Dr Magdalene Ekpiken v NHS England

Dr Ekpiken appeals against the decision made by the Performers List Decision Panel (the "PLDP") in December 2024 to remove her name from the national Medical Performers List (NMPL) by reference to regulation 14(3)(d) of the National Health Service (Performers List) (England) Regulations 2013 (“the Regulations”) on the grounds that she is unsuitable to be included in the list.

This is as follows:

The PLDP met on 17 December 2024 and decided on to remove Dr Ekpiken’s name from the NMPL on the grounds that she is unsuitable to be included in the list under Regulation 14(3)(d). The reasons given are a matter of record and the matters relied on by the Respondent are included in the Scott Schedule before us. In summary the panel reached its decision to remove based on concerns relating to taking personal responsibility for actions, insight and behaviour, clinical competence, patient safety concerns and probity. That decision has not yet taken effect pending the outcome of this appeal but Dr Ekpiken is currently suspended from the List.

In section F of the Appeal application form Dr Ekpiken sought that she be reinstated to the list without restriction. In essence, the accompanying grounds of appeal alleged that the PLDP failed to take into account or paid inadequate regard to: the written submissions provided by Dr Ekpiken; contextual factors such as her workload, her work environment, her working hours and her personal circumstances: the existence of disputes of fact; her recent positive appraisal and her sustained period of practice without concern. It was also alleged that the panel’s approach to suitability was fundamentally flawed in that inadequate or no regard was paid to her explanations which included mistake. Dr Ekpiken’s conduct was considered attributable to a lack of probity based on limited evidence. Disproportionate weight was placed on her previous regulatory history. The panel misapplied the law in that it incorrectly asserted that “probity cannot be remedied”. The panel made a serious procedural error in that it relied on third party findings concerning a telephone audit in circumstances where Dr Ekpiken had not been provided with the underlying evidence. The panel was wrong to categorise the concerns arising from Dr Ekpiken’s conduct as engaging suitability when the concerns related to quality and performance and more appropriately fall under the efficiency grounds.

We had received and read in advance of the hearing a paginated and indexed hard copy also provided in an electronic bundle (PDF pages 1- 592), the skeleton arguments from the Respondent and the Appellant dated 2 and 6 July 2025 respectively.

On 16 June 2025 the Appellant had submitted a T109 application seeking that the hearing be partly heard in private as the Appellant wished to give evidence regarding personal health issues. The Respondent did not object. This matter was considered by Judge Khan on 28 May 2025 who considered that there was limited information as to why the application had been made and that it was appropriate for the matter to be dealt with as a preliminary issue at the hearing. Thereafter, the Appellant provided further information including a closed statement dated 9 July 2025, a closed bundle and a T109 application.

The panel had read all of the above before the hearing commenced. Whilst we agreed to exercise our discretion under paragraph 26 (3) of the Rules so that any oral evidence regarding the personal health issues would be heard in private, we noted Dr Ekpiken’s closed statement contained evidence that went beyond personal health issues and which should, as a matter of principle, be given in public. We therefore directed that the closed statement be converted into two statements: one closed and the other public. These were duly received and we made an order under paragraphs 14 of the Rules 14 (1) of the Rules prohibiting the disclosure or publication of the closed witness statement and closed bundle.

Dr Ekpiken has a stutter which she developed in her childhood. The panel had considered the guidance in the Equal Treatment Bench Book and the section headed “stammering” in advance of the hearing. A stammer or stutter is a neurological condition which causes a person to repeat, prolong or block on sounds and words when speaking. Dr Ekpiken blocks on sounds so we will use the term stutter. We were mindful that although stuttering is not due to nervousness, its effect can make people who have a stutter more nervous about situations where they will have to speak, especially in public, in front of a group of people or to authority figures. We were also mindful that a stutter may seem minimal when the individual is working hard not to stutter, or not to show the stutter. We said at the outset that we intended to make reasonable adjustments when Dr Ekpiken gave evidence, and not least by ensuring that she had the time necessary to answer any questions in her own way. We also considered that it would be reasonable to take longer and more frequent breaks than usual throughout the hearing so that Mr Livesey and the Appellant had ample time to discuss any general matters arising. We asked Mr Livesey to discuss any further adjustments needed with Dr Ekpiken and to let us know what further steps might assist in relation to her oral evidence. In the event Mr Livesey confirmed that he had taken instructions and did not seek other adjustments.

The judge explained the process of a redetermination. The parties were agreed that since we are engaged in making a fresh decision the reasons given by the PDLP are not overly material. It is open to us to make any decision that could have been made by the PLDP. She explained that the witness statements will stand as the main evidence of each witness who gave evidence as if every word had been spoken before us.

In summary:

The Appellant’s skeleton includes the following.

We heard oral evidence on oath from:

The key regulations are as follows:

Those matters are—

is currently suspended from it,

Standing in the shoes of the PLDP we have considered the guidance contained in the Policy on Managing the NHS performers Lists NHS (England) published in July 2024. This states:

“12.1

Efficiency grounds

These grounds may be used when the inclusion of the performer on a Performers List could be prejudicial to the efficiency of the service that is performed. Broadly speaking, these are issues of competence and quality of performance. They may relate to everyday work, inadequate capability, poor clinical performance, bad practice, repeated wasteful use of resources that local mechanisms have been unable to address, or actions or activities that have added significantly to the burdens of others in the NHS (including other performers).

