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
		04/07/2018

Mr Justice Martin Spencer:

Introduction

1. By her Notice of Appeal dated 1 December 2017, the Appellant (to whom I shall refer as "the Registrant") appeals against the finding and order of the Respondent's Professional Conduct Committee dated 24 October 2017 whereby allegations of "Unacceptable Professional Misconduct" ("UPC") were found proved and the Registrant was made subject to a 12 month conditions of practice order. By her Notice of Appeal and grounds of appeal, the Registrant asserts that the Respondent's committee was wrong to find her guilty of UPC in all respects and, further, it is asserted that the sanction was wrong in that it was excessive.
2. This appeal comes before the High Court pursuant to CPR 52.21 (3) which provides:

"The Appeal Court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court"

The jurisdiction of the High Court is derived from the provisions of CPR 52 DPD 19.1 (1) (j) which applies the provisions of paragraph 19.1 to an appeal to the High Court under section 31 of the Osteopaths Act 1993. The practice direction further provides:

"(2) Every appeal to which this paragraph applies must be supported by written evidence and, if the court so orders, oral evidence and will be by way of re-hearing."

This provision applies equally to appeals from, for example, the Professional Conduct Committees of the General Medical Council and the Nursing and Midwifery Council and therefore guidance from the courts on previous occasions in relation to the approach of the High Court to such appeals are equally applicable to the appeal in this case.

3. In Raschid v General Medical Council [2007] 1 WLR 1460, Laws LJ gave the following guidance.

"The High Court will correct material errors of fact and 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."

Further, I adopt and apply the guidance given by Mostyn J in Luthra v GMC [2013] EWHC 240 at paragraphs 3-6:

"I have been given a bundle of authorities but the principles have all been succinctly captured by Laws LJ in the decision of Raschid v GMC [2007] 1 WLR 1460.

Taking the reasoning of Laws LJ in combination with CPR 52.11 (3) ^[1].

The governing principles are:

(i) I can only overturn the decision of the FTPP if I'm satisfied that it was either wrong or unjust because of a serious procedural or other irregularity in its proceedings.

(ii) In determining whether the decision was wrong I must pay close regard to the special expertise of the FTPP to make the required judgment.

(iii) Equally, I must have in mind that the exercise is essentially concerned with the reputation and standards of the profession, and the protection of the public, rather than the punishment of the [practitioner].

(iv) The High Court will correct material errors of fact and 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.

(v) Where the appeal is against a sanction my decision must not constitute an exercise in re-sentencing or the substitution of one view of the merits for another."

Further, in relation to the third numbered principle, Mostyn J reminded himself (and I remind myself) of the dictum of Sir Anthony Clarke MR in General Medical Council v Meadow [2007] 1 QB 462 at paragraph 32:

"The purpose of FTPP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FTPP thus looks forward, not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.

In relation to sanction, it may have consequences for the individual and his or her family which are deeply unfortunate and even unintended but that does not make the sanction wrong if it is otherwise right because "the reputation of the professions is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that this part of the price."

As Mostyn J said in Luthra's case:

"The reason that the reputation of the profession is so important is not a reflection of a collective amour propre. It is an aspect of the need to protect the public. The public must be able to approach doctors, lawyers and other professionals with complete faith that they are both honest and competent. Without that faith the problems that would arise are too obvious to state. "

4. I would add only this. The provisions of CPR 52.21 suggest that every appeal will be limited to a review of the decision of the lower court unless the court considers that in the circumstances of an individual appeal it would be in the interest of justice to hold a re-hearing. This would seem to suggest that the provisions of CPR 52.21 are only applicable to appeals which are by way of review rather than appeals which are statutorily by way of re-hearing. The application of the provisions of CPR 52.21 to appeals from the decisions of the professional conduct committees of the various healthcare regulatory bodies would seem to elide this distinction between appeals by way of review and appeals by way of re-hearing. However, in my judgment, although, in a "re-hearing" case, the High Court will be more ready to overturn a finding of the PCC, it will not generally re-hear the evidence and see the witnesses for itself. This has two important consequences. First, the PCC having had the benefit of hearing and assessing the witnesses will be in the best position to make judgments about the credibility and reliability of those witnesses. Secondly, the High Court will not have the same knowledge and experience of the profession as the PCC will have and will therefore defer to the judgments of the PCC where those judgments involve matters pertaining to the particular healthcare profession in question.

