James Counsell QC successful in obtaining costs order against GMC from Medical Tribunal
James Counsell QC represented Dr Ashish Dutta throughout his fitness to practise hearing, the subsequent appeal and then the decision on costs. The decision is one of the first successful contested applications for costs made against the GMC under the revised FTP rules.
The Medical Practitioners Tribunal (“MPT”), the tribunal which deals with disciplinary cases against doctors on behalf of the General Medical Council (“GMC”), made an order that the GMC should pay the doctor’s costs of defending proceedings which ought not to have been brought. Its determination can be read here.
James Counsell represented Dr Ashish Dutta throughout his fitness to practise (“FTP”) hearing, the subsequent appeal and then the decision on costs. The Tribunal heard that Dr Dutta, a cosmetic surgeon based in the North-East, had faced a disciplinary hearing in 2019 arising out of alleged misconduct going back as far as March 2009. Although some of the allegations were found proved at the 2019 FTP hearing, in July 2020, the Administrative Court (Warby J) allowed his appeal and also upheld a separate judicial review claim, brought on behalf of the doctor, and quashed those findings, ruling that the GMC should have known that 2007 allegation were out of time.
The judge found the GMC had acted with a “lack of candour” and in a way which was “unbecoming of a public authority”. His judgment can be found here.
In January 2021, the MPT heard an application that the GMC should pay the doctor’s wasted costs of defending himself, in accordance with rules 16A and B of the Fitness to Practise Rules 2004. Dr Dutta had had to spend about £115,000 of his own money in defending himself, causing him serious financial difficulties.
In its decision, given on 16 June 2021, the Tribunal held that the GMC had breached its own rules by failing to comply with the 5-year rule (which prohibits bringing proceedings later than five years after it became aware of the allegations, save in certain (non-applicable) circumstances) and had also conducted the proceedings unreasonably by failing to disclose documentation relevant to its erroneous decision to allow the case to continue, until very shortly before Dr Dutta’s FTP hearing in October 2019.
The Tribunal indicated that it agreed with the way in which Warby J had characterised the GMC’s conduct. A decision on how much will be awarded will be made later.
It is thought that this is one of the first successful contested applications for costs made against the GMC under the revised FTP rules.
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James’s regulatory practice, on the defence side, is chiefly in the medical and dental field together with acting for solicitors and barristers.
He is frequently instructed (by all the principal defence organisations (including MPS, MDU, MDDUS) to represent doctors and dentists at the General Medical Council (the MPTS) and General Dental Council. His work has involved the full range of misconduct and heath cases, including clinical malpractice, dishonesty, sexual misconduct and health/addiction-related cases and he regularly conducts appeals in the Administrative Court.
Barristers: James Counsell QC