Moody v General Osteopathic Council

MR JUSTICE COLLINS: Mr Donald Moody, the applicant, is a registered osteopath. He is now 73 years old. In 1960 when he qualified, until 1979, he practised as an architect. He suffered from some back pain and took the advice of his then osteopath to enter that profession and qualified as such in 1983. At that time there was no provision, such as there is now, relating to registration. In 1993 Parliament passed the Osteopaths Act which required that in due course anyone who wished to practise as an osteopath needed to register as such with the body that was set up by that Act, the General Osteopathic Council. The appellant registered with the council in May 1998 and then became subject to its disciplinary jurisdiction. Those powers are dealt with in the Act under the general heading of "Professional Conduct and Fitness to Practice". Section 19 requires the council to prepare and from time to time to publish a code of practice laying down standards of conduct and practice expected of registered osteopaths and giving advice in relation to the practice of osteopathy. Section 20(1) applies where any allegation is made against a registered osteopath to the effect that he has been guilty of conduct which falls short of the standard required of a registered osteopath. I should have said that an alleged failure to comply with any provision of the code is not to be taken of itself to constitute unacceptable professional conduct but is to be taken into account in any proceedings against the osteopath under the Act. That is in section 19(4).

There is a Professional Conduct Committee which was set up under the Act. An allegation may be referred to that committee and if, having considered it, the committee is satisfied that it is well-founded the statute requires it to take one of the following steps (section 22(4)). The steps in question are:

Obviously those penalties are in ascending order of severity.

A right of appeal is provided by section 31 of the Act, as amended. That enables an appeal to be brought to this court. When the Act was originally enacted the appeal lay to the Privy Council but by section 33(6) of the National Health Service Reform and Healthcare Professions Act2002 that has been amended so that the relevant court is in the case of this appellant, because he is registered as practising in England, this court. There is no limit to the grounds upon which an appeal can be brought. Under the 1993 Act, as originally enacted, appeal was limited to a point of law, but that has been repealed. By the new section 31(8) it is provided as follows:

The appellant appeared before the Professional Conduct Committee of the GOC on 27th November 2003. He then admitted two charges. The first was that between 1995 and 2000 he entered into and conducted a personal relationship, both emotional and sexual, with a patient whom I shall call Mrs R. The second charge was that he breached patient confidentiality by releasing patients' names to Mrs R and/or discussing personal and confidential information regarding his patients with Mrs R.

As will become apparent, the second allegation which may sound very serious was not and indeed was not referred to at all by the committee when giving its reasons for imposing the penalty which is the subject of this appeal.

The penalty was to make a conditions of practice order under section 22(4(b) of the 1993 Act. The relevant condition was that there must be an independent, unrelated chaperone present during any consultation with or treatment of any female. The purpose behind imposing that condition as a sanction was, to use the committee's words:

In early January 2004 the appellant entered this appeal which resulted, as I understand it, in an automatic suspension of the penalty. The reasons which were given by the committee for reaching the decision that they did in relation to the penalty were as follows:

A reference is there made to clause 53 of the Code of Practice and I should refer to that and indeed some other relevant clauses. The first to which Mr Goodwin drew my attention was clause 9 which is headed "Relationships with Patients" and reads:

I then go forward to clause 51, which is the first of three clauses under the heading "Personal relationships with patients". I will cite all three.

The approach which I should adopt sitting on appeal is not really the subject of any dispute between Mr Goodwin and Mr Barlow. Mr Goodwin very helpfully referred me to a decision of the Divisional Court given in December 2002: Langford v The Law Society [2002] EWHC, 2802 Admin. That was of course a case involving a solicitor but the principle in relation to all professional bodies is much the same. In paragraph 14 of his judgment Lord Justice Rose said this:

Lord Millett went on to refer to Evans v General Medical Council (unreported) and just above G said this:

I do not think it is necessary to read any further because those passages which Lord Justice Rose cited indicate the approach which I should in my judgment adopt. Indeed it is not really contested, as I have said, that that is now the correct approach. But what Mr Goodwin says is that it is necessary to attach great weight to the decision made by the committee consisting, as it did in this case, of not only professionals, that is to say fellow osteopaths but also lay members. In fact the committee was a committee of five: three were osteopaths; two were lay members. They have the expertise and know what are the appropriate standards that are expected of members of the profession of registered osteopaths and appreciate what is necessary in order to maintain the respect of the public for the profession of osteopathy. But having said that, since Parliament has provided for an appeal it is necessary for me sitting in this court to consider for myself whether the sentence imposed was appropriate having given, as I say, the necessary weight to the opinion of the committee. As must be obvious, when it comes to questions of professional competence the committee's views are to be accorded the very greatest of weight. When it comes to decisions which do not so much depend upon professional expertise, this court may be in a better position to be able to form a judgment for itself. But this court must never act unless it is plain that in the circumstances the decision of the committee was one which was, as I would put it, clearly wrong.