The facts

5. The background facts can be stated relatively shortly. The Registrant is a registered osteopath who graduated with a Bachelor of Science honours degree in Psychological Sciences from the University of Westminster in 1999 and then, between 2004 and 2008, studied for a Bachelor of Science and Diploma in Osteopathy at the European School of Osteopathy, Boxley, Kent, graduating with a Bachelor of Science honours degree and a Diploma in Osteopathy. Since 2008, she has worked as an osteopath at various clinics both in the UK and abroad. In November 2015, she was employed as an associate osteopath at Weaver House, a professional osteopathy and healthcare practice specifically in order to work as a "cranial osteopath".
6. Although, in her statement, the Registrant says "I was brought on board the Weaver House as a cranial osteopath", she does not explain in that statement what "cranial osteopathy" is. However, it appears to be a recognised and mainstream form of osteopathy in that the council's expert, Mr McClune, says in his report:

"17. Cranial-sacral techniques [by which I take him to mean 'cranial osteopathy'] are provided by osteopaths in approximately 25% of consultations",

referring to the Standardised Data Collection National Pilot Survey at pages 62-63.

In his report, Mr McClune says:

"It is very clear from the evidence presented to me in this case that the Registrant provides cranial-sacral treatment for her patients almost all of the time. It may be that she also provides spinal manipulation treatment as well, but I have seen no evidence of this. Osteopaths use cranial-sacral treatment in approximately 25% of consultations, and in my view, it is a reasonable technique for an osteopath to recommend to a patient for a variety of musculoskeletal problems."

His evidence that the Registrant provided cranial-sacral treatment for her patients almost all of the time is consistent with the Registrant's own evidence that she was specifically employed at the Weaver Clinic as a cranial osteopath.

7. For the purpose of this appeal, the relevant patients treated by the Registrant are those who have been referred to as patients A, B, C, and E.
8. Patient A was a 16 year old young man who was treated by the Registrant on one occasion on 24 November 2015 when he was accompanied by his mother. The Registrant's record of his treatment is reproduced at pages 133 – 134 of the bundle of documents.
9. Patient B was a female patient who suffered from pain from clamping her jaw while asleep and had been seeing another osteopath at Weaver House for treatment approximately once a week. She saw the Registrant on two occasions, 21 December 2015 and 4 January 2016. The Registrant's records of Patient B's treatment are at page 122 of the bundle of documents.
10. Patient C was a baby or toddler aged about 18 months. His mother was the receptionist at Weaver House. On 22 February 2016, C had a fall as a result of which he developed swelling and bruising to his forehead. On 23 February 2016, C's mother told the Registrant about her child's fall and asked for advice in relation to the use of "arnica" cream. The Registrant asked if C's mother could arrange for C to be brought in so that she could check him over and later that morning, C's maternal grandfather brought C in to see the Registrant. The Registrant saw C on that day and again on 8 March 2016. The Registrant's notes of those consultations are at pages 170 – 171 of the bundle of documents.
11. Patient E was a female patient who developed recurring pain in her back, exacerbated by her work and who attended for her first appointment at Weaver House on 14 March 2016 when she was seen and treated by the Registrant. Patient E returned for a second appointment with the Registrant on 21 March 2016. The Registrant's records of Patient E's treatment are contained at pages 191 – 194 of the bundle of documents.

The charges

12. Although there were charges before the PCC in respect of the Registrant's record-keeping, these did not result in a finding of unacceptable professional conduct, nor to a lack of professional competence, and therefore did not arise for the purposes of this appeal.
13. The charges against the Registrant before the PCC in relation to patients A, B, C and E were as follows:

Patient A

2. You provided treatment to Patient A at the practice on 24 November 2015.

Patient A was 16 at the time of the treatment and attended the appointment with his mother. [Admitted and Found Proved]

3. Prior to carrying out the treatment specified at paragraph 2 above, you did not:

a) Adequately, or at all, explain to Patient A or his mother the type of treatment you were going to provide to Patient A;

b) Obtain valid consent from either Patient A or his mother before providing treatment to Patient A.

4. By reason of your actions set out at paragraph 3 above, you did not communicate effectively with Patient A or his mother.

Patient B

5. You provided osteopathic treatment to Patient B at the practice on 21 December 2015 and 4 January 2016. [Admitted and Found Proved]

6. At the appointment on 21 December 2015, you treated Patient B using cranial osteopathy techniques. Prior to carrying out the treatment you did not:

a) Adequately, or at all, explain what kind of treatment you intended to provide;

b) Obtain Patient B's valid consent before carrying out the treatment.

7. At the appointment on 4 January 2016, you carried out treatment to Patient B by placing your hands at the bottom of Patient B's spine, then moving them to the top of her spine, then behind each of her ears. [Admitted and Found Proved]

8. Prior to carrying out the treatment specified at paragraph 7 above, you did not:

a) Adequately, or at all explain what kind of treatment you intended to provide;

b) Obtain Patient B's valid consent before carrying out the treatment.

Baby C

9. Following a fall on 22 February 2016, Baby C attended 2 appointments with you. Baby C first presented with swelling to his forehead and bruising around his eyes and forehead.

