The FCA – Transformation to Assertive Supervision
Shaw v General Osteopathic Council  EWHC 2721 (Admin)
Judgment date: Tuesday 28 July 2015
Mr. Shaw (“S”), appealed to the High Court, against the decision of the Professional Conduct Committee of the General Osteopathic Council ("the panel") on 29 January 2015. The panel admonished S for unacceptable professional conduct, pursuant to section 20(2) under the Osteopaths Act 1993 ("the Act"), and found "conduct which falls short of the standard required of a registered osteopath”. The sanction of Admonishment is the least serious penalty that can be imposed upon registered osteopaths. Other sanctions available were conditions of practice, suspension and the most serious, removal from the register.
S‘s appeal was against the panel’s decision in relation to the finding of unacceptable professional conduct and that this decision was wrong, and therefore no sanction should have followed.
At the time of the appeal, S was a registered osteopath of at least 25 years' standing who was held in high regard in the profession, and until this matter arose had an unblemished record.
There were 5 occasions whereby S attended on patient A, in January and February 2013, at his practice in Kent. Patient A discontinued her treatment and she later complained against S. Patient A provided a witness statement dated 1 September 2013, and it was supported by a further shorter witness statement from her partner, dated 10 January 2014. S prepared a detailed written statement of 22 August 2014 denying the matters complained of. He produced written statements from other witnesses, including patients, who supported him and provided written testimonials.
S was charged with unacceptable professional conduct, and it was alleged that during the course of the five visits of patient A at his practice in January and February 2013, he had conducted himself in the following manner:
The above charges were among the allegations made against S, and the above charges were subsequently found proved. Other matters were charged, but were found not to be proved by the panel, and are not repeated here.
Both parties were represented, and neither disagreed with the directions given by the legal assessor at the time.
Directions by legal assessor
The legal assessor correctly directed the panel in relation to the Act, the Standards and "unacceptable professional conduct", and also directed the panel to Spencer v General Osteopathic Council  EWHC 3147 (Admin) and that unacceptable professional conduct is:
" ..... not a matter of proof but a matter for your judgment and your judgment alone..... It is your matter of judgment as to whether the facts you have found proved here reach that threshold."
He went on to note that in Spencer, Mr. Justice Irwin:
" .....did refer to some degree of moral blameworthiness and there was an implication of that and a degree of opprobrium likely to be conveyed to the ordinary intelligent citizen."
See Paragraph 9 of the current judgment.
The panel found that the charges proved did amount to “misconduct” or unacceptable professional conduct:
"Bearing in mind all the factors, the Committee was satisfied that the judgment as to whether the threshold was reached in this case was a finely balanced one. Nonetheless, considering the two areas of failure cumulatively and the outcome for the patient, it was satisfied that the failings reach a sufficient level of seriousness, blameworthiness and poor conduct such that they do amount to unacceptable unprofessional conduct."
See paragraph 14 of the judgment.
Unacceptable professional conduct
S appealed on the basis that the panel were wrong to find unacceptable professional conduct, and that his conduct did not support this finding by the panel. It was submitted that the panel had drawn the line in the wrong place. They applied the law correctly but made the wrong conclusion and unacceptable professional conduct should not have been found, and therefore any sanction which was imposed should also fall away.
The GOsC’s position was that the panel had used their professional judgment correctly, and that the original decision should not be overridden. The original panel had the benefit of hearing and judging the evidence as a specialist panel and the panel members were best placed to make the final judgement in relation to unacceptable professional conduct.
It was submitted by counsel for S, that his conduct had not met the threshold of unacceptable professional conduct. The actions of S may have been insensitive, they may have breached some of the standards mentioned and may be poor communication but not such as to attract the moral opprobrium that is necessary to lead to a finding of unacceptable professional conduct. He submitted that the actions of S should be seen as akin to simple negligence, not gross negligence; and that only gross negligence could amount to unacceptable professional conduct while simple negligence does not.
