Beard v General Osteopathic Council

The appellant, Ms Beard, appeals against the decision taken by the respondent’s Professional Conduct Committee (the committee) on 29 August 2018, to impose conditions of practice on Ms Beard’s registration as an osteopath for a period of 12 months. The respondent (the Council) is responsible for discipline and upholding standards of conduct in the profession of osteopathy. The committee was appointed to hear and determine allegations of misconduct made against Ms Beard.

She appeals under section 31 of the Osteopaths Act 1993 (the Act). The appeal proceeds as a rehearing, but without oral evidence. I can dismiss or allow the appeal and if I allow it I can remit the case or substitute a different decision. But I can only allow the appeal if I find that the decision of the tribunal was wrong or unjust because of a serious procedural or other irregularity. The correct approach in law to an appeal such as this is so well known that I have sought to discourage unnecessary citation of authority.

Ms Beard’s skeleton argument described the committee’s decision as “wrong” but it is clear from the focus of the written and oral argument that the real complaint is one of injustice by reason of serious procedural irregularity, since the first and principal ground of appeal asserts apparent bias and unfairness arising from the conduct of the hearing and in particular from questions by Ms Neville, appointed as a lay member though she is a qualified solicitor.

The Council says the hearing was fair; the function of the committee was inquisitorial and its interventionist approach was justified; the fairness of the process must be measured looking at the proceedings as a whole. Ms Beard’s solicitor representative did not complain at the time; nor did the experienced legal assessor intervene. The committee did not know until after the hearing about serious mental and physical health problems from which Ms Beard was suffering at the time.

I confine my account to what is relevant for this case. The Act gives the Council the function of regulating the profession of osteopathy. Professional conduct and fitness to practise are dealt with at sections 19-28. Misconduct is widely defined in section 20. Allegations of misconduct must be investigated by an “Investigating Committee”, which includes giving the osteopath the opportunity to make

“observations” (section 20(8) and (9)).

The investigating committee must, having enquired into the case, decide whether there is a case to answer; if there is, the allegation, formulated by the investigating committee, must (so far as relevant here) be referred to the “Professional Conduct Committee” (section 20(12)). That committee then considers the matter (section 22(1)) and if it decides the allegation is well founded, must impose sanctions ranging from admonishment to removal from the register.

The Council must appoint “legal assessors” to advise the investigating committee and the professional conduct committee on questions of law and to have any other functions conferred by rules (section 27(1)-(3)). Legal assessors must have been qualified for at least 10 years and have “a 10 year general qualification” within section 71 of the Courts and Legal Services Act 1990.

Appeals are (for present purposes) governed by section 31. An appeal against a decision of the professional conduct committee lies to the High Court, where the appeal attracts the applicability of the usual provisions in CPR rule 52 in appeals from disciplinary bodies. I have already mentioned the well known tests I must apply and the powers of the High Court in such appeals.

I was referred to three sets of rules enacted in subordinate legislation. The General

The General Osteopathic Council (Legal Assessors) Rules Order of Council 1999 (the 1999 Rules) includes provision for a legal assessor to inform the professional conduct committee “forthwith of any irregularity in the … consideration of any complaint or in the conduct of the proceedings … and advise it of his own motion where it appears to him that but for such advice, there is a possibility of a mistake of law being made” (rule 3(c)).

The General Osteopathic Council (Professional Conduct Committee) (Procedure) Rules Order of Council 2000 (the 2000 Rules) make quite elaborate provision for a standard adversarial process with a right to legal representation for the osteopath before the professional conduct committee (rule 11). Either side may call witnesses (rule 12). There is provision for disclosure of documents and the presence of a legal assessor (rule 16). The hearing is normally in public (rule 17).

The rules set out in some detail the procedure that must be followed, under the

“Patient A”, as I must call the complainant in this case, was born in January 1961. His background is in the armed forces and aeronautical engineering work. He is from Norfolk but moved to the Lytham St Annes area of Lancashire in about May 2016.

