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
		15 November 2007

1. MR JUSTICE SULLIVAN: This is an appeal under Section 31 of the Osteopaths Act 1993 ("the Act"), as amended by Section 33 of the National Health Service Reform and Health Care Professionals Act 2002, against a decision of the respondent's Professional Conduct Committee ("the committee") on 14 July 2006 that the appellant, a registered osteopath, should be removed from the Register. The appellant was charged with conduct which fell short of the standard required of a registered osteopath in that he purchased and/or possessed indecent photographs and/or pseudo photographs of children, for which he was arrested on 21 December 2004.
2. The committee's decision noted that the appellant -

" ..... has admitted unacceptable professional conduct in possessing indecent photographs or pseudo photographs of children. He was arrested by the police in December 2004 and was prosecuted under s 160 of the Criminal Justice Act 1988 for possession of indecent photographs of children. The total number of images involved was 848. In March 2006, having earlier pleaded guilty to ten offences, Mr Low was sentenced at Woolwich Crown Court where he was fined a total of £5,200 and ordered to pay £755 costs. In addition, he was disqualified from working with children."

3. By way of amplification, the pleas of guilty were to ten specimen counts relating to 842 level 1 photographs and 6 level 2 photographs. The level 1 images concerned children between the ages of 7 to 10 and the level 2 images concerned children between the ages of 7 to 15 years old.
4. Bearing in mind the number and level of images, the sentencing guidelines indicated a community sentence would be an appropriate penalty. His Honour Judge Stone QC, having read the information in the psychiatric and psychological reports, concluded that a substantial financial penalty would be appropriate. When sentencing the appellant, Judge Stone said:

"In a case of this kind, I have given great weight to the assessments of the professionals that have been involved with you. I accept what they say, and in particular that you are very unlikely to re-offend. There are other matters that I have to take into account in your favour, of course, your pleas of guilty, your good character, and the support of your family, have been notable, and all those things presage well for the future.

The guidance from the Court of Appeal that I have been looking at urges principally a community order in cases of your kind, however, where there is a three-year order tying up professional resources on a considerable scale, I also have to ask whether that is appropriate, and I agree with the assessment of Mr Teddy that in your case, tying up the resources in that way is neither necessary nor desirable, and I am therefore not going to make a community order. In its place I am going to make a fine."

5. The judge then imposed fines totalling £5,200 and ordered the appellant to pay prosecution costs in the sum of £755. He added:

"I have to place you on the Sexual Offences Register and that is mandatory. You will be on the Sexual Offences Register for a period of five years.

I also have to consider whether you should be disqualified from working with children, and I take the view that I would be failing in my duty if I allowed you to continue to work with children. So you will be disqualified from working with children."

6. It is to be noted that during the course of mitigation the judge was told by Mr Power, who appeared on behalf of the appellant in the criminal proceedings and has appeared on his behalf before me, that the appellant's -

" ..... business has been totally ruined. Obviously he has fallen out with his business partner. Both sides have instructed solicitors with respect to the potential realisable market value of the business premises. He will face, obviously, disciplinary proceedings and be struck off in terms of his professional body."

A little later, during the course of Mr Powers' submissions to the judge, he made it clear that while the appellant had been suspended, the full hearing before the defendant had not at that stage taken place.

7. The sanctions available to the committee were, in ascending order of severity:

"(a) to admonish the osteopath;

(b) to make an order imposing conditions with which he must comply while practising as an osteopath (a conditions of practice order);

(c) to order the registrar to suspend the osteopath's registration for such period as may be specified in the order (a suspension order); or

(d) to order the registrar to remove the osteopath's name from the Register."

See Section 22 (4) of the Act.

8. The committee decides the duration of a suspension order or a conditions of practice order. There is provision for the original period to be extended in certain circumstances. But by virtue of Section 22 (9) -

"The period specified in a conditions of practice order or in a suspension order under this section, and any extension of a specified period under sub-section (6) or (8) shall not in each case exceed three years."

