England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE STANLEY BURNTON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th April 2008

Lord Justice Sedley:

1. This is a second appeal brought against the judgment of Stanley Burnton J, as he then was, by permission of Sir Henry Brooke, who considered that it raised an important issue of principle or of practice; the admissibility, in relation to the proper sanction for professional misconduct, of evidential matter going not to the proven charges but to the generality of the practitioner's work. In the event there has been no contest on the relevant principles of law. The issue has been how they fall to be applied in the present case and in cases like it.
2. The appellant, Mr Moody, was a registered osteopath of many years' experience. His profession became regulated by the Osteopaths Act 1993. This by section 3 permitted practitioners to register if they were of good character, in good health and either formally qualified or sufficiently experienced. Once registered, by section 20 a practitioner can thereafter be struck off but only if in one form or another he or she is found guilty of unacceptable professional conduct. Such conduct includes by section 20(1) conduct falling short of a proper professional standard or professional incompetence. The tribunal charged by statute with adjudicating on any charge of unacceptable professional conduct is the Professional Conduct Committee. It is a mixed lay and professional body, and it is right to say at once that no criticism is, or could be, made of the way in which it conducted the hearing of the appellant's case or of the clarity of the reasons it gave in writing for its conclusions.
3. A complaint was made against the appellant by a single patient, identified as SW, about the manner in which the appellant had treated him. After screening the complaint was proceeded with and five charges were laid. They were, taking first the ones which were found proved: (a) a charge that in relation to one appointment with SW the appellant failed to adequately identify and evaluate the patient's needs in ways which were particularised; (b) that in relation to two further appointments with the same patient the appellant failed to adequately identify or evaluate the immediate needs of the patient, in ways which were further particularised but which included a failure properly to evaluate post-treatment change to his condition or to justify the decision to continue with the course of treatment by analysis of clinical findings; and (c) that in relation to the third of the three appointments the appellant had advised the patient not to attend for an MRI scan scheduled for later that week on the basis that it was too risky and unnecessary, advice which was inappropriate. Those three charges were in the event found proved. Two further charges which were not found proved were that the appellant had treated the patient inappropriately in that the treatment had not been justified by the case history and/or presenting symptoms and/or examination outcomes, and a charge that on all three occasions the appellant had failed to communicate effectively with the patient in ways which were particularised.
4. The PCC's findings and conclusions are annexed to the judgment of Stanley Burnton J [2007] EWHC 2465 Admin and so need not be reproduced here. They resulted in an order that the appellant's name be removed from the Register, the most serious action open to the committee under section 22 and an effective end to Mr Moody's career. In doing this the PCC took into account material which was before them, principally from the appellant himself, suggesting that the way he had dealt with SW was not aberrant but was the way he always, and appropriately, dealt with patients. As will be evident from the finding that the three charges I have mentioned were proved, this defence was not accepted.
5. The appeal to the High Court against the findings of professional misconduct failed and is not renewed. What Ms Barbara Hewson on the appellant's behalf has submitted in the course of a succinct and well-reasoned submission is this: (a) It was not open in law to the PCC to take into account, in relation to sanction, any material going outside charges which had been both laid and proved. (b) If it was open to them to do so, the material did not justify the draconic view which the PCC formed about it. (c) In any event the penalty of removal from the register was disproportionate and irrational: continued practice under supervision would have been quite adequate, Ms Hewson submits, to protect the public.
6. The nature of the case that was established against the appellant was well summarised by the judge at paragraph 25 of his judgment as follows:

"The PCC concluded that its findings established professional incompetence on the part of the Appellant. The Appellant conceded that he did not make full inquiry into his patients' medical history; he treated all his patients essentially in the same manner and irrespective of the duration and intensity of their pain; that he has a ready-made system for the treatment of everyone's body but unless the patient's pain is such that he cannot be manipulated the Appellant would apply his system to him regardless of the results; and that he did not modify his treatment to take account of SW's medical history. This is in contrast with Mr Piper's [the expert witness] opinion:

'There are certainly observations and postural problems that present in practice which could be helped by that type of approach [i.e. the Appellant's], but patients are all individuals and they all present with a different pathology, different presenting conditions and backgrounds. As a result, it is important for an osteopath to be flexible. You can then gather information about the individual patient which is relevant to their case and formulate a diagnosis based on the information received rather than approaching them with a preconceived idea of what you deem to be wrong'".