10. You provided osteopathic treatment to Baby C on the following dates:

a) 23 February 2016, and [Admitted and Found Proved]

b) 8 March 2016. [Admitted and Found Proved]

11. Following each treatment session set out at paragraph 10 above, you did not provide appropriate aftercare advice to Baby C's mother.

12. At the treatment session on 8 March 2016, you identified a lump or lumps on Baby C's thigh.

13. Following your discovery set out at paragraph 12 above, you suggested to Baby C's mother that:

a) If she rubbed the lumps they would eventually disappear;

b) Homeopathy would be an appropriate alternative to treat the lumps.

14. You did not advise Baby C's mother to contact her General Practitioner and/or seek appropriate medical attention for Baby C elsewhere. [Admitted and Found Proved]

15. Your actions set out at paragraphs 11 and/or 13 and 14 above were:

a) Not clinically justified;

b) Not in Baby C's best interests.

Patient E

16. You provided osteopathic treatment to Patient E at the practice on 14 March 2016 and 21 March 2016. [Admitted and Found Proved]

17. At the appointment on 14 March 2016, you carried out treatment to Patient E by putting your fingers at the base of Patient E's back and holding them there for approximately 8-10 minutes.

18. Prior to carrying out the treatment specified at paragraph 17 above, you did not:

a) Adequately explain what kind of treatment you intended to provide;

b) Adequately explain the risks of such treatment;

c) Obtain Patient E's valid consent before carrying out such treatment.

19. At the appointment on 21 March 2016, you carried out treatment to Patient E by applying pressure while leaning over Patient E, who was lying supine on the treatment bed.

20. Prior to carrying out the treatment specified at paragraph 19 above, you did not:

a) Adequately explain what kind of treatment you intended to provide;

b) Adequately explain the risks of such treatment;

c) Obtain Patient E's valid consent before carrying out such treatment.

14. The hearing before the PCC took place between 16 October 2017 and 24 October 2017. The PCC heard oral evidence from Patient E, the mother of Patient A, Patient B and two expert witnesses, Mr Tim McClune (for the Council) and Miss Caroline Stone (for the Registrant). The Committee also heard oral evidence from the Registrant herself.
15. The findings of the PCC in relation to the above charges were as follows:

Charge paragraph	PCC finding
3a	Proved
3b	Proved
4	Proved
6a	Proved
6b	Proved
8a	Proved
8b	Proved
9	Proved
11	Proved in part
12	Proved
13a	Proved
13b	Not Proved
15a	Proved in relation to paragraph 11 of the charges and 23/1/16, not proved re 8/3/16 or paragraphs 13 and 14
15b	Proved in relation to paragraph 11 of the charges and 23/1/16 only
17	Not proved
18a	Proved
18b	Proved
18c	Proved
19	Not proved
20	Not proved in its entirety

16. Having made its findings of fact, the PCC went on to consider the issues of UPC and/or professional incompetence. In considering this, it reminded itself of Section 20 of the Osteopaths' Act 1993 which defines unacceptable professional conduct as conduct which "falls short of the standards required of a registered osteopath". It also considered guidance provided by the General Osteopathic Council on the threshold criteria and guidance set out by Irwin J in Spencer v The General Osteopathic Council [2012] EWHC 3147, confirmed by Kerr J in Shaw v The General Osteopathic Council [2015] EWHC 2721 (Admin) that unacceptable professional conduct is conduct which implies "moral blameworthiness and a degree of opprobrium". In relation to professional incompetence, the PCC stated that it was aware that professional incompetence indicates a standard of professional performance which is unacceptably low and has usually been demonstrated by reference to "A fair sample of the Registrant's work."
17. The Committee then considered the issue of UPC in relation to three broad categories:

i) Record keeping;

ii) Communication and consent;

iii) Assessment, management and aftercare.

18. As stated, the PCC did not find any UPC or lack of professional competence in relation to record keeping. However, in relation to communication and consent, the PCC observed that, on their findings, the Registrant's appointments with Patients A, B and E demonstrated that on four separate occasions she did not adequately explain the treatment she intended to provide and as a consequence did not obtain valid consent which, the PCC concluded, represented a departure from the Osteopathic Practice Standards.
19. It is convenient to set out here the relevant paragraphs of the Osteopathic Practice Standards from the version which was effective from 1 September 2012, published in accordance with the duty set out in Section 19 of the Osteopaths Act 1993 which requires the General Osteopathic Council "to publish a Code of Practice laying down the standards of conduct and practice expected of osteopaths and giving advice in relation to the practice of osteopathy." Section A deals with communication and patient partnership and is in the format of setting out the standards and providing guidance in relation to each standard. Standard A2 is:

"Listen to patients and respect their concerns and preferences"

and the guidance provides, inter alia,:

"A21 poor communication is at the root of most complaints made by patients against osteopaths. Effective communication is a two-way process which involves not just talking but also listening."

