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
		9th June 2009

1. MR JUSTICE BURNETT: This is an appeal brought by virtue of section 31 of the Osteopaths Act 1993 against a decision of the Professional Conduct Committee of the General Osteopathic Council which was given on 6th November 2008. That decision was to remove the appellant, Mr Varley, from the Register.
2. I summarise the background very briefly at this stage. In October 2007 Mr Varley, who was a registered osteopath, was convicted of incitement to supply amphetamines. The basis of his conviction was that he had incited osteopathy patients to join him in creating amphetamine for sale as slimming pills to members of the public. He was sentenced to an 8-month custodial sentence. Mr Spreadborough, who appears on behalf of Mr Varley today, has explained that in fact Mr Varley had spent rather longer than that in custody on remand. The effect, therefore, was his immediate release from custody.
3. In parallel with the criminal proceedings, professional conduct proceedings had been instigated by the Council. On 21st January 2008 the Committee suspended Mr Varley for 6 months from the Register of Osteopaths as a result of that earlier conviction. He had in fact been suspended for the best part of 2 years before then on an interim basis. In addition, a condition of psychological treatment was imposed.
4. During the course of his suspension, in April 2008, Mr Varley examined and treated a particular patient on two occasions. It was alleged by the Council that Mr Varley had held himself out to be an osteopath and had provided osteopathic treatment, following an examination of that patient. Additionally, it was alleged that such treatment had been conducted without professional indemnity insurance. Mr Varley practised with his wife, a registered osteopath. They provided other treatments, such as acupuncture. Whilst suspended, Mr Varley eventually described himself as a "spinal specialist".
5. On 5th and 6th November 2008 there was a hearing held before the Committee into those allegations. The Committee's conclusion was that Mr Varley was guilty of unacceptable professional conduct in the following ways: first, he dishonestly described himself by implication as an osteopath when he was suspended from the Register of Osteopaths; secondly, he conducted osteopathic examinations and gave treatment whilst he was suspended from that Register; thirdly, he conducted osteopathic examinations and treatment without having in place appropriate professional indemnity insurance. It was as a result of those findings that the Committee decided to remove Mr Varley from the Register.
6. The original grounds of appeal found in the notice dated 2nd December 2008 have been superseded by those argued today by Mr Spreadborough. Those arguments were foreshadowed in a skeleton argument served on the respondent on 4th June 2009. Miss Morris, on behalf of the respondent, was content to deal with those arguments as if they had been grounds in the original documents. Thus, no technical point is taken on that, nor on the late service of the original grounds of appeal.
7. Mr Spreadborough's skeleton argument raised three points. The first was an attack on the factual conclusions of the Committee. In the light of the settled approach in this court to factual findings of professional conduct bodies who have heard the evidence, Mr Spreadborough very properly does not seek to advance that first ground.
8. The second ground arises from the chronology of events and the relationship between the review process attaching to the suspension in January 2008 and the manner in which the new allegations were dealt with. Mr Spreadborough submits that the Council manipulated the process to enable the Committee to remove Mr Varley from the Register when, had they approached the matter properly, the Committee's power would have been limited to imposing a further period of suspension.
9. The more detailed chronology is as follows. On 8th October 2007 Mr Varley was convicted on his guilty plea of the offence to which I have referred. On 21st January 2008 the Committee found proved that conviction and considered it to be of material relevance to Mr Varley's fitness to practise as an osteopath. It was on that occasion that the six-month suspension from the Register was imposed. It took effect 28 days later, with an interim suspension in the meantime.
10. In February 2008 a series of correspondence was commenced which shows that the Council were concerned that Mr Varley continued to advertise as an osteopath and put forward material via his website which suggested he was an osteopath.
11. On 2 days in April 2008 the patient visited Mr Varley. On 29th April 2008 the Fitness to Practise Department and the Council were aware of the allegation by that patient that Mr Varley had been holding himself out as an osteopath when he was not in fact registered.
12. At the beginning of June 2008, statements were taken by representatives of the Council from the patient and his wife, apparently on a visit to their home address.
13. On 13th August 2008 the Committee reviewed the suspension that had been imposed in January and concluded that it need not continue. Practice, they concluded, could resume with certain conditions.
14. On 15th August 2008 the Council gave notification of its allegations relating to the treatment of the patient in April 2008. At the same time, the Council made an application for interim suspension.
15. A hearing in respect of that interim suspension application came before the Investigations Committee on 27th August 2008 and an interim suspension order was made. As I have noted, on 5th and 6th November 2008 the allegations concerning the dealings with the patient in April 2008 were considered and determined.
16. As can be seen from that description of events, the Council delayed notifying the allegations relating to the patients until after the review hearing on 13th August 2008. It is clear from the transcript of the hearing on 27th August that the Council believed that if it had referred the matter earlier, one consequence would have been to restrict the options open to the Committee in the event that the allegations were proved.
17. Mr Spreadborough, on the strength of the Council's own belief that this was the case, submits that they manipulated the system unfairly in a way which amounts to an abuse. The difficulty I have with this submission is that when the statutory provisions are considered it becomes clear that the underlying belief was mistaken. The review function in relation to someone who has been suspended from the Register is provided by section 22(8) of the Osteopaths Act 1993. There are ancillary procedural rules in the General Osteopathic Council (Professional Conduct Committee) (Procedure) Rules 2000.
18. Section 22(8) provides:

"At any time while a suspension order is in force with respect to an osteopath under this section or by virtue of a decision of a court on an appeal under section 31, the Committee may (whether or not of its own motion)—

(a) extend, or further extend, the period of suspension; and

(b) make a conditions of practice order with which the osteopath must comply if he resumes the practice of osteopathy after the end of his period of suspension."

This provision enables progress during the suspension to be monitored and, in particular, empowers the Committee to extend the suspension or impose conditions upon the return to practice.

19. Rules 45-54 of the Rules govern the procedure on review hearings. Rule 46 provides:

"If since the original hearing any new allegation against the osteopath has been referred to the Committee, the Committee shall first proceed with any new allegation in accordance with Rules 21-39 hereof."

So if the Council had referred the April allegations to the Committee before the review hearing, the Committee would have been obliged to proceed with those allegations in advance of the review itself.

20. Rule 52 provides:

"Where previously the Committee had directed that an osteopath's registration should be suspended, the Committee shall consider and determine whether it is sufficient to make no further direction or, if not, whether to direct the registration of the osteopath to be subject to a Conditions of Practice Order if the osteopath resumes practice after the end of his suspension, or to direct that any current period of suspension should be extended for a further period of no more than 3 years."

21. It is this rule that the parties considered limited the powers of the reviewing Committee to a further suspension of no more than 3 years, even when considering a new allegation. That would be very surprising, since the new allegation may require removal from the Register on any view. However, rule 46 requires the Committee to consider the new allegation in accordance with rules 21-39. Those rules govern disciplinary hearings, and rules 35 and 36 include a requirement that on a finding of professional misconduct the Committee must consider what, if any, sanction to impose.
22. The available sanctions are set out in section 22(4) of the 1993 Act, which provides:

"Otherwise, the Committee shall take one of the following steps—

(a) admonish the osteopath;

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

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

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

So it is clear that if the Committee has been appraised of the new allegation, and proceeded to deal with it, then would have had all sanctions available, including removal from the Register. It follows, in my judgement, that even if the new allegations had been referred to the Committee before 13th August, the outcome would have been the same.

23. The third argument relates to the sanction imposed, namely removal from the Register. It is submitted that, having regard to the facts, removal was disproportionate. The appellant submits that a further period of suspension was all that was called for.
24. The decision of the Committee on 6th November 2008 is recorded in a note that sets out the allegations and then the findings:

"Allegation:

It is alleged that you, John Varley, are guilty of unacceptable professional conduct, contrary to section 20(1)(a) of the Osteopaths Act 1993, in that you:

1. At a consultation with Patient A on 24th April 2008:

a) Dishonestly described yourself (whether expressly or by implication) as an osteopath when at such time you were suspended from the Register of Osteopaths.

b) Conducted osteopathic examination and treatment when at such time you were suspended from the Register of Osteopaths.

c) Conducted osteopathic examination and treatment without having in place adequate professional indemnity insurance.

2. At a consultation with Patient A on 28th April 2008:

a) Conducted osteopathic examination and treatment when at such time you were suspended from the Register of Osteopaths.

b) Conducted osteopathic examination and treatment without having in place adequate professional indemnity insurance.

c) Dishonestly allowed receipts to be issued in the name of Denise Varley for the consultations conducted with Patient A by you on 24th and 28th April 2008.

Decision

The decision of the Committee is that the facts at 1 a, b and c and 2 a and b are proved. 2 c is not proved.