12.2

Unsuitability grounds

Unsuitability as a ground for action could be relied on where:

1.

it is a consequence of a decision taken by others (for example, by a court or professional body, or the contents of a reference)

2.

there is a lack of tangible evidence of a performer’s ability to undertake the performer role (for example, satisfactory qualifications and experience, essential qualities).

The term is used with its everyday meaning and so provides NHS England with a broad area of discretion. Unsuitability and efficiency grounds may overlap, and in many cases, NHS England may find itself able to take action against a performer under either ground.”

Dr Ekpiken brings this appeal under regulation 17 (2) (c). Regulation 17 (1) provides that the appeal is by way of “redetermination”. We are required to make a de novo (i.e. a fresh) decision as at today’s date. This may be informed by new information or material that was not available to the PLDP. The redetermination of the appeal includes consideration of all the documentary evidence provided by both sides in this appeal, and the oral evidence and submissions before us.

Regulation 17(4) provides that on appeal the First-tier Tribunal may make any decision which the PLDP could have made. The Respondent’s primary case is that the facts are such that the Appellant is unsuitable and that removal is proportionate to the risk to patient safety and protection of the public interest. In so far as the facts found also engage efficiency the appropriate outcome is removal. In contrast, the Appellant contends that, in overall context, removal is unnecessary, unjustified and disproportionate. This appeal should be considered as an efficiency case and conditions should be imposed, similar to those imposed by the GMC IOP.

The Respondent bears the burden of proving any facts in issue. The standard of proof is the balance of probabilities. The Respondent also bears the burden of satisfying us that the outcome it seeks is in accordance with the law, and is necessary, justified and proportionate to the public interests engaged.

We have considered all the material placed before us. If we do not refer to any particular part of the evidence or submissions it should not be assumed that we have not taken these into account.

The factual allegations on which the Respondent relies regarding events/matters and the Appellant’s responses are set out in the Scott Schedule (SS), to which we will return.

It is appropriate at this stage to state our overall impression of the witnesses. We found that Dr Ashworth was a straightforward witness. Mr Livesey challenged some aspects of her opinions regarding the cases considered and we considered these when making our findings. Mr Baskerville’s evidence went principally to the regulatory history. He also spoke to the practical implications of direct supervision. His oral evidence was relatively brief and essentially unchallenged.

We had the advantage of relatively detailed statements from Dr Ekpiken which she adopted as her evidence in chief. We also had regard to the responses made by her to the SS. We note here that on a few occasions Dr Ekpiken was unable to utter the words she wanted to articulate but she was able to do so after a pause. We made sure that she was given the time and space to answer at her own pace. At times Dr Ekpiken was visibly upset. We consider that when she had composed herself she was able to articulate what she wanted to say. When evaluating her evidence we reminded ourselves of the guidance in the Equal Treatment Bench Book. In particular, we reminded ourselves of the risk that someone who stutters may not give full answers or may not present their argument fully, and may try to reduce what they say. We directed ourselves as to the risk of being influenced, even subconsciously, in assessing the reliability of Dr Ekpiken’s oral evidence because of speech patterns and behaviours which are exclusively due to her speech impairment. We reminded ourselves also of the risk of drawing adverse inferences from any unusual or roundabout use of words.

On 30 May 2024 Dr Ashworth conducted an audit of telephone consultations conducted by Dr Ekpiken between August 2023 (when she started at Merrow practice) and May 2024. The audit began with 10 cases (one a month) and was later increased to 20 (again selected at the rate of one a month) because of concerns identified. Dr Ashworth had access to the EMIS and Docman systems which had been available to Dr Ekpiken in the consultations. We are satisfied that the cases were selected by a random number generator across the period August 2023 – May 2023 so as to eliminate bias. Dr Ashworth’s method was: to listen to each consultation recording; correlate this to the EMIS record made by Dr Ekpiken; to review each case in terms of the accuracy of documentation; and, using the record audit tool, to review the consultation according to the standards she would expect in general practice.

For each of the 20 cases we have the EMIS record, and a transcript of the consultation which is agreed as reasonably accurate. In any event we have the audio recordings made and have listened to these. Some were played during the hearing itself. We reminded ourselves that listening to an audio is not the same as being present since visual clues are inevitably missing.

It is a feature of modern practice that telephone consultations are part of the ordinary delivery of primary medical care. A key consideration is whether, in the light of the information gleaned in the telephone consultation, a face-to-face consultation, or a home visit, is required. We noted that Dr Ekpiken did ask some patients to attend the surgery.

Dr Ekpiken told us, and we accept, that her working pattern at theMerrowpractice was two days a week from 08.30 am until about 18.00pm: one day as duty doctor which involved face to face and telephone consultations, and other duties, and the other day mainly conducting telephone consultations.

