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, WC2A 2LL
		25/10/2007

Stanley Burnton J :

Introduction

1. This is an appeal, pursuant to section 31 of the Osteopaths Act 1993 as amended, by Donald Moody against the decisions of the Professional Conduct Committee ("the PCC") of the General Osteopathic Council finding that he had been guilty of professional incompetence and ordering the Registrar to remove his name from the register. The appeal is against both the substantive findings of the PCC and the order made in consequence of those findings. The PCC also made an interim suspension order pursuant to section 24 of the Act, against which Mr Moody has also appealed. On 21 August, Mr Justice Wyn Williams dismissed the appeal against interim suspension.

The facts in summary

2. The Appellant has been practising as an osteopath since 1983. He lectured on osteopathy at the College of Osteopaths between 1984 and 1996, and then following his move to Devon at the Allied School of Osteopathy until December 2000.
3. The charges against the Appellant arose out of his treatment of a patient to whom I shall refer as SW. SW had a very substantial medical history, and had seen another osteopath before he consulted the Appellant. His first appointment with the Appellant was on 13 September 2005. SW told the Appellant something of his medical history: whether this was sufficient was one of the issues before the PCC. Treatment for his low back pain was discussed and agreed.
4. SW came to see the Appellant again on 20 September, when he said that he was much better. However, he returned the following day, complaining that his condition had deteriorated. He was advised to go home and to rest. He stated that he had a MRI scan booked for the next day, 22 September. The Appellant dissuaded him from having the scan.
5. On 25 September 2005, SW telephoned the Appellant. He had by then had an MRI scan carried out at a hospital other than that where that planned for 22 September was to be carried out, (and at a later date) which showed two prolapsed discs. He blamed the Appellant for his condition.
6. SW' s complaints led to the following allegations being considered by the PCC:

"In relation to three appointments with your patient, SW, in September 2005 it is alleged that you, being a registered osteopath under the Osteopaths Act 1993;-

In relation to the first appointment on 13 September 2006

1. failed to adequately identify and evaluate the needs of your patient, in that you failed to:

a. take sufficient account of or adequately explore the patient's medical history, including reported empyema and a "bulging disc";

b. take sufficient account of or adequately explore the patent's presenting symptoms, including:

i. the onset, character or duration

ii. aggravating or relieving factors

iii. daily pattern of pain

c. conduct an adequate assessment of the patent, in particular to conduct an adequate:

i. neurological examination

ii. active movement examination

2. treated the patient inappropriately, in that your treatment was not justified by the patient's case history and/or presenting symptoms and/or examination outcomes.

In relation to the second and third appointments on 20^th and 21^st September 2005

3. failed to adequately identify or evaluate the needs of your patient, in that you failed to:

a. properly evaluate post treatment change to your patient's condition;

b. to justify your decision to continue with your course of treatment by analysis of clinical findings.

In relation to the third appointment on 21^st September 2005

4. advised your patient not to attend for an MRI scan which was scheduled for later that week, on the basis that it was too risky and unnecessary, which advice was inappropriate.

In relation to all three appointments

5. failed to communicate effectively with your patient, in that:

a. during the first appointment, you failed to listen adequately to your patient when he was providing his case history, in particular, you were dismissive when he reported that his previous osteopath had diagnosed a "bulging disc";

b. during the second appointment, you blamed your patient for compromising your previous treatment, having given no, or no sufficient indication of activates he should not partake in; and/or

c. during the third appointment, you again blamed your patient for the failure of your treatment to improve his condition, and stated that if he continued to compromise your work, he would be "operation material".

By reason of the above stated facts and each of them, it is alleged that you been guilty of:

a) Unacceptable Professional Conduct (section 20, sub-section (1)(a) of the Osteopaths Act 1993);

And / or

b) Professional Incompetence (section 20, sub-section (1) (b) of the Osteopaths Act 1993)."

7. The PCC heard the oral evidence of SW, of Mark Piper, a registered osteopath called by the Council as an expert witness, and of the Appellant. The Council was represented by Mr Norman and the Appellant by Ms Hewson. The relevant part of the decision of the PCC is set out in the Annex to this judgment.

The grounds of appeal

8. The Appellant's grounds of appeal are essentially as follows:

(i) Allegation 1(a): the PCC failed to take properly into account the evidence relating to the first visit; the Appellant had made a proper assessment of SW's history. The PCC had failed to identify what material part of SW's history the Appellant failed to elicit.

(ii) Allegation 1(b): the statement that the Appellant "did not dispute these facts" was incorrect; the evidence showed that the Appellant had properly explored SW's symptoms.

(iii) Allegation 1(c): the Appellant had made sufficient systems enquiries of SW, which Mr Piper accepted met minimum standards.

