The GMC have been ordered to pay costs to two former NHS chiefs who were cleared by a medical tribunal of failing to protect patients from rogue breast cancer surgeon Ian Paterson.
Dr Ian Cunliffe and Dr Mark Goldman were accused of ignoring warnings about Paterson and not taking action to stop his malpractice, which left victims scarred, disfigured and with long-term psychological effects.
Mr Paterson, who worked at NHS and private Spire hospitals in the West Midlands, was jailed for 20 years in 2017 after he was convicted of 17 counts of wounding with intent and three counts of unlawful wounding against 10 patients. An inquiry later concluded that more than 1000 patients were subjected to damaging and unnecessary operations over 14 years before he was finally stopped.
Mr Paterson was found to have exaggerated patients' cancer symptoms and performed needless mastectomies when less-invasive treatment was more appropriate. He also carried unregulated 'cleavage-sparing' mastectomies (CSMs) which increased the risk of cancer returning in patients.
A GMC spokesperson said: "We note the decision, by a medical tribunal, to grant Mr Goldman and Mr Cunliffe's application for costs.
"We will review the decision in full."
None of the Charges Proved
The GMC investigation against Dr Cunliffe and Dr Goldman, former medical director and chief executive, respectively, at the Heart of England NHS Foundation Trust, was opened in 2013 following the publication of review by Sir Ian Kennedy, on behalf of the Trust’s board, into Paterson’s surgical practice.
The two men appeared before a Medical Practitioners Tribunal Service (MPTS) misconduct hearing accused of various charges which included failing to protect patients from "the risk of harm" posed by Mr Paterson, not acting sooner to stop him, and not reporting him to the Trust or the GMC.
But their cases concluded in October, last year, with none of the charges found proved.
An application for their legal costs was made earlier this month with their counsel Mark Sutton KC, arguing that both Dr Cunliffe and Dr Goldman, along with their families, had suffered "immense stress and anxiety of the grossly protracted process hanging over them".
The final chapters of the doctors' careers, which had been devoted to loyal service to the NHS, had been "entirely eclipsed and blighted by the proceedings", he said.
Mr Sutton deemed the GMC’s prosecution "profoundly unsatisfactory", saying they had failed to conduct "an open-minded and through investigation" and had adopted evidence from other inquiries to support a range of allegations that had never been specifically investigated.
GMC's Conduct Found 'Unfair' and 'Unreasonable'
A MPTS tribunal has now ruled to grant the application for costs – which are likely to run in the six figures – after finding the GMC's conduct "unreasonable" by failing to adhere to its own rules in pursuing allegations against Dr Cunliffe and Dr Goldman.
It said it was "unfair" of the GMC to make a case against them when allegations were not supported by evidence and witnesses were not prepared to give evidence. The tribunal also found that the GMC failed to share a schedule of evidence, presented its case in a "faltering manner" and caused unnecessary delays during the course of the hearing – making the case "more bewildering" than necessary.
Dr Cunliffe and Dr Goldman shouldn't have undergone such an experience, it concluded, and it "did not, therefore, consider that this was a case where it should be concerned with the chilling effect which an order for costs may have on the GMC, a regulatory body".
The amount of costs to be awarded will be determined after all parties make submissions.
GMC Investigation 'One of the Most Stressful Things a Doctor Can Face'
Dr Caroline Fryar, director of medical services for the Medical Defence Union (MDU), said: "Being investigated by the GMC is one of the most stressful things a doctor can face. It is vital that any allegations put to doctors are properly evidenced. The tribunal rightly noted that in the cost award determination.
"There is a high bar for a tribunal to surmount in order for it to find that a regulator should pay the legal costs in case it has brought but failed to prove," she noted, while adding that the tribunal found that the GMC had failed to conduct a reasonable investigation/call relevant witnesses, failed to disclose documents, failed to serve evidence, and caused unnecessary delays to the proceedings. "Consequently, it felt that the threshold had been crossed, and that the regulator should pay the defence costs," she said.
"The regulatory regime that doctors are subjected to must be proportionate, timely, and above all – fair. In this instance, the tribunal found this was not the case," Dr Fryar added. "The MDU believes it was right to stand on principal in this case, to reaffirm these values and their importance. We are sure the GMC will learn lessons from this case, and we will continue to work constructively with them in that spirit."
History of the Paterson Case
Paterson was jailed for 15 years in 2017 following a trial at Nottingham Crown Court with his sentence later increased to 20 years by the Court of Appeal, which deemed the original jail term "unduly lenient".
In 2020, an independent inquiry investigated how he was able to carry out unnecessary surgeries undetected for so many years. It found 1000 women were subjected to needless surgery between 1997 and 2011 and he was allowed to carry on performing harmful procedures due to "a culture of avoidance and denial" in a "dysfunctional" healthcare system where there was "wilful blindness" to his behaviour.
The report from the inquiry, chaired by the Rt Rev Graham James, a former bishop of Norwich, called on ministers, NHS bosses, and the private healthcare industry to introduce measures to reduce the risk of another health professional inflicting such life-changing harm on patients.
It also led to a further 5500 of Paterson’s patients being recalled and in 2021 Spire Healthcare set aside £22 million to cover the costs of new compensation claims.
A £37 million compensation package for more than 750 patients was approved by a High Court judge in 2017. This included £27.2 million paid out by Spire Healthcare and £10 million paid by Paterson's insurers and former employers at the Heart of the England NHS Trust.