The judge below considered that the PCC's conclusion had been justified on the evidence before them.

7. It is to be noted in particular that at a very early stage, when invited to respond to SW's complaint, the appellant had set out his position in a full and careful reply which began its final section, headed "Discussion of treatment", with the words:

"This is the conversation I hold with every new patient with a low back pain…"

8. This determined the line taken at the hearing by Ms Hewson, who was representing Mr Moody at the hearing, in cross-examining Mr Piper, the single expert witness. We have been taken helpfully through the material parts of the transcript, but what mattered was what the PCC eventually made of it. This they spelt out as follows:

"We concluded based upon the evidence that we have heard, in particular from Mr Moody, that the way he conducts his practice relies heavily upon a framework of assessing spinal curves and the observable abnormalities of them. He does not undertake a sufficient comprehensive physical assessment, which may mean that he could miss underlying pathology; we further concluded that by reason of this, he poses a significant risk to patient safety.

We would wish to emphasise that there is an important distinction between the treatment of, and the management of, a patient. The management of Mr W's condition was inappropriate in that Mr Moody was not in a position to rule out contradictions to treatment.

We would wish to make clear that osteopaths are not simply concerned with the treatment of musculoskeletal problems but are primary health care providers and are therefore in the front line in terms of the evaluation and diagnosis of any patient's health status. Mr Moody's approach to osteopathy does not take account of this. We consider that this is a fundamental flaw in his approach to practice. Further, he appears to have no insight into the deficiencies in his knowledge base and in his approach to practice."

9. In my judgment there is a distinction to be drawn between the terms of an accusation to which, on first principles, the inculpating evidence has to be restricted and the determination of appropriate sanctions where the accusation is held to have been made out. When the latter point is reached it remains axiomatic that the individual may be penalised only for the offence which has been found proved. But this alone cannot determine the degree of seriousness of the offence. Of many possible scenarios, the present case illustrates one. The misconduct of which the practitioner has been found guilty might have been a single lapse with a single patient which was unlikely to be repeated; or it might have been part of chronic bad practice. The appropriate sanction would have to differ depending on which it was. Arguably, although it does not arise here, it will be necessary for the adjudicative body to decide, if need be on further evidence, which of these things it is. The reason why it does not arise here is that it was part of the appellant's own case that the way he had treated SW was no different from the way he treated the generality of his patients. That was a legitimate defence provided it could be shown (as the appellant had, however, failed to show) that the practice was professionally acceptable. But if the defence fails, as the appellant's did, the tribunal is left with his uncontroverted assertion that what had gone wrong was not an aberration but an example of his day-to-day practice. A body responsible for protecting the public cannot possibly ignore such evidence in deciding what sanctions to impose, any more than it could ignore evidence that a breach of professional standards had been a momentary lapse. To take it into account, moreover, is in no sense to ambush the practitioner; it is to discharge the tribunal's duty on the practitioner's own evidence, so long of course as the evidence is accepted, as here it plainly was.
10. In my judgment therefore the principle of fair notice of the charges was properly observed in this case. Accepting even so that this does not permit either party to ambush the other in relation to sanction, I consider that nothing taken into account by the PCC on sanction can have taken the appellant by surprise. He himself had raised the issue, and substantial parts of the evidence, both his own and that elicited in cross-examination from the expert witness, were directed to it.
11. I turn, therefore, lastly to the sanction which was in the event imposed. The PCC reasoned out in detail why a lesser sanction than removal from the Register was not in their judgment appropriate. Their reasons deserve citation:

"We first considered whether an admonishment would be the appropriate sanction and concluded that this matter is too serious for such a disposal.

