ask if you have heard from your solicitor with full details of your medical malpractice indemnity insurance cover?’ Dated 20 March 2017: ‘Following my previous please may I ask if you have heard from your solicitor regarding confirmation of your indemnity insurance cover? 29. In her evidence to the Tribunal, Dr Ogbe-Uwen accepted that she had received and seen the emails from MIND. 30. The Tribunal was satisfied that discussions had taken place between Dr Ogbe-Uwen and MIND Professionals about the need to have adequate insurance or indemnity cover. It therefore found paragraph 2(a)(iii) of the Allegation proved.



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Paragraph 2(b)

1a above despite having signed an agreement with Mind on 24 February 2017 confirming your acceptance to obtain adequate employer’s liability insurance and any other suitable policies of insurance.

Found Proved 31. The Tribunal was provided with a signed copy of a document entitled ‘AGREEMENT WITH A SELF-EMPLOYED CONSULTANCY’. In the Agreement there is a reference ‘MP-OF-113’. The Tribunal noted that the same reference appeared in the full copy of the terms and conditions of the agreement. 32. Dr C, in her evidence, told the Tribunal that both documents are sent to the consultancy (the doctor) together and they form part of the same contract. The Tribunal was satisfied that these document formed part of the same contract by virtue of the reference mentioned above, and Dr Ogbe-Uwen’s confirmation that she had received both. 33. The Tribunal noted that in paragraph 14.1 of the full document it states ‘The Consultancy shall: 14.1.2. obtain adequate employer’s liability insurance, public liability insurance, professional indemnity insurance and any other suitable policies of insurance in respect of the Consultancy and the Consultancy Staff. The Consultancy shall maintain such insurances for the duration of the Assignment and following termination of the Assignment for the period specified. The Consultancy shall make a copy of the policy available to the Employment Business upon request; and’ 34. In her evidence, Dr Ogbe-Uwen confirmed that she received the document and that she read parts of it, although she could not recall specifically which sections of the document she read. 35. The Tribunal concluded that it was more likely than not that Dr Ogbe-Uwen had read the whole of paragraph 14. Having signed the contract, it was clear she accepted that she was required to obtain adequate employer’s liability insurance and any other suitable policies of insurance. 36. It therefore found paragraph 2(b) of the Allegation proved. Paragraph 3

3. In email correspondence with the Medical Director of Mind you confirmed on:



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a. 22 March 2017, that there were “no issues; with regards to my medical indemnity/malpractice insurance cover”;

Found Proved 37. The Tribunal had regard to the email from Dr Ogbe-Uwen to Dr C dated 22 March 2017 in which Dr Ogbe-Uwen stated:

‘Dear [Dr C]; Hope you are doing well? No issues; with regards to my medical indemnity/malpractice insurance cover. I have already forwarded my solicitor's letter of legal cover for me if there are any issues when practising. I have been with this solicitor for years and always submitted their name as legal cover. I tried explaining to [Ms E] but she didn't understand. This same legal cover by my solicitors was accepted by GMC for my revalidation.’ 38. During her evidence to the Tribunal, Dr Ogbe-Uwen accepted that she sent the email. 39. The Tribunal therefore found paragraph 3(a) of the Allegation proved. Paragraph 4

4. You knew that your legal cover as described at paragraph 3 did not constitute a policy of adequate insurance or indemnity cover required for the work you undertook as set out in paragraph 1.

Found Proved 40. In her evidence at cross examination, Dr Ogbe-Uwen told the Tribunal that it was not until December 2017, when she raised the matter with her solicitor, that she became aware she did not have the adequate indemnity insurance cover. 41. In all of her communication and correspondence with MIND Professionals, Dr Ogbe-Uwen maintained that she did have Indemnity Insurance cover, equating this with the term ‘legal cover’. Having heard her evidence that the context of her solicitor/client relationship was for legal representation, the Tribunal concluded that Dr Ogbe-Uwen was fully aware of the limits of that relationship. The Tribunal noted the emails sent to Dr Ogbe-Uwen from Ms E as set out in paragraph 28 above. 42. The Tribunal also noted email correspondence from Dr C to Dr Ogbe-Uwen as follows: Dated 22 March 2017:




‘Can we speak when you have a minute? It’s with regard to your own medical indemnity / malpractice insurance – ie MPS / MDU. Is there an issue with this? Can you update me?’ Dated 29 March 2017: ‘One thing though, is your solicitor aware and accepting of the fact that your services for LifeWorks are outside of (ie not covered by) the NHS Indemnity Scheme – they essentially deemed as being “private practice” as far as insurers are concerned. The GMC may have accepted your solicitors representation as Indemnity Insurance for revalidation purposes on the basis of your work to date only having been within NHS services, (ie covered by the NHS Indemnity Insurance scheme). Would it be possible to seek assurance from your solicitor that your legal cover extends to private practice work, outside of the NHS?’ Dated 5 December 2017: ‘2. Secondly, with regard to your indemnity insurance – we are required to provide the actual certificate of cover, including medical malpractice insurance cover. I know you have confirmed that you have an arrangement with your solicitor to provide for this, and I know from our previous discussions that you have confirmed that this cover is inclusive of for medical practice insurance cover, however we need up to date written confirmation / certification of this from your solicitor (inclusive of the actual cover terms applicable) as the previous information we have on file cannot be used.’ 43. The Tribunal took into account that Dr Ogbe-Uwen had been asked for, or reminded of the need to have, adequate Indemnity Insurance cover a number of times over several years, as follows:

• The requirement has been in GMP since 1998 • She was advised by Dr D during her appraisal on 26 June 2016

• She was informed by Dr B on 4 July 2016 • She was informed a number of times by Dr C • She was informed both over the telephone and by email from a compliance

professional from MIND • She was informed by a compliance professional from Medicure

44. The Tribunal was provided with a copy of the letter from Dr Ogbe-Uwen’s solicitor dated 7 December 2016. This stated: ‘Dear Sirs




RE: DR TEMI OGBE-UWEN We continue to act as solicitors for Dr Temi Ogbe-Uwen. This cover includes acts or omissions in the course of her practice which includes medical malpractice, negligence and legal matters arising from her work. …..’ 45. The Tribunal took into account that in her evidence, Dr Ogbe-Uwen said she only sought clarification from her solicitor in December 2017 after she received Dr C’s email of 5 December 2017. 46. The Tribunal considered that Dr Ogbe-Uwen intended to represent the content of her solicitor’s letter as her having adequate Indemnity Insurance cover. However, the Tribunal was of the view that the content of the letter does not lend itself to be interpreted in this way. The content of the letter only confirms the terms of their engagement as Dr Ogbe-Uwen’s solicitors acting in legal matters if and when the need arises. 47. Therefore, on the balance of probabilities, the Tribunal determined that Dr Ogbe-Uwen knew at all material times that her legal cover did not constitute a policy of adequate insurance or indemnity cover required for the work she undertook at Life Works. During cross examination evidence, Dr Ogbe-Uwen was clear she understood what constitutes an insurance policy. 48. The Tribunal therefore found paragraph 4 of the Allegation proved. Paragraph 5

5. Your actions as described in paragraphs 1 to 3 were dishonest by reason of paragraph 4.

Found Proved in relation to paragraphs 1, 2(a)(ii), 2(a)(iii), 2(b), 3(a) and 4 Found Not Proved in relation to paragraphs 2(a)(i) and 3(b) 49. The Tribunal considered paragraph 5 in relation to paragraphs 1, 2(a)(ii), 2(a)(iii), 2(b), 3(a) and 4 of the Allegation together. 50. It took into account the evidence of Dr Ogbe-Uwen’s good character. 51. The Tribunal has found, in relation to paragraph 4 of the Allegation, that on the balance of probabilities, Dr Ogbe-Uwen knew that her legal cover did not




constitute a policy of adequate insurance or indemnity cover required for the work she undertook at Life Works. 52. In light of its finding, the Tribunal considered, in accordance with the principle set out in Ivey v Genting Casinos whether Dr Ogbe-Uwen’s conduct was objectively dishonest by the standards of ordinary decent people. Dr Ogbe-Uwen obtained paid work which she was not entitled to do so as she did not have the required insurance cover and she also, by virtue of this, put patients at risk. 53. The Tribunal determined that it was. It therefore found paragraph 5 in relation to paragraphs 1, 2(a)(ii), 2(a)(iii), 2(b), 3(a) and 4 of the Allegation proved. In relation to paragraph 2(a)(i) 54. In light of its finding in relation to paragraph 2(a)(i) above, the Tribunal was not satisfied that Dr Ogbe-Uwen’s actions were dishonest. 55. It therefore found paragraph 5 in relation to paragraph 2(a)(i) of the Allegation not proved. In relation to paragraph 3(b) 56. The Tribunal had regard to Dr C’s email dated 29 March 2017 to Dr Ogbe-Uwen in which she stated: ‘Would it be possible to seek assurance from your solicitor that your legal cover extends to private practice work, outside of the NHS?’ 57. In her email response to Dr C on 29 March 2017, Dr Ogbe-Uwen stated: ‘Thanks for your email. Yes I have confirmed that my legal cover has private practice included.’ 58. Having regard to the specific wording of the question in Dr C’s email, which referred to legal cover and not indemnity insurance, the Tribunal found that Dr Ogbe-Uwen’s response was not dishonest. 59. It therefore found paragraph 5 in relation to paragraph 3(b) of the Allegation not proved. The Tribunal’s Overall Determination on the Facts 60. The Tribunal has determined the facts as follows:




