Spencer v General Osteopathic Council

This case turns upon the interpretation of the phrase “unacceptable professional conduct”, within the meaning and for the purposes of the Osteopaths Act 1993 [“the Act”] and its application to the admitted failure on the part of the Appellant, on two occasions, to take adequate notes of a consultation with a patient. I was informed in the course of the hearing by both counsel that their researches have revealed no case where the meaning and application of this test under the Act has been considered hitherto.

The Appellant is a registered Osteopath. He appeals pursuant to Section 31 (1) of the Act against the finding of the Professional Conduct Committee of the respondent Council, that he was guilty of unacceptable professional conduct within the meaning of Section 20(1) (a) and 22. The findings relate to the Appellant’s management of a patient who presented with the symptoms of pain and discomfort in the right shoulder and the left sacro-iliac joint, and who was seen by the Appellant on six occasions between April and November 2009 at his clinic in Barnstaple. Following complaint by the patient concerned, the matter was investigated and a number of allegations brought forward for consideration. The opinion of a senior osteopath expert was sought by the Council and he exonerated the Appellant of many of the criticisms. A number of allegations were brought forward for decision by the PCC, including failing to obtain a valid consent at four consultations, failing adequately to investigate specific signs and symptoms and failing on one occasion to take an adequate case history. These allegations were not established before the PCC. The only matters which were established had been acknowledged by the Appellant from the outset. These were therefore the only particulars which were relied upon by the PCC to establish “unacceptable professional conduct”. The findings read as follows:

“4.

In relation to a consultation with Patient A on 11 June 2009, failed to adequately record the case history in that you failed to adequately record:

4.1

Onset of the twinges in the left SIJ [sacro-iliac joint];

4.2

Progression since onset of the twinges in the left SIJ;

4.3

Aggravating and relieving factors of the twinges in the left SIJ;

4.4

Associated signs/symptoms relating to the twinges in the left SIJ.

5.

In relation to a consultation with Patient A on 10 September 2009, failed to adequately record the case history in that you failed to adequately record the progression of the twinges in the left SIJ that had presented on 11 June 2009.

6.

In relation to a consultation with Patient A on 10 September 2009 failed to adequately record the result of the examination of the hip joints.”

Having made the finding of unacceptable professional conduct on that basis, the Committee concluded that the appropriate sanction was an admonishment of the Appellant under Section 22(4)(a). The Appellant does not of course seek to challenge the findings of fact, since they were admitted. His challenge is to the conclusion that those findings are sufficient to amount to unacceptable professional conduct. He says such a finding is unjustified and that the matter is important to him since this finding inevitably carries professional opprobrium.

The Professional Conduct Committee is one of four statutory committees of the General Osteopathic Council [“The Council”] created under Section 1(5). Pursuant to Section 13 of the Act, the Council has the obligation to determine the standard of proficiency required for the competent and safe practice of osteopathy (Section 13(1)) and “publish a statement of the standard of proficiency determined by it” (Section 13 (2)). Under Section 19 of the Act, the Council has the obligation to prepare and 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 19(1)).

Section 20 of the Act reads, in part, as follows:

“Section 20

(1)

This section applies where any allegation is made against a registered osteopath to the effect that-

(a)

he has been guilty of conduct which falls short of the standard required of a registered osteopath;

(b)

he has been guilty of professional incompetence;

(c)

he has been convicted (at any time) in the United Kingdom of a criminal offence; or

(d)

his ability to practise as an osteopath is seriously impaired because of his physical or mental condition;

(2)

In this Act conduct which fall short of the standard required of a registered osteopath is referred to as “unacceptable professional conduct”.”

Section 41 of the Act restates that “in this Act ………”unacceptable professional conduct” has the meaning given by Section 20 (2)”.

Section 19 of the Act addresses the relevance of a breach of the Code of Practice to a finding of unacceptable professional conduct. The sub-section reads as follows:

“Section 19 (4)

Where any person is alleged to have failed to comply with any provision of the Code, that failure –

(a)

shall not be taken, of itself, to constitute unacceptable professional conduct on his part; but

(b)

shall be taken into account in any proceedings against him under this Act.”