At paragraph 14, he referred to the decision of the Privy Council in Preiss v General Dental Council  1 WLR 1926, in which Lord Cooke of Thorndon said, noting that gross professional negligence was capable of amounting to unacceptable professional conduct:
"Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium which inevitably attaches to the disciplinary offence."
S argued that in order to make a finding of unacceptable professional conduct that conduct had to be such as to attract moral opprobrium. Without such a finding, it was submitted that the threshold of seriousness required had not been passed.
Counsel for S placed reliance on Nandi v General Medical Council  EWHC 2317 (Admin). Mr. Justice Collins at paragraphs 31-33 was referred to:
"What amounts to professional misconduct has been considered by the Privy Council in a number of cases. I suppose perhaps the most recent observation is that of Lord Clyde in [Roylance] ..... Where he described it as 'a falling short by omission or commission of the standards of conduct expected among medical practitioners, and such falling short must be serious'. The adjective 'serious' must be given its proper weight, and in other contexts there has been reference to conduct which would be regarded as deplorable by fellow practitioners. It is of course possible for negligent conduct to amount to serious professional misconduct, but the negligence must be to a high degree.
Further, it was submitted that Spencer also confirms that moral opprobrium is required and that in this case the committee was wrong to find that there was a degree of moral blameworthiness where the essence of their finding was that there was merely poor communication, and that S did not intend to offend Patient A.
Moral opprobrium: a necessary ingredient?
In his judgment, Kerr J confirmed the approach by Irwin J in Spencer, and concluded that:
“It seems to me that the notion of moral blameworthiness is not an unnecessary gloss on the statutory language but, rather, flows directly from the meaning of the word "conduct" which is the word in the statute, dictionary definitions of which were considered by Irwin J in Spencer.”
Kerr J, goes on to distinguish the dicta by Collins J in Nandi, and that this was made for the purpose of contrasting deliberate wrongdoing with conduct that is merely negligent:
”I appreciate that the notion of moral blameworthiness or (which I take to be the same thing) moral is not without its difficulties. They are these, among others. First, there are statements in the authorities on medical cases to the effect that "moral turpitude" or "morally blameworthy" behaviour is not required to establish misconduct. I refer to what was said by Lord Cooke in Preiss and by Collins J in Nandi. It must be recognised that these dicta do, on the face of it, run counter to the thrust of Irwin J’s reasoning in Spencer. But those dicta were made for the purpose of contrasting deliberate wrongdoing with conduct that is merely negligent.”
Kerr J goes on to state that “In the present context, however, unacceptable professional conduct is a separate charge from "professional incompetence”.
See paragraphs 43, 44 and 45.
At paragraph 47 Kerr J confirms that misconduct or unacceptable professional conduct does contain elements of moral blame worthiness and would convey moral opprobrium to the general public.
“It seems to me that Irwin J was, with respect, correct to observe that a charge of unacceptable professional conduct does entail conduct that, to some degree, is morally blameworthy and would convey a degree of opprobrium to the ordinary intelligent citizen. This is because under section 20(1)(a) it is conduct, i.e. human behaviour, which is being measured. It has to be unacceptable, i.e. it has to fall short of the standard required of a registered osteopath.”
Kerr J confirmed that the original panel’s decision was correct to determine that S’s conduct fell short of the standard required by a registered osteopath.
Kerr J, relied upon the principles set out by Auld LJ in Meadow v General Medical Council  2 QB 462 at paragraph 197:
Although the panel acknowledged that their decision and S’s conduct was a “finely balanced” one, nevertheless the panel felt that S’s conduct had been nudged over the line and did constitute unacceptable professional conduct. The appeal was therefore dismissed.
An interesting judgment which confirms the approach in Meadows and the deference to be paid towards a panel’s decision making, particularly when it involves their skilled and particular professional judgment. Further, the approach in Spencer was confirmed, and that misconduct or unacceptable professional conduct does involve an element of moral opprobrium. We will have to watch and see how this case impacts on GOsC disciplinary decisions in the future.
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