(iv) Allegation 3: the PCC's finding is so perfunctory as to be unintelligible, and is inconsistent with its dismissal of Charges 5 (b) and (c). The finding is inconsistent with the evidence before the PCC.

(v) In relation to the third visit, the Appellant properly examined and advised the Appellant.

(vi) Allegation 4: the PCC's finding was not supported by the evidence.

(vii) The allegations found proved did not and could not justify the general finding of incompetence.

(viii) The sanction of removal from the register was excessive and unnecessary.

9. Before me, Miss Hewson supported these contentions. She also submitted that the evidence before the PCC did not and could not justify any finding that the Appellant was generally incompetent or that his work fell below the requisite standard. In that connection, she submitted that the PCC could not and should not have simply relied on the evidence of Mr Piper, unsupported as it was by any standard textbook or professional literature.
10. Mr Norman submitted that the findings of the PCC were open to it and justified the sanction of removal from the register.

Discussion

11. In essence, the Council's case as it developed before the PCC was that the facts relating to SW's complaints demonstrated not only inadequate professional care in the particular case, but also that the Appellant's general practice was professionally inadequate and indeed dangerous to his patients.
12. The PCC comprised 5 members, two of whom are registered osteopaths, and the remainder lay members. They were advised by a legal assessor. They are a professional tribunal, to be regarded as fully competent to assess whether a professional person called to give evidence on behalf of the Council has the requisite expertise for his evidence to be relied upon by them as expert evidence of the necessary standard of professional practice; and in any event it is for them to assess whether to accept such a witness's professional opinions. In addition, there was no issue raised before the PCC as to whether Mr Piper's experience and qualifications were sufficient for him to qualify as an expert witness. Mr Piper had been in practice for 17 years and had given evidence as an expert witness before the PCC in other cases. I have no doubt that the PCC in the present case were entitled to treat him as an expert witness and if they thought fit to accept his evidence of proper professional practice.
13. Mr Piper's evidence was that the Appellant had made inadequate inquiry of SW's medical history and symptoms on his first visit, and indeed on subsequent visits. The Appellant's notes showed that he had been told that SW suffered left sciatic pain. His history included empyema. He was taking codeine as an analgesic. There was no note of the onset, character or duration of the pain, or of aggravating or relieving factors or of the daily pattern of pain; or of the date of the empyema; or of the frequency or amount of codeine being taken. Although the patient complained of the sensation of pins and needles, there was no note of the distribution of the sensation, which may be a symptom of a vascular occlusion. Mr Piper described the case history notes, which recorded the information obtained by the Appellant, as lacking severely in detail. There was nothing to suggest anything other than a cursory questioning of the patient to obtain his medical history.
14. Miss Hewson submitted that the Appellant's notes showed substantial history-taking and suggested that the Appellant could not be at fault if the patient failed to provide information as to his medical history. The Appellant's view was that it was up to the patient to tell him his history: day 4 page 10. However, it is for the medical professional to elicit, by questioning the patient, the information that is required for diagnosis and treatment: see Mr Piper's evidence at day 3 page 14. It appears, for example, that the Appellant had not asked the patient whether he had had an x-ray of his spine; in fact, he had had one recently, which showed no abnormality. There is no error or inadequacy in the PCC's finding and reasons on charge 1(a).
15. In relation to allegations 1(b)(i), (ii) and (iii), the PCC stated that the Appellant did not dispute the facts. It is, I think, clear that by this they meant that he had admitted the primary facts as to his taking account of an exploration of the patient's presenting symptoms, and indeed they were not in dispute. Whether his exploration and consideration were adequate was in issue. The PCC found that they were not. Their reasons are unclear and insufficient in this first part of the decision, but are made clear in their reasons for the sanction imposed.
16. The findings of the PCC on allegations 1(c)(i) and (ii) are sufficiently reasoned and supported by the evidence before them. As to (i), the Appellant admitted that it was his practice to carry out a straight leg raising test to 30 degrees, and had done so in the case of this patient. Miss Hewson challenged the reliability of the evidence that this was insufficient. Mr Piper's evidence on this was clear, and the PCC were entitled to accept it. Similarly, the PCC were entitled to conclude that supine postural examination alone is inadequate: Mr Piper's evidence was that full neurological testing, involving reflex testing, and testing of motor power as well as straight leg raising to 45 degrees, was necessary, and was so in the case of this patient.
17. Furthermore, I see no inconsistency between the findings on these allegations and the dismissal of allegation 5.