Ms Beard has qualifications in sports therapy, sports medicine and osteopathy going back to 1987. She has had a varied and long career, which until this incident was unblemished. Until 2004, she held a lecturer post at a university in Scotland. She left that position to become an osteopath, qualifying in Brighton in 2010. The same year, she opened a sports injury clinic in Lytham St Annes and registered with the Council.

In July 2016, Ms Beard was going through a difficult time. She had been divorced since about 2008, following an acrimonious marriage breakdown. This had left her vulnerable. Since January 2016, she had been seeking readmission to the Jehovah’s Witnesses faith, from which she had been parted for about a decade. She rejoined the faith in July 2016, just before seeing Patient A. The process was stressful and left her exhausted.

The committee, which subsequently heard her evidence, knew nothing of these marital and religious difficulties until the end of the case, as she did not share them with her lawyers until then. At the time she gave her evidence about seeing Patient A, the committee and her solicitor were unaware of them. They did, however, have the correspondence leading up to his formal complaint, to which I will come shortly.

On 18 July 2016, Patient A emailed Ms Beard asking for an appointment, preferably in the evening, because of a problem with his left foot. He attached notes of previous treatment in Norfolk. She agreed to see him the same evening at 7pm, fitting him in at the end of a busy day, which was not a clinic day. She downloaded the notes after the session, at 8.38pm.

Ms Beard made detailed handwritten notes of the session. She took a personal and medical history. She obtained his signature on a generic consent form, consenting to physical examination and treatment to improve his condition and relieve pain. He paid the fee of £70.

There are disputes about what happened during the session. The notes indicate that

There was a follow up appointment three days later. Patient A paid £45 for the session. The diagnosis did not change. According to Ms Beard’s notes, the patient’s condition had improved. There was a discussion about ultrasound and electrotherapy. Patient A was sceptical about its value and dismissed the idea. Ms Beard thought it was of value.

They discussed the “evidence base” (to quote from Ms Beard’s notes) for ultrasound, the utility of which Patient A challenged. Ms Beard referred him to the work of an expert on the subject, Professor Tim Watson. She made handwritten notes about the second session too. There are disputes of fact relating to what was said in that session too.

Patient A later alleged that Ms Beard indulged in ranting, in what he described in a document as “rant 1” and “rant 2”. He attributed to her remarks such as “how dare

Early the next morning, at 12.23am, he sent a long email to Ms Beard, replete with

In the email, he attempted to debate at length the academic literature to support his condemnation of ultrasound, at least in his own case, and demanded Ms Beard’s views in response. It must have made very unpleasant reading for Ms Beard; it is the sort of annoying and inappropriate missive from a client or patient that would at best irritate and at worst intimidate many professional people. He offered no further payment for her time, while demanding much of it.

Later the same day (Friday 22 July 2016), Ms Beard went to Liverpool to attend a convention and after that she went on a prearranged holiday, without responding to the email. She was, though, very concerned by it. On 30 July 2016, Patient A wrote a three page letter of “formal complaint” about “the quality of the treatment provided” and “your professional conduct on the day”.

The remedy sought was a refund of all fees charged “unless you can provide me, in

He set a deadline of 14 days from the date of the letter. However, ten of the 14 days elapsed before Ms Beard received it, on 9 August 2016. She pointed this out in a response sent on 12 August, saying she would need until 2 September to respond fully to the issues and allegations, because of commitments to patients, and asked him not to take further action until then.

She also tried unsuccessfully to reach him by telephone, but he missed the call or

The tone of that email is arrogant, as if he is addressing an inferior or subordinate. He described his previous email of 22 July, inappropriately, as “a good natured prompt”. Had she answered it, “you could have redeemed yourself”. It shows him

On 1 September 2016, Ms Beard provided her response. She denied the substance of the complaints, asserted that her treatment and conduct had been appropriate and that on 18 July there had been “elements of the treatment plan which you challenged in what I found to be an aggressive manner”. She said the email of 22 July was “unwarranted and unjustified”; the letter of 30 July “verging on harassment” and a subsequent email “threatening in its tone”. She wished to “formally request that you desist with this harassment” or she would have “no option than to take further action”.