Dr Ekpiken’s case is that there are difficulties in telephone consultations and that the work of a GP is pressured and busy. We accept Dr Ashworth’s evidence that the range of telephone consultations for the days randomly selected was between 11 and 27. We find that this level is in keeping with the ordinary demands placed on general practitioners conducting telephone consultations. Importantly, Dr Ekpiken told us that she had complete control of when she picked up the telephone to make each call. This accords with usual practice and experience: patients are not given a precise time as to when the doctor will telephone.

We find that the number of calls “booked” is based on the expectation that each call will take about 10 minutes. In fact, only one of the 20 telephone consultations audited was over 10 minutes (Patient 5: 12 minutes 11 seconds), and the rest ranged in length from 2 minutes 50 seconds (Patient 7) to 8 minutes 52 seconds (Patient 15). We accept Dr Ashowrth’s evidence that if, as can occur, 10 minutes is insufficient, arrangements can be made to ask the patient to attend the surgery for a longer appointment.

It is not necessary for us to make findings on every aspect of the issues set out in the SS. We deal with the main aspects. For ease of reference, we set out some of the factual allegations in the SS and Dr Ekpiken’s response and parts of the oral evidence.

We note that the GMC Guidelines “Good Medical Practice” state the following:

“Recording your work clearly accurately and legibly

69: you must make sure that formal records of your work (including patient records) are clear, accurate, contemporaneous and legible.”

Patient 2 concerned a patient with a history of reflux disease and oesophagitis. Dr Ekpiken accepts that she failed to make adequate records and that important symptoms (i.e. that were evident in the transcript) such as tiredness, headaches, itching, heavy periods and a blood blister rash were not documented or fully explored.

Patient 4: (costochondritis). Dr Ekpiken accepts that key elements such as the presenting symptoms, rationale for change of plan, and red flag advice were not recorded by her in EMIS.

Patient 5 (request for letter to DWP re fibromyalgia:) Dr Ekpiken accepts that she did not record the mental health assessment or the risk management plan. We will return to patient 5 below but note here our view that no or no adequate mental health assessment was in fact performed, and nor was any adequate management plan for patient’s mental health made.

Patient 7 (Uric acid/gout): Dr Ekpiken’s position is that she accepts that the “records were unclear, particularly in distinguishing between advice given and future plans.” In fact, the EMIS record shows that she recorded that she gave advice but the transcript and audio show that advice was not, in fact, not given.

Patient 15 (Urinary Tract Infections). The transcript shows that the patient gave a history of being violently sick the day before and also kidney pain, neither of which were documented. In response to this criticism of the adequacy/accuracy of her notes, Dr Ekpiken admits that parts of the rationale for her antibiotic choice were missing and that side effects were not documented. In our view this response misses the point. We find that the record made was inadequate because it did not record key symptoms. We will return to consider this case in more detail.

Patient 16 (62-year-old female with productive cough for three weeks, high temperature and confusion). Dr Ashworth’s view, so far as adequacy/ accuracy is concerned, is that what the husband (speaking on behalf of the patient) said is different to what is documented. In particular, the husband reported blood in the sputum i.e. haemoptysis but Dr Ekpiken recorded “no haemoptysis”. Dr Ekpiken’s response in the SS is that she accepts that she “recorded unverified information (haemoptysis) based on a third party report” and also omitted key symptoms from the notes. In our view Dr Ekpiken’s response in the schedule again misses the point: Dr Ekpiken recorded “no haemoptysis” when in fact it was a reported (and red flag) symptom. We will return to consider the detail regarding patient 16 later.

We have already made findings above. In our view the points essentially taken by the Respondent regarding previous training/remediation can more conveniently considered at a later stage and looking at the evidence in the round.

Dr Ekpiken denies that her admitted failures were intentional or otherwise driven by dishonesty. She maintains that her failures were genuine oversights or mistakes.

Ms Strickland made clear in opening that it was not the Respondent’s case that the Appellant was dishonest in the sense of the test established in Ivey v Genting Casinos (UK) Ltd (trading as Crockfords Club) [2017] UKSC 67. Her case is put on the basis that, on an objective basis, Dr Ekpiken’s record of:

The matters relied on by the Respondent related to the skills/attributes considered necessary to be a practitioner delivering primary care services and alleged breaches of the standards of ordinary practice regarding:

In the SS Dr Ekpiken admitted many of the alleged breaches and we find those matters proved. In these circumstances we will at a later stage focus on some of the matters actively disputed by her regarding the consultations with patients 5, 10, 12, 15, 16 regarding matters re Issue 4 e) to j).

Before doing so we set out our views regarding the matters at 4 a) to d) and the context of the admissions made. We accept Dr Ashworth’s evidence that it is standard practice that a GP prepares for the telephone consultation by reading recent notes and results. We find that it is clear from the transcripts and audios that Dr Ekpiken had not always prepared for the telephone consultation by reading the recent notes and checking the results of investigations.

Dr Ekpiken’s explanation is that this was due to work pressure. Whilst we do not doubt that telephone consultations can be challenging, a lack of preparation has a direct and adverse impact upon the structure of the consultation. Dr Ekpiken accepts that several of the consultations lacked structure but contends that this was not always within her control, for instance when having to read notes in real time, due to very busy working schedules. However, as referred to above, the decision as to when to telephone the patient was within her control.

