Professional Standards Authority for Health and Social Care v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 14 May 2021 |
| Neutral Citation | [2021] EWHC 1288 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4514/2020 |
| Date | 14 May 2021 |
[2021] EWHC 1288 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: CO/4514/2020
Michael Standing (instructed by Browne Jacobson LLP) for the Appellant
Christopher Knight (instructed by GMC Legal) for the First Respondent
Approved Judgment
Introduction
On 9 March 2021, I gave judgment in an appeal by the Professional Standards Authority for Health and Social Care (“PSA”): [2021] EWHC 588 (Admin). The appeal was against a decision of the Medical Practitioners Tribunal Service (“the Tribunal”), which by s. 1(3)(h) of the Medical Act 1983 is a statutory committee of the General Medical Council (“GMC”). The Tribunal imposed a 10-month suspension on Dr Christian Hanson, a specialist in emergency medicine who had worked at the Rotherham General Hospital.
I allowed the appeal, holding that, on the material before the Tribunal, there was only one sanction that could properly be imposed: erasure. I substituted a decision that Dr Hanson's name be erased from the register pursuant to s. 29(7)(c) of the National Health Services Reform and Health Care Professions Act 2002 (“the 2002 Act”).
The PSA now seeks its costs in the sum of £12,633.72, including VAT, from the GMC and Dr Hanson. Dr Hanson did not engage with the proceedings before the Tribunal, or before this Court and has not filed any submissions on costs. The GMC adopted a neutral stance in the appeal, but have filed submissions opposing in principle any costs order against them. No separate objection is taken to the sum claimed.
Submissions for the PSA
For the PSA, Michael Standing submits that the PSA was the successful party. Although neither the GMC nor Dr Hanson played any part in the appeal, neither “consented” to it. The result was that the PSA had to pursue the matter to an oral hearing.
Mr Standing submits that, uniquely amongst healthcare regulators, and unlike inferior courts or tribunals, the GMC has the right to appeal final decisions of the Tribunal. Section 40A(3) of the 1983 Act confers on the GMC power to appeal a decision of the Tribunal if they consider that the decision is “not sufficient (whether as to a finding or a penalty or both) for the protection of the public”. Other healthcare regulators have no such power and thus have to rely upon the PSA to appeal.
In this case, Mr Standing submits that the appeal succeeded because of failings in the Tribunal, for which the GMC is responsible. The GMC should have appealed. Reliance was placed on the decision of Cox J in Professional Standards Authority for Health and Social Care v General Pharmaceutical Council & Onwughalu [2014] EWHC 2521 (Admin), at [28] (“ Onwulghalu”).
Submissions for the GMC
For the GMC, Christopher Knight submitted that there should be no costs order against the GMC. He noted that the Tribunal was operationally independent of the GMC: General Medical Council v Michalak [2017] UKSC 71, [2017] 1 WLR 4193, [10]. This is not true of all tribunals in the healthcare sector, a point made by Cox J in Onwughalu, at [49]. There was now an established body of authority to the effect that costs should not be awarded against the GMC where the PSA has appealed a decision of the Tribunal and the GMC has not defended the appeal: Professional Standards Authority for Health and Social Care v General Medical Council & Hilton [2019] EWHC 2192 (Admin), [9] (Freedman J); Professional Standards Authority for Health and Social Care v General Medical Council & Sarkar [2020] EWHC 1896 (Admin), [44]–[46] (Tipples J); Professional Standards Authority for Health and Social Care v General Medical Council & Dighton [2021] EWHC 21 (Admin), [23]–[24] (Farbey J).
Mr Knight submits that these authorities establish that the position of the Tribunal is to be equated with that of an inferior court or tribunal. Where the decision of a court or tribunal is challenged in appeal or judicial review proceedings, and the court or tribunal has not opposed the challenge, no order for costs would be made against it. Furthermore, the success of an appeal by the PSA does not show that the GMC ought itself to have appealed the Tribunal's decision. The GMC has no duty to appeal and reasonable authorities may take different views about whether, and to what extent, the Tribunal materially erred.
In this case, Mr Knight submits that the GMC adopted a neutral stance throughout. Whilst the PSA is undoubtedly the successful party, the GMC cannot be properly characterised as the unsuccessful party. The only party fitting that description is Dr Hanson.
As to the complaint that the GMC did not consent to the appeal, Mr Knight points out that it was not asked to do so. In any event, its consent would have been irrelevant, because the appeal could not have been resolved without the active participation and consent of Dr Hanson: see Dighton, [27]. In this regard, Mr Knight drew attention to s. 29A(3) of the National Health Service Reform and Health Care Professions Act 2002, which provides as follows:
“If the General Medical Council is the respondent in the case of a reference under section 29, and the Authority either wishes to withdraw the reference or, having agreed the terms of a settlement of the case with the person to whom the relevant decision relates, wishes the case to be disposed of on those terms, the Authority must give notice of its wish to the Council.”
Reply submissions for the PSA
In reply, Mr Standing submitted that the PSA is a “meta-regulator”, funded by contributions from all the regulators bodies whose decisions it supervises. It would be unfair to the other regulators if they had to pay the costs of an appeal made necessary by an error by of a Tribunal for which the GMC was responsible.
Mr Standing submitted that the decisions in Hilton, Sarkar and Dighton do not bind this...
To continue reading
Request your trial
-
Professional Standards Authority for Health and Social Care v General Dental Council
...that is not accepted. Costs 93 Although the appeal has succeeded, I adopt the reasoning of Chamberlain J. in PSA v GMC, Hanson [2021] EWHC 1288 (Admin) in concluding that the GDC should not be subject to a costs order in favour of the PSA. Not only has the GDC not offered any opposition to......