If the PCC concludes that an allegation of unacceptable professional conduct is well founded, the Act obliges the Committee to impose and publicise a sanction pursuant to Section 22 of the Act, the relevant parts of which read:

“S.22 (4).……The Committee shall take one of the following steps-

(a)

admonish the osteopath;

(b)

make an order imposing conditions with which he must comply while practising as an osteopath (a “conditions of practice order”);

(c)

order the Registrar to suspend the osteopath’s registration for such period as may be specified in the order (a “suspension order”); or

(d)

order the Registrar to remove the osteopath’s name from the register.”

Section 22 (13):

“The Committee shall, before the end of the period of twelve months beginning with the commencement of this section, and at least once in every succeeding period of twelve months, publish a report setting out-

(a)

the names of those osteopaths in respect of whom it has investigated allegations under this section and found the allegations to be well founded;

(b)

the nature of those allegations; and

(c)

the steps (if any) taken by the Committee in respect of the osteopaths so named.”

Section 22 (14):

“Where the Committee has investigated any allegation against an osteopath under this section and has not been satisfied that the allegation was well founded, it shall include in its report for the year in question a statement of that fact, if the osteopath so requests.”

Powers are given to the Committee to address findings of professional incompetence, conviction for a criminal offence or a finding of serious impairment of ability to practise under Section 20(1)(b)(c) and (d). It follows that there is no obvious lacuna in the powers granted to the Council, who are equipped to deal with incompetence, the reputation of the profession and impairment. For the purposes of this appeal, we are focused clearly on the issue of “conduct”.

There was a Code of Practice in force at the time relevant to these allegations. Paragraph 116 of the Code of Practice reads as follows:

“You must keep accurate, comprehensive, easily understood, contemporaneous, signed (initialled entries if computerised records) and dated case notes. These notes should always be made in indelible ink and at least record:

•

Your patient’s personal details

•

Any problems and symptoms reported by your patient

•

Relevant medical and family history

•

Your clinical findings

•

The information and advice you have provided

•

Actual advice given to the patient regarding the risks associated with any proposed examination or treatment

•

The decisions made

•

Records of consent and/or consent forms

•

The investigation and treatment you provide or arrange, and their results

•

Any communication with, about or from your patient

•

Copies of any correspondence, reports, test results, etc, about your patient

•

Reaction to treatments/treatment outcomes

•

Reference to any home/domiciliary visits

•

If a chaperone was present or was not required

•

Whether a student/observer was present.”

The Sections specifically referred to by the PCC in the Appellant’s case are highlighted in italics above.

Since the Act has not been the subject of specific interpretation, some of the submissions made to the PCC in this case and many of the submissions made to me relate to authorities concerning legislation governing the medical and dental professions. The Medical Act 1983 is the principal statute concerning doctors. The Act was widely amended by Order in Council, the Medical Act 1983 (Amendment) Order 2002. The Dentists Act 1984 consolidated previous statutes and for present purposes mirrored the medical legislation. The Dentists Act 1984 was itself extensively amended by Orders in Council between 2005 and 2011.

The relevant original term under the Medical Act 1983 was “serious professional misconduct”. Under the scheme of that Act, a finding of “serious professional misconduct” was one of the grounds capable of giving rise to a finding of “impaired fitness to practise”. In the amended Medical Act 1983 the phrase “serious professional misconduct” has been removed and the simpler term “misconduct” substituted and such a finding remains capable of giving rise to a finding of impaired fitness to practice. The change of terminology was considered by the Court of Appeal in Meadow –v- General Medical Council [2007] 2QB 462 where the court concluded that:

“Given the retention in the Act in its present form of Section 1 (1A), setting out the main objective of the GMC “to protect, promote and maintain the health and safety of the public” it is inconceivable that “misconduct” – now one of the categories of impairment of fitness to practise provided by Section 35C of the Act – should signify a lower threshold of disciplinary intervention by the GMC.”