18. The reason given by the PCC for finding that allegations 3(a) and (b) had been proved are inadequate: it is a statement of a conclusion not of reasons. The decision should have identified what the Appellant failed to do. However, the basis of the PCC's finding on allegation 3(a) is evident from the Appellant's own evidence on Day 4 at pages 31 to 34. The patient was still in pain. He told the Appellant, falsely as it turned out, that he had suffered an accident. The Appellant made no enquiry as to the nature of the alleged accident, which was relevant to the patient's continuing symptoms and could be relevant to the appropriateness of the treatment decided on by the Appellant. The Appellant confirmed that he had not even considered modifying the patient's treatment in the light of his reported accident and continuing pain because the difference in the patient's leg measurements had not altered since the previous appointment.
19. The allegation concerning 21 September is more straightforward. The patient's presentation had greatly deteriorated. He telephoned the Appellant and told him that "it had all gone wrong last night after work". The Appellant asked him to come in. The difference in his leg measurements had increased since the previous day's appointment. The Appellant repeated the previous day's treatment to re-level him. Again, he admitted in cross-examination that he had not considered re-assessing his diagnosis or the treatment he was giving to the patient: "The treatment plan is static." He was convinced that the deterioration in patient's condition was the fault of the patient himself, to whom the Appellant had "read the riot act". Thus the basis of the decision of the PCC on this allegation too is evident from the Appellant's own evidence.
20. I therefore reject the submission that the PCC's findings on allegations 3(a) and (b) were unsupported by evidence. Their findings are not inconsistent with the dismissal of allegation 5, which concerned communications rather than assessment and diagnosis.
21. The Appellant's case on allegation 4 was that he considered bed rest to be more important than the private MRI scan that the patient was due to have on the following day, i.e. on 22 September; if the patient were to drive to have the scan, and lie on a bench for the scan, he would risk further damage to his spine; and he therefore advised him not to go for the scan. However, in evidence he also said that "an MRI scan would not have told me any more than I already knew", and that he had so advised the patient. He later admitted that the scan could have confirmed that the patient was suffering from lumbosacral disc damage, and that it had been foolish to advise him that the scan would not tell him anything that he already knew. Mr Piper's report stated that it was appropriate to obtain information from an MRI scan that would have helped determine the decision for further treatment or referral. In cross-examination he confirmed this evidence. He could not be categoric about the need for the MRI scan, by reason of the absence of a sound medical history and examination, but he considered that it was inappropriate to deny the patient a chance to investigate the problem. "The results of the scan would be very useful to the osteopath: it could give an indication as to which treatment approaches may be appropriate or not."
22. In my judgment, the only arguably sound reason for advising the patient not to have the scan was that the travel to the hospital or clinic and the lying on the scan bed might be injurious. If the patient were driven to the hospital, the chances of the travel being injurious would be reduced. In any event, it was for the PCC to assess whether the advice given by the Appellant had been sound; they found that it was been inappropriate. I should have been surprised if they had come to any other conclusion. As has been seen, their conclusion was founded on the evidence before them. I reject the appeal against the finding that this allegation had been proved.
23. It follows that the appeal against the individual findings of the PCC fails.
24. I turn to consider the sanction imposed by the PCC. Its justification was that the allegations before it that had been proved demonstrated a general and fundamental flaw in the Appellant's approach to practice that could result in inappropriate treatment. In the course of the hearing of the appeal, I pointed out that the allegations before the PCC were particular to the individual patient, i.e. SW, and did not include a generic failure on the part of the Appellant. Where it is alleged by the Council that the failings of a practitioner are generic, it should normally be so alleged. If that is not done, there is a real risk of resulting unfairness. Mr Norman's response to this criticism was that the generic nature of the Appellant's failings became apparent only from his own evidence, and was made clear by his cross-examination. Furthermore, the Appellant was not ambushed by any evidence adduced by the Council or allegations of the treatment of patients other than SW. Hence there was no question of the Appellant having to deal with unexpected allegations or evidence. In my judgment, because the primary object of the PCC is the protection of the public, in the circumstances of this case it was appropriate for them to consider whether the allegations that had been proved before them indicated a general failure on the part of the Appellant, and if so what sanction was appropriate. This is what the PCC did. Such a course is envisaged by the 1993 Act: a finding that the practitioner has been guilty of professional incompetence (section 20(1)(b)), which may be a single act of professional incompetence, may lead to an order under section 22(4)(d) requiring the Registrar to remove the osteopath's name from the register.
25. The PCC concluded that its findings established professional incompetence on the part of the Appellant. The Appellant conceded that he did not make full enquiry into his patients' medical history; that 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; that 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 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 you receive rather than approaching them with a pre-conceived idea of what you deem to be wrong."