Dr Ekpiken only introduced herself in 2 out of the 20 consultations. She said that this is because patients find her name difficult to pronounce. We consider that this is difficult to follow. Whilst it is ordinary practice for a GP to introduce him/herself as a matter of courtesy and to build rapport, in our experience the situation where the patient will need/want to address the doctor by name are few and far between.

Consideration of the allegation regarding lack of empathy requires caution because empathy can be demonstrated physically, i.e. by look or gesture, as well as verbally. We noted that the patients thanked Dr Ekpiken at the end of the consultation but in our view this is a soft marker. In our experience most patients are polite and are, more often than not, grateful to their GPs for any service provided. Having considered the transcripts and audios we consider that the expression of any empathy is very rare in Dr Ekpiken’s practice. The most notable occasions when empathy was undoubtedly required were patients 5 and 12,both of which involved significant mental health issues. The audio regarding patient 8 supports that Dr Ekpiken did not express any empathy with the patient who told her that she had been diagnosed with breast cancer two days before and whosounded upset. The patient was requesting a change in her migraine medication so as to go back to amitriptyline because that helped her sleep. She said that as she had just had a cancer diagnosis she would like to sleep better. Dr Ekpiken said in evidence that she had been shocked by the diagnosis. The overall impact of her evidence was that she did not know what to say. In our view this is telling: what was required was a few words such as “I am so sorry to hear that. How are you feeling?” or, for example, to enquire as to family support, or signpost to support that is provided by charities.

Having listened to the audios, and having heard Dr Ekpiken give evidence, we do not consider that the fact that Dr Ekpiken has a stutter explains the lack of empathy that we consider was apparent in the consultations with patients 5, 8 and 12. In the SS Dr Ekpiken acknowledged that her communication lacked warmth and sensitivity which she attributed to an over reliance on gathering information efficiently. We noted that there was very little information to gather from patient 8 and the call was very short.

We turn now to consideration Issue 4 e) to j) which relate to aspects of clinical management.

The transcript shows that this patient presented with a history of fibromyalgia and needed a letter for DWP to confirm the diagnosis. She also suffered from mixed anxiety and depressive disorder for which she was taking 20 mg fluoxetine. The patient reported worsening depression, low mood, poor sleep, isolating herself from friends, and constant thoughts of suicide. She had rung the Crisis Line the day before who advised her to speak to her GP. Throughout the consultation she referred to wanting to hide a lot from herself and hiding her mental health from others.

We noted that Dr Ekpiken’s position in the SS was that she denied that the overall clinical risk assessment fell below acceptable standards. Towards the end of the consultation Dr Ekpiken asked a closed question “Okay. You haven’t had suicidal thoughts or any suicidal ideas? No active suicidal thoughts?” Patient 5 replied “I do but I haven’t done anything about it. But I do get very bad thoughts and I think Oh God! I haven’t done anything but I do think about it.” Dr Ekpiken again asked a closed and leading question “Okay but it’s not like you are going to do anything. It’s very important to have that conversation because, if you are having that as a constant active thought then we need to know how to help you. But, thankfully that doesn’t sound like the case now, is that right?” The patient did not immediately answer saying that she was just really tired because she had been up and, when pressed, said “No, no. I don’t think it’s that bad.” In cross examination Dr Ashworth said that she was concerned that the patient would feel (from the closed questions) that she was being encouraged to close the discussion.

With reference to the provision of safety net advice Dr Ekpiken asserted in the SS that she did provide some safety net advice “specifically instructing the patient to contact the practice if symptoms worsened or if suicidal thoughts occurred”. We find that the transcript shows that this did not occur. Immediately after the closed questions regarding suicidal thoughts Dr Ekpiken advised the patient to get back to her if DWP refused her application with the print-out summary, in which case she would write a letter.

We noted that in the SS at A43 Dr Ekpiken accepted that the documentation of her advice was limited and there was insufficient detailed recording of the mental health risk assessment and ongoing monitoring plans. We consider that this partial admission shows a lack of insight into the extent to which this consultation fell below acceptable standards.

Dr Ekpiken recorded in EMIS that she had given advice (“to contact if any active suicidal ideation/thoughts and new concerns etc”). We have found (see above) that such advice was not, in fact, given. In her evidence Dr Ekpiken said that it was her belief that the patient’s mental health was being addressed by the Crisis team. In our view there is nothing in the transcript/audio that supports this. The EMIS record makes no mention of the fact that the patient had contacted the Crisis Line the day before.

We accept Dr Ashworth’s opinion that this was an unsafe consultation with insufficient exploration of the patient’s symptoms. The risk assessment was inadequate. The fact that the patient was not sleeping should have been a matter of concern. We agree with her view that the impact of the audio recording is that this patient came across as desperate at times. The patient kept apologising. She was plainly very vulnerable. There was insufficient risk assessment regarding her suicidal thoughts despite the fact that this was repeatedly mentioned by the patient. There was no discussion regarding protective factors. The record made was inadequate and omitted significant detail. We accept Dr Ashoworth’s opinion that it was objectively wrong for Dr Ekpiken to have recorded “no active suicidal ideation and thoughts”.

