Regulatory Law Update –Shaw v General Osteopathic Council  EWHC 2721 (Admin)
The appeal dealt with the issue of whether the Professional Conduct Committee had wrongly found that the registrant's conduct (unintentionally being rude to a patient and failing to observe her dignity) amounted to unacceptable professional conduct (UPC), the statutory test in GOsC cases.
All parties agreed that the Committee had been correctly directed, and that there was no allegation of procedural unfairness. The appellant's only criticism was that the Committee's decision was on the wrong side of the line.
The appellant, Mr Shaw, appealed against a decision of the Professional Conduct Committee of the General Osteopathic Council taken on 29 January 2015 to admonish him for unacceptable professional conduct.
Mr Shaw is a registered osteopath of 25 years' experience. Prior to this matter he had had an unblemished history.
Mr Shaw attended on Patient A on five occasions in January and February 2013. Patient A discontinued her treatment and made a complaint about Mr Shaw's conduct, alleging that he had observed her undressing and had used rude and abrupt language towards her.
Mr Shaw denied the allegations.
The Conduct Committee found that Mr Shaw failed to respect Patient A's dignity and modesty by observing her undress and further that by the manner in which he had spoken to her had failed to communicate effectively with her, and that those findings amounted to breaches of five of the osteopathic Practice standards.
It was held that although the decision was finely balanced, Mr Shaw's conduct amounted to unacceptable professional conduct and that the appropriate sanction was one of admonishment.
Mr Shaw submitted that his conduct might have been insensitive and breached some of the standards, but that it was not unacceptable professional conduct and that the Committee had drawn the line in the wrong place. The Council submitted that the decision was a matter of judgement for the Committee, who should be accorded deference not least because it had seen the witnesses.
Kerr J determined that he should approach the concept of UPC in the same way as Irwin J in the case of Spencer v General Osteopathic Council  EWHC 3147 (Admin). He said that the concept of moral blameworthiness is not an unnecessary gloss on the statutory language, but rather, flows directly from the meaning of the word "conduct" (para 43).
He said that dicta in Nandi v General Medical Council  EWHC 2317 (Admin) and Preiss v General Dental Council  UKPC 36,  1 W.L.R. 1926 appeared to run counter to the thrust of Irwin J's reasoning in Spencer, but that those dicta were made for the purpose of contrasting deliberate wrongdoing with conduct that is merely negligent (para 44).
Kerr J noted the five propositions in Calhaem v General Medical Council  EWHC 2606 (Admin) and said that whatever the overlap between UPC and professional incompetence, the charge in this case had been UPC and therefore there had to be an element of moral blameworthiness (para 46/47).
Having determined the approach, Kerr J decided it was appropriate to place considerable weight on the three factors mentioned by Auld J in Meadow v General Medical Council  EWCA Civ 1390,  Q.B. 462
• The fact the tribunal is a specialist tribunal and therefore its understanding of standards required is worthy of respect (para 49)
• The fact the tribunal had the benefit of seeing and hearing witnesses (para 50)
• The overall judgment to be made is akin to a jury question, and there may reasonably be different answers (para 51)
He decided that the panel's finding was not wrong. In doing so, he said that:
• In his view, the failings would attract a degree – and it need not be a high degree – of moral opprobrium (para 53)
• He was able to take into account the fact that the patient stopped receiving the benefit of treatment as a result of the failings – this was a factor relevant to culpability and not only to harm (para 53)
• One should not take too far the authorities that have imported the previous statutory requirement for "serious" misconduct into new schemes that do not include the word – one must take account of the consequences of UPC, one of which may be (as here) an admonishment – the definition of UPC should not be elevated so as to exclude a finding that an admonishment would be the appropriate response – "It cannot logically be right that the conduct, to be unacceptable professional conduct, must be of sufficient gravity that an admonishment would be too lenient" (para 54)