Professional Standards Authority for Health and Social Care v the General Dental Council and AB [2016] EWHC 2154 (Admin)

Health care professionals subject to disciplinary proceedings will often assume that the final hearing determination will conclude the matter. However, decisions by healthcare regulators, including the General Medical Council (GMC), the General Dental Council (GDC), the Nursing and Midwifery Council (NMC) and the General Optical Council (GOC), may be subject to further scrutiny by the Professional Standards Authority for Health and Social Care (PSA). In addition to the prospect of having the case referred back for reconsideration by the regulator, registrants and regulators may not be aware that they may also be liable for the costs of the appeal proceedings. The recent case of the Professional Standards Authority for Health and Social Care v the General Dental Council and AB highlights the potential cost implications of a PSA appeal for both the regulator and the registrant.

Background

In October 2015, the Health Committee (the Committee) of the GDC found that AB, a registered dentist, had not informed the GDC or medical practitioners that had treated him that he had the hepatitis B virus. The Committee declined to find that AB had been dishonest, but did find that he had been reckless. Having found AB’s fitness to practise impaired, the Committee imposed conditions of practice.

The PSA subsequently appealed the decision. While there were a number of grounds of appeal, the PSA essentially claimed that the Committee’s approach to dishonesty was flawed and that the sanction was too lenient. Part way in to the appeal process, the GDC conceded that the PSA’s appeal should succeed, whereas AB opposed the application throughout the proceedings.

The High Court found that the sanction was unduly lenient and remitted the decision back to the Committee for sanction to be reconsidered.

Costs award

The High Court then turned to consider the issue of costs. Applications were made by the PSA and the GDC and were awarded as follows:

  • the GDC was ordered to pay 30% of the PSA’s costs, up to the date they conceded that the PSA application should succeed;
  • AB was ordered to pay 20% of the PSA’s costs for the whole proceedings;
  • AB was also ordered to pay one third of the GDC’s costs.

The High Court found that, while AB was entitled to consider his position with care, it was unreasonable for him to not concede that the Committee’s decision was flawed.

Learning points

Regulators and registrants should be aware that, if a case is successfully appealed by the PSA, the High Court may apply the general rule that the unsuccessful parties will be liable for the PSA’s costs.

The High Court will also take in to account the conduct of the parties throughout the proceedings. When determining their approach to such an appeal, registrants should carefully consider their prospects of success. While a registrant is fully entitled to resist an application by the PSA, they should balance this against the possibility of a hefty costs order should they not succeed. Where a decision by the regulator is so clearly flawed, it may be worthwhile considering whether concessions should be made, preferably at an early stage. This is particularly relevant where the regulator agrees with the PSA’s application.

The High Court was clear that regulators are responsible for the decisions of their committees and that, when those decisions are successfully appealed, a costs award is likely to follow. Regulators should also be mindful of the advantage of making early concessions. In this case, the GDC’s concessions were taken in to account by the High Court and resulted in a limited costs award.

In defending a costs application, regulators and registrants should be mindful of whether all of the grounds brought by the PSA have been successful. In this case the High Court highlighted that, while the PSA’s application was successful on the basis that the decision was too lenient, all of its primary grounds were rejected. In particular, the High Court noted that there was no reasonable prospect of the PSA succeeding in relation to the dishonesty issues. As significant time was spent on these issues, both in preparation for and during the hearing, the PSA was only entitled to part of its costs.