This concerned a consultation where the main criticism relates to symptom management. The bare facts as shown by the audio and transcript are that the patient had had an echocardiogram on the Monday. The technician told the patient that there was something wrong with his heart and wanted him to get in contact with his GP as soon as possible. It is evident from the audio and transcript that Dr Ekpiken had not reviewed the notes before speaking to the patient. The patient said that he was still a little bit short of breath, very woozy and a bit weak. He said that at the echocardiogram they said the heart was not pumping strongly enough. He said that the technician had wanted to impress upon him that things were not right and he needed to follow it up (with his GP). Dr Ekpiken asked the patient to attend the surgery. It is evident that Dr Ekpiken saw the need for a face to face appointment as to explain the echocardiogram. In the event having seen the patient Dr Ekpiken referred him back to cardiology but she did not carry out any examination.

Dr Ashworth’s view was that it should have been clear from the results of the echocardiogram that the patient was in left ventricular systolic dysfunction (LVSD) but Dr Ekpiken was unable to explain this to the patient. Given the symptoms of shortness of breath she would have expected an examination of hearts sounds, listening to the lungs for pulmonary oedema, and checking the ankles for oedema. Had these examinations been performed the referral could have included clinical findings so as to assist in appointment triage. Further, there should have been consideration of symptomatic management. The potential harm to the patient was that the lack of information would mean that he would be seen in cardiology later rather than sooner. The simple treatment of a diuretic for the relief of symptoms was not considered.

Dr Ekpiken’s response in the SS was that symptom management met an acceptable standard given the clinical context and that the patient did not display symptoms at the time she saw him. In her evidence in chief Dr Ekpiken’s position was that if the patient had been short of breath when she saw him, she would have examined him. In our view this does not make sense because the patient had described clear symptoms in the telephone consultation just 25 minutes earlier. Further, Dr Ekpiken had noted in EMIS that she was making the referral based on the fact that there was no formal echo report from 2020 as well as his symptoms. Dr Ekpiken agreed that she had not made any record regarding his symptoms.

We accept Dr Ashworth’s views. The overwhelming impression is that Dr Ekpiken did not take the opportunity to examine the patient so as to inform the referral or to consider or provide relief by way of symptom management.

This concerned a consultation with a patient who had been prescribed fluoxetine for depression and bulimia but who has stopped taking it about a year before because it was not working for her. The patient was requesting something for anxiety and “if there is anything for bulimia.” When asked about her symptoms the patient said that she suffered from frequent panic attacks and said that she did not want to leave her parents. She wanted to start medication as she was going to university on Tuesday. We understand that the consultation was on the previous Friday.

Dr Ashworth considers that the exploration of symptoms was inadequate and there was a lack of a safe and thorough self/harm/suicide risk assessment, a lack of discussion of any other management options, and lack of a clear patient safety net and follow up plan.

Dr Ekpiken admitted in the SS (at A42) that the risk assessment was incomplete due to insufficient exploration of comorbidities and limited documentation which fell below acceptable standards for managing a patient with significant mental health concerns. However, Dr Ekpiken’s response in relation to clinical safety (see A46) was that she denied any failure to maintain clinician safety and that she had made appropriate clinical judgements “given the information available at the time, including referring the patient for specialist assessment where necessary.” We note in passing that no referral for specialist assessment was made.

Dr Ekpiken said in chief that the patient mentioned bulimia but said that it did not come across that this was active. In our view it is startling that Dr Ekpiken did not explore the bulimia (which is a form of self-harm) or ask any questions about anxiety symptoms such as loss of appetite, sleep etc. There was no inquiry about family support, nor any inquiry about any coping strategies. Dr Ekpiken did not talk about or offer psychological therapies. Dr Ekpiken said in chief that it was fair criticism that she did not establish whether the patient had a GP at university. She agreed that she should have signposted the patient to make sure she saw a GP at university.

We noted the very limited extent of Dr Ekpiken’s inquiry of the patient regarding her symptoms and the fact that the extent of her mental health assessment was to ask a closed question regarding suicidal thoughts. We accept Dr Ashworth’s view that this was not a safe consultation. The overwhelming impression from the transcript and audio is that Dr Ekpiken’s approach was superficial. Dr Ekpiken points out that this was a “long” chat taking over 12 minutes. However, a skill required in any telephone consultation is to recognise when a further and/or longer appointment is necessary. Here a young woman with significant mental health issues and vulnerabilities was treated with the prescription of a new medication (which Dr Ekpiken correctly said might make her feel worse initially and would probably take 4-6 weeks to take effect) in circumstances where she was imminently about to leave her family to go to university. She had expressly said that she was worried about leaving her family. There was no information recorded as to whether the patient was returning to university or whether this was her first year. We accept Dr Ashworth’s view that this was a patient at risk and there was no clear/adequate follow up plan.

This concerned a patient who, according to the EMIS record: was requesting antibiotics for recurrent urinary tract infection; had had three lots so far; was well in herself; had spoken to a GP colleague yesterday. The audio and transcript show that the patient mentioned being violently sick the day before and kidney pain.