An osteopath who enters into a sexual relationship with a patient will, I imagine, normally expect that to be treated as a very serious matter. Patients are inevitably vulnerable but, as Mr Goodwin properly and naturally accepted, each case must depend upon its own facts. This, submits Mr Barlow, is on its facts a wholly exceptional case and the penalty which was imposed was altogether too severe. There was no suggestion that the appellant was other than a wholly competent osteopath, as indeed a number of testimonials, which were produced on his behalf, indicated nor was there any evidence that he had ever treated a female patient in an inappropriate manner apart from the case of Mrs R. Therefore, it is necessary to consider what were the facts as put before the committee.

The appellant was a married man. His wife is disabled and suffers from a condition which means that she is in almost constant pain. In January 1995 he first saw Mrs R as a patient. She was suffering from back pain of some sort. On 22nd March 1995 she said that she was going for an operation and so the appellant wrote her off as a patient but he met her socially. It was when they met socially that the relationship developed. That was some time in April 1995. He started to treat her again in early May 1995, after the relationship had begun. It would seem that he went on thereafter treating her, largely because she was not able to afford to go to another osteopath and he was treating her for nothing. I have said a relationship developed. It became a close relationship, although it remained at that stage concealed from his wife. As a result of the relationship a little girl was born in August 1996. It is clear, and was accepted before the committee, that the appellant was and remains devoted to the little girl. Unfortunately for him in January 2000 his wife discovered that he was having the affair with Mrs R whom he had been continuing to treat throughout all this time. His wife was in fact, and I imagine still is, the joint owner of his practice and so she had access to patients' records and she saw or obtained for herself, as she was entitled to, Mrs R's records. This was when she discovered that the adulterous affair was being carried on by her husband. It seems that the appellant was then torn between his wife and Mrs R and his daughter. He made the decision in early 2000 that he would leave his wife and go to live with Mrs R and this he did in March 2000. About a year later problems in the relationship with Mrs R began to become more and more apparent and eventually in March 2002 there was a final separation. His wife was remarkably forgiving and accepted him back. Indeed, as I understand it, they are together still. Perhaps somewhat remarkably, he continued to treat Mrs R notwithstanding that the adulterous relationship had been discovered by his wife and his wife insisted that whenever he treated Mrs R there should be some third person present to act as a chaperone. Indeed, one of the complaints made by Mrs R was that the appellant's wife on at least one and possibly more than one occasion, as she put it, burst into the room when Mrs R was having treatment and this led to Mrs R feeling somewhat upset. These complaints did not emerge until May 2002.

The start of action by the GOC was the receipt of what appeared to be an anonymous letter dated 10th May 2002. This read:

The tone of that letter indicates, perhaps more clearly than anything in the history of these matters, how love between Mrs R and the appellant had turned to hate. From the indications I have already given as to the extent of the misconduct admitted by the appellant it is obvious that this letter goes far beyond anything which was accurate.

A month later, on 10th June, there is a file note from a relevant official in the General Osteopathic Council which states:

She wanted to know whether anything had been done. She explained that she had had an affair with the appellant for five years and had a daughter with him and she said that he had stopped the relationship after his wife found out and insisted he never treat her again. But she did not trust anyone else to treat her and he finally agreed to continue but his wife was present. She said that she did not pay for her treatment which was another reason why she would not see another osteopath. She said she was scared to make a formal complaint and she went on to state that she, Mrs R, had indicated that the appellant had had affairs with patients before her. I repeat, there is not a shred of evidence that there is any truth in that allegation.