Standard A3 is:

"Give patients the information they need in a way that they can understand."

The guidance includes:

"A3.2 You should inform your patient of any material or significant risks associated with the treatment you are proposing. …

A3.3 Using diagrams, models and non-technical language may help to explain particular treatments and risks."

Standard A4 provides:

"You must receive valid consent before examination and treatment."

The guidance includes the following:

"A4.2 The patient needs to understand the nature, purpose and risk of the examination and treatment proposed. The patient must then be free to either accept or refuse the proposed examination or treatment. Some patients may need time to reflect on what you propose before they give their consent to it.

A4.3 Gaining consent is a fundamental part of your practice and is both an ethical and legal requirement. If you examine or treat a patient without their consent, you may face criminal, civil or GOsC proceedings.

A4.5 Before relying on a patient's consent, you should consider whether they have been given the information they want or need, and how well they understand the details and the implications of what is proposed. This is more important than how their consent is expressed or recorded."

20. Applying these standards and guidance, the PCC made the following findings:

"129. Informed consent to treatment is inextricably linked to obtaining a patient case history, undertaking an assessment, explaining the treatment and advising on the risks and benefits. It is a fundamental principle and goes to the heart of the patient/practitioner relationship. Although the Committee accepted that the Registrant believed that she had obtained valid consent she ought to have known that informed consent involves providing a clear explanation of the treatment to be provided and any known risks, in order for the patient to make an informed decision as to whether to consent to such treatment or not. The patient witnesses all stated they had little or no idea of what the Registrant was doing during the treatment sessions; for example, when Patient E asked what was happening she was not provided with an explanation she understood…. As [the Registrant] believes that cranial osteopathy (a generally recognised treatment modality) carries some risks, albeit low, it is her responsibility to ensure that she obtains valid consent prior to providing any treatment.

130. The Committee concluded that collectively the Registrant's departures from the standards demonstrated a systemic failing and a pattern of behaviour that fell below the high standards of conduct expected of a registered osteopath. Further, the Committee concluded that the Registrant's failure to obtain valid consent taken together was sufficiently serious to pass the threshold for unacceptable professional conduct.

131. Accordingly the Committee determined that the Registrant's omissions amounted to unacceptable professional conduct.

132. Having determined that the Registrant's conduct amounts to unacceptable professional conduct the Committee did not go on to consider professional incompetence."

21. So far as the heading of "Assessment, management and aftercare" is concerned, this related solely to the treatment provided to Baby C. The PCC, having set out parts of paragraphs B2 and B3 of the Standards, which need not be set out here, went on to make the following findings:

"134. The Committee was satisfied that the Registrant ought to have been able to assess whether Baby C may have had a serious head injury, and if so, provide his mother with appropriate aftercare advice which, in addition to advising her of potential signs of concern, may have included a referral to her GP or medical attention from elsewhere, as necessary. The Committee was also satisfied that the Registrant should be able to identify her own limitations and if she was unable to distinguish between a serious head injury and a minor head injury she should not have offered treatment until appropriate advice and assistance had been obtained.

135. The Committee concluded that the Registrant believed that she was competent to assess Baby C's head injury. However, the Committee took the view that there was little or no evidence that the Registrant was able to identify the warning signs which indicate a serious injury had occurred and therefore her actions demonstrated an overconfidence in her own abilities. The Committee was satisfied that the Registrant's conduct and behaviour was serious as it had the potential to result in significant harm, particularly as the potential after effects of the treatment, as described by the Registrant, could mirror the symptoms of a serious head injury.

136. Accordingly the Committee determined that the Registrant's omissions amounted to unacceptable professional conduct."

22. Having thus made findings of unacceptable professional conduct in relation to communication and consent, the PCC went on to consider sanction and followed the usual practice of working through the options from the bottom up. Considering first the sanction of admonishment, the Committee took the view that admonishment would be wholly insufficient to address the wider public interest. It then considered it a Conditions of Practice Order and found as follows:

"149 … The Committee took the view that there are identifiable areas of the Registrant's practice that remain a cause for concern. These concerns relate to communication and valid consent as well assessment, management and aftercare. Whilst during the hearing the Registrant demonstrated very limited insight into her failings the remedial steps she has made indicate that she is at the earliest stages of developing insight. In the Committee's view the Registrant's passion for her career indicates a willingness to respond positively to Conditions, which give the Committee some confidence that she will comply with a Conditions of Practice Order. The Committee considered that it was possible to formulate appropriate and practical Conditions that can be easily verified and monitored. In addition, it was satisfied that Conditions would protect the public and is a sufficient and proportionate sanction to mark to the profession and the public the unacceptability of these failings and to declare and uphold proper standards of conduct and behaviour, which would in turn maintain public confidence in the profession. The Committee was also satisfied that patients would not be put at risk directly or indirectly as a result of continued registration with Conditions.

