Professional Standards Authority for Health and Social Care v General Medical Council & Hilton [2019] EWHC 1638 (Admin)
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In Professional Standards Authority for Health and Social Care v General Medical Council and Hilton [2019] EWHC 1638 (Admin), the High Court allowed in part an appeal by the Professional Standards Authority against a decision of the Medical Practitioners Tribunal finding that Mr Andrew Hilton’s fitness to practise was not impaired by reason of misconduct, and declining to issue a warning.
Between 12 and 23 November 2018 the Tribunal found Mr Hilton guilty of misconduct by reason of dishonesty but found that his fitness to practise was not impaired, and did not issue a warning. The appeal concerned a finding that, at a meeting on 2 November 2016, Mr Hilton dishonestly informed Patient A that he had known from post-operative assessment that a screw used in surgery was misplaced, when that was not true.
Mr Hilton had performed a lumbar spinal fusion procedure on Patient A in March 2014. He did not recognise intra-operatively or post-operatively that a pedicle screw was out of place and made no mention of this to Patient A. After Patient A was discharged he experienced further back problems and was referred to another orthopaedic surgeon, Mr Barham, who showed him scan results on 1 June 2016 indicating that the screw was not in bone. Patient A wrote to Mr Hilton on 19 July 2016 complaining and asking why he had been told that x-rays appeared normal. Mr Hilton replied on 25 August 2016 stating that there was a suggestion the screw was placed laterally but that as Patient A’s progress was good he felt this did not require further investigation. On 2 November 2016 at a meeting attended by Patient A, his wife, Mr Hilton and hospital staff, Mr Hilton said that he had known about the misplaced screw post-operatively, had not wanted to worry Patient A, and had adopted a watch and wait approach. The Tribunal found that this was not true. At the meeting Patient A demanded £10,000 compensation and threatened referral to the GMC if payment was not made. Mr Hilton did not respond and on 26 November 2016 Patient A referred him to the GMC.
The Tribunal found that Mr Hilton had failed on more than one occasion to review adequately Patient A’s post-operative imaging in that he failed to recognise that the right L2 screw was out of place. The Tribunal accepted that Mr Hilton had at all times when Patient A was his patient not noted that the screw was misaligned. It found that following surgery Patient A’s pain was gradually reducing and that Mr Hilton recorded symptoms accurately. The Tribunal found that Mr Hilton deliberately told Patient A what he knew to be false. He misrepresented the facts in two ways: he told Patient A he had known earlier than was the case about his failure to identify the misplaced screw and that he had taken a positive decision to watch and wait. The Tribunal found that these assertions and inferences were dishonest because they were not truthful and Mr Hilton knew it. However, the Tribunal was satisfied that Mr Hilton had no malicious intention to deceive Patient A, merely to create a positive environment in which he could apologise for his error and reassure him that there had been no adverse outcome. The Tribunal found that his actions were driven by his desire to put matters right for the patient and to reassure him, and that he was not motivated to avoid litigation or payment of compensation. The Tribunal found the Respondent to be a credible and reliable witness who gave evidence in a straightforward and consistent way, accepted his mistake, and presented as someone who had been open with Patient A.
The Tribunal found that Mr Hilton’s dishonesty amounted to misconduct as his actions fell far short of the standards of conduct reasonably to be expected of a doctor. However, the Tribunal considered that this was a very unusual case in which the dishonesty occurred in the context of Mr Hilton attempting to do his best for Patient A, trying to help him understand the context of his mistake and its impact. There was no financial or reputational motivation. He apologised profusely and was trying to help Patient A understand that no harm had come from the misplaced screw. The Tribunal took into account that this was an isolated incident at a difficult meeting over two years ago with a former patient, that Mr Hilton knew he had made a mistake and wanted to explain his actions in such a way as to minimise worry and concern, and that in so doing he lost sight of the need to be open and transparent. The Tribunal acknowledged that dishonesty is a breach of a fundamental tenet of the profession and that Mr Hilton’s conduct brought the profession into disrepute. However, the Tribunal found the issue of impairment finely balanced and concluded that the balance was just in favour of the Respondent. It considered that because of the lack of incentive to be dishonest other than the perceived best interests of the patient, public confidence in the profession would not be undermined by a finding that fitness to practise was not impaired. The Tribunal considered the circumstances exceptional and found that a fully informed member of the public would have considerable sympathy for Mr Hilton who was faced with a difficult meeting and sought to reassure the patient, although the manner in which he chose to do so was foolish.
The Tribunal then declined to issue a warning. It stated there was a presumption that the GMC should take some action when allegations concern dishonesty, but considered that this paragraph of the guidance related to the investigation stage rather than to proceedings before the Tribunal. In any event, even if it applied to the Tribunal, the mere existence of a presumption was not alone sufficient to require the issue of a warning. The Tribunal considered a warning would be appropriate but not necessary or proportionate, given wide-ranging mitigating factors and the particular circumstances in which the dishonesty occurred. The mitigating factors included the Respondent’s apology, his long and unblemished record, the incident being isolated, no indicators of repetition, changed practice, exemplary testimonials, the context of a difficult meeting with a former patient who had demanded compensation and threatened to report him, and the Respondent’s motive to act in the perceived best interests of the patient. The dishonesty was not exculpatory and occurred in dealings with a former patient who was not cooperating.
The Appellant appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002, arguing that the Tribunal’s decision was not sufficient for the protection of the public. The appeal was opposed by Mr Hilton. The GMC took a neutral position and did not appear.