Dr Ashworth’s criticism on audit were that: neither of these symptoms were documented on EMIS; Dr Ekpiken did not enquire as to symptoms; she prescribed, but with no advice re the potential side effect of diarrhoea; she made a referral, but without consideration of urgency; she did not give condition specific safety net advice; she did not consider the need to see the patient face to face which would have been prudent given the symptoms.

Dr Ekpiken in the SS at A41 (re exploration of symptoms) stated that she explored the patient’s symptoms sufficiently, took into account the patient’s stable condition with no reported worsening. She accepted only that she could have done more to explore the possible side effects of the medication. As to the provision of safety net advice Dr Ekpiken denied failing to provide advice to an acceptable standard. Failure as to appropriate follow up was denied: the patient was advised of the need to contact the practice if symptoms changed or worsened. She accepted that documentation around follow up could have been clearer. A specialist referral to a urologist was, however, made.

In our view the audio and transcript show that the patient said that she had three infections in the last three weeks, pain when “going to wee and I know that there is blood in it. it is very, very uncomfortable and sore.”

The immediate and obvious point is that the patient had already experienced vomiting but Dr Ekpiken did not record this on EMIS. Further, Dr Ekpiken failed to record, or to act on symptoms of blood in the urine (haematuria) and pain around the kidneys. She did not record any of these symptoms but recorded that the patent was "well in herself”. There is nothing in the audio or transcript that appears to support this assertion. In our view a patient being violently sick the day before, with kidney pain, blood in her urine, and complaining of being “very, very uncomfortable” is at odds with the patient being “well in herself”.

This concerned a telephone consultation where the information about the patient’s condition was provided by her husband. The audio and transcript evidence that when required by Dr Ekpiken’s questions the husband sought information from the patient which he then relayed. It is clear from the audio and transcript that the patient was present and did respond to questions via her husband. There was no enquiry by Dr Ekpiken as to why the patient could not speak directly to her.

Importantly when asked about phlegm the husband said: “She does have phlegm quite a lot, and she noticed a couple of times that there was blood in it.” He said she had no shortness of breath but has” a lot of pain in her chest”. The husband repeated that his wife had noticed blood in her phlegm. Asked if it was a lot of blood he said “No just a pinkish kind of phlegm.” He said that she has had a temperature for the last four days of ?39 degrees. “It comes in and out, in and out”.

The advice given by Dr Ekpiken was to start antibiotics because the patient was coughing up phlegm and to do a Covid test. The safety netting advice was “If things get worse especially if she is short of breath and coughing up blood you need to please let us know”.

The record made by Dr Ekpiken was:

“reports chesty cough, productive of phlegm in the last two weeks

No sob/dib

No haemoptysis

had also had a temp

reqs abs

no other concerns”

The follow up advice included:

“see dr inb/sob/dib/haemoptysis/new concerns”

We noted that Dr Ekpiken’s response in the SS (at A37) referred to her recording “unverified information based on a third-party report and also omitting key symptoms from the notes.” In our view this misses the point. The issue is not that the information was unverified: it is that Dr Ekpiken’s record “no haemoptysis” was inaccurate. In any event, the means of verification were always open to Dr Ekpiken: she could and, in our view, should have asked to speak to the patient herself, and/or considered whether a face to face consultation and/or that a home visit was necessary for this reason alone.

We find that the information provided by the audio and transcript show that the care provided to patient 16 fell below acceptable standards, and in numerous respects that extend beyond the admissions that have been made by Dr Ekpiken. We find that she failed to have regard to the history of cough symptoms for three weeks, a high temperature across 4 days, confusion, being unable to get out of bed, being shivery and sweating, and the fact of haemoptysis. The record she made that there were “no other concerns” was inaccurate. We accept Dr Ashworth’s view that Patient 16 should have been regarded as a patient with the potential for sepsis. Haemoptysis was a red flag symptom that warranted urgent referral. A home visit should have been undertaken to properly assess her condition and the need for urgent referral to hospital. It is disturbing that Dr Ekpiken’s approach at the outset was to ask the husband if he wanted hospital admission. We noted that in her evidence in chief Dr Ekpiken said that she was “falsely reassured by the partner”. She said that she had asked the partner if he felt that his wife needed to go to hospital but he said that if he felt that was necessary he would take her to hospital. In our view Dr Ekpiken’s reliance on what the husband said amounts to a failure to take responsibility for the fact that she was the clinician. We find that the patient’s history and symptoms required face to face clinical assessment which she did not undertake.

We find that Dr Ekpiken recorded “no haemoptysis” when on the information provided, and applying ordinary medical understanding of what haemoptysis means, this was wholly inaccurate. There is some evidence that suggests that Dr Ekpiken believed that pink streaks in phlegm did not amount to haemoptysis. In the event, however, this was not her evidence. Her case is that she made a mistake in her EMIS record. However, we find that even if she intended to record haemoptysis, she did not act on the symptom. In our view the fact is that she failed to record other significant elements of the history accurately. The signal fact is that there were other reasons that this patient required urgent in person assessment. She had been unwell for three weeks with a productive cough and had a high temperature across 4 days, was confined to bed and was said to be confused. Dr Ekpiken’s treatment fell well below the ordinary standards expected of a GP in multiple respects.