150. The Committee considered the sanction of suspension, but took the view that the wider public interest considerations would be sufficiently met by Conditions without the more serious sanction of suspension being required. Accordingly it considered a suspension order would be disproportionate."

The Committee then made a Conditions of Practice Order which it imposed for a period of 12 months. These included the condition that the Registrant should place herself under the supervision of a registered osteopath whom she should meet at least monthly and allow the supervisor to prepare a report on the areas as set out in her personal development plan. A further condition was that she would work with her supervisor to formulate a personal development plan, which was specifically designed to address the deficiencies identified as unacceptable professional conduct. There were also other conditions including the need to complete a course of training in communication and consent and to submit two pieces of reflective work before any review hearing.

23. By her Notice of Appeal dated 17 November 2017, the Registrant appeals against the PCC's findings generally on the ground that it failed to give appropriate weight to the evidence of the Registrant and her expert witness, Miss Stone, and more specifically, the factual findings relating to each of the Patients A, B, C and E are challenged as are the findings that the conduct amounted to UPC . Finally, it is asserted that the sanction imposed by the Committee was wrong in that it was excessive.

The Appeal Hearing

24. The appeal came before the Court on 9 May 2018 when the Registrant was represented by Mr Matthew Paul of Counsel and the Council was represented by Mr Andrew Faux. In advance of the hearing, the Registrant had applied for the court to hear oral evidence from the mother of Baby C and for an order requiring disclosure of Baby C's medical records together with an order granting permission to adduce evidence of the impact of the Conditions of Practice order. However, this application was refused by Mr Justice Choudhury on 5 April 2018. The result was that the hearing before me did not entail any further oral evidence.
25. At the start of the hearing, I heard submissions from both counsel in relation to a specific issue, namely whether the Court's enquiry is restricted to whether the decision of the PCC was correct whereby the Court is looking at the matter only as it appeared to the PCC at the time, or whether the court can consider the matter retrospectively in the light of new evidence arising from relevant events that have occurred between the date of the panel's decision and the date of the appeal being heard so that I should look at the issue whether the decision of the PCC both was and is correct. Thus, can the decision, even if correct at the time, be re-considered in the light of new evidence relating to matters that have arisen in the interim period?
26. Mr Paul referred to the purpose of sanction as being patient protection and therefore, he submitted, it would be wrong for the Court to ignore relevant material arising since the sanction was imposed. Mr Paul relied upon the decision of the Court of Appeal in "Hope and Glory" (The Queen on the application of Hope and Glory Public House Limited v City of Westminster Magistrates' Court and another [2011] EWCA Civ 31). He submitted that the Hope and Glory decision reflects the correct approach of the High Court to appeals which are re-hearings and gives the court the discretion to admit new evidence.
27. The Hope and Glory decision concerned the conditions attached to the licence of the Endurance public house in Berwick St, Soho. The appellant licensee appealed to the City of Westminster Magistrates' Court against the conditions they imposed and the appeal to the Court of Appeal considered whether the approach of District Judge sitting in the Magistrates' Court was correct. He had held, following the decision of the Court of Appeal in Sagnata Investments Limited v Norwich Corporation [1971] 2 QB 614 that he should only reverse the decision of the Licensing Committee if he was satisfied that it was wrong; that he would hear evidence and that he was not concerned with the way in which the licensing sub-committee had approached their decision or the process by which it was made. Given the judgment of the court, Toulson LJ (as he then was) said:

"45. At the end of the day the decision before the district judge is whether the decision of the licensing committee is wrong. Mr Glen has submitted that the word 'wrong' is difficult to understand, or, at any rate, is insufficiently clarified. What does it mean? It is plainly not 'Wednesbury unreasonable' because this is not a question of judicial review. It means that the task of the district judge – having heard the evidence which is now before him, and specifically addressing the decision of the court below – is to give a decision whether, because he disagrees with the decision below in the light of the evidence before him, it is therefore wrong.

35. Mr Matthias submitted that as a matter of principle, as well as precedent, there are good reasons why the magistrates' court should pay great attention to the decision of the licensing authority and should only allow an appeal if satisfied, on the evidence before it, that the decision was wrong. He pointed out that Parliament had chosen to make the local authority central to the promotion in its area of the licensing objectives set out in the Act, because local councillors are accountable to the local electorate and are expected to be sensitive to the needs and concerns of the local populace. … It is normal for an appellant to have to show that the order challenged was wrong. The only unusual feature about this type of appeal is that all parties have carte blanche to call evidence. It does not, however, follow that the respondent to the appeal should bear the responsibility of showing that the order should be upheld and so should be required to present its case first."