1. You worked at Life Works Community Limited (‘Life Works’) as a Substance Misuse Psychiatrist without having at the time adequate insurance or indemnity cover in place between: Amended under Rule 17(6)

a. 7 March 2017 and 26 June 2017; b. 21 November 2017 and 23 November 2017. Admitted and Found Proved in its entirety

2. You undertook the work described at paragraph: a. 1 above despite having:

i. specifically discussed with your appraiser in June 2016 the requirement to have adequate insurance or indemnity cover; Found Not Proved ii. received an email on behalf of your Responsible Officer on 4 July 2016 notifying you that adequate insurance or indemnity cover is now mandatory; Found Proved iii. been in discussions with Mind Professionals (‘Mind’) about the need to have adequate insurance or indemnity cover; Found Proved

b. 1a above despite having signed an agreement with Mind on 24 February 2017 confirming your acceptance to obtain adequate employer’s liability insurance and any other suitable policies of insurance. Found Proved 3. In email correspondence with the Medical Director of Mind you confirmed on:

a. 22 March 2017, that there were “no issues; with regards to my medical indemnity/malpractice insurance cover”; Found Proved b. 29 March 2017, that your “legal cover has private practice included”.

Admitted and Found Proved




4. You knew that your legal cover as described at paragraph 3 did not constitute a policy of adequate insurance or indemnity cover required for the work you undertook as set out in paragraph 1. Found Proved 5. Your actions as described in paragraphs 1 to 3 were dishonest by reason of paragraph 4. Found Proved in relation to paragraphs 1, 2(a)(ii), 2(a)(iii), 2(b), 3(a) and 4 Found Not Proved in relation to paragraphs 2(a)(i) and 3(b) Determination on Impairment - 02/05/2019 1. The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether, on the basis of the facts which it has found proved as set out before, Dr Ogbe-Uwen’s fitness to practise is impaired by reason of misconduct. The Outcome of Applications Made during the Impairment Stage 2. The Tribunal granted Mr Hamlet’s application, made pursuant to Rules 15 and 40 of the Rules to deem that notice of proceedings has been properly served. The Tribunal granted a further application from the GMC to proceed in Dr Ogbe-Uwen’s absence, under Rule 31 of the Rules. Full details of the Tribunal’s decision can be found at Annex C. The Evidence 3. The Tribunal has taken into account all the evidence received during the facts stage of the hearing, both oral and documentary. In addition, the Tribunal received further evidence including an additional witness statement from Dr Ogbe-Uwen, dated 30 April 2019 and a reflective statement from Dr Ogbe-Uwen, dated April 2019. Submissions Mr Hamlet 4. The Tribunal had regard to the written and oral submissions of Mr Hamlet, Counsel, on behalf of the GMC. In summary, he submitted that Dr Ogbe-Uwen’s conduct amounted to misconduct that was serious, and, as a result, that her fitness to practise is impaired. 5. Mr Hamlet submitted that Dr Ogbe-Uwen’s conduct passed the threshold for misconduct; it involved dishonesty in relation to the important issue of indemnity insurance, the dishonesty was repeated and attempts were made to cover it up.