Mr Holl-Allen for the Appellant relies on this authority. If the change in terminology from “serious professional misconduct” to “misconduct” does not involve a lowering of the threshold for disciplinary intervention, then he submits it must follow that disciplinary intervention must be taken to carry the same impact or opprobrium whether it arises under the older or the newer statutory formulation. Therefore, he argues, at least in the context of the legislative scheme for medical practitioners, authority in relation to “serious professional misconduct” remains authority in relation to “misconduct” under the revised legislation.

With a view to the analogy between “misconduct” in the successive versions of the Medical Act and “unacceptable professional conduct” in the Osteopaths Act 1993, Mr Holl-Allen relies on two or three key authorities, dealing with the medical legislation, on this. In Preiss –v- General Dental Council [2001] 1 WLR 1926, Lord Cooke of Thorndon noted that gross professional negligence was capable of amounting to serious professional misconduct. Lord Cooke went on to say:

“Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium which inevitably attaches to the disciplinary offence.”

In Silver –v- General Medical Council [2003] Lloyds Rep Med 333 a finding of serious professional misconduct was overturned in a case in which there had been a failure to make a home visit to a patient over a period of 9 days. Sir Philip Otton regarded it as significant that the allegation involved an “isolated incident” relating to one patient, as compared with a number of patients over an extended period of time.

In Meadow (supra), Auld LJ stated that serious professional misconduct may be made out where what is established is “incompetence or negligence of a high degree”: see paragraph 201.

In Calhaem –v- General Medical Council [2008] LS Law Med 96, Jackson J (as he then was) conducted a review of the authorities on the meaning of serious professional misconduct and seriously deficient performance. He proceeded on the basis that the meaning of these terms had not changed following the amendment of the Medical Act 1983 and he set out the following principles:

“(1)

Mere negligence does not constitute “misconduct” within the meaning of Section 35C (2) (a) of the Medical Act 1983. Nevertheless, and depending on the circumstances, negligent acts or omissions which are particularly serious may amount to “misconduct”;

(2)

A single negligent act or omission is less likely to cross the threshold of “misconduct” than multiple acts or omissions. Nevertheless and depending upon the circumstances, a single negligent act or omission, if particularly grave, could be characterised as “misconduct”;

(3)

“Deficient professional performance” within the meaning of 35C(2)(b) is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor’s work.

(4)

A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute “deficient professional performance”.

(5)

It is neither necessary nor appropriate to extend the interpretation of “deficient professional performance” in order to encompass matters which constitute “misconduct”.”

Mr Holl-Allen not only relies on the medical (and dental) legislation by way of analogy, and as an aid to interpretation of the Osteopath’s Act 1993 ; he also argues that it would be very undesirable in terms of legal policy if different standards should apply in addressing professional misconduct as between different but similar professions such as doctors and osteopaths. In effect the submission is that, unless the language of the statute compels it, the courts should aim at consistency on such a question.

Mr Colman for the Respondent tackles this argument head on. He says comparisons with the case law on “serious professional misconduct” or “misconduct” in the medical and dental legislation are unnecessary. “Unacceptable professional conduct” is a statutory term. There are important differences between the regulatory regimes governing doctors or dentists on the one hand, and osteopaths on the other. As we have seen from the sections of the Act quoted above, once the osteopaths’ PCC is satisfied that an allegation of “unacceptable professional conduct” is made out, it is obliged to impose a sanction under Section 22 (4). By contrast, a Fitness to Practice Panel of the General Medical Council has a discretion under Section 35 D (2) (3) of the Medical Act 1983. The two bodies have rather different powers. The GMC Panel can only impose a warning, which Mr Colman argues is closely analogous to an admonishment under the Osteopaths Act, where no impairment is found. If impairment is found there need be no sanction imposed. The situation facing the PCC under the Osteopaths Act is that they have no power to issue a formal warning; they cannot “admonish” where they do not find unacceptable professional conduct, but must at least admonish if they do. Mr Colman argues that the ability to admonish a professional without further restriction on their practise, is an important regulatory tool in striking the balance between the public interest in maintaining confidence by upholding professional standards and the practitioners’ own interest. The differing powers available in the osteopaths’ scheme and the medical scheme demonstrate why it is unhelpful to equate “unacceptable professional conduct” with impairment by reason of misconduct under the Medical Act 1983.

