The Professional Standards Authority for Health and Social Care v The General Medical Council [2019] EWHC 2191 (Admin)
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In The Professional Standards Authority for Health and Social Care v The General Medical Council [2019] EWHC 2192 (Admin) Mr Justice Freedman handed down a supplementary judgment on costs and the form of warning following his substantive decision at [2019] EWHC 1638 (Admin).
The Professional Standards Authority had appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against a decision of the General Medical Council’s Medical Practitioners Tribunal. The appeal had succeeded in part. The court had determined that a warning was required in respect of Mr Hilton’s misconduct but had rejected the challenge on impairment. The court had also rejected a third ground concerning inadequacy of reasons, though this had not significantly added to costs.
The Professional Standards Authority sought its costs against Mr Hilton. Mr Hilton argued that 80 per cent of the appeal had concerned impairment, on which the Professional Standards Authority had failed, and only 20 per cent had concerned the warning on which it had succeeded. The court rejected that apportionment. It found there was considerable cross-over between the two issues. The background analysis, the discussion of respect for decision-making bodies, the consequences of a misconduct finding, features about dishonesty and features of the instant case were all relevant to both grounds. Matters specifically concerning impairment had also been informative to the decision on warnings. If the appeal had been limited to warnings alone, substantially more than 50 per cent of the costs would still have been incurred. The court considered but rejected a split order for costs in different directions, noting that the Professional Standards Authority was the overall successful party and had acted reasonably in performing its public function. The court also recognised that impairment was a very significant issue for Mr Hilton and that he would have incurred costs on that issue alone.
Taking all circumstances into account, Mr Justice Freedman ordered Mr Hilton to pay 50 per cent of the Professional Standards Authority’s costs. The order reflected not only the proportion of costs referable to impairment alone but also recognition of Mr Hilton’s own costs on the impairment issue. The court rejected the submission that if the tribunal had imposed a warning without finding impairment and the appeal had been on impairment only, no costs order would have been made. The facts were different and Mr Hilton had fought the warning issue as hard as the impairment issue. On summary assessment, the court noted that the Professional Standards Authority’s costs of £28,494.77 were very similar to Mr Hilton’s costs of £28,548 plus VAT (not claimed because it was recoverable). The court accepted Mr Hilton’s criticism that it was excessive for both a partner and senior associate to have attended the hearing alongside leading counsel. Absent detailed assessment, the court assessed the Professional Standards Authority’s reasonable costs at £26,000 and ordered Mr Hilton to pay 50 per cent, namely £13,000.
The court made no order for costs against the General Medical Council. The council had taken no part in the appeal and was entitled to do so. It had not had a duty to appeal in the circumstances and was independent of the tribunal. Even if the tribunal had been made a party and had not actively opposed the appeal, no order as to costs would ordinarily be made against a tribunal. The position was no different because the General Medical Council had power to initiate the appeal and had elected not to do so. The General Medical Council also had a public function and had not acted unreasonably in deciding not to appeal on the warning issue. The court emphasised that its decision rested on the particular features of the case and was not intended to have application beyond those facts.
Turning to the form of warning, the parties could not agree its terms. The court accepted the General Medical Council’s submission that the warning must refer to the background of the surgery to explain what the lies on 2 November 2016 were and why Mr Hilton’s conduct impacted on public confidence in the profession. The court also accepted Mr Hilton’s submission that words such as “failed to recognise” might imply a finding of professional negligence when there was none. The warning was to concentrate on the provision of dishonest information to Patient A, though the dishonesty could not be understood without reference to the background. The court provided a draft warning setting out in detail that Mr Hilton had performed a spinal fusion procedure on Patient A on 26 March 2014, that after initial success the patient had suffered recurrent pain and attended another surgeon in April 2016, and that the other surgeon had observed a misplaced screw. The warning stated that Mr Hilton met with Patient A on 2 November 2016 and informed him that he had noted the screw was misplaced post-operatively but had decided to take a watch-and-wait approach and not to inform the patient so as not to worry him. This was not true because Mr Hilton had not noted the misplaced screw post-operatively (he had not seen any CT scans) and had not decided not to inform Patient A or to take a watch-and-wait approach (because he could not inform the patient about something he did not know). The warning stated that Mr Hilton had a duty of candour and would be expected by a member of the public to be open and transparent, and that in circumstances where he had a duty to act with integrity and honesty his assertions were dishonest because they were not truthful and he knew this. The conduct did not meet the required standards, risked bringing the profession into disrepute and must not be repeated. The warning cited Good Medical Practice paragraphs 1, 31, 55, 65 and 68. It stated that whilst the failing was not so serious as to require restriction on registration, it was necessary to issue a formal warning which would be published on the medical register. Following circulation in draft, the wording was agreed between the respondents with two minor changes which the court incorporated.
In short, Mr Hilton was ordered to pay 50 per cent of the Professional Standards Authority’s costs assessed at £13,000, no order was made against the General Medical Council, and a warning in agreed terms was imposed describing Mr Hilton’s dishonest conduct towards Patient A on 2 November 2016.