We have carefully considered whether the issues regarding the unsatisfactory standard of care provided by Dr Ekpiken are explained by the health issues she had been experiencing in 2023-2024. We have every sympathy for the impact of the health issues suffered by Dr Ekpiken. These are set out in a separate document which will not be made public so as to respect her right to privacy. We have no doubt that coming to terms with the medical issues faced by Dr Ekpiken in about 2023 -2024 in particular would have been extremely difficult for her. We do not, however, consider that the health issues provide an adequate explanation as to why Dr Ekpiken recorded that she gave advice that she had not, in fact, given, or as to why she had recorded “No Haemoptysis” when the history of haemoptysis given was very clear. We recognise that there may well have been times where, because of the implications of the health issues faced by her, Dr Ekpiken may have been stressed and preoccupied. We consider that the overall picture regarding the inadequate standards of clinical practice shown by the audit is due to her poor clinical instincts. We noted also the GMC/MPT finding in 2018 that her fitness to practice was impaired by reason of misconduct (that had occurred in January, July and September 2016) involved very similar themes to the audit cases before us. It was not suggested then that the health issues she had been experiencing in 2016 explained her misconduct. We noted also that Dr Ekpiken has never brought any health issues to the attention of her employer or the Respondent. We noted that the health issues in 2016 were of a lesser magnitude at that time, and yet the misconduct found proven was very similar to the issues of lack of clinical competence, as well as lack of integrity, that we have been considering regarding cases selected randomly between August 2023 and May 2024.

We are required to have regard to the matters set out in Regulation 15. This broadly relates to Dr Ekpiken’s regulatory history. We have considered the information before us regarding the MPT finding on 3 July 2018 that her fitness to practice was impaired by reason of misconduct. This concerned allegations regarding clinical care and also regarding dishonesty.

The allegation that led to Dr Ekpiken’s hearing before the MPT related to the care and treatment provided to three patients via a telephone triage service in 2016. Dr Ekpiken took a phone call regarding an ‘elderly lady’ (Patient A) with a chest infection from a nursing home in January 2016. Patient A subsequently became worse, an ambulance was called, she was septic and she died later in hospital. There were concerns relating to Dr Ekpiken’s treatment of Patients A, B and C where it is alleged that there were failings to carry out a number of actions that were required for the treatment and care of the patients. It was further alleged, in relation to Patients A, B and C, that Dr Ekpiken failed to give safety netting advice, failed to distinguish urgent cases, documented things that were not discussed, advised that red flag features were discussed when this was not the case and did not take a proper history from the patients, and made false records.

All the allegations were admitted by Dr Ekpiken in the Fitness to Practise proceedings. We noted that the allegations concern very similar failings to those shown in some of the audit cases before us. In particular:

We noted that Dr Ekpiken had stated in her section 7 responses to the GMC that she “will now ensure that all her notes are accurate”.

The MPT imposed a sanction of 6 months suspension. At the review hearing on 24 January 2019 it was noted that in addition to providing a reflective journal, an appraisal report andcompleting CPD, Dr Ekpiken had undertaken a further probity and Ethics course and a record keeping course, which she said she had found very useful as part of her remediation. She said that she was “now fully aware that the consequences of dishonesty in record keeping are very serious, and could be fatal.”

It was submitted on Dr Ekpiken’s behalf in January 2019 that it was very unlikely that Dr Ekpiken would act in such a way again. Amongst other matters, the MPT considered that the risk of repetition was low. The panel decided that Dr Ekpiken’s fitness to practise was no longer impaired.

As pointed out in the background at para 2 above, Dr Ekpiken’s inclusion on the NMPL was subject to conditions until 2020. We take into account that there have been no reported complaints or incidents since then. We take into account also Dr Ashworth’s evidence that she did not criticize 70% of the consultations she audited. We are aware that since her suspension Dr Ekpiken has attended many further CPD courses and has had a positive recent appraisal. An appraisal is not, however, a tool that bears much comparison with an audit of random cases, and where there is audio recording of actual consultations.

The issue is whether Dr Ekpiken is “unsuitable” to provide medical services in NHS primary care. “Unsuitable” is not defined in the Regulations. It is a plain English word, which is to be given its normal, everyday meaning.

In our view the evidence as a whole shows that Dr Ekpiken approached her role as a GP in a very limited and perfunctory manner. The overwhelming impression is that she lacks the ability to respond to and deal with that which is actually presented. This is shown in particular by her lack of inquiry or follow up on very obvious symptoms as shown by the consultations with many patients. It is also shown by her use of closed questions when purporting to assess suicide risk/mental state. The impression created by her very limited approach to assessment of the patients’ conditions is that she lacks the ability and/or is reluctant to explore the complete picture.

