Professional Standards Authority for Health and Social Care v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Farbey |
| Judgment Date | 11 January 2020 |
| Neutral Citation | [2021] EWHC 32 (Admin) |
| Docket Number | Case No: CO/12/2020 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2021] EWHC 32 (Admin)
Mrs Justice Farbey
Case No: CO/12/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Fenella Morris QC (instructed by Browne Jacobson LLP) for the Appellant
Mr Ivan Hare QC (instructed by GMC Legal) for the First Respondent
Radcliffes Le Brasseur for the Second Respondent
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
In a judgment handed down on 19 November 2020, I allowed the appeal of the Professional Standards Authority for Health and Social Care (“PSA”) against a decision of the Medical Practitioners Tribunal of the General Medical Council (“GMC”) which is the first respondent. The Tribunal had determined that the second respondent (who was a cardiologist) should be suspended from the medical register for a period of one year following disciplinary proceedings in which he was found to have excessively prescribed potentially addictive drugs to a patient. I quashed the Tribunal's decision and substituted a sanction of erasure from the register. My judgment may be found at [2020] EWHC 3122 (Admin).
The PSA now seeks its costs in the sum of £29,947.50 together with VAT of £5,989.50 making a total of £35,937.00. I have received written submissions on costs from Ms Fenella Morris QC on behalf of the PSA (dated 30 November 2020 and 29 December 2020); from Mr Ivan Hare QC on behalf of the GMC (dated 11 December 2020); and from the second respondent's solicitors (dated 9 December 2020). I am grateful to all parties for their focused arguments.
Procedural history
The PSA launched its appeal on 3 January 2020 seeking an order from the court that the second respondent's name be erased from the medical register. By email dated 21 January 2020, the GMC's solicitor wrote to the PSA in the following terms:
“I can confirm based on the papers received to date, subject to anything that might otherwise be raised in your skeleton argument, the GMC is minded to take a neutral stance on the appeal and would not be actively defending the appeal. Therefore you can, on that basis, consider whether you can seek agreement with Dr Dighton. Therefore, as previously has been the GMC's position in similar circumstances, the GMC consider that costs would be a matter between the PSA and Dr Dighton.
Can I please confirm what steps have been taken with Dr Dighton's representatives to seek agreement at this stage?”
By telephone on 23 January 2020, the PSA invited the second respondent to consent to the outcome which the PSA went on to achieve in the appeal. He refused.
On 27 February 2020, the GMC's Case Examiners decided to allow the second respondent's application for voluntary erasure. The PSA objected to the GMC's decision on the grounds that only a court-ordered erasure would adequately protect the public interest. Correspondence placed before the court by the second respondent shows that the PSA came close to applying for an interim injunction against the GMC. However, on 6 March 2020, the GMC informed the other parties that the decision to permit voluntary erasure would (in effect) be stayed pending the determination of this appeal so as not to constrain the High Court's exercise of its statutory jurisdiction.
On 20 April 2020, the second respondent's solicitors wrote to the court explaining his position. The letter was accompanied by a bundle of documents relating in the main to the process that had been undergone in relation to voluntary erasure. The letter made plain that the second respondent did not intend to play a further part in the appeal but was not willing to sign a consent order.
By letter dated 27 August 2020, the PSA again asked the second respondent to concede the appeal. He declined to do so. On 2 September 2020, the GMC confirmed its willingness to sign a consent order (subject to the second respondent's agreement) quashing the determination of the Tribunal and substituting the sanction of erasure. The GMC made clear that it would oppose any application by the PSA to seek costs from the GMC.
The PSA's position has at all times been that the Tribunal's suspension order, even if coupled with voluntary erasure, would be insufficient for the protection of the public. The PSA pursued the appeal on the grounds that a court-imposed erasure was necessary in light of the importance of upholding confidence in the medical profession and the importance of the maintenance of standards.
The GMC submitted to the Tribunal that suspension was the appropriate sanction. It reminded the Tribunal that it had the power to impose an erasure: the appropriate sanction was a matter of the Tribunal's discretion taking relevant factors into consideration.
The GMC's view, expressed at the appeal hearing, was that voluntary erasure would protect the public interest. However, the GMC did not actively oppose the appeal. It did not file a skeleton argument. It filed a bundle of authorities relating to voluntary erasure but that bundle was not deployed by any of the parties and was not mentioned at the appeal hearing.
The GMC instructed Mr Hare (who did not appear at the Tribunal hearing) to appear at the appeal hearing. He made no submissions in opposition to the appeal. He answered questions from me about the GMC's position before the Tribunal that suspension was appropriate, and about its subsequent position that voluntary erasure would protect the public interest.
I asked Mr Hare these questions because the GMC is a specialist decision-maker whose views I regarded as valuable in relation to whether a court-ordered erasure was necessary or whether voluntary erasure would suffice. It does not follow that Mr Hare actively disputed anything that Ms Morris said. Mr Hare's approach was consistent with the GMC's willingness to sign a consent order.
The second respondent's position before the Tribunal was that he should be permitted to remain on the register but with conditions. In the letter of 20 April written for this appeal, his solicitors submitted that voluntary erasure would provide adequate public protection. They regarded the GMC as the cause of the appeal:
“If suspension was inappropriate (as the PSA submit) then that is not the responsibility of Dr Dighton. On the PSA's approach Dr Dighton would be compelled to defend the correctness of the MPT decision which was based upon the submission of the GMC, with the consequent risk on costs, simply to secure his own voluntary erasure…
Dr Dighton does not think that it would be right for him to consent to the PSA's appeal and does not agree that any order for costs should be made against him since the PSA's appeal seeks to correct the consequences of a submission made by the GMC.”
In my previous judgment, I concluded that the Tribunal's flawed decision to suspend the second respondent could not be permitted to stand. I accepted the PSA's submission that the public interest (specifically, public confidence in the medical profession) required a court-imposed rather than voluntary erasure. Therefore, the PSA gained the relief which it had sought in the Appellant's Notice.
The parties' submissions
Ms Morris submits that the PSA is the successful party and that each of the respondents is an unsuccessful party. There is no reason for the court to depart from the general rule that the costs of a successful party should be paid by the by the unsuccessful parties ( CPR 44.2(2)).
The PSA brought the appeal in the public interest in the exercise of a statutory function which it is required to perform (section 29 of the National Health Service Reform and Health Care Professions Act 2002). That statutory function only arose once the GMC had decided not to exercise its own right of appeal against the Tribunal's decision (section 40A of the Medical Act 1983). Had the GMC decided to exercise its power in the public interest, then it would have incurred the costs involved in securing the outcome which the PSA obtained. It would therefore be wrong for the GMC to pass the costs to the PSA when it ought itself to have brought an appeal with the concomitant costs. If the GMC had acted, the PSA would not have appealed and would have incurred no costs.
Ms Morris points out that the PSA had invited the second respondent to consent to the outcome in these proceedings in advance of the hearing on two occasions but he had declined to do so. He too should be liable to pay costs. The question of how the costs should be allocated between the respondents is one for the court.
Mr Hare submits that there should be no order for costs against the GMC. Given that the GMC adopted an entirely neutral stance and had been...
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