Elsworth Wray v The General Osteopathic Council
| Jurisdiction | England & Wales |
| Judge | Underhill LJ,Nugee LJ,Stuart-Smith LJ |
| Judgment Date | 17 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1940 |
| Docket Number | Case No: C1/2021/0268 |
| Year | 2021 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1940
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mrs Justice Collins Rice
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Stuart-Smith
and
Lord Justice Nugee
Case No: C1/2021/0268
Paul Ozin QC (instructed by The Reflective Practice) for the Appellant
Mary O'Rourke QC (instructed by BSG Solicitors) for the Respondent
Hearing date: 14 October 2021
Approved Judgment
Introduction
The Respondent is a registered osteopath [“the Registrant”]. I outline the facts that have given rise to these proceedings in a little detail at [69] below. In briefest outline, on 10 March 2018 the Registrant was involved in an altercation when he was set upon by a group of assailants as he got out of his car holding a softball bat. He was charged with possession of an offensive weapon in a public place, contrary to s. 1(1) of the Prevention of Crime Act 1953. In due course, on the advice of his then solicitor, he pleaded guilty to that offence before Highbury Corner Magistrates' Court and was conditionally discharged.
The Appellant Council is the body that regulates the osteopathic profession pursuant to the Osteopaths Act 1993 [“the Act”] and associated rules. The Council's overarching objective is public protection, including promoting and maintaining public confidence in the profession through practice and conduct standards. It issues a statutory code setting out those standards.
The relevant rules for the purposes of this appeal are the General Osteopathic Council (Professional Conduct Committee) (Procedure) Rules 2000 [“the Rules”]. The Rules are made by the Council in exercise of their powers under the Act. As their name suggests, the Rules govern the proceedings of the Council's Professional Conduct Committee [“the PCC”].
On 30 July 2020 the PCC found the Registrant guilty of unacceptable professional conduct [“UPC”] and administered an admonishment. UPC is defined by s. 20(2) of the Act as “conduct which falls short of the standard required of an osteopath.” The Registrant appealed to the High Court pursuant to s. 31 of the Act. Such an appeal is by way of re-hearing: see PD 52D at [19(2)].
On 15 December 2020 Collins Rice J allowed the appeal. She quashed the finding of UPC and the admonishment that had been imposed by the PCC. It is against that decision of Collins Rice J that the Council now appeals.
It is convenient to describe the legal framework created by the Act, the Rules and related authorities before turning to the allegations that the Registrant faced and describing the procedural route that has brought the case to this court.
The Legal Framework
Standards
The statutory Osteopathic Professional Standards Guidance provides, at D17 under the general heading of ‘professionalism’:
“1. The public's trust and confidence in the profession, and the reputation of the profession generally, can be undermined by an osteopath's professional or personal conduct. You should have regard to your professional standing, even when you are not acting as an osteopath.
2. Upholding the reputation of the profession may include:
2.1 Acting within the law at all times (criminal convictions may be evidence that an osteopath is unfit to practise)
…
2.3 Not behaving in an aggressive or violent way in your personal or professional life…”
Section 20 of the Act sets out the bare bones of the procedure where allegations are made against an osteopath. Section 20(1) provides:
“(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.”
This appeal directly concerns s. 20(1)(a) and (c), which may conveniently be referred to as “cases relating to conduct” and “cases relating to conviction”, reflecting their definition under the Rules.
Sections 20(3)-(9) of the Act outline the interim and investigative procedure to be followed where an allegation under s. 20(1) has been made against a registered osteopath. Section 20(10) provides that, in a case relating to conviction, the Investigating Committee may conclude that there is no case to answer if it considers that the criminal offence in question has no material relevance to the fitness of the osteopath concerned to practise osteopathy. Where the Investigating Committee concludes that there is a case to answer, it is required to notify the osteopath and the person making the allegation and to refer the allegation, as formulated by the Investigating Committee, to the relevant committee, which is the PCC both in cases relating to conduct and in cases relating to conviction: see s. 20(12).
Section 22 lays down the framework of what is to happen when an allegation has been referred to the PCC under s. 20:
“(1) Where an allegation has been referred to the Professional Conduct Committee under section 20 …, it shall be the duty of the Committee to consider the allegation.
(2) If, having considered it, the Committee is satisfied that the allegation is well founded it shall proceed as follows.
(3) If the allegation is of a kind mentioned in section 20(1)(c), the Committee may take no further action if it considers that the criminal offence in question has no material relevance to the fitness of the osteopath concerned to practise osteopathy.
(4) Otherwise, 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.”
It can therefore be seen that, unless in a case relating to conviction it considers that the criminal offence in question has no material relevance to the fitness of the osteopath concerned to practise osteopathy, once the PCC finds a referred allegation in either a case relating to conduct or a case relating to conviction to be well founded, it is required by s. 22(4) to take one of the steps there listed, of which an admonishment is the least severe.
Paragraph 21(1) of the Schedule to the Act provides that the General Council may make rules regulating the procedure of the statutory committees including provision as to rules of evidence to be observed in proceedings before any such committee. Subject to the power of the General Council to regulate their procedure, paragraph 21(2) gives to each statutory committee a residual power to regulate their own procedure. The Rules are therefore the primary source of the procedure to be adopted by the PCC; but there is a degree of flexibility allowed to the committee to be exercised where necessary or desirable. This flexibility is also recognised by Rule 34, which provides that any member of the Committee or the legal assessor may with the Chairman's permission question those presenting evidence or any witness called at any stage during the proceedings before the PCC.
In ICAEW v Hill [2013] EWCA Civ 555, [2014] 1 WLR 86 at [13], Longmore LJ (with whom Beatson and Underhill LJJ agreed) said, in the analogous context of the professional committees of the Institute of Chartered Accountants:
“… that when one is dealing with byelaws and regulations of professional disciplinary bodies one cannot expect every contingency to be foreseen and provided for. The right question to ask of any procedure adopted should therefore be not whether it is permitted but whether it is prohibited. … It must, of course, still be fair and that to my mind is the critical issue in this appeal.”
The Rules
The first outward-facing step that has to be taken by the PCC following a referral is that it is required to serve on the osteopath concerned a copy of the complaint that has been formulated by the Solicitor to the Council, a copy of the Rules, and “any document or statement on which the Committee will be asked to rely”: see Rule 7(a) The complaint therefore becomes the central document identifying what is alleged against the osteopath. The centrality of the complaint emerges clearly from the terms of Rule 8, which provides:
“Without prejudice to rule 7, after referral of a case and after reviewing the evidence assembled by the referring committee and any material submitted by the osteopath concerned, the Committee, in any case where it considers it appropriate to do so, shall—
(a) invite the osteopath to indicate whether he accepts the facts set out in the complaint and, if so, whether he accepts that those facts amount to either unacceptable professional conduct or professional incompetence or that he has been convicted of the criminal offence or offences referred to in the complaint as the case may be;
(b) indicate to him that in that event the Committee would be minded to conclude that the complaint should be dealt with by way of an admonishment without any need for a hearing unless the osteopath otherwise requests; and
(c) advise the osteopath that...
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