England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		21st August 2007

1. MR JUSTICE WYN WILLIAMS: On 27th November 2006 a hearing began before the Professional Conduct Committee of the General Osteopathic Council. The hearing concerned allegations made against Mr Donald Moody that he had been guilty of unacceptable professional conduct contrary to section 20(1)(a) of the Osteopaths Act 1993 or, alternatively, professional incompetence contrary to subparagraph (b) of section 20 of the 1993 Act.
2. Those allegations were themselves founded upon what I will call five charges relating to events which occurred in September 2005 and which concerned a patient of Mr Moody's who I shall refer to as "Mr W". The hearing before the PCC took place over four days. It took place on 27th and 28th November and the 1st and 2nd February of the following year, 2007. On 2nd February the Committee announced its decision. It concluded that the charges which had been numbered 1, 3 and 4 had been proved and that as a consequence Mr Moody was guilty of professional incompetence.
3. On 14th March a further hearing took place in order that the Committee could decide upon an appropriate sanction. After hearing from counsel for Mr Moody, the Committee decided that the appropriate sanction was that Mr Moody's name should be removed from the register of osteopaths. In other words, it imposed the most severe sanction open to it. Following the announcement of that sanction, counsel representing the Osteopathic Council applied for an order which is known as an interim suspension order. If granted it meant that Mr Moody was suspended from practice pending determination of any appeal to this court. The making of such an order was resisted on his behalf. Nonetheless, the Committee made the order.
4. Mr Moody has appealed to this court against the finding of professional incompetence and also against the sanction imposed upon him. That appeal is to be heard at some future date. He has also appealed against the decision to make an interim suspension order and it is this appeal which is before me for determination.
5. It is common ground that before an interim suspension order can be made that the Committee must be satisfied that it is necessary to make such an order in order to protect members of the public. The transcript of the hearing on 14th March shows that the Committee was advised that under rule 40 of the relevant rules, if a Committee reaches a decision to impose a suspension order or a decision to remove an osteopath's name from the register then:

"The Committee may, if it is satisfied that it is necessary to do so in order to protect members of the public, order the Registrar to suspend the registration of the osteopath in accordance with section 24 of the Act. It is known as an interim suspension order."

6. It is clear that the Committee had that provision well in mind when they decided to impose the interim suspension order. In this case, as in all cases of this type, there is a written decision of the Committee. Under the heading "Application for interim suspension", there is recorded the following:

"We have considered the application made by Mr Leale on behalf of the Council that there be an interim suspension order and we have considered the submissions made by Ms Hewson opposing the application on behalf of Mr Moody.

The Committee has been advised that the test is that it can make such an order if it is satisfied that it is necessary to do so in order to protect members of the public as set out in section 24(2) of the Osteopaths Act 1993.

The Committee have considered this matter and are satisfied that it is necessary to make such an order in light of all of the evidence it has heard concerning the deficiencies in Mr Moody's practice.

Accordingly we order the Registrar to suspend the registration of Mr Moody with immediate effect."

7. The hearing before me is a statutory appeal. Nonetheless, as I understand it, it is an appeal which is within the remit of the Civil Procedure Rules and that being so it is governed by Civil Procedure Rule 52 and, in particular, 52.11 sub-rule (3). That provides that I am only empowered to allow this appeal if I consider that the decision to impose an interim suspension order was wrong. The issue for me, therefore, is whether or not it can be said that the Committee was wrong to make the interim suspension order.
8. Before it imposed the order, as I have indicated, the Committee imposed the sanction of removing Mr Moody's name from the register. In order to justify that sanction, it gave a number of reasons and it gave those reasons in its written decision from which I have already quoted. The relevant parts, so far as the substantive sanction is concerned, are 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 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 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."

