Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin)

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A finding of “unacceptable professional conduct” did not automatically follow from a breach of a professional code of practise, in this case involving an Osteopath who had admitted a failure to complete adequate records.

In the High Court, Mr Justice Irwin heard an appeal by Dr Spencer, a registered Osteopath, of a decision made by the General Osteopathic Council (“the Council”) of a finding of “unacceptable professional conduct.”

Before the Professional Conduct Committee (“PCC”) of the Council, Dr Spencer had admitted to failing to adequately record the case history relating to a consultation with a patient on 11 June 2009. These admissions formed the basis of the PCC making a finding of “unacceptable professional conduct,” allowing a sanction of an admonishment to be imposed. It had been accepted that, other than the failure to adequately record the consultation, an appropriate level of treatment, supported by proper planning and assessment, had been delivered by Dr Spencer to the patient in question.

Dr Spencer appealed the imposition of the sanction on the basis that the facts admitted did not amount to “unacceptable professional conduct” within the meaning of ss.20(1)(a) and 22 of the Osteopaths Act 1993 (“the Act”). Such a finding is necessary before a sanction may be imposed upon the Osteopath concerned.

In considering his judgment, Irwin J firstly considered the content of s.20(2) of the Act, which stated that “unacceptable professional conduct” consisted of, “conduct which falls far short of the standard required of a registered Osteopath.” Noting the lack of clarity in the statute, Irwin J gained assistance from the traditional dictionary definition of conduct as “behaviour or the manner of conducting oneself.” When married with the word “unacceptable,” Irwin J decided that the phrase “unacceptable professional conduct” involved the implication of “moral blameworthiness, [with] a degree of opprobrium…likely to be conveyed to the ordinary intelligent citizen.”

Irwin J then stated that a breach of the Code of Practise, whilst a useful starting point, did not raise a presumption that allowed the facts giving rise to the breach to be described as “unacceptable professional conduct.”

Irwin J did not accept, on the basis of what he felt was the natural meaning of the statutory language in the Act, the argument advanced on behalf of the Council that a lower threshold was required to establish “unacceptable professional conduct, ” as not even an admonishment could be imposed upon a professional unless such a finding had been made.

It was agreed in Dr Spencer’s case that the method to be followed in considering “unacceptable professional conduct” was that prescribed in considering the analogous issue of “serious professional misconduct:” in Calhaem v General Medical Council [2008] LS Law Med 96, the then Jackson J stated the following principles:

(1) Mere negligence does not constitute 'misconduct'…Nevertheless, and depending on the circumstances, negligent acts or omissions which are particularly serious may amount to 'misconduct',