The Court of Appeal considered that there were two principal issues or questions to be answered: (1) how much weight was the District Judge entitled to give to the decision of the licensing authority; (2) more particularly, was he right to hold that he should only allow the appeal if satisfied that the decision of the licensing authority was wrong? Toulson LJ held that the first question can only be answered in very general terms. He said:

"45. … It is right in all cases that the magistrates' court should pay careful attention to the reasons given by the licensing authority for arriving at the decision under appeal, bearing in mind that Parliament has chosen to place responsibility for making such decisions on local authorities. The weight which the magistrates should ultimately attach to those reasons must be a matter for their judgment in all the circumstances, taking into account the fullness and clarity of the reasons, the nature of the issues and the evidence given on the appeal."

In relation to the second question, Toulson LJ rejected the suggestion that "the function of a court of appeal is to exercise its powers when it is satisfied that the judgment below is wrong, not merely because it is satisfied that the judgment was right" (a dictum of Lord Goddard CJ in Stepney Borough Council v Joffe [1949] 1 KB 599) is only applicable in a case where the original decision was based on "policy considerations". He said:

"49. We are also impressed by Mr Matthias' point that in a case such as this, where the licencing sub-committee has exercised what amounts to a statutory discretion to attach conditions to the licence, it makes good sense that the licensee should have to persuade the magistrates' court that the sub-committee should not have exercised its discretion in the way that it did rather than that the magistrates' court should be required to exercise the discretion afresh on the hearing of the appeal."

28. A further point that arises in the present jurisdiction and was relied upon by Mr Faux related to the power under Section 22(6) of the Osteopaths' Act 1993 which provides:

"At any time while a Conditions of Practice Order is in force under this section, the Committee may (whether or not of its own motion) –

a) Extend, or further extend the period for which the Order has effect;

b) Revoke or vary any of the conditions;

c) Require the osteopath concerned to pass a test of competence specified by the Committee;

d) Reduce the period for which the Order has effect;

e) Revoke the Order."

Mr Faux thus submitted that if a particular condition of practice was no longer appropriate, then an application could be made under that section. He submitted that the approach in regulatory law is settled, referring to the decision of Silber J in Muscat v Health Professions Council, upheld by the Court of Appeal [2009] EWCA Civ 1090 in refusing to admit fresh evidence which had become available and, had it been admitted before the panel, might have caused them to reach a different conclusion as to the appellant's guilt. In response, Mr Paul pointed out that Section 22(6) only applies whilst the conditions are in force and therefore cannot apply now, the conditions not being in force pending this appeal. Furthermore, he pointed to the lack of any power to impose an alternative sanction, for example on the basis that a Conditions of Practice Order was no longer appropriate at all. Mr Paul submitted that the primary concern of patient safety should allow the court to reconsider the matter afresh, including on the basis of new evidence.

Discussion

29. In my judgment, the arguments of Mr Faux are essentially correct. Even though an appeal is stated to be by way of re-hearing, this essentially means that the appeal is not restricted to a consideration of whether the decision below was erroneous in law. However, it is well established that the question, even in the case of a re-hearing appeal, is whether the decision below was wrong and that remains the issue even though there is a power on the appeal to hear evidence. The provisions of Section 22 (6) of the 1993 Act provide a statutory mechanism for conditions of practice to be reviewed or even revoked altogether where circumstances have changed and they no longer remain appropriate. If, however, new evidence about the Registrant's personal circumstances, the courses she had undergone, the additional training she had undertaken etc were to form part of the evidence before the appeal court to give the appeal court the discretion to re-consider the issue of sanction altogether, that would mean that the result of the appeal might depend upon the stage at which it came before the court, the length of any delay since the original hearing and the activities of the Registrant in the interim. In my judgment this would be an undesirable use of the High Court's time and would give Registrants "open season" to appeal and seek a re-consideration of the sanction even where it was wholly right. The deference to be given to the PCC arising from its special knowledge and experience of the profession in question would be seriously undermined if the approach of the High Court were that suggested by Mr Paul. The power to admit fresh evidence should, in my judgment, be exercised sparingly and not simply give the Registrant a "second bite at the cherry" so far as the decision below was concerned.

The merits of the substantive appeal

30. Although there are points of general applicability which run across the different allegations, it is, in my view, appropriate to consider the case of each patient individually. Before doing so, though, I have to deal with some general points made by Mr Paul in his submissions. First, he pointed out that the Registrant had been in practise for eight years without any complaint until these matters arose and certainly her "good character" was something she was entitled to have taken into account. Evidence of good character is dealt with by a Practice Note of the PCC dated 14 May 2015 which provides:

"Evidence of good character

4. The PCC should only consider evidence that is relevant to the issues at the stage of the proceedings under consideration.