Patient A then made his complaint to the Council, dated 7 September 2016. On 10 September, he wrote a further aggressive and offensive letter to Ms Beard. He began disparagingly by asking her to note, in connection with her comment about harassment that “you, as a tradesperson, are simply selling goods and services including ‘your professional abilities as an Osteopath’ to customers like me”. He went on to refer to the rights of consumers who purchase faulty goods or services, and the like.

The complaint then made its way through the Council’s complaints process. An investigating committee found there was a case to answer and the case was referred to the professional conduct committee for determination in accordance with the 2000 Rules.

Ms Beard was required to answer five allegations, together amounting to

“Unacceptable Professional Conduct”. The first allegation was innocuous enough: that Patient A had attended appointments with Ms Beard on 18 and 21 July 2016. She admitted those facts.

The second and third allegations were more serious: that on 18 July she did not conduct an adequate assessment of his foot; did not provide a diagnosis; did not discuss or explain the treatment to him; did not obtain valid consent from him for the treatment; and used excessive force on his foot when treating him.

The fourth and fifth allegations were that on 21 July, she did not conduct an adequate assessment of his foot; did not provide a diagnosis; did not discuss or explain the treatment to him; did not obtain valid consent from him for the treatment; did not explain to him why ultrasound treatment was appropriate; and communicated inappropriately and unprofessionally with him by saying words set out in an appendix.

The words were those attributed to Ms Beard by Patient A: “How dare you

Apart from the first allegation, Ms Beard denied the charges. She and Patient A

They produced a joint statement dated 25 January 2018, the day the hearing started. They agreed that the handwritten notes relating to the two consultations supported Ms Beard’s statements that she conducted an adequate assessment of Patient A’s foot on 18 July 2016 and justified her diagnosis, if she made one. They could not say whether the force used was excessive.

In relation to the consultation on 21 July, there was no requirement to make a fresh diagnosis if one had already been made; they could not say clearly whether valid consent to ultrasound treatment was obtained; it was not clear whether that consent was sought or given. The notes indicated that ultrasound treatment was given. They could not determine whether the words attributed to Ms Beard were used.

The expert evidence therefore highlighted the importance of the credibility of, on the one hand, Patient A and, on the other, Ms Beard. The notes contained information such as his medical history, which could only have come from him; it was not suggested that they were forged but it was not common ground that the notes were all made contemporaneously rather than written up afterwards.

The hearing started on 25 January 2018. The committee comprised Mr Alastair

I have a transcript and a digital tape recording of the hearing. I confine my account

Mr Gillespie opened the case for the Council. It rested almost entirely on an

In the afternoon, he was cross-examined by Mr Grant. He straightforwardly put the case for Ms Beard, which was directly contrary to the charges and to the evidence in chief of Patient A. Some of his cross-examination occurred after the committee members had asked some brief questions; probably because the legal assessor, Ms Obi, reminded Mr Grant that he had not put the whole of his client’s case to the witness.

While Ms Beard did not dispute that she used phrases such as “I have used ultrasound very effectively in the past” in an appropriate and not wrong manner, she denied any “rant”. Mr Grant and Patient A had to disagree about that and about almost every other aspect of the allegations apart from the facts that the appointments took place and that ultrasound was proposed.

Patient A accepted that Ms Beard had examined one of his feet on 18 July, but not that there was any adequate examination or any diagnosis. He said the handwritten notes were largely made up and that generic consent forms such as the one he had signed were “not worth the paper they are printed on”. He said he was in “no fit state to sign anything” on 18 July as he was “in absolute agony”, which he blamed on Ms Beard’s use of excessive force.