6. He submitted that dishonesty is not easily remediable, and, despite the passage of time since the events, Dr Ogbe-Uwen has not started on the road to remedying her misconduct. She only made efforts to seek retrospective insurance after the issues were brought to her attention. Mr Hamlet submitted that Dr Ogbe-Uwen has steadfastly denied acting dishonestly and lacks insight and there is therefore a high risk of repetition; Dr Ogbe-Uwen maintains that ‘this is a case of a honest, not deliberate or premeditated issue’ and suggests that no patients were put at risk by the lack of insurance, despite the findings of this Tribunal to the contrary. 7. Mr Hamlet submitted that any interim order has no substantive relevance to either impairment or sanction, and that this Tribunal is dealing with something entirely different from an interim orders tribunal since it is concerned with findings of fact. 8. Mr Hamlet further submitted that a finding of impaired fitness to practise is necessary in order to maintain public confidence in the medical profession and to uphold proper standards and conduct for members of the profession. Dr Ogbe-Uwen 9. The Tribunal considered the written submissions provided on behalf of Dr Ogbe-Uwen. In summary, it was submitted that Dr Ogbe-Uwen’s fitness to practise is not impaired by reason of misconduct. 10. It was submitted that the events took place two years ago, Dr Ogbe-Uwen obtained retrospective insurance for the periods in question, and a four-day hearing has taken place on the subject of the importance of professional indemnity insurance; Dr Ogbe-Uwen has been left with absolutely no doubt whatsoever about the importance of maintaining proper professional indemnity insurance at all times. It was submitted that by virtue of the lapse of time and the fact that Dr Ogbe-Uwen has already been suspended by an interim orders tribunal for more than 12 months, her fitness to practise is not currently impaired. 11. It was submitted that the Tribunal should bear in mind that this is a case of an honest, not deliberate or premeditated issue, no patients have been put at risk by the lack of insurance and there have been no complaints about Dr Ogbe-Uwen’s practice. 12. The Tribunal also took into account the cases suggested as being relevant by Dr Ogbe-Uwen’s representatives; Manzur v GMC (Privy Council Appeal No.24 of 2001), Hosny v GMC [2011] EWHC 1355 (Admin) and Flavin v GMC Times 18th April 2019. The Relevant Legal Principles 13. The Tribunal reminded itself that at this stage of proceedings, there is no burden or standard of proof and the decision of impairment is a matter for the Tribunal’s judgement alone.




14. In approaching the decision, the Tribunal was mindful of the two stage process to be adopted: first whether the facts as found proved amounted to misconduct and that the misconduct was serious and then whether the finding of that misconduct which was serious could lead to a finding of impairment. 15. The Tribunal must determine whether Dr Ogbe-Uwen’s fitness to practise is impaired today, taking into account her conduct at the time of the events and any relevant factors since then such as whether the matters are remediable, have been remedied and any likelihood of repetition. The Tribunal’s Determination on Impairment Misconduct 16. The Tribunal first considered whether the facts found proved are a sufficiently serious departure from the standards of conduct reasonably expected of Dr Ogbe-Uwen as a registered medical practitioner, to amount to misconduct. 17. The Tribunal had regard to the principles contained within Good Medical Practice (‘GMP’) (2013 edition), particularly paragraphs 65, 68 and 77 which state:

‘65 You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession.’

‘68 You must be honest and trustworthy in all your communication with patients and colleagues. This means you must make clear the limits of your knowledge and make reasonable checks to make sure any information you give is accurate.’

‘77 You must be honest in financial and commercial dealings with patients, employers, insurers and other organisations or individuals.’

18. It is a matter of common sense that doctors must act with probity. Nevertheless, Dr Ogbe-Uwen worked without adequate insurance or indemnity cover despite (i) having received an email from her Responsible Officer notifying her that adequate insurance or indemnity cover was mandatory, (ii) having been in discussions with Mind Professionals about the need to have adequate insurance or indemnity cover, and (iii) having signed an agreement with Mind Professionals confirming her acceptance to obtain adequate employer’s liability insurance and any other suitable policies of insurance. She stated in email correspondence with the Medical Director of Mind Professionals that there were no issues with regard to her medical indemnity/malpractice insurance cover and that her legal cover had private practice included, when she knew that her legal cover did not constitute a policy of adequate insurance or indemnity cover required for the work she




