The Professional Standards Authority for Health And Social Care v The General Medical Council & Anor

Where an appeal succeeds on one issue but fails on another, costs should reflect the real work undertaken, including substantial analytical overlap between issues. A percentage allocation need not mirror the estimated time spent on each issue where that would produce an artificial result. In framing a disciplinary warning, the wording must identify the misconduct accurately and provide enough factual background to explain it. It should avoid language that implies a finding which was not made, such as professional negligence. A warning may explain why dishonest communications affected public confidence and breached the expected duties of honesty, integrity and candour.

This was a supplemental judgment following the court’s substantive decision, reported at [2019] EWHC 1638 (Admin). The Professional Standards Authority had succeeded in challenging the absence of a sanction for misconduct, but had failed in its challenge to the finding on impairment and in its reasons challenge. The court therefore considered the appropriate costs order and the wording of the formal warning to be imposed on Mr Hilton. The General Medical Council took no active part in the appeal. The central issues were how the partial success and overlap between the grounds should affect costs, and how the warning should describe the dishonest statements without suggesting professional negligence.

1. Costs. The Appellant was partially successful: the challenge concerning the sanction succeeded, while the challenge concerning impairment failed. The issues involved substantial crossover, including the background, the consequences of misconduct, dishonesty, public confidence and facts relevant to both warning and impairment. It would therefore be artificial to allocate costs solely by reference to estimated time spent on each ground. The Second Respondent was ordered to pay 50% of the Appellant’s costs. Following summary assessment, those costs were assessed at £26,000, making the amount payable £13,000.
2. No order for costs was made against the General Medical Council. That conclusion rested on the particular circumstances. It was not intended to establish a general principle applicable beyond the case.
3. Warning. The warning had to include sufficient background to explain the dishonest statements and their impact on public confidence. It had to focus on the provision of dishonest information to the patient and avoid wording which might imply a finding of professional negligence. The agreed warning recorded the spinal fusion procedure, the later discovery of a misplaced screw, the statements made to the patient, their falsity, the duty of candour, and the breach of honesty and integrity expected of a doctor. It stated that the misconduct did not require restriction on registration but justified a formal published warning.

The judgment followed the court’s earlier substantive judgment in the same proceedings, [2019] EWHC 1638 (Admin). This judgment determined consequential issues concerning costs and the terms of the warning.