QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Dr Peter Spencer
|- and -
|General Osteopathic Council
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Mr Andrew Colman (instructed by Blake Lapthorn Solicitors) for the Respondent
Hearing dates: 4 October 2012
Crown Copyright ©
Mr Justice Irwin:
Background and Facts
"4. In relation to a consultation with Patient A on 11 June 2009, failed to adequately record the case history in that you failed to adequately record:
4.1 Onset of the twinges in the left SIJ [sacro-iliac joint];
4.2 Progression since onset of the twinges in the left SIJ;
4.3 Aggravating and relieving factors of the twinges in the left SIJ;
4.4 Associated signs/symptoms relating to the twinges in the left SIJ.
5. In relation to a consultation with Patient A on 10 September 2009, failed to adequately record the case history in that you failed to adequately record the progression of the twinges in the left SIJ that had presented on 11 June 2009.
6. In relation to a consultation with Patient A on 10 September 2009 failed to adequately record the result of the examination of the hip joints."
The Statutory Scheme of the Osteopaths Act 1993
(1) This section applies where any allegation is made against a registered osteopath to the effect that-
(a) he has been guilty of conduct which falls short of the standard required of a registered osteopath;
(b) he has been guilty of professional incompetence;
(c) he has been convicted (at any time) in the United Kingdom of a criminal offence; or
(d) his ability to practise as an osteopath is seriously impaired because of his physical or mental condition;
(2) In this Act conduct which fall short of the standard required of a registered osteopath is referred to as "unacceptable professional conduct"."
"Section 19 (4)
Where any person is alleged to have failed to comply with any provision of the Code, that failure
(a) shall not be taken, of itself, to constitute unacceptable professional conduct on his part; but
(b) shall be taken into account in any proceedings against him under this Act."
"S.22 (4). 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."
Section 22 (13):
"The Committee shall, before the end of the period of twelve months beginning with the commencement of this section, and at least once in every succeeding period of twelve months, publish a report setting out-
(a) the names of those osteopaths in respect of whom it has investigated allegations under this section and found the allegations to be well founded;
(b) the nature of those allegations; and
(c) the steps (if any) taken by the Committee in respect of the osteopaths so named."
Section 22 (14):
"Where the Committee has investigated any allegation against an osteopath under this section and has not been satisfied that the allegation was well founded, it shall include in its report for the year in question a statement of that fact, if the osteopath so requests."
"You must keep accurate, comprehensive, easily understood, contemporaneous, signed (initialled entries if computerised records) and dated case notes. These notes should always be made in indelible ink and at least record:
- Your patient's personal details
- Any problems and symptoms reported by your patient
- Relevant medical and family history
- Your clinical findings
- The information and advice you have provided
- Actual advice given to the patient regarding the risks associated with any proposed examination or treatment
- The decisions made
- Records of consent and/or consent forms
- The investigation and treatment you provide or arrange, and their results
- Any communication with, about or from your patient
- Copies of any correspondence, reports, test results, etc, about your patient
- Reaction to treatments/treatment outcomes
- Reference to any home/domiciliary visits
- If a chaperone was present or was not required
- Whether a student/observer was present."
The Sections specifically referred to by the PCC in the Appellant's case are highlighted in italics above.
"Given the retention in the Act in its present form of Section 1 (1A), setting out the main objective of the GMC "to protect, promote and maintain the health and safety of the public" it is inconceivable that "misconduct" now one of the categories of impairment of fitness to practise provided by Section 35C of the Act should signify a lower threshold of disciplinary intervention by the GMC."
"Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium which inevitably attaches to the disciplinary offence."
"(1) Mere negligence does not constitute "misconduct" within the meaning of Section 35C (2) (a) of the Medical Act 1983. Nevertheless, and depending on the circumstances, negligent acts or omissions which are particularly serious may amount to "misconduct";
(2) A single negligent act or omission is less likely to cross the threshold of "misconduct" than multiple acts or omissions. Nevertheless and depending upon the circumstances, a single negligent act or omission, if particularly grave, could be characterised as "misconduct";
(3) "Deficient professional performance" within the meaning of 35C(2)(b) is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor's work.
(4) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute "deficient professional performance".
(5) It is neither necessary nor appropriate to extend the interpretation of "deficient professional performance" in order to encompass matters which constitute "misconduct"."
The Decision in This Case
"The primary issue for the Committee was therefore as to whether or not those facts amounted to unacceptable professional conduct for the purposes of Section 20(1) (a) and Section 22A of the Osteopaths Act.
In reaching its decision the Committee has taken account of the decision of Mr Justice Jackson as he then was in the case of R (Calhaem) v- The General Medical Council particularly the guidance given in paragraph 39 of the judgment. Whilst this case relates to a different regulatory regime, the Committee accepts . Mr Holl-Allen's submission that it should only find unacceptable professional conduct if it is satisfied that the facts admitted by the Registrant give rise to significant or serious issues of conduct. It bears in mind if such a finding is made, the terms of Section 22 (4) of the Act require a sanction to be imposed.
In reaching its decision the Committee has taken into account paragraph 116 of the Code of Conduct .The Committee also notes the Standard of Proficiency which requires at paragraph J that osteopaths must be able to record key findings accurately with appropriate detail and, specifically at sub paragraph J9, to demonstrate the ability to generate complete and accurate records of the outcomes of the patient evaluation. The Committee recognises and accepts the terms of Section 19 (4) of the Act. The Committee also accepts that it has dismissed the parts of the allegation that asserted that the Registrant had failed to take an adequate case history. It also expressly records and accepts as a fact that there is no criticism of the treatment which the Registrant provided to Patient A.
Taking all relevant evidence into account, the Committee's judgment is that the Registrants' accepted failures to keep adequate case records, as set out in Part 4 6 of the allegation, do amount to unacceptable professional misconduct (sic). It considers that the keeping of case records, as highlighted by the Code of Practice and the Standard of Proficiency, is of paramount importance to safe osteopathic practice and to avoid risks for the patient. In particular, it is essential for all osteopaths to maintain full and complete records in order to ensure that a proper diagnosis can be made and appropriate treatment and advice is given. Further, in a case such as this, where a patient attends over a period of time, accurate and full record keeping is essential for the practitioner in providing continuity of care and safe practice, identifying any changes to the patient's condition and informing adjustments to the treatment plans. In relation to the progression of the condition it is essential that an osteopath fully records the history and relevant symptoms for both the patient's benefit but also to ensure that both the osteopath or alternatively any professional colleague who treats the patient subsequently is in possession of all relevant information. Whilst relating to a single patient, the Committee considers the facts accepted by the Registrant disclose a significant failure of the Registrant's duty to keep appropriate case records on two separate occasions and that this therefore amounts to unacceptable professional conduct."