26. In my judgment, the PCC's conclusion was justified on the evidence before them.
27. The order made by the PCC in the present case was the most serious available to it. Clearly, it should be reserved for the most serious cases, and made only if they conclude that the lesser steps available to them under section 20(1) are inappropriate and inadequate.
28. Miss Hewson made two cogent points on the order made by the PCC. First, the Appellant has been in practice for many years, since 1983, with no material complaint as to his treatment of his patients until the present case. That, she submitted, indicates that his practice does not present a risk to his patients. Secondly, it was not and is not part of the Council's case that his treatment of SW caused or aggravated his injury or pain; and there was no evidence before the PCC that it had done so. The aggravation of SW's symptoms may well have occurred in any event.
29. Against this, the PCC's decision shows that they carefully considered whether any lesser order would be adequate to protect the public. They expressly concluded that the deficiencies in the Appellant's practice and knowledge were such that the protection of the public required his removal from the register. This part of their decision is clearly and well reasoned. I do not find it surprising or unreasonable. Mr Norman not unfairly summarised the inference to be drawn from the Appellant's own evidence that he treats his patients according to a rigid system of his own devising. The PCC concluded that his practice is inconsistent with competent osteopathic practice. The fact that no injury or deterioration in the condition of SW resulted from his treatment by the Appellant is not inconsistent with the Appellant's practice having the potentiality to cause harm to his patients. I see no flaw in the reasoning of the PCC, which justifies the order made.
30. In these circumstances, I reject the submission that the order made under section 22(4)(d) was not justified. The appeal against that order will be dismissed.
Annex: the decision of the PCC

We have carefully considered all of the evidence, both oral and documentary, that has been put before us.

We have reminded ourselves that Council's solicitor has the burden of proving the facts alleged in each charge to the civil standard – namely, whether the facts alleged are more likely that not to have occurred. Accordingly, we find as follows:

We find allegation 1(a) proved. A safe and competent osteopath will elicit sufficient material in order to explore the patient's medical history fully. The important of the taking and recording of a thorough case history is emphasised specifically in section J of the Standard of Proficiency (Standard 2000) and section 116 of the Code of Practice. The Committee considered any exploration of the patient's medical history with regard to empyema and a 'bulging disc' was of less importance that the proactive exploration of the patient's medical history as a whole.

Allegation 1(b) (i), (ii) and (iii) are all proved. The Committee noted that Mr Moody did not dispute these facts.

Allegation 1(c) (i) and (ii) are proved. The Committee accepts Mr Piper's evidence that the standard for the straight leg raising test is a minimum of 45 degrees and Mr Moody admitted that he did not carry out other tests that might have given him more information as to the patient's neurological status. With regard to (ii), the Committee noted that in his evidence, Mr Moody said that he avoids performing active movement examinations because this can cause pain to patients and that he only performs the recumbent tests.

The Committee noted in exhibit D2, put before the Committee, by Mr Moody, a reference to the utilisation of the recumbent postural exam as one part of a more thorough examination. The article points out that "the CCP is most often found during the supine postural examination but other configurations may also be observed and as always the total clinical presentation should be evaluated".

Allegation 2. The Committee found this allegation not proved. The wording of this allegation caused the Committee concern because, having made the findings that it did in allegation 1, it considered that Mr Moody should not have embarked on any course of treatment having insufficient diagnostic information upon which to base his treatment plan. Nevertheless, on the basis of the wording of the allegation, the Committee could not be satisfied on the evidence that is has heard that Mr Moody in fact treated Mr W inappropriately.

The Committee found allegation 3(a) and (b) proved with regard to both the appointments on the 20^th and 21^st of September 2005 respectively. The Committee considered that the failure on the 21^st was more serious that that on the 20^th.

The Committee found allegation 4 proved. The Committee found this proved on the basis that Mr Moody himself admitted that he had advised Mr W that is was too risky and unnecessary to attend for an MRI scan. The Committee found this advice to be inappropriate.

The Committee found allegation 5(a), (b) and (c) not proved. Whilst that Committee considers that Mr Moody's ability to build and develop an appropriate professional relationship with his patient, Mr W was less that satisfactory, on the wording of this allegation the Committee are not satisfied that he failed to communicate effectively with Mr W. With regard to 5(a), the Committee considered that it was appropriate for Mr Moody to make his own judgement with regards to the 'bulging disc' and not rely upon anything he was told that a previous osteopath had found. With regard to 5(b) and (c) the Committee has found that Mr Moody communicated effectively with Mr W, albeit his communication may have been unnecessarily blunt.

On the basis of the above findings on allegations 1, 3 and 4, the Committee has found that Mr Moody is guilty of professional incompetence.

The Committee has carefully considered the mitigation put forward on Mr Moody's behalf and has read and taken account of the testimonials put forward.

We remind ourselves that the sanction we choose must be proportionate to the allegations.

Our attention was drawn to a previous matter where Mr Moody had been brought before this Committee but we concluded that it had no relevance to the matters under consideration.

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 clinical 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.

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, and 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 ensure that the public were 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.