9. The committee's reasons for ordering the appellant's removal from the Register were as follows:

"We have listened with care to the submissions made on behalf of the council and on behalf of Mr Low and have given due consideration to the issues that have been raised. We have considered the conduct in this case in the context of the issues of:

1 Protection of the public;

2 Maintaining the standards and integrity of the profession;

3 Maintaining public confidence in the profession.

In our judgement, conduct on this scale, involving child pornography is a matter of grave concern. It involves a fundamental breach of the patient's trust in practitioners and inevitably damages public confidence in the profession. In all the circumstances, we have concluded that the only appropriate and proportionate sanction is to order Mr Low's removal from the register.

We should make it clear that we first considered whether any lesser sanction might meet the justice of the situation.

We considered that an admonishment was entirely inappropriate and inadequate in a case of this seriousness, and we note that this sanction was not argued for by Mr Power on Mr Low's behalf.

We considered whether the sanction of a condition of practice was appropriate. In our judgment, it would not be feasible or desirable to monitor a practitioner's every move and none of the conditions proposed or contemplated in other cases would deal with the issues that arise in this case. We also considered that being allowed to continue in practice, even with a strong caveat, would lend an air of professional acceptability to Mr Low encouraging public trust in him when he has abused that trust. We also considered the sanction of suspension for a limited period and we bear in mind that Mr Low has been suspended under an interim suspension order since February 2005. We were of the view that being allowed to return to practise within three years would also inevitably and adversely affect public confidence in the profession and the ability to enforce and ensure its integrity.

In these circumstances, the only sanction available to us that meets the serious concerns raised in this case was the sanction of removal from the register ..... "

10. In his submissions on behalf of the appellant, Mr Power pointed to the mitigating factors in favour of the appellant. They include His Honour Judge Stone's assessment that the appellant was very unlikely to re-offend, and that in the light of that conclusion a fine rather than a community penalty was appropriate, and the fact that the appellant was of hitherto good character and had an unblemished professional record, as witnessed by the many favourable references produced. Mr Power also emphasised the impact of erasure on the appellant and his family and the fact that - although not required to do so by court order - the appellant had sought help from a counsellor, whom he is still seeing.
11. Against this background, it was submitted that the sanction of removal from the Register was disproportionately severe and unnecessary in the public interest. Mr Power submitted that the committee, in concluding that monitoring was not feasible or appropriate, had failed properly to consider whether a stringent conditions of practice order - perhaps coupled with a suspension order - would be adequate to protect the public and maintain confidence in the profession.
12. Although Mr Power referred to a number of decisions, both of this court and the respondent's Professional Conduct Committee, he fairly accepted that they very much turned on their own particular facts. Thus it is difficult to equate purely professional misconduct, which is not a criminal offence, with conduct which does amount to a criminal offence. Cases which deal with very different criminal offences, such as a momentary loss of temper during an argument leading to an assault, as in Lobo Case No 258/3625, are of no real assistance. A momentary loss of temper can fairly be described as an isolated incident. Downloading 845 images cannot.
13. The only authority that is, in some respects, analogous to the present case is Council for the Regulation of Healthcare Professional v Nursing and Midwifery Council and Stephen Truscott [2004] EWHC 585 Admin In that case the appellant council appealed against a decision by the Professional Conduct Committee of the Nursing and Midwifery Council imposing a penalty on Mr Truscott for professional misconduct.
14. Mr Truscott was a nurse who specialised in paediatric care. He used a computer in the adolescent unit of a hospital where he was working to access sexually explicit and/or offensive websites on several occasions. He admitted the facts and later he also admitted that what he had done amounted to misconduct. Some of the websites contained images of naked under-age girls which Mr Truscott claimed appeared as a result of cascading, whereby visiting one site results in the opening of another. None of the patients were at risk of seeing any of the material, and there is no evidence that any of them had been directly harmed. The committee imposed a caution on Mr Truscott's record for five years.
15. The council appealed on the basis that that penalty was unduly lenient. Dismissing the appeal, the note of Mr Justice Collins' judgment states:

"The evidence before the committee would have justified a conclusion that, as he contended, [Mr Truscott] had not deliberately accessed sites that produced images of naked under-age girls. Suggestions of paedophilia had not been put to the committee. A caution was regarded in the profession as a serious matter and its existence and the reasons for it would be disclosed whenever [Mr Truscott] sought employment as a nurse while it remained in force. The penalty was lenient, however the adverb 'unduly' had to be given its proper weight. Accessing adult pornography was not criminal and the circumstance in which [Mr Truscott] had accessed it demonstrated poor judgment but was perhaps more material to whether he could remain in his employment. The instant case was a borderline case and the [council] was correct to refer it. However, the lack of deliberate access of the child pornography meant that undue lenience had not been established by the [council]."

16. While there were aggravating features in Mr Truscott's case - the fact that he was a nurse specialising in paediatric care and that he accessed material in the hospital where he worked - the critical difference between his case and that of the appellant's is that the court concluded that the penalty of five years caution, although lenient, was not unduly lenient because Mr Truscott had not deliberately accessed child pornography. On that basis he had committed no criminal offence. In the present case, given the very large number of images, it could not be and was not suggested that access to the material was not obtained deliberately. By his plea of guilty the appellant accepted that he had deliberately accessed the large number of images represented by the specimen counts. That raises the question: if five years caution for a medical professional for inadvertently accessing child pornography was lenient but not unduly so, can it be said that removal from the Register for deliberately accessing such material was disproportionate?
17. There is no dispute between the parties as to the approach that the court should adopt in appeals of this kind. In R (on the application of Bevan) v General Medical Council [2005] EWHC 174 Admin, Mr Justice Collins referred in paragraph 24 to the test set out by Lord Millett in Ghosh v General Medical Council [2001] 1 WLR 1915 at 1923:

"'For these reasons the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances. The council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the committee for reconsideration.'"

Mr Justice Collins continued in paragraph 25 of his judgment:

"I should only intervene, it seems to me, if I am persuaded that the penalty imposed was outside the range of what could be regarded as reasonable; or, as I put it in my decision in Moody v General Osteopathic Council [2004] EWHC 967 Admin, if the decision is clearly wrong. But I must bear in mind that the approach should be, and the committee's approach equally should be: was the sanction of erasure appropriate and necessary in the public interest? ..... "

18. Having said that the purpose of a professional sanction was not to impose punishment, Mr Justice Collins cited the judgment of Sir Thomas Bingham MR (as he then was) in Bolton v The Law Society [1994] 1 WLR 512.
19. The approach to the court's powers on appeal, as set out in Bolton, has been replaced by that set out in the speech of Lord Millett in Ghosh. However other aspects of Bolton continue to be instructive. The Master of the Rolls was dealing with a solicitor, and the need for a solicitor entrusted with clients' money to have complete financial integrity. However the principles to which he referred are equally applicable to any professional disciplinary sanction. Having dealt with the issue of punishment, the Master of the Rolls said:

" ..... often the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission .....

Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentence imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price."

20. Because of these considerations the seriousness of the criminal offence, as measured by the sentence imposed by the Crown Court, is not necessarily a reliable guide to its gravity in terms of maintaining public confidence in a particular profession. Thus a relatively minor offence of financial dishonesty may well be considered to be of the utmost gravity by the Law Society when dealing with a solicitor who has care of his clients' funds. While the offences to which the appellant pleaded guilty in this case would have been serious offences whatever the profession or occupation of the defendant, the committee were entitled to regard them as being of grave concern in terms of damaging public confidence in a profession where the professional inevitably has a one to one "hands-on" relationship with a partially undressed patient.
21. Mr Power's submission in mitigation to His Honour Judge Stone QC (para 6 above) was perfectly proper because it was a realistic assessment of how the appellant's professional body would be likely to respond to this kind of offence when committed by an osteopath. It could not fail to harm public confidence in this particular profession - given the necessarily close physical nature of the relationship between an osteopath and the patient - if a person who is on the register of sex offenders and has been disqualified from working with children by court order was allowed to continue to practise.
22. It was acknowledged on behalf of the appellant that he had, and still has, a problem for which he is receiving counselling. The roles of the Crown Court and the committee overlap to an extent in that both are concerned with protection of the public. While a low risk of re-offending may well be sufficient to satisfy a Crown Court that a financial penalty is appropriate, a professional disciplinary committee has to consider the impact of such a risk in a particular professional context. Judge Stone was concerned to protect the public from the appellant as a member of the public, knowing that he was suspended as an osteopath, and that his future as an osteopath would be considered by the relevant professional body which would also consider the question of the protection of the public in that context. Given the very close physical relationship between an osteopath and an osteopath's patient, the committee was entitled to conclude that even a low risk of re-offending was not an acceptable risk.
23. Although Mr Power criticised the committee for failing properly to consider the practicality of imposing conditions as a means of maintaining public confidence, no draft submissions were submitted to the committee for its consideration. In his submissions to the committee, Mr Power had suggested that a number of conditions might be imposed. The committee's legal assessor, Mr Christopher Kinch QC, said:

"You have mentioned reporting conditions to include advanced provision of diary appointments, presumably at specified intervals. Are there any other conditions that form part of the proposed package, as it were?"

To which Mr Power replied:

"I think with respect you have hit the nail on the head. The key concern would be the advance notification of patients in a diary which has to be provided to the Council before any treatment would be administered and for that to be shown to the Council, faxed or otherwise, on a regular basis, that Mr Low would have to keep a fairly intensive and stringent diary of his patients and to abide by any regulations ..... "

24. Mr Power left the issue of further conditions to the committee but added;

"I am reminded very helpfully that one of the conditions, and it is an obvious condition, should not be working with children for a period as long as the order lasts."

25. Pausing there, this is not a case where the last suggested condition - not working with children - would be justified because, for example, a medical practitioner who was perfectly competent at treating adults did not have the necessary professional expertise or aptitude for treating children. The condition would be imposed because of the orders made by the Crown Court placing the appellant on the sex offenders register and disqualifying him from working with children. In these circumstances it is difficult to see how a member of the public, if told of the condition and the reasons for it, would continue to have confidence in the profession.
26. On behalf of the respondent, Miss Purnell pointed out that in any event conditions of practice and/or suspension would necessarily be time-limited. The fact that no draft conditions were put before the committee is, in my judgment, an indication of the difficulty of drafting workable, enforceable conditions in this case. The committee were entitled to conclude that what would be required by way of condition in order to maintain public confidence would have to be something that amounted, in effect, to constant monitoring of the appellant's practice and to further conclude that it would not be "feasible or desirable to monitor a practitioner's every move".
27. For these reasons I am satisfied that the sanction imposed by the committee cannot fairly be described as disproportionate or excessive. No less a sanction would have sufficed to maintain public confidence in the profession. I acknowledge that this is a very sad case and I realise that the consequences for the appellant and his family will be very harsh. But, as the Master of the Rolls said in Bolton, membership of a profession brings many benefits but part of the price is the need to maintain the reputation of that profession.
28. In this case - given these offences - that could be done only by way of removal from the Register.
29. For these reasons this appeal must be dismissed.
30. MISS PURNELL: I am instructed not to ask for any costs beyond the costs of this actual hearing which, I am told, are £800.
31. MR JUSTICE SULLIVAN: Is there any dispute about that, Mr Power?
32. MR POWER: There is no dispute about that. The appellant was assisted by his professional insurers at the time who were able to fund the appeal. I do not dispute if I am told those were the costs.
33. MR JUSTICE SULLIVAN: It is a perfectly reasonable figure for a short day's hearing.
34. MR POWER: Yes.
35. MR JUSTICE SULLIVAN: I notice it is simply the costs of this hearing applied for.
36. MR POWER: I think it is very fair in the circumstances.
37. MR JUSTICE SULLIVAN: In those circumstances the appeal is dismissed. The appellant is to pay the respondent's costs, those costs to be summarily assessed in the sum claimed of £800. Any further applications?
38. MISS PURNELL: No.
39. MR POWER: No.
---