1 a:

In our deliberations we were impressed by the evidence of Patient A. We found him to be a solid, straightforward witness who gave a good account of himself. He had a clear recollection of what was for him a highly significant event and which was recorded in a reasonable time. We are satisfied in particular that:

1 He was able to compare Mr Varley's treatment with his previous experience of osteopathy.

2 He believed he was being treated by an osteopath.

3 He was shocked to find that he had been treated by someone who was unregistered and uninsured.

Mr Varley, in evidence, appeared to lack insight into his behaviour. He was irritable at times and displayed signs of arrogance. He had clearly not taken the necessary steps to ensure that all patients understood his status by changing advertising and other material. He could, for example, have made it clear that he was operating only as an acupuncturist and naturopath for the period of his suspension. Instead, we find, he chose to work beyond the conditions of his suspension and when challenged claimed he was acting as a 'spinal specialist' and not an osteopath.

We regard it as significant that:

1 Mr Varley handed the leaflet (Council exhibit 1) to Patient A when he must have known it clearly describes him as an osteopath.

2 The justification for handing over that 'old' leaflet fell down when the original document was found to contain no reference to Patient B, a sufferer of MS.

3 The diagnostic report at tab 5, page 53, clearly refers to osteopathy.

The evidence of Denise Varley and Ashley Golding does not affect our findings in relation to 24th and 28th April 2008 consultations. We are satisfied that Patient A did not complain to Denise Varley that he had been treated by an unregistered osteopath.

We have not felt able to place great weight on the written statements in defence exhibit 1. We have noted Mr Varley's input into at least one of those statements (Mr O'Hagan). Mr Varley also had input into the final version of Ms Golding's statement. A number of the written statements have remarkably similar wording. Adam Bojan claims to have consulted Mr Varley in March 2007 when we have been told Mr Varley was in prison.

We are satisfied, on the totality of the evidence, that it is more likely than not that Mr Varley did, at least by implication, describe himself as an osteopath.

1 b:

Mr Varley told us that he looked at Patient A standing up, conducted an active spinal examination, examined the hips and conducted orthopaedic and neurological testing including the Lasegue test. We are satisfied that this in fact amounted to an osteopathic examination. We have been told that there is not definition of an osteopathic examination but the fact that some of the elements we have mentioned feature in orthopaedic or other examinations does not alter the position that they are all commonly carried out by osteopaths examining patients. Furthermore, the impression was clearly given to Patient A that he was undergoing an osteopathic examination.

Mr Varley told us that he did not manipulate Patient A and we accept that manipulation was not appropriate. However, he carried out a number of treatments and we reject his assertion that these could not amount to osteopathic treatment. His own diagnostic report haded to Patient A (tab 5, page 53) says 'osteopaths strive to alleviate problems... by soft tissue massage... acupuncture, exercise, rest'. These methods can be used by osteopaths when treating patients.

We accept that Patient A had good grounds for his belief that he had been seen and treated by an osteopath. We find 1 b proved.

1 c:

In the light of our findings and Mr Varley's evidence that he had no professional indemnity insurance in place 1 c must be proved also.

2 a and b

Patient A and Mr Varley both describe the 28th April 2008 consultation as a continuation of the earlier one with the same pattern of examination and treatment and for the same reasons we find 2 a and b proved."

25. Mr Spreadborough explains that the misrepresentation found by the Committee was implicit, rather than explicit. He also explains that the conduct complained of was encompassed within a short time span and with a single patient. When the patient raised the issue, there was no attempt to conceal the fact that the treatment had not been given by an osteopath. Whilst, submits Mr Spreadborough, this was an act of disobedience to the earlier order of the Committee, removal was disproportionate.
26. The decision on sanction was set out in the same document to which I have referred:

"UNACCEPTABLE PROFESSIONAL CONDUCT

We have found 1 a, b and c proved, and 2 a and b proved. We have in mind that to describe yourself as an osteopath when not registered (at the relevant times Mr Varley was suspended from the Register) is a criminal offence. It is also a breach of paragraph 89 of the Code of Conduct. Mr Varley accepted in evidence that if proved it would be dishonest conduct. We also have regard to the fact that Mr Varley was practising without any professional indemnity insurance, thereby putting his patients at risk.

We have no doubt that these facts demonstrate dishonesty and a failure to ensure that patients were protected by insurance and that they amount to conduct falling short of the standard required of a registered osteopath.