We went on to consider whether a conditions of practice order would be the appropriate sanction, but in particular whether a test of competence could be devised which would address the deficiencies in Mr Moody's practice. We concluded that the deficiencies in his knowledge base are so extensive that no conditions of practice order could adequately protect the public.

The Committee went on to consider whether the suspension of Mr Moody's registration would achieve the necessary improvement in his practice and would allow him to treat patients safely. We concluded that a period of suspension, whilst it would protect the public in the short term, would not achieve this end.

Consequently we concluded that the only way that we could be sure that the public would be properly protected was by ordering the Registrar to remove Mr Moody's name from the Register. We consider that if Mr Moody was to return to safe practice in the future this would necessitate his acquiring a recognised qualification."

12. An appellate court has to think long and hard before interfering with the sanction imposed after the deliberation by the single body empowered by statute to impose it. What has nevertheless given me, for my part, pause is the unusually powerful testimonial which was before the PCC from a colleague who was both a former student and now a patient of the appellant. It might no doubt have led the PCC to a different conclusion, but it is impossible in my judgment to say that it had necessarily to do so.
13. The other question the testimonial raises is whether the PCC may have overlooked it. They do not cite from it, but they answer the question explicitly:

"The Committee… has read and taken account of the testimonials put forward."

14. It would take very powerful internal evidence to satisfy a court that this could not be so and the material before us has come nowhere near the necessary standard. As Ms Hewson, I think, has to accept, once the material concerning the appellant's general practices was legitimately before the PCC, striking off was a strong sanction but a permissible one. Ms Hewson has shown us a case -- that of Khokhar v HPC [2006] EWHC 2484 -- in which a far lighter sanction was imposed by a parallel disciplinary body for professional misconduct arguably at least as bad as Mr Moody's. This may well make the present sanction appear even harder for the appellant, but it cannot furnish a basis for oversetting it. It may for example be legitimately said that Dr Khokhar was fortunate to be dealt with so leniently.
15. It remains the case that Section 8 of the Act permits any osteopath in the appellant's situation to apply after a minimum period of ten months for restoration to the Register. Mr James Norman, who has appeared before us for the General Osteopathic Council, confirms that there is nothing in the present decision that bars such an application, albeit the PCC would be bound in deciding it to have regard to its own decision to remove the appellant from the Register and its reasons for doing so.
16. Appeals to this court being on questions of law only, we can therefore do no more than note that what has happened to the appellant is not necessarily the end of the road for him professionally. But so far as concerns the legal challenges made on his behalf to the admissibility and the admission of evidential material related to the generality of his practice, for the reasons I have given I would dismiss this appeal.

Lord Justice Rimer:

17. I agree. The principle that anyone such as the appellant who is facing complaints before the PCC is entitled to a fair warning of the nature of the case against him is not in question, and I have not been persuaded that that principle was in any respect infringed in the present case. It was of the essence of the appellant's defence that the manner of his treatment of SW followed his usual practice and was professionally competent. The case against him, as he knew, was that that practice was not in line with accepted professional standards in osteopathy.
18. For the reasons explained by Sedley LJ, I cannot see that, in meeting that case, the appellant was in any way disadvantaged. Nor can I see why, having found against the appellant on the specific complaints against him, including that the way in which he conducted his practice represented a significant risk to patient safety, the PCC were not entitled to take account of all of that in determining the sanction to be imposed. They duly did so and, having considered the alternatives, concluded that the only way in which the public would be properly protected was by removing the appellant's name from the Register. In my judgment the procedure applied by the PCC was in no manner unfair and the sanction they imposed was within the range of sanctions fairly and properly open to them.

Sir Anthony Clarke MR:

19. I agree with both judgments. It follows that the appeal must be dismissed.

Order: Appeal dismissed