She was then asked to fill out a formal complaint form which she did and that was lodged with the council on 25th June. The main complaint then was in relation to the appellant's wife inasmuch as the appellant had refused to go on treating her because his wife had so requested and, further, Mrs R was concerned that the appellant's wife had had access to and had been shown her, Mrs R's medical records. But that complaint also ended with a further unfounded allegation which stated:

She did not cease being treated by him until the end of July 2002 when there was obviously some sort of a difference of opinion in the course of treatment. There was a note of a telephone call from Mrs R to the council in which she asked, among other things, whether it would jeopardise her complaint if she continued to have treatment from the appellant and the author of the note states:

Indeed the day after she did write to him asking for her medical notes. She wrote further to the council in August 2002 setting out further matters, and further details and again on 29th November 2002. This time she sought to raise other matters. Again there is no evidence to support them, and they appear to be wholly untrue, that he had been prevented from teaching at the Bristol College of Osteopathy because of practising a technique unauthorised by the principal of the college and that a complaint had been made by another patient about treatment that that patient had undergone. So far as the former is concerned, there was not a word of truth in it. So far as the latter is concerned, there had indeed, it seems, been a complaint by a particular patient but that had not got beyond the screening process in the council and was clearly regarded as being unfounded.

Mr Goodwin, who prosecuted the case before the committee, and who has appeared before me, put the matter to the committee in a thoroughly fair fashion, as one would expect. I need I think cite only two passages in his opening of the facts. At page 31 of the bundle he said this:

Then at page 34, and this relates to the second charge (that is the breach of professional confidence) Mr Goodwin said this:

So there was what may be regarded as a careless disclosure inasmuch as the scrap pieces of paper which were provided to his daughter to scribble on when the daughter was at the surgery bore on the other side the names of some of the patients of the practice. In addition it seems that occasionally Mr Moody had informed Mrs R that he was treating a particular individual, maybe an individual who had some degree of notoriety or fame. It is not suggested nor was it the case that he ever discussed with Mrs R any treatment that he was affording to any of these individuals. He recognised and recognises of course that he should not have told Mrs R of the fact that he was treating anyone in particular because that was a breach of patient confidentiality. But it may well be that the circumstances in which this breach occurred was such as to render it very much at the lowest end of that particular offence. As I have said, the fact that the committee did not even refer to it as one of the reasons for imposing the penalty that they did impose suggests to me that the committee took precisely that view of it.

The only other matter I should refer to in Mr Goodwin's opening appears at page 37 of the bundle (or page 17 in the transcript) and it is this:

She may have said as much if she had given evidence but the history and the correspondence to which I have referred make it clear beyond any doubt, in my view, that she had indeed begun to hate Mr Moody and that there was a strong element of vindictiveness in the complaints that she had made about his conduct. Nonetheless, if the conduct was, as indeed it was, a breach of the code and was conduct which fell within the description in section 21(a) of the 1993 Act because it fell short of the standard required of a registered osteopath the motives behind the complaint are of only marginal relevance.

The Code of Practice was not applicable in 1995 because, as I have already said, Mr Moody was not a registered osteopath until 1998. But he recognised that he should have appreciated and that his conduct certainly from 1998 onwards was such as fell foul of the provisions in the code and although the actual relationship began at a time when he thought she had ceased to be a patient in reality it was a relationship that can properly be said to have developed with a patient. He did not seek and very properly did not seek to take any technical point and argue that the relationship had not actually started when she was a patient and so did not fall directly within the words of paragraph 53.

The first question which must be asked is: What was the purpose of this condition? As I have said, there was no suggestion that he had ever acted or was ever likely to act in an inappropriate fashion to any female patient. The purpose behind a condition such as this is surely to protect any future female patient where there is at least a possibility that because of what has happened in the past the osteopath in question may act inappropriately with any patient in the future and he needs some sort of supervision, some independent observer to make certain that that does not happen. Mr Goodwin points out that he understands there are a number of osteopathic practices in which female patients are specifically asked whether they want to have a chaperone present while any treatment is being afforded to them. But asking whether they want is very different from requiring such a third party. It is obvious that if he is to continue in practise the appellant must inform any female patient of the need for a chaperone to be present. It is not difficult to follow what is likely to be the effect of that upon those who would otherwise be treated by him. It must occur to anyone that if that condition has been imposed it has been imposed for some reason and that they might otherwise have been at risk of some inappropriate conduct by Mr Moody. There would have been, as I say, no truth in that at all. The words used by the committee in justifying the imposition of that particular penalty were, as I remind myself, that it was intended to restore the respect and confidence that the public place in Mr Moody and to uphold the standing of the profession. I can well understand that in many cases in which conduct amounting to an inappropriate relationship with a patient is in issue such a condition might well be appropriate but it is difficult to follow why it is needed to uphold the standing of the profession. What seems to be being said is that this sort of a penalty is required because otherwise the public will not believe that the standing of the profession has been properly maintained. Mr Barlow points out that the profession itself has specifically referred in a publication to a penalty of admonishment which followed a disciplinary finding based on an allegation of a sexual relationship with a patient. We do not know the circumstances of that case and I repeat each case depends upon its own facts. But it does not suggest that that particular committee felt that something more than admonishment was essential in all the circumstances to uphold the standing of the profession.