Mr Colman further argues that in formulating the Osteopaths Act 1993 with a distinctive structure and different terminology to the then already existing pattern of the Medical Act 1983, Parliament must be taken to have acted deliberately. The conflation of different terms from the distinct regimes is inappropriate.

The PCC in the Appellant’s case considered whether or not the matters admitted and found proved amounted to unacceptable professional conduct in the following terms:

“The primary issue for the Committee was therefore as to whether or not those facts amounted to unacceptable professional conduct for the purposes of Section 20(1) (a) and Section 22A of the Osteopaths Act.

In reaching its decision the Committee has taken account of the decision of Mr Justice Jackson as he then was in the case of R (Calhaem) –v- The General Medical Council particularly the guidance given in paragraph 39 of the judgment. Whilst this case relates to a different regulatory regime, the Committee accepts ……………. Mr Holl-Allen’s submission that it should only find unacceptable professional conduct if it is satisfied that the facts admitted by the Registrant give rise to significant or serious issues of conduct. It bears in mind if such a finding is made, the terms of Section 22 (4) of the Act require a sanction to be imposed.

In reaching its decision the Committee has taken into account paragraph 116 of the Code of Conduct ……….The Committee also notes the Standard of Proficiency which requires at paragraph J that osteopaths must be able to record key findings accurately with appropriate detail and, specifically at sub paragraph J9, to demonstrate the ability to generate complete and accurate records of the outcomes of the patient evaluation. The Committee recognises and accepts the terms of Section 19 (4) of the Act. The Committee also accepts that it has dismissed the parts of the allegation that asserted that the Registrant had failed to take an adequate case history. It also expressly records and accepts as a fact that there is no criticism of the treatment which the Registrant provided to Patient A.

Taking all relevant evidence into account, the Committee’s judgment is that the Registrants’ accepted failures to keep adequate case records, as set out in Part 4 – 6 of the allegation, do amount to unacceptable professional misconduct (sic). It considers that the keeping of case records, as highlighted by the Code of Practice and the Standard of Proficiency, is of paramount importance to safe osteopathic practice and to avoid risks for the patient. In particular, it is essential for all osteopaths to maintain full and complete records in order to ensure that a proper diagnosis can be made and appropriate treatment and advice is given. Further, in a case such as this, where a patient attends over a period of time, accurate and full record keeping is essential for the practitioner in providing continuity of care and safe practice, identifying any changes to the patient’s condition and informing adjustments to the treatment plans. In relation to the progression of the condition it is essential that an osteopath fully records the history and relevant symptoms for both the patient’s benefit but also to ensure that both the osteopath or alternatively any professional colleague who treats the patient subsequently is in possession of all relevant information. Whilst relating to a single patient, the Committee considers the facts accepted by the Registrant disclose a significant failure of the Registrant’s duty to keep appropriate case records on two separate occasions and that this therefore amounts to unacceptable professional conduct.”

The Committee went on to receive submissions as to the Appellant’s character, the improvements in his practice of record keeping, and his general professional quality and reputation. It was on that basis that they concluded admonishment was the appropriate and sufficient sanction.

In my judgment, the starting point for interpreting the Osteopaths Act 1993 must be the language of the Act itself. Although one notes that “unacceptable professional conduct” has the definition in Section 20 (2): “conduct which falls short of the standard required of a registered osteopath”, there is an unhelpful circularity to the definition. Indeed one might not unfairly comment that the statutory definition adds little clarity. The critical term is “conduct”. Whichever dictionary definition is consulted, the leading sense of the term “conduct” is behaviour, or the manner of conducting oneself. It seems to me that at first blush this simply does imply, at least to some degree, moral blameworthiness. Whether the finding is “misconduct” or “unacceptable professional conduct”, there is in my view an implication of moral blameworthiness, and a degree of opprobrium is likely to be conveyed to the ordinary intelligent citizen. That is an observation not merely about the natural meaning of the language, but about the likely effect of the finding in such a case as this, given the obligatory reporting of the finding under the Act.