The committee’s questions to Patient A were brief. In answer to Mr Bedford, he accepted that Ms Beard had written down aspects of his medical history while he was giving it. Ms Neville asked about whether, as Ms Beard asserted, he had reported an improvement following treatment on 21 July. He said that was not correct. He said he was “cagey” about booking another appointment after 21 July. The chair did not ask any questions.

That completed the first day of the hearing. The second day, 26 January 2018, saw

She gave her account of the two sessions, which was at odds with Patient A’s. She denied the allegations he had made against her. She said that at their second meeting, while she is used to being challenged, his challenges to the use of ultrasound were “more probing than normal” and made her feel uncomfortable; “I felt like I was being interrogated”. She thought he may have interpreted what she said as a “rant” but denied that such it was.

She said that by the end of the second appointment and the treatment she was “a bit

There was a ten minute break at 10.50am, before the start of her cross-examination by Mr Gillespie. He started by putting to her that she had to adapt to difficult patients. She accepted that. He took her through the two appointments and put to her that Patient A’s account was correct. She disagreed with most of it.

He asked whether the handwritten notes were accurate since, if they were, the experts agreed that they supported her assertion that her assessment and treatment were adequate. They discussed Ms Beard being “flustered” and “alarm bells” ringing in her mind because of the way Patient A was talking. They discussed the

Mr Gillespie then put questions to the effect that Ms Beard had succumbed to Patient A’s provocative questioning and had conducted herself unprofessionally in her answers. She responded “No. The underlying emotion that I felt was fear”. Mr Gillespie steered away from that answer and did not explore it further. He returned to the subject of ultrasound.

He asked why Patient A’s long email of 22 July had alarmed Ms Beard. She explained that it was the tone and that she was about to go on holiday. He then took her through the long complaint letter of 30 July. He concluded the crossexamination by returning to the subject of when the handwritten notes were produced; and, finally, suggesting that there had been a “personality clash” and that Ms Beard had “had enough of him and … gave him a piece of your mind”; which she denied.

By the end of the cross-examination, Ms Beard had been giving evidence for about

The chairman then indicated that the committee members had some questions. He called a 45 minute lunch break, which would enable them to formulate their questions. Mr Gillespie did not think it would take “a huge amount of time” and saw no difficulty finishing the evidence of Ms Beard and the other expert, Mr Butler, that afternoon.

On reconvening, the chairman said there were nine questions. Mr Bedford, the

He also brought out the disagreement over whether Patient A was on his front (as he said) or back (as Ms Beard said) during the treatment on 18 July. Then, he asked about how the timing of the second session was to be arranged, not having been fixed at the end of the first session. Finally, he asked about the observation of Ms Beard that following treatment on 21 July, Patient A’s foot was less painful and more mobile.

The chairman then interjected, again uncontroversially, with a follow up question about whether the length of the second appointment was fixed. After consulting her diary, Ms Beard said it was fixed at 30 minutes in length and was at first fixed for 20 July, but rearranged for a day later. The chairman then invited questions from Ms Neville.

She started by saying she had some questions and invited Ms Beard to ask for a break if she wanted one at any time. Her initial questions followed on from Mr Bedford’s and no complaint about them is made by Ms O’Rourke.

Ms Neville then asked about the timing of the first appointment, saying she was “trying to establish how much time you had to read the email” from Patient A, with notes attached to it. Ms Beard explained that she had seen another patient at 6pm, though the clinic was closed, and had many personal and professional issues to attend to and explained what they were.

Ms Neville then asked about ultrasound and the obtaining of consent to ultrasound

Pursuing the topic, Ms Neville invited her to do a sort of role play of the patter, supposing that she, Ms Neville, were a patient at the clinic. Ms Beard obliged. Ms Neville then asked about why Ms Beard had felt uncomfortable and felt interrogated and what she meant by saying the underlying emotion she had felt was fear. Ms Beard responded that she had felt bullied and had encountered bullies in her work before.

