A word of warning to Panel members on their questioning of Registrants

9 August 2019

In the case of Beard v General Osteopathic Council [2019] EWHC 1561 (Admin) the High Court has set aside a 12 month conditions of practice order based on the issue of fairness of hearings and questioning by the Panel. In a strongly worded conclusion, it also indicated that the General Osteopathic Council (the Council) should 'hesitate long and consider very carefully whether it is appropriate' to refer the same allegations against Ms Beard (Ms B) to a differently constituted professional conduct committee.
 

The Background

Ms B, an osteopath consulted with Patient A twice in July 2016 where she developed a working diagnosis, made treatment recommendations and noted an improvement in the second appointment. During the second appointment she recommended that Patient A may benefit from ultrasound and discussed that treatment option along with other electrotherapy options. 

Patient A disapproved of her recommendation for ultrasound and in an email at midnight on the day of the second appointment sought to engage her in a lengthy academic discussion about the usefulness and appropriateness of ultrasound therapy. The Judge on appeal considered the email to be ‘inappropriately long, opinionated, personal, over-familiar, with a false bonhomie covering an underlying aggression’. 

Ms B went on holiday later that day and did not respond to Patient A’s email at this time. At the end of July 2016, she then received a formal complaint letter about her conduct which sought a full refund, unless Ms B provided Patient A with “in writing, with appropriate, independent, peer-reviewed technical evidence as to how your use of Ultrasound was appropriate to my symptoms and…a full explanation as to why you failed repeatedly to undertake a proper assessment of my foot…on 21 July 2016.” He gave her a deadline of 13 August to reply, however, as Ms B was on holiday she did not receive it until 9 August and sought an extension to reply until 2 September. 

In the meantime, on 9 August she received a further email from Patient A which alleged she had been ‘ranting’, during the consultations. He also said he would proceed with his formal complaint as she had missed her chance to respond.

Ms B nevertheless responded, denying his complaints, stating that her treatment and conduct was appropriate and noting that elements of her treatment plan had been challenged in an aggressive manner. 

Patient A’s complaint was made to the Council on 7 September 2016 and the matter went before the Committee. 

Fitness to Practise Proceedings

It was alleged that Ms B did not conduct an adequate assessment, provide a diagnosis, discuss or explain the treatment, obtain valid consent, and had used excessive force when treating Patient A. Further, that she had not explained why ultrasound treatment was appropriate and had communicated inappropriately and unprofessionally with Patient A.

During the proceedings, Ms B was questioned by her lawyer and cross-examined by the lawyer for the Council. This part of her evidence was largely unremarkable in that it identified two separate stories of what had occurred during the consultations from Ms B’s point of view and that of Patient A.

The Committee had a short break before returning and stating they had 9 further questions for Ms B. By the end of their questions, they, and in particular, the lay member, who also happened to be a lawyer, had asked more than 200 questions. The lay member’s questions caused significant distress and resulted in Ms B becoming increasingly emotional and requiring a break. 

After a brief adjournment, the Committee returned and Ms B was subjected to a further 34 minutes of questioning, in total being questioned by the Committee for over two hours.

The allegations were found proven and the matter adjourned for consideration of whether the conduct amounted to unacceptable professional conduct.

Recusal application and UPC determinations

Recusal applications by Ms B’s Counsel ultimately failed and the matter proceeded to sanction stage culminating in a 12 month conditions of practice order.

Appeal

Ms B successfully appealed the decision, arguing that the fairness of the hearing was compromised mainly by the Committee’s questioning of her.  Referring to many different authorities (including Jones v. National Coal Board [1957] 2 QB 55; Galea v Galea (1990) 19 NSWLR 263) on the issue of fairness of hearings and questioning by the adjudicators, the Honourable Mr Justice Kerr considered that the Committee’s decision was unjust due to the serious procedural or other irregularity in the proceedings which arose during Committee questioning. He considered that while the Chair had eventually intervened in the questioning, the proceedings were already irretrievably compromised, and he set aside the decision along with the 12 month conditions of practice order.

Due to the remarkable nature of the case, His Honour also made some pointed comments on whether the Council should refer the same allegations to a differently constituted committee. 

Commentary

This case serves as a reminder to Committee members about their role in fitness to practise proceedings. It is not for Committee members to seek to ‘prove’ the case by way of their questioning. They should listen to the evidence, ask questions to assist their understanding of the issues, and come to a reasoned decision based on the evidence.

In other words, they should leave cross-examination for the case presenter.

About the author

Sophie Bolzonello is a Associate (Australian Qualified)  in the Regulatory department and specialises in advising regulated professionals on compliance, in investigations and in respect of enforcement action. She also advises regulators on policy, governance, prosecutions and litigation.

Further information

For further information on the issues raised in this blog post, please contact a member of our Regulatory team.

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