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

Where the Professional Standards Authority appeals a tribunal decision and the General Medical Council adopts a neutral stance, the GMC is ordinarily treated like an inferior court or tribunal. No order for costs should generally be made against it unless it actively opposed the appeal or a special reason for departure exists. The GMC is entitled to decide independently whether to appeal, having regard to the penalty, the likely practical effect, its resources and its priorities. The success of the PSA’s appeal does not, by itself, make the GMC’s decision not to appeal unreasonable. The practitioner whose sanction is increased on appeal may properly be treated as the unsuccessful party, particularly where the practitioner did not engage with the appeal.

The judgment concerned the PSA’s application for its costs following an earlier successful appeal against a decision of the Medical Practitioners Tribunal Service to suspend Dr Christian Hanson for 10 months. The earlier appeal resulted in substitution of erasure from the medical register under National Health Service Reform and Health Care Professions Act 2002, section 29(7)(c).

The PSA sought £12,633.72 from the GMC and Dr Hanson. The GMC had adopted a neutral stance and had not defended the appeal. Dr Hanson had not engaged with either the tribunal proceedings or the appeal. The central issue was whether the GMC should bear costs because it could have appealed the tribunal’s decision but did not.

1. The application for costs against the GMC was refused. The court adopted the general approach in Professional Standards Authority for Health and Social Care v General Medical Council & Sarkar [2020] EWHC 1896 (Admin) and Professional Standards Authority for Health and Social Care v General Medical Council & Dighton [2021] EWHC 21 (Admin).

2. As the statutory body responsible for the Tribunal, the GMC’s position was no different from that of an inferior court or tribunal in judicial review proceedings. The ordinary rule was that no order for costs would be made against it unless it had actively opposed the appeal. The GMC had not done so, and no special reason justified departing from that rule.

3. The fact that the GMC could appeal under section 40A(3) of the Medical Act 1983, but did not, did not itself justify a costs order. The GMC and the PSA could reasonably take different views about the appropriateness of a sanction and whether an appeal was justified in the public interest. The GMC was entitled to assess the likely practical effect of an appeal and its own resources and priorities. The tribunal’s decision being wrong did not establish that the GMC’s decision not to appeal was unreasonable.

4. Dr Hanson was properly regarded as the unsuccessful party. The appeal resulted in erasure, and the need for a hearing was occasioned by his failure to engage or consent to disposal of the appeal. He was ordered to pay the PSA’s costs, summarily assessed at £12,633.72 including VAT.

• High Court (Administrative Court): In the earlier appeal, the court allowed the PSA’s appeal and substituted erasure for the 10-month suspension: [2021] EWHC 588 (Admin).
• High Court (Administrative Court): On the subsequent costs application, the court refused costs against the GMC and ordered Dr Hanson to pay £12,633.72 including VAT.