We have considered the policy guidance – see para 14 above. The key difference between suitability and efficiency is also that, as a matter of law, conditions cannot be imposed in order to render a practitioner suitable if, in reality, he/she is not suitable to be a GP providing NHS primary care services. There is no power to impose conditions on suitability grounds. Suitability embraces consideration of whether the practitioner lacks the essential attributes or qualities to be a GP on the List. Looking at the evidence overall we consider that Dr Ekpiken is not suitable to remain on the NMPL because the evidence shows that she lacks the ability to respond to the clinical situation in front of her. If this lack of ability were solely to do with discrete areas such as lack of clinical knowledge or lack of experience in a particular area, or the need for improvement in specific areas of practice, this might well fall within efficiency grounds alone for which a raft of conditions might be imposed to seek to address the risk to patient safety and the public interest in the efficiency of GP services whilst the doctor improves/remediates her practice. We find, however, that this is not the case. Our overall view Dr Ekpiken is not suitable to be a primary care practitioner because she lacks clinical instinct: the audit evidence shows that in the face of obvious symptoms she was unable to respond adequately at a clinical level to the needs of a relatively high percentage of the patients seeking her advice.

This lack of clinical acumen is compounded by the fact that, despite the significant remediation measures undertaken between 2018 and 2020, the audit shows Dr Ekpiken has again shown repeated disregard for the need to make an accurate record. The facts in this case show that she has not absorbed the need for stringent accuracy in the contemporaneous recording of symptoms which is required by GMP. We agree with the Respondent that this shows a lack of integrity or probity in the sense referred to in Wingate and Evans V SRA [2018] EWCA Civ 366. Integrity connotes adherence to the ethical standards of one’s own profession and involves more than mere honesty.

For these reasons we find that Dr Ekpiken is not suitable to be a GP on the NMPL and the issue of conditions does not, therefore, arise. However, mindful of the overlap between suitability and efficiency grounds and recognising that we have a broad discretion, we considered the submissions made in order to cross-check the rationale and the proportionality of our decision. Mr Livesey submitted that the deficiencies in Dr Ekpiken’s practice are capable of being addressed by conditions such as were recently imposed by the GMC/IOP, including the imposition of direct supervision. We should note here that it is important to recognise that the conditions imposed by the IOP were based on an interim risk assessment pending further investigation and the consideration at a Fitness to Practise hearing of any substantive allegations that might be made. A condition of direct supervision imposed by the Tribunal, standing in the shoes of the Respondent, would require that every patient contact is undertaken in the presence of an approved GP supervisor, at least for a period, and until such time as the supervisor/the Respondent is satisfied that Dr Ekpiken’s practice does not pose a risk to patient safety and well-being or to the public interest in the efficiency of NHS primary care services. Very often a period of direct supervision is thereafter replaced by a period of close supervision. The point is that, where appropriate, conditions can be devised so as to protect patient safety whilst providing a proportionate opportunity for the practitioner to remedy specific deficiencies in practice within a reasonable time frame. Given the past regulatory history and our findings regarding the 2023 -2024 audit we have no confidence that the same pattern of poor and inadequate care which we have found proved will not recur in future. We consider that the many deficiencies in the standard of Dr Ekpiken’s care have placed patients at significant risk of harm. We also consider that the facts concerning patients 5, 12, 15 and 16 posed significant risk of serious harm. In our view, despite the training and remediation she undertook regarding similar issues concerning clinical skills and the probity of her records in 2018/2019, the audit evidence before us shows that Dr Ekpiken has not remediated the deficiencies in her clinical skills and has not observed the need for strict accuracy in the records she makes.

The power to remove a performer from the MPL on either suitability or efficiency grounds is a discretionary one that falls to be exercised applying ordinary principlesand in the context of the Regulations, including the criteria for a decision on removal set out in Regulation 15.

The exercise of discretion should be informed by the purpose of the Regulations. The Respondent is responsible for admission to, or removal from, the lists of primary care performers, and has regulatory/governance oversight of the performers of primary care services, whose names are included in the relevant NHS list. In short, the continued inclusion of a practitioner’s name on the NMPL conveys to the public an objective degree of assurance that the practitioner is suitable to be registered as a performer of primary medical care services.

We accept that the decision to remove Dr Ekpiken’s name from the MPL constitutes an interference with her private life rights under Article 8 of the ECHR and engages protection under Article 8 (2).

We are acutely conscious that a decision to remove a practitioner from the NMPL is extremely serious. We can see that Dr Ekpiken’s work as a GP is part and parcel of her identity. She has been a GP since 2014 and it is in her interests that she is not removed. In short, she contends that there should be room for proportionate accommodation in view of her health issues, and in the particular circumstances of her case.

The Respondent has satisfied us that Dr Ekpiken is unsuitable to be included in the MPL. It has satisfied us that a decision to remove her name from the MPL is in accordance with the law and is necessary in pursuit of legitimate public interest aims, namely, the protection of patient safety and well-being and the maintenance of public confidence in primary care services.

As to proportionality, we considered all of the evidence before us when assessing the impact of the decision upon Dr Ekpiken, taking into full account the evidence regarding her health, and balancing her private life interests against the public interests engaged. We recognise that Dr Ekpiken wants to work and practise in her chosen specialty. We recognise how very important this is to her and that the impact of our decision upon her career and her private life interests is likely to be profound. A decision that will prevent her working as an NHS GP is one that is never to be taken lightly. We are, however, entirely satisfied the private life interests of Dr Ekpiken are outweighed by the public interest in patient safety and public confidence in the ability of the Respondent to regulate the list so as to remove a practitioner who is unsuitable.