Ms Neville continued probing, eliciting the response that Patient A had made Ms

Ms Neville turned to Patient A’s email of 22 July 2016, asking what was alarming about the tone of it, with several further questions about its content and why it was alarming. She then changed the topic to Ms Beard’s previous careers before she became an osteopath. Her tone was becoming increasingly frosty. She then asked Ms Beard to look at her CV, saying she wanted to know how long she had been using ultrasound and taking her back to 1987.

She then asked about Ms Beard’s movements during the week of 18 July, when she went on holiday, when she came back and why she had not responded to the email of 22 July before going on holiday. The chairman interjected with a question about why the diary ended in July (it was an academic diary). Ms Beard was becoming more and more flustered and nervous but remained in control of herself. The committee’s questions had lasted 42 minutes at this point.

Ms Neville persisted with the dates of the holiday and how long it had lasted and

Ms Neville then asked detailed questions about Ms Beard’s response letter of 1 September, taking her through it and asking what she meant by an “aggressive manner”. Ms Beard became more upset, tried to answer, faltered and ended saying “I don’t know how to answer that question”. Ms Neville persisted: “I am trying to establish why you said it was an aggressive manner. What was aggressive? It is quite a strong word”.

Ms Beard responded: “[i]ntimidatory, as in one question after another, firing questions away and not really giving the opportunity to answer things in full, cutting across me mid-sentence, not allowing me to finish my sentences, ….”. She continued her answer in the same vein. Ms Neville then conferred briefly with her colleagues before asking a question about her evidence of Patient A’s report of pain reduction following treatment.

Ms Neville then returned to her dissection of Ms Beard’s response letter of 1

Ms Neville continued her forensic probe into the language of the correspondence

Mr Grant intervened to point Ms Neville to the last paragraph of Patient A’s letter of 30 July, where Patient A had demanded his money back unless Ms Beard could provide:

“in writing, … appropriate, independent, peer-reviewed technical evidence as to how your use of Ultrasound was appropriate to my symptoms, and provide me, in writing, with a full explanation as to why you failed repeatedly to undertake a proper assessment of my foot on my visit of the 21 July 2016, thereby missing several injured areas on the foot and calf, all of which were identified within about 5 minutes of the start of my recent appointment with another professional Osteopath”.

Ms Beard confirmed the reference, saying “[y]es, page 15”. Ms Neville’s curt

The chairman took over the questioning, sensing (I infer from his intervention and

Ms Neville then started questioning again. Her tone was abrupt and hostile. She

Ms Neville then put to her:

“I’m sorry, you have just contradicted yourself because you have said to us that you would have dealt with his concerns had he come into the clinic and that you were willing to sit down and talk to him, but you were not willing to take time out of your busy practice to write a treatise on the subject …”.

Ms Beard replied: “[t]hat is right”. Ms Neville’s riposte was:

“but now you are saying you cannot explain why you did not ask him to come into the clinic because you did not like the tone of the way he was dealing with you”.

With Ms Beard becoming increasingly upset, Ms Neville persisted, saying she

Ms Beard became unable to continue. She said:

“Sorry, I am really struggling here to … you’re asking so many questions and I’m not quite sure what your asking about.”

Ms Beard attempted to continue her questioning but Ms Beard said: “[n]o, I think

The time was about 3.20pm, approximately 1 hour 20 minutes into the committee’s questions of Ms Beard after the end of her re-examination. Mr Grant asked to speak to the legal assessor. On resuming at about 3.30pm, the chairman said that he would be asking the questions, though Ms Neville did not say she had finished her questions. I infer that either the chairman or the legal assessor, or both, did not want Ms Neville to ask any further questions.

I interject that there is no evidence that the legal assessor advised the committee on the point, but the 1999 Rules do not on their face (unlike some other similar rules in the professional discipline field such as those at issue in Roylance v. GMC (No. 2) [2000] 1 AC 311, PC) require her to inform the parties about any advice given or, if

The chairman then questioned Ms Beard for a further 34 minutes. The chairman’s tone was not sharp as Ms Neville’s had been. Most of his questions were about how Ms Beard produced her notes of consultations with patients, on this occasion and generally; about what she had written in her notes and when; about previous treatment Patient A had received; and about notes relating to that treatment, attached to the initial email of 18 July. He also asked about the signing of the generic consent form. Ms Beard at times became confused when answering but was able to answer.