9. In the light of those findings, it would at first blush be difficult, if not impossible, to conclude that the decision to make an interim order was wrong. Counsel for the respondent (Mr Norman) submits that in the light of those findings it is impossible to conclude that the decision to impose an interim suspension was wrong. It was an inevitable consequence of those conclusions, so he submits.
10. Ms Hewson appearing for the appellant, as she did before the Committee, submits that I should take the contrary approach. She submits that Mr Norman's approach is too restrictive. She says, in effect, that I am entitled to look at the merits of the substantive appeal and form a judgment about the prospects of success and then, in the light of that, conduct a review of whether or not an interim order is justified in the sense that I should apply to myself the test of whether or not the order is necessary for the protection of the public.
11. I am prepared to accept that it is permissible to look at the merits of the substantive appeal in order to assess whether or not it was wrong of the Committee to have imposed an interim suspension order. However, it seems to me that, save in fairly unusual cases, it will not be possible to form a definitive view upon the merits of the substantive appeal, and in my judgment unless this court, exercising its appellate jurisdiction, is strongly of the view that the substantive appeal is bound to succeed, it should be slow to categorise as wrong a decision which has at its heart the protection of the public.
12. In this case I say without hesitation that there are aspects of the Committee's decision which make this appeal truly arguable. This is certainly a case, for example, where I would grant permission to appeal if such were necessary. It seems to me, however, that unless I am strongly of the view that a finding of professional incompetence will be set aside, or unless I am strongly of the view that the penalty for such incompetence as is proved would not even involve suspension measured in months, I should not categorise a decision to impose an interim suspension as wrong.
13. I have given this matter considerable thought but I do not think I can take either of those views of this appeal. Given that the merits of this appeal are to be debated at length, it would serve no useful purpose for me to set out provisional views about the detailed points which were debated before me. I have to apply the test which I think I have clearly enunciated; namely whether or not I am strongly of the view that this appeal is bound to succeed and, applying that admittedly difficult hurdle for this appellant, I do not think that I can reach that conclusion.
14. Accordingly, and in that light, it seems to me that I should uphold the interim suspension order. To repeat, it is imposed for the protection of the public. It was imposed after a hearing which lasted four days where detailed evidence was given, and, to repeat, a court should be slow to categorise a decision to impose it as wrong when it conducts no more than a comparatively limited review of the merits of a substantive appeal.
15. Having said all that, I am conscious that in this case the interim suspension order is capable of causing significant hardship to the appellant. He is a sole practitioner and has been for very many years. It is obvious that his practice may be adversely and detrimentally affected if there is any undue delay in the bringing on of his substantive appeal in this case. Accordingly, and in an attempt to ameliorate that aspect of the case, I propose to direct that there should be an expeditious hearing of the substantive appeal.
16. For the reasons which I have given, the actual appeal is dismissed.
17. MS HEWSON: My Lord, I do not know whether your Lordship feels it open to your Lordship in the light of the indication you have given, with which we would wholeheartedly agree, and one of the reasons we brought the appeal was our knowledge of listing in this court. Both my learned friend and I could consult our diaries to see if it would be possible to list a date. Did your Lordship have in mind that the appeal should be heard before the end of the vacation?
18. MR JUSTICE WYN WILLIAMS: I am certainly prepared to take up the question to this extent: I would ask either the associate, if that is appropriate or my clerk if not, to make some enquiries and inform the Listing Officer that I genuinely think this is a case that should be heard within weeks rather than any other length.
19. MS HEWSON: Indeed, my Lord. One other point which occurred to me, your Lordship having already had an opportunity to look at the matter to some extent I do not know whether your Lordship should think it appropriate to reserve it to yourself.
20. MR JUSTICE WYN WILLIAMS: I do not think that is practical, essentially because, first, I do not suppose it would be listed next week and then I am on holidays for two and a half weeks. I am already listed to sit elsewhere at the end of September, and I do not suppose you want to come to Truro in October. It might be personally convenient for your client.
21. MS HEWSON: My Lord, in that case what time schedule would your Lordship envisage for these enquiries to take place?
22. MR JUSTICE WYN WILLIAMS: As I say, as you will both know there are genuinely very urgent cases in this court and I am not going to suggest that this is so pressing that it should be heard next week, but I would certainly ask whether there is any possibility of a hearing, at the outside, by the end of October. If we use that as a timescale. I think it is probably best if I retire for a few minutes and then if there are to be any discussions about dates you can speak with the associate. If at the end of that process you need me actually to make an order fixing the date then I will come back into court and do it.
(A short break)
23. MR JUSTICE WYN WILLIAMS: I do not think it is going to be possible to fix a date but I am going to direct -- and the Listing Office fully understand this -- that it should be dealt with expeditiously and, if at all practicable, by the end of October. That is as far as we can progress it today.
24. MS HEWSON: So our clerks will have to liaise with the Listing Office.
25. MR JUSTICE WYN WILLIAMS: Yes. Do I need to make any order about costs?
26. MS HEWSON: As far as costs are concerned the proper course would be to reserve the costs.
27. MR JUSTICE WYN WILLIAMS: Do you object to that?
28. MR NORMAN: No, my Lord.
29. MR JUSTICE WYN WILLIAMS: That is what I will do. Thank you both very much.