undertook as a Substance Misuse Psychiatrist. The Tribunal has found that Dr Ogbe-Uwen was dishonest on repeated occasions. 19. Dr Ogbe-Uwen’s conduct was a clear departure from important principles of GMP. The Tribunal has already found that, by virtue of not having the required insurance cover, Dr Ogbe-Uwen put patients at risk. 20. Dr Ogbe-Uwen’s conduct included dishonesty which was repeated, and she made attempts to cover it up. The Tribunal considered that these factors increase the seriousness of Dr Ogbe-Uwen’s conduct. 21. For the reasons set out above, the Tribunal concluded that Dr Ogbe-Uwen’s conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to misconduct. Impairment 22. The Tribunal, having found that the facts found proved amounted to misconduct, went on to consider whether, as a result of that misconduct, Dr Ogbe-Uwen’s fitness to practise is currently impaired. 23. The matters in this case are serious. The dishonest conduct was repeated, and attempts were made to cover it up. 24. The Tribunal accepted that dishonesty and/or matters of probity are not easily remediated. It bore in mind that Dr Ogbe-Uwen has not come to the attention of her regulator on any other occasion before or since the current matters, which is to her credit. It also took into account that she has now obtained retrospective indemnity insurance, albeit this was after the matters were brought to her attention. The Tribunal further took into account all the testimonials referring to Dr Ogbe-Uwen’s good character which had been previously submitted. 25. The Tribunal took into account Dr Ogbe-Uwen’s additional witness statement and reflective statement, both dated April 2019. It considered her reflections to be limited as they do not specifically address her dishonesty. The Tribunal was of the view that Dr Ogbe-Uwen has demonstrated little remediation other than obtaining retrospective indemnity insurance. 26. The Tribunal noted that Dr Ogbe-Uwen does not appear to accept or take full responsibility for her wrongdoings and there is little evidence of insight. There is no evidence to suggest that she is apologetic or remorseful, or that she acknowledges that she put patients at risk through the lack of insurance cover, despite having been subject to an interim order of suspension for more than 12 months. Dr Ogbe-Uwen has attempted to go behind the previous findings of this Tribunal by continuing to deny the facts of the case, submitting that her dishonesty was not




deliberate or premeditated when the Tribunal has already made conclusions to the contrary. 27. There is no evidence before the Tribunal of any efforts made by Dr Ogbe-Uwen to keep her medical knowledge and skills up to date. 28. The Tribunal concluded that the serious misconduct found, which includes dishonesty, would have a grave impact to the public trust in the profession. With insufficient evidence of insight and remediation, and a risk of repetition, the Tribunal determined that a finding of impairment is necessary to ensure the protection of the health, safety and wellbeing of the public. It also determined that a finding of impairment was required in order to maintain public confidence in the profession, and to uphold proper professional standards and conduct for members of the profession. 29. The Tribunal therefore determined that Dr Ogbe-Uwen’s fitness to practice is impaired by reason of misconduct. Determination on Sanction - 02/05/2019 1. Having determined that Dr Ogbe-Uwen’s fitness to practise is impaired by reason of misconduct, the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction, if any, to impose. The Evidence 2. The Tribunal has taken into account evidence received during the earlier stages of the hearing where relevant to reaching a decision on sanction. 3. The Tribunal also took into account the further witness statement provided by Dr Ogbe-Uwen at this stage, dated 2 May 2019. Submissions Mr Hamlet 4. On behalf of the GMC, Mr Hamlet reminded the Tribunal that it should consider each sanction, starting with the least restrictive. However, he submitted that erasing Dr Ogbe-Uwen’s name from the Medical Register is the only way to address the areas of concern in this case. 5. Mr Hamlet outlined what he considered to be the aggravating and mitigating features of this case. He submitted that the mitigation is limited and fails to displace the significant aggravating features such that erasure is the only means of protecting patients, the reputation of the profession and the upholding of standards and conduct.




Dr Ogbe-Uwen 6. A copy of the Impairment determination was sent to Dr Ogbe-Uwen’s solicitor and husband on the morning of 2 May 2019. Her solicitor replied via email to confirm that Dr Ogbe-Uwen had no further submissions to make, and that she would be relying upon all of the documents already before the Tribunal. However, a further witness statement was then received in the afternoon of 2 May 2019, which was considered by the Tribunal. The Tribunal’s Determination on Sanction 7. The decision as to the appropriate sanction to impose, if any, is a matter for this Tribunal exercising its own judgement. The Tribunal considered the sanctions available, starting with the least restrictive. It has borne in mind that the purpose of a sanction is not to be punitive, but to protect patients and the wider public interest, although it may have a punitive effect. If it chooses to impose a sanction, the sanction should be appropriate and proportionate, although the reputation of the profession as a whole is more important than the interests of any individual doctor. 8. In reaching it’s decision, the Tribunal took account of the Sanctions Guidance (February 2018 edition) (‘the SG’). 9. The Tribunal considered and carefully balanced the aggravating and mitigating factors in this case. 10. The Tribunal considered that Dr Ogbe-Uwen’s conduct was serious, and it breached a number of principles of GMP. Her dishonest conduct took place over a period of months, was repeated, and was compounded by her attempts to cover up the dishonesty when challenged about her indemnity cover. Dr Ogbe-Uwen continues to deny her dishonesty, has provided very limited evidence of insight, and does not appear to recognise that she exposed patients to risk of harm. The Tribunal considered that, given the limited extent of Dr Ogbe-Uwen’s insight, there is a risk that she may repeat her misconduct. 11. The Tribunal also took into account the mitigating factors in this case, including the testimonials from Dr Ogbe-Uwen’s colleagues and other associates attesting to her good character. Retrospective indemnity cover has now been obtained, and Dr Ogbe-Uwen has acknowledged that she should have obtained the insurance prior to working. The Tribunal also bore in mind that Dr Ogbe-Uwen qualified as a doctor over 20 years ago and has not come to the attention of her regulator on any other occasion before or since the current matters, which occurred over two years ago. She has also engaged with the GMC throughout the investigation.