In my view, this starting point receives support rather than otherwise from the carefully specified use to which the Code of Practice may be put under Section 19(4) of the Act. Breach of the Code of Practice may be established, and may be significant, without making out “unacceptable professional conduct”. It must be the case that a breach of the Code of Practice may also be relevant to a finding of professional incompetence, as opposed to unacceptable professional conduct. No single instance of negligence or unacceptable care would be sufficient to found a conclusion of “professional incompetence”. Hence for both purposes, a breach of the Code of Practice is a starting point and is relevant, but cannot be definitive or indeed even raise a presumption that “professional incompetence” or “unacceptable professional conduct” is made out.

Mr Colman argues that the fact no sanction is available to the PCC, even an admonishment, unless they make a finding of “unacceptable professional conduct”, must be taken to imply a lower threshold for “unacceptable professional conduct” than exists for “misconduct” in the medical and dental legislation. He says, in effect, if the two phrases are held identical in meaning, the General Osteopathic Council will be deprived of a shot that should be in its locker. I have considered this argument very carefully, considering that there may be some force in it. However, in the end it seems to me that such a purposive interpretation of the statute cannot prevail over the language of the statute. If Parliament had intended to give formal powers of warning or admonition to the Council, in circumstances where the Registrant had breached the Code of Practice but not been guilty of unacceptable professional conduct, it would have been very simple to do so. Equally it seems to me, there is nothing to prevent the PCC from giving advice to a practitioner where allegations have been made out which constitute a breach of the Code of Practice (or indeed the Standard of Proficiency) but where neither professional incompetence nor “unacceptable professional conduct” is made out. As it is, the Act stipulates that if unacceptable professional conduct is made out, there has to be at least a formal admonition and publicity which is bound to affect the Registrant’s professional reputation. Those are considerable sanctions. In my view, they support the natural meaning of the language contained in the statute and point to a threshold for a finding of “unacceptable professional conduct” which there is no reason to distinguish from “misconduct” in the medical and dental legislation.

What of the finding in this case? As I have set out, the PCC expressly sought to apply the principles set out in Calhaem (supra). In my judgment they were right to do so. Did they do so correctly?

Mr Colman sought to argue, no doubt reflecting the reasoning set out by the PCC, that note-taking is of supreme importance for osteopaths. Indeed, he sought to put it so high as to suggest that osteopathic notes were of more importance than doctor’s notes (or indeed those of dentists). Of course, I accord very great respect to the professional knowledge of any specialist tribunal such as this. Of course, I accept that note-taking and retention of notes is very important for osteopaths. However, I must reject the suggestion that osteopathic notes are more important than doctor’s notes. That seems to me a startling proposition. Apart from any other consideration, at least within NHS practice, notes will follow the patient whichever medical practitioner is concerned. As emerged during the hearing, at least to some degree, that does not apply where there is a change from one osteopath to another. Therefore, while fully accepting the desirability of good note-taking, it does not seem to me there is any special case for osteopathic notes either made out in the evidence in this case or to be derived from the assertion in argument.

With great respect to the PCC in this case, it seems to me that they did fall into error in applying the principles identified in Calhaem. They were dealing not with one single act of poor performance but two: two examples on two dates, on which proper notes had not been taken. There had been proper assessment of the patient, a proper plan for treatment, proper treatment given. It seems to me that this is not “incompetence or negligence of a high degree” or at least not self evidently so. It seems to me that it is hard to construe these failures as worthy of the moral opprobrium and the publicity which flow from a finding of unacceptable professional conduct.

For all these reasons this appeal is allowed. The finding of unacceptable professional conduct against the Appellant is quashed.