England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand London WC2
		Monday, 18th December

Monday, 18th December 2000

1. MR JUSTICE HUNT: The claimant is an orthotist. He has been charged before his professional body, the Prosthetists and Orthotists Board, with offences of allegedly infamous conduct under section 9(1)(b) of the Professions Supplementary to Medicine Act (the 1960 Act under which the Board was established in 1997). These offences allegedly took place between February 1997 and April 1998 and involve his relationship with a patient. We are essentially concerned with the most serious charge, which is that of rape on 9 April 1998. The claimant was interviewed by the police but not charged. The woman concerned brought a claim in the Birmingham County Court seeking damages. This claim is to have a case management conference in January 2001.
2. The claimant was registered with the Board in October 1998 when all the members of the British Association of Prosthetists and Orthotists were registered. At a hearing on 19 October last year the Disciplinary Committee of the Board ruled that it had jurisdiction to hear the disciplinary charges despite the fact that the alleged conduct in a professional respect occurred before the claimant was registered with the Board.
3. The purpose of the 1960 Act as set out in the preamble was to establish boards and disciplinary committees for certain professions supplementary to medicine, provide for registration and regulate their professional education and conduct. It is said that these were, in effect, new or fledgling professions and Parliament did not intend to trawl through the way practitioners had practised in the past, as Mr Brown puts it, but rather to regulate their conduct for the future.
4. The claimant argues that the Disciplinary Committee has no jurisdiction to deal with any of the charges of infamous conduct because they all relate to incidents which allegedly took place before he was registered by the Board in October of 1998. The section giving the Board jurisdiction is section 9 of the 1960 Act, which states that: "Where -

(a) a person who is registered by a board is convicted by any court in the United Kingdom of a criminal offence which, in the opinion of the disciplinary committee set up by the board, renders him unfit to be registered; or

(b) such a person is judged by the disciplinary committee to be guilty of infamous conduct in any professional respect; or

(c) the disciplinary committee is satisfied that the name of such a person has been fraudulently entered on the register maintained by the board, the committee may, if it thinks fit, direct that the person's name shall be removed from the register."

5. In the present case, it is under (b) that the claimant is charged. It is said on his behalf that "such a person" means "a person registered by the Board" and that must be right. It is further said on his behalf that the use of the present tense and the conjunction of the words "such a person" and "to be guilty of infamous conduct in any professional respect" identify and limit the date of the conduct over which the Board has jurisdiction to dates after registration. It is further said that the language of (a) informs the proper construction of (b), that Parliament did not intend standards to be applied retrospectively and in the absence of express words should not be held to so intend and for the Board to do so would be unfair. It is suggested that this has not happened before with any of the other boards established under the 1960 Act. It is further said that the classic definition of what amounts to "infamous conduct in a professional respect" which was given in the case of Felix v General Dental Council [1960] AC 720, by Lord Jenkins, i.e. that it was:

"...a medical man in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency,"

