Benjamin Sayer v General Osteopathic Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morris |
| Judgment Date | 24 February 2021 |
| Neutral Citation | [2021] EWHC 370 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 February 2021 |
| Docket Number | Case No: CO/3286/2020 |
[2021] EWHC 370 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Morris
Case No: CO/3286/2020
Simon Butler (instructed by BSG Solicitors) for the Appellant
Peter Mant (instructed by General Osteopathic Council) for the Respondent
Hearing dates: 21 and 28 January 2021
Approved Judgment
Introduction
This is an appeal from a decision (“the Decision”) of the Professional Conduct Committee (“the Committee”) of the General Osteopathic Council (“the Council”) dated 24 August 2020. By the Decision, the Committee directed that the name of Benjamin Sayer (“the Appellant”) should be suspended from the register of osteopaths for a period of six months for unacceptable professional conduct. The relevant unacceptable conduct was in relation to a non-professional personal relationship with a patient (“Patient A”), which developed into a sexual relationship.
The appeal is brought under section 31 of the Osteopaths Act 1993 and is in respect of certain of the Committee's findings of fact, its consequent findings of unacceptable professional conduct and sanction. The Respondent to the appeal is the Council.
Some factual background
The Appellant has been a registered osteopath since 2015. He is now 27 years old. Between 30 October 2017 and 26 April 2019 he practised as a self-employed associate at the Bodytonic Clinic (“the Practice”) in London. In summary, the undisputed chronology of relevant events is as follows:
(1) Patient A, a female, became a patient of the Appellant on or around 12 November 2018 and was treated by him on a number of occasions thereafter.
(2) On 24 November 2018 the Appellant and Patient A spoke on the telephone. The conversation, which was recorded, involved discussion about a number of personal matters (“the 24 November call”).
(3) On a Sunday after 24 November 2018 the Appellant telephoned Patient A from his personal mobile phone (“the Sunday call”).
(4) The last occasion on which the Appellant saw Patient A to provide osteopathic care was on 29 January 2019. The Appellant's case is that on that date the Appellant terminated what he refers to as the “patient/treatment relationship” (i.e. “the professional relationship”).
(5) On a date in late February or early March 2019, Patient A contacted the Appellant on his personal mobile phone and she suggested that they “hang out”. (For want of a better description, I refer to that call as “the “hang out” call”).
(6) By the end of February 2019 at the latest, the Appellant and Patient A had embarked upon a personal relationship.
(7) On 7 March 2019 Patient A invited the Appellant to a show in which she was to perform. The Appellant attended that performance.
(8) On 14 March 2019 Patient A requested further treatment. The Appellant passed on the enquiry to a colleague at the Practice, asking her to treat Patient A. The Appellant sent to the colleague Patient A's clinical history and entered the booking on the Practice's system. On the next day Patient A had osteopathic treatment from the colleague.
(9) At some stage after 14 March 2019, the personal relationship developed into a sexual relationship
(10) On 26 April 2019, the manager of the Practice, Mr B, held a disciplinary meeting with the Appellant. On that date the Appellant was dismissed from the Practice and Mr B made a complaint to the Council.
The Legislative Framework and relevant legal principles
The statutory framework for the Council and for the Committee is to be found in the Osteopaths Act 1993 (“the Act”) and the General Osteopathic Council (Professional Conduct Committee) (Procedure) Rules 2000 (“the Rules”), made under section 26 of the Act. Other relevant materials are contained in the Council's sanctions guidance, in the Osteopathic Practice Standards and in certain case law.
The Council and the Committee
The Council regulates the osteopathic profession pursuant to the statutory scheme. Section 1(3A) of the Act provides that the “over-arching objective of the General Council in exercising their functions is the protection of the public”. Section 1(3B) expands on this, providing that “the pursuit by the General Council of its over-arching objective involves the pursuit of the following objectives: (a) to protect, promote and maintain the health, safety and well-being of the public; (b) to promote and maintain public confidence in the profession of osteopathy; and (c) to promote and maintain proper professional standards and conduct for members of that profession.” In pursuit of those objectives, one of the Council's statutory functions is the regulation of professional conduct and fitness to practise.