12. The Tribunal considered that, due to the seriousness of the aggravating factors in this case, the mitigating factors carried limited weight, taking into account paragraph 24 of the SG, which states: ‘24 The tribunal needs to consider and balance any mitigating factors

presented by the doctor against the central aim of sanctions. The tribunal is less able to take mitigating factors into account when the concern is about patient safety, or is of a more serious nature, than if the concern is about public confidence in the profession.’

13. Having considered the aggravating and mitigating factors, the Tribunal went on to consider what sanction, if any, to impose. In doing so, it considered each of the sanctions available starting with the least restrictive. The Tribunal also had regard to the statutory overarching objective. This states that the main reason for imposing sanctions is to protect the public, which includes to (i) protect and promote the health, safety and wellbeing of the public, (ii) promote and maintain public confidence in the medical profession and (iii) promote and maintain proper professional standards and conduct for the members of the profession. No action 14. In reaching it decision as to the appropriate sanction, if any, to impose in Dr Ogbe-Uwen’s case, the Tribunal first considered whether to conclude the case by taking no action. Taking no action following a finding of impaired fitness to practise would only be appropriate in exceptional circumstances. 15. The Tribunal determined that there were no exceptional circumstances in this case and that it would therefore not be in the public interest to conclude this case by taking no action. Conditions 16. The Tribunal next considered whether it would be appropriate to impose conditions on Dr Ogbe-Uwen’s registration. It bore in mind that any conditions imposed should be appropriate, proportionate, workable and measurable. 17. The Tribunal was of the view that conditions would not be workable given the lack of evidence of remediation and insight. Further, the Tribunal considered that it was not possible to formulate conditions to address dishonesty. 18. In any case, the Tribunal determined that conditions would not be sufficient to protect patients, maintain confidence in the medical profession, nor to mark the unacceptability of Dr Ogbe-Uwen’s misconduct. Suspension




19. The Tribunal then went on to consider whether a period of suspension would be an appropriate and proportionate sanction to impose on Dr Ogbe-Uwen’s registration. 20. The Tribunal acknowledged that suspension has a deterrent effect and can be used as a signal to the doctor, the profession and the public about what is regarded as behaviour unbefitting of a registered doctor. It also acknowledged that suspension is an appropriate response to misconduct which is sufficiently serious that action is required in order to protect members of the public and maintain public confidence in the profession. 21. The Tribunal considered the factors outlined in the SG which advises when suspension may be appropriate. In particular, it had regard to paragraph 97, which indicates that suspension may be appropriate if the following factors are present:

‘a A serious breach of Good medical practice, but where the doctor’s misconduct is not fundamentally incompatible with their continued registration, therefore complete removal from the medical register would not be in the public interest. However, the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors. …

e No evidence that demonstrates remediation is unlikely to be successful, eg because of previous unsuccessful attempts or a doctor’s unwillingness to engage.

… g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviour.’

22. The Tribunal took into account its findings in relation to Dr Ogbe-Uwen’s lack of remediation and very limited insight, and the risk that Dr Ogbe-Uwen may repeat her misconduct in the future. Although Dr Ogbe-Uwen has been engaging with the GMC throughout the investigation, there is a lack of evidence to demonstrate that she acknowledges her dishonesty, or that she understands the potential impact of her misconduct upon patients, the wider public and the reputation of the medical profession. In these circumstances, and given the seriousness of the misconduct, which includes repeated dishonesty, the Tribunal concluded that Dr Ogbe-Uwen’s misconduct could be described as being fundamentally incompatible with continued registration.