Mr Justice Freedman emphasised the need for appropriate deference to the specialist Tribunal and the high threshold to be passed on an appeal based on insufficiency for protection of the public. He recognised that Tribunals occupy a position of expertise in evaluating whether conduct is serious misconduct, whether fitness to practise is impaired, and what is necessary to maintain public confidence and proper standards. However, he noted that where dishonesty or sexual misconduct is involved, the court is likely to feel it can assess what is needed to protect the public or maintain the reputation of the profession more easily and thus attach less weight to the expertise of the Tribunal. The judge accepted that not every case of misconduct results in a finding of impairment and that even in cases of dishonesty a separate assessment of impairment is required. Nevertheless, dishonesty lies at the top end of the spectrum of gravity of misconduct and it will be an unusual case where dishonesty is not found to impair fitness to practise.
In relation to Ground 1 concerning the decision on impairment, the judge rejected the Appellant’s argument that the Tribunal failed to direct itself that the reputation of the profession is more important than the interests of any individual doctor. He held that the determination demonstrated that the Tribunal recognised that the central issue was the public interest in the promotion and maintenance of public confidence in the medical profession and proper professional standards. The Tribunal stated at paragraph 41 that this was the crux of its determination on impairment. The judge also rejected the argument that the Tribunal failed to have sufficient regard to Good Medical Practice, finding that enough was set out at paragraph 23 of the determination. He rejected the criticism that the Tribunal wrongly characterised the dishonesty as an isolated incident, finding that the expression could be understood to encompass the meeting seen against the background of the earlier letter of 25 August 2016. As to the argument that the Tribunal wrongly found that Mr Hilton had a positive motivation, the judge held that the Tribunal had not justified the lies but had simply found misconduct and dishonesty whilst making findings of impression in context. These matters of impression did not fall short of erroneous directions of law or matters which were so fundamental that they invalidated the determinations.
The judge recognised the seriousness of the lies told by a doctor to a patient in a clinical context and noted that the Tribunal’s decision on impairment was finely balanced. He gave full weight to the fact that this was a decision of a specialist Tribunal with the advantage of hearing evidence over 10 days and seeing witnesses. He was concerned about certain matters, including the reference to the Respondent being confused on 2 November 2016 despite the earlier letter of 25 August 2016, the shortcomings of the apology and the failure to admit dishonesty before the Tribunal, and the acceptance of positive motivation, albeit that dishonesty was recognised. However, he concluded that these criticisms were not so fundamental that they impaired the multi-factorial nature of the assessment. The Tribunal had found misconduct in the nature of dishonesty and recognised that it would have to be an exceptional case where there was dishonesty without impairment. The judge concluded that the decision on impairment was an exceptional case on the facts, an isolated lapse in an otherwise unblemished career with an extremely low risk of repetition. He was persuaded that this was not a case where professional standards could not be upheld or public confidence maintained without a finding of impairment. The appeal in respect of Ground 1 was therefore rejected.
In relation to Ground 2 concerning the decision not to issue a warning, the judge found that the Tribunal made a mistake in finding that the presumption that the GMC should take some action when allegations concern dishonesty only applied at the investigative stage. However, he did not adopt an over-legalistic framework and noted that the Tribunal had twice referred to having a warning as a starting point. The judge accepted that the Tribunal was entitled to find that there was no requirement for a deterrent in this case and no prospect of repetition, and there was no error in principle in that reasoning. However, the judge concluded that the Tribunal erred in finding that a warning was neither necessary nor proportionate. This was not justifiable given that the Tribunal had found dishonesty in a clinical context to a patient, the decision on impairment was finely balanced and just in favour of the Respondent, and the Tribunal had recognised that the starting point was that there should be a warning. The judge found that the case involved a clear breach of Good Medical Practice in the form of lying amounting to dishonesty which related to the Respondent’s professional practice. It was of the utmost importance to confidence in the medical profession that a doctor does not lie in that context. The effect of the dishonesty was to mislead the patient when he was about to bring litigation and make a complaint to the GMC. The dishonesty gave rise to a presumption under the guidance to take some action. The judge concluded that the Respondent had been the beneficiary of exceptional circumstances twice both as regards impairment and warning, and that in a case which got so close to impairment where there was dishonesty related to professional practice, the Respondent had emerged without a sanction.
The judge held that the decision not to have a warning was not sufficient for the protection of the public and especially to maintain public confidence in the profession and to maintain proper professional standards and conduct for members of the profession. He considered that no reasonable tribunal properly directed and applying the law could reach that decision on the facts. The promotion and maintenance of proper professional standards and conduct in the profession would be undermined by a finding that there should not be imposed any sanction. It was necessary to issue a warning in order not to undermine public confidence in the profession. The judge considered that a fully informed member of the public would consider that a warning was necessary. Even allowing for diffidence and the appreciable advantages of the Tribunal, he was satisfied that the decision not to issue a warning was wrong and not available to a tribunal properly applying the law to the facts. He concluded that the evaluation not to give a warning fell outside the bounds of what the Tribunal could properly and reasonably decide. The fact that the Tribunal reached a decision which was not open to it meant that there must have been some misconception of the law, whether in failing to apply the presumption properly, failing to have adequate regard to the guidance in a dishonesty case, failing to have adequate regard to the importance of doctors being honest and open with patients, or giving too much weight to mitigating circumstances. The judge rejected Ground 3 concerning failure to provide reasons, finding that the reasons were full and adding nothing to the substantive grounds.
In short, the appeal was allowed in part: the decision that fitness to practise was not impaired was upheld, but the decision not to issue a warning was set aside and the court invited submissions as to the terms of an appropriate warning.
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