Gage v General Chiropractic Council
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE JACKSON |
| Judgment Date | 01 November 2004 |
| Neutral Citation | [2004] EWHC 2762 (Admin) |
| Docket Number | 4041/2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 November 2004 |
[2004] EWHC 2762 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London, WC2
Mr Justice Jackson
4041/2004
MR J BURTON (instructed by Bankside Law Ltd., London, SE1) appeared on behalf of the Appellant.
MISS A. FOSTER Q.C. (instructed by Messrs Penningtons, London, EC4) appeared on behalf of the Respondent.
This judgment is in 12 parts, namely part 1, introduction, part 2 the facts, part 3 the present proceedings, part 4 the effect of failing to disclose Dr. Brown's report, part 5 the allegation of bias, part 6 the standard of proof, part 7 whether the CAP Code was breached, part 8 the honesty issue, part 9 whether there was a breach of paragraph 8.12 of the Chiropractors Code, part 10 the 7th and 8th grounds of appeal, part 11 the effect of the order made by the panel, part 12 conclusion.
Part 1: Introduction
This is an appeal by a chiropractor against the decision of a disciplinary tribunal that he is guilty of unacceptable conduct and that he should be suspended for a period of time. It is first necessary to set out the statutory background and other relevant provisions. The practice of chiropractic is regulated by the Chiropractors Act 1994 ("the 1994 Act"). Section 1 of the 1994 Act provides:
"(1) There shall be a body corporate to be known as the General Chiropractic Council (referred to in this Act as 'the General Council').
(2) It shall be the duty of the General Council to develop, promote and regulate the profession of chiropractic."
Section 19 provides:
"(1) The General Council shall prepare and from time to time publish a Code of Practice -
(a) laying down standards of conduct and practice expected of registered chiropractors; and
(b) giving advice in relation to the practice of chiropractic."
….
(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."
Section 20 of the 1994 Act provides:
"(1) This section applies where any allegation is made against a registered chiropractor to the effect that -
(a) he has been guilty of conduct which falls short of the standard required of a registered chiropractor;
(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 a chiropractor is seriously impaired because of his physical or mental condition.
(2) In this Act conduct which falls short of the standard required of a registered chiropractor is referred to as 'unacceptable professional conduct'.
(3) Where an allegation is made to the General Council, or to any of its committees (other than the Investigating Committee), it shall be the duty of the Council or committee to refer the allegation to the Investigating Committee.
(4) The General Council may make rules requiring any allegation which is made or referred to the Investigating Committee to be referred for preliminary consideration to a person appointed by the Council in accordance with the rules.
(9) Where the Investigating Committee is required to investigate any allegation, it shall -
(a) notify the registered chiropractor concerned of the allegation and invite him to give it his observations before the end of the period of 28 days beginning with the day on which notice of the allegation is sent to him;
(b) take such steps as are reasonably practicable to obtain as much information as possible about the case; and
(c) consider, in the light of the information which it has been able to obtain and observations duly made to it by the registered chiropractor concerned, whether in its opinion there is a case to answer.
(10) The General Council shall by rules make provision as to the procedure to be followed by the Investigating Committee in any investigation carried out by it under this section.
(12) Where the Investigating Committee concludes that there is a case to answer, it shall -
(a) notify both the chiropractor concerned and the person making the allegation of its conclusion;
(b) refer the allegation, as formulated by the Investigating Committee -
(i) to the Health Committee, in the case of an allegation of a kind mentioned in subsection (1(d); or
(ii) to the Professional Conduct Committee, in the case of an allegation of any other kind."
Section 22 provides:
"(1) Where an allegation has been referred to the Professional Conduct Committee under section 20 or by virtue of any rule made under section 26(2(a), 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 chiropractor concerned to practise chiropractic.
(4) Otherwise, the Committee shall take one of the following steps -
(a) admonish the chiropractor;
(b) make an order imposing conditions with which he must comply while practising as a chiropractor (a 'conditions of practice order');
(c) order the Registrar to suspend the chiropractor's registration for such period as may be specified in the order (a 'suspension order'); or
(d) order the Registrar to remove the chiropractor's name from the register.
(9) At any time while a suspension order is in force with respect to a chiropractor under this section or by virtue of a recommendation under section 31(8(c), the Committee may (whether or not of its own motion) -
(a) extend, or further extend, the period of suspension; and
(b) make a conditions of practice order with which the chiropractor must comply if he resumes the practice of chiropractic after the end of his period of suspension.
(10) The period specified in a conditions of practice order or in a suspension order under this section, and any extension of a specified period under subsection ( 7) or (9), shall not in each case exceed three years."
Section 31 of the 1994 Act has been amended by section 34(6) of the National Health Service Reform and Health Care Professions Act 2002. Unfortunately, the court bundle does not include any copy of section 31 in its amended form. However, I have done my own scissors and paste exercise. I would ask counsel to check the wording that I read out. Section 31 of the 1994 Act, as amended by section 34 of the 2002 Act, provides as follows:
"(1) Any person with respect to whom -
(a) a decision of the Professional Conduct Committee is made under section 8 or 22, or
(b) a decision is made by an appeal tribunal hearing an appeal under section 30
may, before the end of the period of 28 days beginning with the date on which notification of the decision is served on him, appeal against it to the relevant court.
(1A) In subsection (1), 'the relevant court'
(c) in the case of any other person, means the High Court of Justice in England and Wales.
(2) No such decision shall have effect -
(a) before the expiry of the period within which an appeal against the decision may be made; or
(b) where an appeal against the decision has been duly made, before the appeal is withdrawn or otherwise disposed of.
(6) On an appeal under this section, the General Council shall be the respondent.
(8) On an appeal under this section, the court may -
(a) dismiss the appeal.
(b) allow the appeal and quash the decision appealed against.
(c) substitute for the decision appealed against any other decision which could have been made by the Professional Conduct Committee or (as the case may be) Health Committee, or
(d) remit the case to the Committee or appeal tribunal concerned to dispose of the case in accordance with the directions of the court.
and make such order as to costs (or, in Scotland, expenses) as it thinks fit."
It should be noted that in the amended version of section 31 of the 1994 Act there are no subsections numbered (3), (4), ( 5) or (7).
The General Chiropractic Council has made rules in the exercise of its powers under section 20(10) of the 1994 Act. Those rules are called The General Chiropractic Council (Investigating Committee) Rules Order of Council 2000. I shall refer to these rules as "the investigation rules". The Investigation Rules include the following:
"3(1) Any notification and invitation under section 20(9)(a) of the Act shall be made by notice in writing given on behalf of the Committee by the Registrar, and a copy shall be given to the Chairman.
4(1) Where an allegation to be investigated by the Committee is of a kind mentioned in section 20(1(a) or (b) of the Act, the Committee shall, before the beginning of the period of three weeks ending with the day on which notice is served under Rule 3(1), invite the person making the allegation, and any other person appearing to it to have information relevant to the question whether there is a case to answer, to make a statement of evidence by statutory declaration or affidavit as to the matters giving rise to the allegation; and the Committee may invite such evidence in any other case.
(2) A copy of any statement of evidence provided to the Committee under paragraph (1) shall be sent to the chiropractor concerned with the notice given under Rule 3(1), or as soon as practicable thereafter, and (if not sent with that notice) shall be accompanied by an invitation to submit observations within such...
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