6. implies in the words "in the pursuit of his profession" that it has to be done in the course of his profession and impliedly after registration.
7. Reference has been made to other statutes governing other professions, each, as may be anticipated, couched in different terms. In section 8(1) of the Pharmacy Act 1954, for example, there is reference to "misconduct which took place before or after removal of the name" and (at 8(1)(b)) "been guilty of such misconduct...as...renders...the guilty person unfit..." There are similar references elsewhere, for example in the Dentists Act 1984, section 27, to misconduct "whether before or after registration". These are used by Mr Brown to illustrate that Parliament could have, and from time to time has, used express terms where retrospection is specifically in contemplation.
8. A particular comparison has been made with the Medical Acts. The Medical Act of 1956 at section 33(1) gave jurisdiction over registered persons judged "to have been guilty". It was amended by the Act of 1969 which replaced section 33(1) adding the words "whether while so registered or not". Those words are repeated in the current section 36(1) of the Medical Act of 1983, and it is said that because they were not in the 1956 Act, they did not then confer jurisdiction over acts before registration. I do not accept that: I have been concerned as to whether the addition of the words "whether while so registered or not" were to confirm or clarify, rather than change, the law. I believe that they were to confirm and clarify. I go on to derive assistance from other regulatory acts, for example section 16(1) of the Veterinary Surgeons Act of 1966, giving jurisdiction over those judged to have been guilty of disgraceful conduct. A similar wording is found in section 17(1) of the Opticians Act 1989. We have been concerned somewhat in this exercise today in looking at the words "to be guilty" and "to have been guilty". I find there is no difference between the words "to be guilty" and "to have been guilty" taken in isolation, for in order to be found guilty, the act has to have already happened, and looking at the words "is judged to be guilty" in section 9(1)(b) of the 1960 Act, they relate to the time the decision is made, not to the time of the act attracting guilt.
9. I take a literal reading of the words of section 9(1)(b) of the 1960 Act. It simply gives a broad jurisdiction over any person who is registered by the Board. On the ordinary meaning of the words of that section, the question of whether the individual concerned committed the infamous conduct before or after he or she was registered I find to be immaterial. The condition precedent to jurisdiction is simply registration. There is nothing to say there has to have been registration at the time of the conduct. The claimant's argument seeks to impose upon the present tense of "is registered" and "is judged by the disciplinary committee to be guilty of infamous conduct" the words "after registration". Such a construction is not only an imposition on the literal meaning. It would also produce absurd results in practice where serious misconduct would be uncensored if it only came to light after registration. I adopt a purposive interpretation of a statute of which part of the preamble is to regulate professional conduct and cancel registration in cases of misconduct, and I conclude that the Disciplinary Committee has jurisdiction.
10. I accept that as far as 9(1)(a) is concerned, that gives jurisdiction over people who are registered who, having been registered, are then convicted by any criminal court in the United Kingdom of a criminal offence which, in the opinion of the disciplinary committee set up by the Board, renders him unfit to be registered. But as Miss Dakyns points out, and I accept, it makes 9(1)(b) even more important because 9(1)(b) is the only way, then, a profession can regulate its members. It cannot be that Parliament intended that practitioners guilty of such misconduct should practise with impunity, particularly bearing in mind that these were, as is put, new professions, and the intention was to regulate the members of those professions.
11. It is said and complained of that this is a case of objectionable retrospectivity. I have to be careful about unfairness. I have to have in mind, and I do have in mind, the case of L'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co. Ltd [1994] 1 AC 486, which was a House of Lords case, and the well-known expressions by Lord Mustill at page 525 and elsewhere as to the necessity to look for no more than simple fairness, which ought to be the basis of every legal rule, and I have that firmly in mind. The true nature of objectionable retrospectivity is that the past legal effect of an act or omission is retroactively altered by a later change in the law, and I ask myself, was this unfair? Is it unfair to construe this in the way that I have? Does it now characterize as criminal past conduct which was then lawful? That is very simply answered in the negative.
12. For the above reasons, I find that the Disciplinary Committee of the Board were correct in finding they had jurisdiction, and this claim therefore fails.
13. MISS DAKYNS: Thank you.
14. MR JUSTICE HUNT: For either of you who did not get a full note of what I said -- something of a rate of knots -- I dictated most of it over lunch towards the end of your argument, Mr Brown. You will find that not everything is in the note that I dictated to myself, but I will -- and you are not to take this as the full judgment, but it is a guidance to anything that you may have --
15. MISS DAKYNS: My Lord, thank you.
16. MR JUSTICE HUNT: -- failed to catch up with. Mr Brown, the fact that I gave judgment so shortly after the end of your argument is no disrespect to your argument, which was very well presented, if I may say so. I just had a fairly firm view about it.
17. MR BROWN: I am much obliged for those comments and for the assistance of the note. I would, however, seek permission to appeal on the basis that this is a matter of some considerable importance, in particular to the claimant, and also the professions whose boards are established under this Act as a whole. There still may be other professions who are brought under the auspices of the Act in the future, so it may be a problem that recurs in the future.
18. Whilst heeding the reasons that you gave for your judgment, in my submission this is an unusual provision put in the context that this -- well, the unique feature of this case, compared to the other comparable statute-free provisions, is that these were emerging professions, these were new professions that were recognised for the first time by the 1960 Act, and that therefore different considerations, as I attempted to allude to in the passages in the Parliamentary debate that I took you to as well as my overall observations, apply to the construction of section 9(1)(b) of the 1960 Act that might well apply to other similar sections regulating other disciplinary schemes.
19. In those circumstances, I would ask for permission appeal.
20. MR JUSTICE HUNT: Mr Brown, just as you ask, I shall refuse you permission to appeal, and you will have to go and ask elsewhere.
21. MR BROWN: I am obliged. I think the final matter is, for my part my client is legally aided. Could I ask for legal aid taxation of the claimant's costs.
22. MR JUSTICE HUNT: Yes.
23. MISS DAKYNS: My Lord, it is a matter for the court. I do not ask for costs for the defendant. There seems little point.
24. MR JUSTICE HUNT: No. Very well.