Fitness to practise proceedings
Section 20 of the Act is headed “Professional conduct and fitness to practise” and, by sub-section 20(1), 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”. By section 20(2), such conduct is referred to as “unacceptable professional conduct”. The procedure for considering any such allegation is divided into two stages: an investigation stage (carried out by the Investigating Committee) and then reference to, and consideration and determination by, the Committee. By section 21, pending its investigation, the Investigating Committee has power to make an interim suspension order, where necessary for the protection of the public, after having given the osteopath a right to a hearing.
Under rules 29 to 36 of the Rules, the Committee's determination of a professional conduct case involves a two-stage process. By rules 29 and 30, the Committee must determine whether the facts alleged have been proved and then decide whether those facts amount to unacceptable professional conduct. Following announcement of its decision on those issues, the Committee then hears evidence and argument on, and proceeds to determine, the issue of sanction under rules 33 to 36.
Sanctions and sanctions guidance
Under section 22(4) of the Act, if there is a finding of unacceptable professional conduct, the Committee is required to impose one of the following sanctions: admonishment, a conditions of practice order, suspension from registration for a specified period or removal from the register. By section 22(9), there is power to order suspension for up to three years.
The Council's “Hearings and Sanctions Guidance” (“HSG”) provides, inter alia, as follows:
“29 Both insight and remediation should be given their everyday meaning. The PCC should focus on whether there is real evidence that the osteopath has been able to look back at his or her conduct with a self-critical eye and that they have acknowledged fault, expressed contrition and/or apologised. In effect, they need to demonstrate to the PCC that there is a real reason to believe they have learned a lesson from the experience.
…
Sexual Misconduct
49. D2 of the Osteopathic Practice Standards provides that an osteopath must establish and maintain clear professional boundaries with patients and not abuse their professional standing and position of trust. Failing to establish and maintain sexual boundaries may, in particular, have a profoundly damaging effect on patients.
50. Sexual misconduct covers a wide range of conduct spanning criminal convictions, sexual misconduct with patients, colleagues and others to breaching professional boundaries through non-consensual physical examination of patients. It is an abuse of the special position of trust that a healthcare professional occupies. It seriously undermines public trust in the profession of osteopathy and can present a risk to patient safety.
51. In reaching a decision, the PCC should take account of the guidance issued by the PSA (formerly the CHRE) entitled: Clear sexual boundaries between healthcare professionals and patients: guidance for fitness to practise panels (2008), in particular, the aggravating and mitigating factors relevant to sanction.
52. Where sexual misconduct is proven, especially in circumstances where there has been a breach of professional boundaries involving vulnerable patients, including those with emotional problems, physically disabled young people and people with learning disabilities, this should be regarded as very serious by the PCC, where removal from the register is likely to be considered an appropriate and proportionate sanction.”
( emphasis added)
As regards the sanction of suspension, paragraph 71 of the HSG sets out relevant factors to be considered. This paragraph is cited verbatim at Decision §143, set out at paragraph 63 below.
Osteopathic Practice Standards
The Osteopathic Practice Standards (“OPS”), in force at the relevant time 1, provides, inter alia, as follows:
“Standard D16 – Do not abuse your professional standing. The guidance to this standard includes the following:
1. Abuse of your professional standing can take many forms. The most serious is likely to be the failure to establish and maintain appropriate boundaries, whether sexual or otherwise.'
2. The failure to establish and maintain sexual boundaries may, in particular, have a profoundly damaging effect on patients, could lead to your removal from the GOsC Register and is likely to bring the profession into disrepute.
3.1. Words and behaviour, as well as more overt acts, may be sexualised, or taken as such by patients.
3.2. You should avoid any behaviour which may be construed by a patient as inviting a sexual relationship.
…
3.4. It is your responsibility not to act on feelings of sexual attraction to or from patients.
3.5. If you are sexually attracted to a patient, you should seek advice on...
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