The total time taken by the committee’s questions was about 1 hour 45 minutes (including the ten minute break), ending at about 4.05pm; longer than her crossexamination which lasted about one and a half hours. Mr Butler, the other expert witness, was then briefly called before the end of the second day.

On the third day, Monday 29 January 2018, closing submissions were made. Mr Gillespie again presented Patient A as a witness of truth and Ms Beard as “rather defensive” and unreliable. He made it plain the case turned on credibility; “they agree on nothing, not even the angle or position that Patient A was lying in when he was being either assessed or treated …”.

Mr Grant submitted that Ms Beard was truthful. Diplomatically referring to her

The legal assessor then gave her advice on the law, which was uncontroversial; she did not touch on the questioning of Ms Beard. The committee deliberated in private and returned the next day, 30 January 2018. They announced that they found charges 2-5 proved in their entirety. The first allegation had already been admitted. The matter was adjourned to a date to be fixed for consideration of whether the conduct found proved amounted to “unacceptable professional conduct” (UPC).

Later, Mr Grant instructed Ms O’Rourke in February 2018 and obtained a transcript of the questions asked of Ms Beard. On 18 June 2018, he wrote to the Council asking for the audio tapes of the hearing and stating that a skeleton from Ms O’Rourke would be submitted to support a rather unusual application that either Ms Neville should recuse herself, or the other two members should recuse her or, if they did not, should recuse themselves. It was said there was a “clear appearance of bias or at least pre-judgment”.

The skeleton argument was later produced and the application to recuse made orally by Ms O’Rourke on 9 July 2018. There was a different legal assessor. It is unnecessary to set out the detail of what Ms O’Rourke submitted on that occasion. Her main focus was on the questions asked of Ms Beard by Ms Neville. There was

The next day, 10 July 2018, the committee heard Mr Gillespie and Ms O’Rourke on the issue of UPC and mitigation. It is only necessary to record here that on that occasion the committee learned for the first time – sitting in private at the invitation of Ms O’Rourke - about Ms Beard’s marital and religious difficulties during the period from about 2005 to 2016, culminating in the dealings between her and the elders of the Jehovah’s Witnesses two days before she saw Patient A.

Ms O’Rourke said in mitigation that this had made her particularly vulnerable at the

The committee gave its decision on sanction in public on 29 August 2018. The full

Ms Beard’s evidence, by contrast, was “guarded and at times her responses were evasive”. The committee also identified “multiple inconsistencies” and gave four examples. They found the clinical notes “not … reliable”. They then went through each of the charges stating in some detail why they preferred the evidence of Patient A on each disputed point.

They rejected Ms Beard’s evidence that she verbally explained ultrasound and

They repeated reasons already given orally for rejecting the recusal application. At paragraph 79, they defended their lengthy questioning of Ms Beard, reasoning that there were inconsistencies in her account that “had a bearing on her credibility” and that had they made “findings on [her] credibility without giving her the opportunity to address those points, that would likely have been unfair”. They had not strayed outside the proper boundaries in their questions to Ms Beard.

The committee found that her conduct would be seen as morally blameworthy by ordinary people and was unacceptable professional conduct. They found as an aggravating feature that she had not shown insight, since she had contested the charges. She had not been candid, did not accept the findings and had not apologised to Patient A or expressed remorse.

They made a 12 month “conditions of practice” order. This requires practice under supervision for 12 months, followed by a “reflective” report and a review hearing at which the professional conduct committee would consider the position for the future. However, the sanction has not yet taken effect because Ms Beard then exercised her right of appeal to this court which, I am told, has the effect of suspending the effect of the decision.