The meaning of ‘unacceptable’ professional misconduct

31 March 2014

Dr Peter Spencer and General Osteopathic Council [2012] EWHC 3147 (Admin)

Unacceptable professional conduct – Definition – Osteopaths

The appellant, Dr Peter Spencer, successfully appealed a finding of unacceptable professional conduct made by the Professional Conduct Committee (PCC) of the respondent Council, the General Osteopathic Council. 

At first instance, Dr Spencer had admitted breaching the Osteopathic Code of Practice (the Code) in his failure to take adequate notes of a consultation with a patient on two separate occasions.  However, he denied that these breaches constituted unacceptable professional conduct.  Section 19 (4) of the Osteopath’s Act 1993 (the 1993 Act) confirms that a failure to comply with the Code of Practice will not of itself constitute unacceptable professional conduct.  Unacceptable professional conduct is defined in the 1993 Act a section 20 (2) as “conduct which falls short of the standard required of a registered osteopath”. 

In appealing, those acting for Dr Spencer successfully persuaded Mr Justice Irwin that in considering the proper meaning of “unacceptable professional conduct”,  it was appropriate to draw analogies with similar terms found within the legislation governing the medical and dental professions and in turn, judicial authority on the same.  This case was the first to consider the similarities or otherwise of the respective terms and whether they should be read alike.

In his judgment, Mr Justice Irwin considered the statue governing the regulation of medical practitioners, the Medical Act 1983.  This identifies “serious professional misconduct” as a ground capable of giving rise to a finding of impaired fitness to practise.   The term was amended in 2002 by the simpler legislative formulation of “misconduct” with confirmation from the Court of Appeal in Meadow v General Medical Council [2007] 2QB 462 that the change in terminology did not “signify a lower threshold of disciplinary intervention”.  The concept of “seriousness” or “incompetence or negligence to a high degree” (supra, Meadow) remained as read in relation to misconduct.

Mr Justice Irwin went on to review further principles established through case law on serious professional misconduct/misconduct, noting the possible contra-indicators for a finding of serious professional misconduct where a concern arose from an isolated incident or in relation to just one patient, as opposed to evidence of an endemic problem over an extended period of time (Silver v General Medical Council [2003] Lloyds Rep Med 333). In addition, that “mere negligence” would not constitute misconduct unless particularly serious; that a single negligent act or omission was less likely to make the threshold for a finding of unacceptable professional conduct unless particularly grave, and that in relation to deficient professional performance, the standard should be shown to be unacceptably low by reference to a fair sample (Jackson J (as was) in Calhaem v General Medical Council [2007] EWHC 2606 (Admin)).

Considering these authorities, Mr Justice Irwin found that Dr Spencer’s admitted instances of poor record keeping could not be said to constitute unacceptable professional misconduct.  No criticism had attached to Dr Spencer in respect of his assessment or indeed treatment of the patient and the facts found arose from an isolated (two) incidents of notes in relation to just one patient. Mr Justice Irwin offered his opinion that regardless which term was used, “misconduct” in relation to doctors or “unacceptable professional conduct” for osteopaths, the language implied some degree of moral blameworthiness such that “the ordinary intelligent citizen” would consider it so.  The instant facts were not so egregious as to merit the opprobrium that inevitably flowed from a finding on unacceptable professional conduct.

In resisting the appeal, the Council argued that comparisons with the case law for medical practitioners were not pertinent by reason of the differences in the respective regulatory regimes.  By way of example, the General Medical Council (GMC) considers impairment separately from misconduct whereas the osteopath’s PCC effectively considers both together as unacceptable professional conduct.  For the GMC, where misconduct is found but impairment is not, the GMC Panel nonetheless has the option of “warning” the practitioner.  An analogous power available to the osteopath PCC is an “admonishment”, the least onerous sanction available to a PCC.  However, this sanction is only available where a finding of misconduct has been made. There is no option for formally recording the PCC’s disapproval of any acts or omissions that give rise to a breach of the Code without a finding of unacceptable professional conduct.  Conversely there is no discretion for the PCC to take no further action where a finding of unacceptable professional conduct has been made.  In that respect, the decision on unacceptable professional conduct for the osteopath’s PCC is an “all or nothing” decision from which a sanction automatically arises.

In the instant case it was argued on behalf of the Council that the ability to mark the regulatory body’s concern about a practitioner’s practice by admonishment, without in fact restricting his or her practice, was an important regulatory tool.  It was suggested that the threshold for a finding of unacceptable professional conduct must therefore be lower, in order to give the osteopaths’ PCC use of this “tool”.  The 1993 Act was drafted by Parliament to be distinct from existing statutes governing the Medical and Dental professions.  Therefore respect should be afforded to the distinction, avoiding conflating “misconduct” and “unacceptable professional conduct”.

Mr Justice Irwin rejected the argument on the basis that Parliament could have given formal powers of warning or admonition to the osteopath’s PCC had they so wished to, pointing out that in any case, there was nothing to stop a PCC giving “advice” to a practitioner where there has been a breach of standards but not a finding of unacceptable professional conduct. One might add to that the effect of fitness to practise proceedings themselves on the registered practitioner.  From referral through investigation to a final hearing, the very existence and process of proceedings surely serves the purpose of chastening any practitioner where he has erred from expected standards.

Recognising the desirability for there to be a continuity and conformity in respect of the various health and social care regulatory regimes, the Law Commission, in its long awaited draft Bill on health and social care reform, is expected to call for the creation a single act of parliament for all the health and social care regulators. The new act is likely to create a single unified fitness to practise regime with a common approach to disciplinary determinations, and if it does, challenges such as this may become a thing of the past.

This article first appeared in the Journal of Professional Negligence in March 2014.

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