23. The Tribunal therefore determined that a period of suspension would not be an appropriate or proportionate sanction, nor would such a sanction satisfy the public interest. Erasure 24. The Tribunal considered if erasure was appropriate in this case. In doing so, it had regard to the relevant paragraphs of the SG, including paragraphs 109 and 128, which list a number of factors which may indicate that erasure is appropriate. The Tribunal found the following to be particularly relevant to this case: ‘a A particularly serious departure from the principles set out in Good medical

practice where the behaviour is fundamentally incompatible with being a doctor. b A deliberate or reckless disregard for the principles set out in Good medical

practice and/or patient safety. … h Dishonesty, especially where persistent and/or covered up. … j Persistent lack of insight into the seriousness of their actions or the

consequences.’ 25. Paragraph 128 states: ‘128 Dishonesty, if persistent and/or covered up, is likely to result in erasure.’ 26. The Tribunal has already concluded that Dr Ogbe-Uwen’s conduct was a serious departure from a number of principles contained within GMP, and amounted to misconduct that was serious. The Tribunal noted that dishonesty was regarded as particularly serious since it was seen to undermine trust in the profession regardless of whether it led to direct patient harm. 27. Dr Ogbe-Uwen has failed to acknowledge her dishonesty, and has been unable to sufficiently demonstrate insight or remediation. This was further reflected in her statement received on 2 May 2019 in which she repeated her denials and accused the General Medical Council of racism. 28. In the circumstances, the Tribunal concluded that Dr Ogbe-Uwen’s misconduct is fundamentally incompatible with continued registration and it determined to erase her name from the Medical Register. The Tribunal considered




the question of proportionality and concluded that the public interest outweighed Dr Ogbe-Uwen’s interests. 29. The Tribunal concluded that erasure is the only means of protecting patients, maintaining public confidence in the profession and declaring and upholding proper standards and conduct. It was also of the view that Dr Ogbe-Uwen’s conduct, which included dishonesty, would undermine the public’s trust in the medical profession. Accordingly, the Tribunal determined that it was appropriate and proportionate to direct that Dr Ogbe-Uwen’s name be erased from the Medical Register. 30. Unless Dr Ogbe-Uwen exercises her right of appeal, her name will be erased from the Medical Register 28 days from the date on which written notice of this decision is deemed to have been served upon her. A note explaining her right of appeal will be sent to her. Determination on Immediate Order - 02/05/2019 1. Having determined that Dr Ogbe-Uwen’s name be erased from the Medical Register, the Tribunal has considered, in accordance with Rule 17(2)(o) of the Rules, whether her registration should be subject to an immediate order. Submissions 2. On behalf of the GMC, Mr Hamlet submitted that an immediate order is necessary in this case in order to uphold proper standards and to maintain public confidence in the medical profession. 3. He invited the Tribunal to revoke the interim order currently imposed on Dr Ogbe-Uwen’s registration. The Tribunal’s Determination 4. The Tribunal considered the circumstances of Dr Ogbe-Uwen’s case. In light of its earlier findings in relation to the seriousness of Dr Ogbe-Uwen’s misconduct, and the risk of repetition, the Tribunal determined that an order is necessary for the protection of the public. 5. It also concluded that, given the serious nature of its findings, such an order is necessary in the public interest to maintain public confidence in the medical profession and to uphold proper standards and conduct for the profession. 6. This means that Dr Ogbe-Uwen’s registration will be suspended from when notification is deemed to have been served. The substantive direction, as already announced, will take effect 28 days from when written notice of this determination has




been served upon Dr Ogbe-Uwen, unless an appeal is made in the interim. If an appeal is made, the immediate order will remain in force until the appeal has concluded. 7. The interim order currently imposed on Dr Ogbe-Uwen’s registration will be revoked when the immediate order takes effect. Confirmed Date 02 May 2019 Mr Graham White, Chair