5. Evidence of good character, which includes positive evidence of the osteopath's competence and conduct, sometimes before and after the time when the allegations took place, will usually be provided on behalf of the osteopath at the sanctions stage of the proceedings. Such evidence will form part of the osteopath's mitigation, and will be relevant to penalty.

6. In some cases, however, evidence of good character may also be relevant and admissible at an earlier stage, namely when the PCC is required to determine the facts.

7. Evidence of good character is never relevant and admissible to the PCC's consideration of whether the facts and proof amount to unacceptable professional conduct …"

In the circumstances, I consider that the extent to which the PCC should have taken into account the Registrant's "good character" in relation to their fact-finding task was very much in their discretion, depending upon the relevance to the particular issues being considered.

31. Secondly, Mr Paul referred to a certain "animus" between the Registrant and the Weaver Practice where she was employed at the time as evidenced by an email from the Practice Manager, expressing satisfaction with the outcome of the hearing before the PCC. However, it is not wholly clear to me that this is relevant to the issues I have to decide.
32. Thirdly, Mr Paul submitted that the complaints against the Registrant are more "customer service issues" rather than being properly the subject of a complaint. However, this submission is easily rejected. Consent is at the heart of the relationship between a patient and any healthcare professional as recognised by the Code of Conduct to which I have already referred and the complaints were properly the subject of a disciplinary hearing. Furthermore, in relation to Baby C, the complaints went to important aspects of patient safety and therefore way beyond what could be described as "customer service issues".
33. Next, Mr Paul submitted that there was an undercurrent of scepticism in relation to the whole issue of cranial osteopathy and he submitted that the decision of the PCC was tainted by a degree of reservation in relation to the whole nature of the treatment. He referred to one part of the evidence of Mr McClune when answering questions by the PCC.

"Miss Neville: Just a couple of things if I may, Mr McClune. Just now you referred to evidence-based osteopathy, which cranial is not, did I understand you correctly?

A: Yes

Q: Can you expand on that and explain what you mean?

A: Yes osteopathy has a reasonable evidence base for some of its practise, summarised in the musculo-skeletal aspects of health, so low back pain, neck pain. The evidence base supporting cranial osteopathy is very different, both the theory and the clinical practice of cranial osteopathy. With great respect to my colleagues here, there is no scientific evidence base to support the theory of cranial osteopathy and there is no good scientific evidence base to support treatment in terms of outcomes or health problems. To summarise, it is a very fringe therapy not supported by scientific community."

In addition, in cross-examination, it was put to Mr McClune that he did not practise cranial osteopathy to which he agreed. He said:

"As I said before, I would describe myself as a structural musculo-skeletal osteopath. I have also, as part of my career, spent time as an academic. Part of my academic research, in publishing – part of that researching osteopathy and during that research, I suppose simply put, I developed a basis for what was evidence-based osteopathy, and cranial osteopathy did not fit into that.

Q: Would you accept that this Registrant, she has, I think, 14 years' experience in cranial osteopathy, suitably greater experience than yourself?

A: Absolutely yes."

I have say that I think there is some force in the point that, in a case involving questions as to what information, including warnings of risk, should be given by the osteopath to the patient and how the treatment should be explained to the patient, including its efficacy, it was unfortunate that the Council called as an expert an osteopath who clearly had some misgivings, if not outright scepticism, about cranial osteopathy generally.

34. Mr Paul also made an important point which cuts across the individual allegations in relation to the approach of the PCC to its fact-finding exercise. He submitted that, the PCC having found that some explanation was given to the patients, it was incumbent on the PCC to make findings of fact as to what the explanation given actually was, as it was only then that consideration could be given as to whether the explanation was or was not adequate. However, he submitted that, as would be seen in relation to the individual patients, the findings made by the PCC were inadequate. I agree with this point and, as will appear from my consideration of the case relating to Patients A, B and E, it highlights a deficiency in the reasoning and methodology adopted by the PCC in this case.

Patient A

35. Patient A, who was about 16 years old at the relevant time, had been attending the Weaver House practice for several years and had extensive experience of receiving osteopathic treatment at the practice. Patient A did not himself give evidence, only his mother. In her witness statement, and again in her oral evidence, Patient A's mother asserted that the Registrant had made no physical contact with her son whatever during the treatment and the treatment provided was Reiki (although, as I understand it, even Reiki involves the 'laying on of hands').
36. Thus, Mr Paul drew my attention to the following passages in the evidence of Patient A's mother. At page 871B she said:

"She did not say it was going to be any different from what we normally had at the osteopath's when we were treated, because he has always gone since he was four days old. [He] has had cranial right through and my assumption was, and we were not told any different, that this was [not] going to be any different from any of the other osteopaths who had treated him all his life. …

Q: You said that you believed that the treatment was Reiki?