Sanction

The Committee has noted the advice of its legal assessor. We have had regard to the Indicative Sanctions Guidance. We have considered the principle of proportionality of sanction and the fact that sanctions are not designed to be punitive. We have also considered carefully mitigation put forward on Mr Varley's behalf.

We have reminded ourselves of our duty to act in the public interest to protect patients and the wider public from the risk of harm, to maintain public confidence in the profession, to protect and enhance its reputation and to uphold appropriate standards of conduct.

This is in many ways a sad case. Mr Varley is plainly a practitioner with many talents and we accept a desire a help people. After many years of successful practice he entered a period of personal crisis when, as he put it to us at the hearing in January 2008, his moral radar went out of commission. The proceedings in January 2008 that followed from his criminal conviction in October 2007 sounded a clear warning that Mr Varley needed to work during his period of suspension to demonstrate insight into his behaviour and an understanding of the need for professional boundaries. Unfortunately the facts that we have found proved clearly show that he has not reached a point where he can accept his shortcomings. The facts in this case identify a serious departure from relevant professional standards. There is also present an element of dishonesty. Most worryingly, there has been a persistent lack of insight into the seriousness of his actions and their consequences. In our judgement the facts of this case are fundamentally incompatible with his being or remaining an osteopath. We are driven to the conclusion that the only appropriate sanction is an order to remove Mr Varley's name from the Register of Osteopaths."

27. The advice of the legal assessor, to which the Committee referred, reminded them that the imposition of a sanction was not punitive, but was to protect the public, maintain confidence in the profession and uphold appropriate standards of conduct. The legal assessor reminded them that the sanction must be proportionate and that it should be the least severe appropriate for the seriousness of the case.
28. The Indicative Sanctions Guidance certainly places this case at the level of suspension or removal. Indications within the guidance against suspension and in favour of removal were that Mr Varley had demonstrated deep-seated personality and professional attitudinal problems and lacked insight. Such is clear from the requirement for psychological treatment and the references of the Committee to earlier events. In using the language of fundamental incompatibility, the Committee were drawing from the guidance in respect of removal. Criticism is advanced against the decision on the basis that the Committee did not consider the various available sanctions in ascending order and dismiss each in turn.
29. I do not consider that such criticism is justified. The advice of the assessor was clear and taken into account by the Committee. So too was the guidance. Furthermore, in mitigating on behalf of Mr Varley, Mr Jeffries, who then appeared, frankly recognised that the only available choice was between further suspension and removal. He, of course, urged the former in the course of a long mitigation. There is no reason to suppose that the Committee in any way misunderstood the task upon which they were engaged when considering sanction.
30. The question, then, is whether there is any justifiable legal criticism of the sanction that was imposed by the Committee. The legal principles to be applied are not in dispute.
31. In paragraphs 7 and 8 of this court's judgment in Mubarak v General Medical Council [2008] EWHC 2830 (Admin) there is a summary of that approach by reference to a number of decisions of the Privy Council and Court of Appeal:

"7. The appellate court's approach to challenges to a sanction imposed by professional conduct bodies was distilled by Lord Hope in Dad v General Dental Council [2000] 1 WLR 1538 at 1542C:

'It is well established, for very good reasons, that the Board will not interfere with the exercise of the discretion of a Professional Conduct Committee in matters relating to penalty. The assessment of the seriousness of the misconduct upon proof of a conviction is essentially a matter for the Committee, in the light of their experience of the range of cases which come before them. They are best qualified to judge what measures are required to maintain the standards and reputation of the profession and to assess the seriousness of any misconduct. As a general rule therefore the Board will be very slow to interfere with the decision of the Committee on matters relating to penalty.'

8. Whilst that was the approach of the Privy Council, it is also the approach of the High Court in such appeals (see, for example, Auld LJ in Meadow v General Medical Council [2007] QB 462 at paragraph [197]). As part of his review of the approach to be taken to questions of sanction in Raschid v General Medical Council [2007] 1 WLR 1460, Laws LJ affirmed that position and also emphasised that the question of sanction for a Professional Conduct Committee is not the same as that of a court imposing retributive punishment. He said this:

'16. In these circumstances it seems to me to be clear that we should follow the guidance given in the cases decided before the change in the appeal system effected on 1st April 2003. First, the Privy Council is of course a source of high authority; but secondly, we are in any event considering an effectively identical statutory regime. As it seems to me there are in particular two strands in the relevant learning before 1st April 2003. One differentiates the function of the Panel or committee in imposing sanctions from that of a court imposing retributive punishment. The other emphasises the special expertise of the Panel or Committee to make the required judgment.