ANNEX A – 27/02/2019

Application to Amend the Allegation 1. On 26 February 2019, Mr Alistair Panton, Counsel, on behalf of Dr Ogbe-Uwen, made an application pursuant to Rule 17(6) of the General Medical Council (Fitness to Practise Rules) 2004 as amended (‘the Rules’), to amend the Allegation by the addition of the words ‘at the time’ after the word ‘having’ in paragraph 1 of the Allegation. 2. Mr Christopher Hamlet, Counsel, on behalf of the GMC, did not oppose the application. 3. The Tribunal noted the reasons for Mr Panton’s application and that the GMC did not oppose the application. It was satisfied that the amendment could be made without injustice to either party. As such, in accordance with Rule 17(6) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004, the Tribunal granted the application. 4. As a consequence, the Tribunal amended paragraph 1 of the Allegation to read as follows: ‘1. You worked at Life Works Community Limited (‘Life Works’) as a Substance Misuse Psychiatrist without having at the time adequate insurance or indemnity cover in place between: a. 7 March 2017 and 26 June 2017; b. 21 November 2017 and 23 November 2017.’

ANNEX B – 27/02/2019

Application to hear witness evidence via videolink 1. On 26 February 2019, 8 January 2019, Mr Christopher Hamlet, Counsel, on behalf of the GMC, made an application pursuant to Rule 17(6) of the General Medical Council (Fitness to Practise Rules) 2004 as amended (‘the Rules’), for the evidence of Dr B to be given via videolink. Mr Hamlet explained that due to personal circumstances, Dr B was unable to attend in person. 2. Mr Alistair Panton, Counsel, on behalf of Dr Ogbe-Uwen, did not oppose the application. 3. The Tribunal considered Rule 34(13) and (14) of the Rules. 4. In reaching its decision, the Tribunal considered all the circumstances, including that Mr Panton did not oppose the application; the availability of the




witness; the need for the witnesses to attend in person; the importance of the witnesses evidence to the proceedings and fairness to all parties. The Tribunal determined that there would be no injustice to Dr Ogbe-Uwen as a result of hearing Dr B’s evidence via videolink and it therefore granted the application.

ANNEX C – 01/05/2019

Service and proceeding in Dr Ogbe-Uwen’s absence Service 1. Upon reconvening on 1 May 2019, Dr Ogbe-Uwen was not present and was not represented. The Tribunal therefore considered whether notice of this hearing has been properly served upon Dr Ogbe-Uwen in accordance with the Rules. 2. The Tribunal had regard to the fact that Dr Ogbe-Uwen was present when the hearing adjourned part-heard on 1 March 2019. It was agreed at that time that the hearing would reconvene from 1 to 3 May 2019. The Tribunal also had regard to the email from Dr Ogbe-Uwen’s solicitor dated 29 April 2019, in which the reconvened dates of this hearing are acknowledged, and it is confirmed that Dr Ogbe-Uwen would not be attending, nor would she be represented. 3. The Tribunal was satisfied that notice has been properly served upon Dr Ogbe-Uwen in accordance with the Rules. Proceeding in Absence 4. Having been satisfied that notice of this reconvened hearing has been properly served, the Tribunal went on to consider whether to exercise its discretion to proceed with the case in Dr Ogbe-Uwen’s absence, under Rule 31 of the Rules. 5. The Tribunal has borne in mind that the discretion to proceed in the absence of a doctor should be exercised with the utmost care and caution. It also bore in mind the need to balance Dr Ogbe-Uwen’s interests with the public interest. 6. The Tribunal took into account the email dated 29 April 2019 from Dr Ogbe-Uwen’s solicitor. In that email, it is confirmed that Dr Ogbe-Uwen will not be attending the hearing due to financial constraints, and that she will not be represented for the same reason. It is confirmed that Dr Ogbe-Uwen would provide written submissions which she would be relying upon, as well as the submissions and skeleton arguments presented by Mr Panton, Counsel, on her behalf at the hearing previously. The Tribunal had regard to the further submissions provided on Dr Ogbe-Uwen’s behalf. 7. Given the information provided, it was clear to the Tribunal that Dr Ogbe-Uwen has voluntarily absented herself from today’s proceedings. It noted that Dr




Ogbe-Uwen or her solicitor have not requested an adjournment of this hearing. Further, there is no evidence to indicate that Dr Ogbe-Uwen would attend this hearing on a future date. 8. The Tribunal concluded that it would be both fair and in the public interest for this hearing to proceed expeditiously. The Tribunal was satisfied that it could proceed without any significant risk of injustice to Dr Ogbe-Uwen. It therefore exercised its discretion to proceed in Dr Ogbe-Uwen’s absence.

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PUBLIC RECORD · 15. Dr Ogbe-Uwen– the Tribunal noted that Dr Ogbe-Uwen has practised medicine...

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