On 28 June 2019 the High Court of Justice heard an appeal brought by the Professional Standards Authority for Health and Social Care against the General Medical Council and Mr Andrew Hilton, a surgeon.
A complaint was made to the GMC by Patient A against Mr Hilton, a surgeon. It was alleged that Mr Hilton had dishonestly informed Patient A that he had known from a post operative assessment of the patient that a screw had been misplaced during her surgery but that he had not wanted to worry Patient A.
The matter was referred to a Medical Practitioners Tribunal Service (“MPTS”) Fitness to Practise Panel to determine whether or not the allegation was proved and as such, whether or not Mr Hilton’s fitness to practise was impaired.
The Fitness to Practise Panel, hearing the case between 12 and 23 November 2018, found the allegation to be proved and found that Mr Hilton had acted dishonestly and was guilty of misconduct. However, it also determined that Mr Hilton’s fitness to practise was not impaired and the case concluded with no further action. This was because the Tribunal determined that Mr Hilton “had no malicious intention to deceive Patient A, merely to create a positive environment in which he could apologise to Patient A for his error and reassure him that there had been no adverse outcome resulting from that error…the Tribunal noted that the Respondent impressed it as a man with considerable emotional intelligence. It found that his actions were driven by his desire to put matters right for the patient and to reassure him. The Tribunal was satisfied that the Respondent was not motivated to avoid litigation or to avoid payment of financial compensation. His approach was conciliatory. In short, there was no finding of an adverse motive.”
With these determinations having been made, submissions were then made as to whether or not Mr Hilton should receive a warning. The Panel determined that this was not necessary taking into account the lack of risk of repetition of the dishonesty and the mitigating circumstances.
The Professional Standards Authority, which reviews the decisions of regulatory bodies such as the MPTS, brought an appeal to the High Court on 18 January 2019 on the following grounds:
- That the decision was wrong and that Mr Hilton’s fitness to practise should have been found to have been impaired;
- That the Tribunal failed to have sufficient regard to Good Medical Practice;
- That the Tribunal wrongly stated that the dishonesty was an isolated incident given that Mr Hilton had written a letter to Patient A some months prior to his conversation with him;
- That the Tribunal irrationally found that Mr Hilton had a positive motivation for the dishonesty and wanted to help Patient A;
- That no reasonable Tribunal could have found Mr Hilton’s fitness to practise not to be impaired when they had made a finding of dishonesty against him;
- That the Tribunal was wrong not to have imposed a warning having found Mr Hilton’s fitness to practise not to be impaired;
- That the Tribunal failed to have sufficient regard to the Guidance on Warnings;
- That the Tribunal failed to have sufficient regard to the Sanctions Guidance;
- That the Tribunal gave undue weight to the mitigating factors;
- That no reasonable Tribunal would have decided not to issue a warning when impairment had not been found but dishonesty had been found proved; and
- That the Tribunal failed to give sufficient reasons for its determinations.
The GMC then became the first Respondent to the appeal with Mr Hilton as the second respondent. The GMC remained neutral in its stance on the appeal whilst Mr Hilton opposed it.
Mr Justice Freedman, hearing the appeal case determined that the appeal was successful in relation to the failure of the Tribunal to issue a warning. However, the appeal failed in respect of all of the other Grounds set out above.
In reaching his conclusions Mr Justice Freedman stated “Having decided that the decision of the Tribunal was wrong to this extent, namely that it ought to have issued a warning, there is nothing to remit to the Tribunal. All that remains is the terms of the warning. The Court will receive submissions from the parties as to the terms of an appropriate warning.”
Who can bring an appeal to the High Court against a decision made by the MPTS Fitness to Practise Panel.
Under the Medical Act, doctors who have been the subject of these sorts of proceedings have the right to appeal to the High Court. As of December 2015, the GMC can also appeal decisions of the MPTS and have done so on a few occasions as we have reported previously on GMC appeals. Finally, the Professional Standards Authority (“PSA”) can also bring appeals to the High Court as happened in this case.
But what is the PSA? The PSA is the overseer of all decisions made by the nine statutory bodies that regulate health professionals in the United Kingdom and social care in England. It reviews all decisions made by the MPTS (and other regulators) and if is feels that a decision has been too lenient and that the public has not been sufficiently protected, it can bring an appeal against that decision to the High Court, as happened in this case.
How can we help?
If you are a doctor wishing to appeal the findings of Medical Practitioners Tribunal Service (MPTS) Fitness to Practise Panel, or if an appeal has been lodged by the GMC or PSA or if you have any issues with regard to other health and social care regulators then please contact one of our specialist team of regulatory and professional discipline lawyers.