17. The first of these strands may be gleaned from the Privy Council decision in Gupta v the GMC [2002] 1 WLR 169, 1702 at paragraph 21 in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:

"It has frequently been observed that, where professional discipline is at stake, the relevant Committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] I WLR 512, 517-519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: '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 a part of the price.' Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the Committee in this case."

18. The Panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This as it seems to me engages the second strand to which I have referred. In Marinovitch v GMC, 24 June 2002, Lord Hope giving the judgment of the board said this (paragraph 28, second sentence):

"28. In the appellant's case the effect of the Committee's order is that his erasure is for life but it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the Committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.

29. That is not to say that their lordships may not intervene if there are good grounds for doing so. But in this case their Lordships are satisfied that there are no such grounds. This is a case of such a grave nature that the finding that the appellant was unfit to practice was inevitable. The Committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the appellant of the imposition of the penalty. Their lordships are quite unable to say that the sanction of erasure which the Committee decided to impose in this case while undoubtedly severe was wrong or unjustified."

19. There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffman giving the judgment of the board in Bijl [2002] UKPC 42, paragraphs 2 to 3, which with great respect I need not set out. As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations at paragraph 34 of Ghosh v GMC [2001] 1 WLR 1915 , page 1923G:

"The Board will afford an appropriate measure of respect to the judgment in the Committee whether the practitioner's failing 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."

20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.'"

32. Counsel have cited two further cases to me today. The first is The Law Society v Salsbury [2008] EWCA Civ 1285, decided in November 2008. In that decision the Court or Appeal reminded disciplinary committees that the rights of the professional must be given due weight (see paragraph 30 of the judgment of Jackson LJ). That, of course, is reflected in the need for the sanction to be proportionate.
33. In the same month Silber J gave judgment in Muscat v Health Professions Council [2008] EWHC 2798 (QB), but I would respectfully suggest that no new principles are there found.
34. In my judgement, Mr Jeffries was quite right to have suggested that the choice of sanction lay between suspension and removal. The guidance, in my judgement, pointed towards removal, rather than suspension. Nonetheless, it was for the Committee to weigh, in particular, the need to maintain confidence in the profession, the interest of patients and proper professional standards.
35. At the heart of this case was a piece of calculated defiance to the earlier decision of the Professional Conduct Committee. In the face of a serious earlier allegation, the sanction imposed was one of suspension. The reality, in this case, is that the appellant had sought to circumvent that suspension by attaching a different label to himself whilst acting, at least as regards the patient in April 2008, as if nothing had happened. The label attached was one of "spinal specialist". When coupled particularly with the fact that there was no insurance, it is to my mind unsurprising that the Committee took the view that removal was required. Public confidence in the profession called for no less. The impact on Mr Varley and, more widely, the practice of which he was part is undoubtedly severe, yet the sanction was, in my judgement, proportionate. For all these reasons this appeal is dismissed.
36. Miss Morris?
37. MISS MORRIS: My Lord, you will see that I raised the issue of costs in my skeleton argument.
38. MR JUSTICE BURNETT: Yes. I do not think I have seen a schedule yet.
39. MISS MORRIS: That, I am grateful to say, is not going to need to trouble your Lordship, because Mr Varley has very sensibly made an offer in relation to costs. I would ask that that be reflected in your Lordship's order. He is proposing to pay costs in the sum of £7,500 within 3 months. So I would ask that that part of the order should be expressed by consent.
40. MR JUSTICE BURNETT: Mr Spreadborough, is there anything you need to say on that?
41. MR SPREADBOROUGH: My Lord, I am able to say that the appellant can take no issue with the sum of £7,500 as reasonable costs.
42. MR JUSTICE BURNETT: The formal order will be that the appeal is dismissed. There will be an order by consent that the appellant pay the respondent's costs, assessed in the sum of £7,500, such payment to be made within 3 months of today.
43. MISS MORRIS: Thank you.
44. MR JUSTICE BURNETT: Is there anything else, Miss Morris?
45. MISS MORRIS: No, thank you very much.
46. MR JUSTICE BURNETT: Thank you both very much indeed for your help.