It seems to me in the circumstances of this case, and they are exceptional circumstances, that the penalty which was decided upon really bore no relationship to the offence which had been committed. It is very difficult to follow why the condition imposed was considered to be appropriate to this offending. The relationship in question was a long-term one. It was the only sexual relationship that this appellant had ever had resulting from meeting with a patient. It was clearly on both sides, until unfortunately it broke up, what was thought to be going to be a long-standing and stable relationship. As I say, unfortunately it broke down and it broke down certainly on Mrs R's side with a high level of bitterness. It seems to me in all those circumstances that this particular penalty cannot be justified. I am satisfied, for the reasons I have indicated, that it was clearly wrong. This appellant is a highly competent osteopath, who has received a number of testimonials from patients and who indeed has been in his time a teacher in the profession. He is now coming I suppose towards the end of his professional career, although he may be able to go on and one hopes he may for a number of years yet, there being, as I understand it, no retiring age for osteopaths. I see no reason why he should not be permitted to continue to practise without any requirement such as was imposed by this committee. In my view, the exceptional circumstances of this case, and I repeat they are exceptional circumstances, should have resulted in the lesser penalty of an admonishment. Subject to anything Mr Goodwin may say, it seems to me that the appropriate course for me to adopt is to substitute for the penalty that was in fact imposed the penalty of an admonishment. That, of course, is something that will remain on Mr Moody's record. It is something which is itself not to be disregarded as no penalty at all. It is in itself a penalty and will be recognised as such in the profession. But that, in my judgment, is the appropriate penalty in the circumstances of this case. Presumably I imagine that you accept that that is the appropriate course.

MR BARLOW: My Lord, I do.

MR JUSTICE COLLINS: Accordingly to that extent, this appeal is allowed.

MR BARLOW: I am grateful. As I understand it, the order will allow the appeal and substitute an admonishment for the penalty imposed by the PCC.

MR JUSTICE COLLINS: Yes.

MR BARLOW: I have an application for costs. My client successfully appealed. Subject to the question of deciding the question on costs, the sums involved have been agreed between the parties.

MR JUSTICE COLLINS: Let me deal with the principle before I come to the amount. Is there any practice -- I have not checked myself -- in these appeals as to the award of costs. When I say any practice -- as you know, for example, in cases stated it is --

MR BARLOW: It is only if a magistrate puts in evidence --

MR JUSTICE COLLINS: That is right. But of course here the difference is that the council does attend and they properly attend to uphold the sentence. I would have thought, again subject to anything Mr Goodwin may say, that it is more usual for costs to follow the event in this sort of appeal but maybe I am wrong.

MR GOODWIN: My Lord, that would normally be the case and perhaps somewhat boldly I may venture to suggest that below of course there is no provision for costs to be awarded before the Professional Conduct Committee. Given the circumstances and indeed the argument that made clear the issue was not an easy one, if I may be as bold as to suggest that no order would be appropriate but clearly if you are not with me I can indicate, as Mr Barlow has, that costs in terms of the figures have been agreed subject to the court's discretion to award costs, which of course I acknowledge the court does have in terms of the new regime.

MR JUSTICE COLLINS: The costs are just the costs of the appeal; is that right?

MR BARLOW: It is solely the costs of the appeal.

MR JUSTICE COLLINS: I think in all the circumstances it is right that the appellant should have the costs of the appeal. What is the agreed figure?

MR BARLOW: The agreed figure, inclusive of VAT, is £8,897.58.

MR JUSTICE COLLINS: I shall make an order for costs in that sum then.

MR BARLOW: That will be within 14 days, my Lord.

MR JUSTICE COLLINS: You can have longer if you want.

MR GOODWIN: There will not be a difficulty.

MR JUSTICE COLLINS: Actually you had better have longer because we are just coming up to Easter. I think I will give you three weeks. I do not think that is unreasonable in the circumstances, is it?

MR BARLOW: 21 days is fine.

MR JUSTICE COLLINS: Thank you both.

MR BARLOW: We are most grateful for your Lordship's most careful judgment.