A: Yes

Q: Why did you think that?

A: Because I am an acupuncturist, I am a colonic hydro-therapist, have been for nearly 20 years, so I'm aware of different treatments. She did not touch him. He lay with his eyes closed on his back and she put her hands over his shoulder but, actually, there was no contact with him whatsoever in that appointment.

Q: You've mentioned previously that your son has received cranial treatment by an osteopath?

A: Yes

Q: Did Miss Teasdale mention anything about that she was going to perform cranial osteopathy?

A: No, but had she I would have declined anyhow.

Q: Why is that?

A: Because he has rugby injuries down his lower spine. He [was] used to proper manipulation. He is a big, loose [head] prop. He is a big strappy lad and he had gone for manipulation on the lower part of his back because he was in a very large competition at a state school, in the semi-finals, against all the private schools in the whole of the UK in the Times Rugby competition. … Cranial for a big strapping rugby player – he's a big lad, for me would not have sufficed for what he had gone for."

37. Mr Paul submitted that the panel, having rejected the evidence of A's mother that there was no physical contact at all, then made a finding which was not consistent with any of the other evidence. Mr Paul submitted that once the evidence of the patient's mother that the Registrant didn't touch her son at all was rejected and once the Committee had found that some explanation of the treatment had been given, there was no room for a finding that the explanation was inadequate, at least on the basis of the evidence of Patient A's mother. He submitted that any explanation would have at least included the fact that the treatment was to involve cranial osteopathy, which A's mother entirely refuted and which evidence was therefore wholly tainted and discredited.
38. In response, Mr Faux conceded that there was a reasonable expectation that the panel would go about its fact-finding task in a staged way. However, he submitted that it was necessary to scrutinise carefully what the panel was facing, namely a number of patients giving evidence about events a long time ago in circumstances where they were not sure what was happening. Although Mr Faux did not address the issue of the evidence of Patient A's mother specifically in his oral submissions, in his written submissions he submitted that any argument that the panel was obliged either to accept or reject the evidence of Patient A's mother in its entirety was untenable. He submitted that the PCC's reasoning was a model of a nuanced approach and was an example of how a fact-finding committee can properly approach witnesses whom it views as honest but nevertheless mistaken in some of their recollection so as reasonably to arrive at a conclusion as to what actually happened.

Discussion

39. In order to resolve this issue, it is necessary to set out the panel's actual findings in relation to Patient A in full. They stated:

"41. Patient A's mother acknowledged during her oral evidence that the Registrant obtained a 'fair family history' and 'was generous with her time.' However, she was adamant that the Registrant had not explained the type of treatment that she intended to provide. Patient A's mother stated that she had attended the appointment expecting her son to be provided with conventional physical manipulation, which he had received on numerous occasions for many years, due to a high level of sporting activity from a very young age. Patient A's mother informed the committee that the Registrant made no physical contact [with Patient A] 'once he was on the bed' other than momentarily, and instead the Registrant placed her hands just above his body, which Patient A's mother believed to be Reiki. She stated that her son was lying on his back for around 20-25 minutes. Patient A's mother was equally adamant that the Registrant did not say that she would be performing cranial osteopathy. Patient A's mother informed the committee that she was familiar with cranial osteopathy as both of her children had received 'cranial' when they were babies. She stated she was aware that it involves small movements but informed the committee that 'cranial for a big strapping rugby player would not suffice'. Patient A's mother stated that if 'cranial' had been offered she would have declined it.

42. The Committee noted that the Registrant's contemporaneous note of the consultation indicated that a detailed case history was obtained prior to assessment and treatment. The notes indicate that the Registrant provided Patient A with cranial osteopathy and had recorded 'VCG' which is an abbreviation for 'verbal consent given'. Although the Registrant had no independent recollection of the explanation that she provided to Patient A and his mother, she informed the committee that she would have explained the treatment that she intended to provide.

43. The Committee accepted that it was not practicable and therefore not necessary to record the explanation that was provided to Patient A and therefore his mother. The Committee also accepted that the Registrant's contemporaneous note indicates that a lengthy discussion took place prior to the treatment which was likely to include some explanation. The committee noted that although Patient A's mother did not initiate a complaint at the time, it was clear that not only was she unhappy with the treatment that had been provided, she also thought that the Registrant had made inappropriate comments relating to health and lifestyle advice during the consultation.

44. The Committee was aware that it is not uncommon for honest witnesses to give different accounts of the same event. The Committee concluded that both Patient A's mother and the Registrant honestly believed that their accounts of the appointment on 24 November 2015 were true and accurate. However, although the committee accepted that the Registrant may have provided some explanation of the treatment she intended to provide, the committee concluded that it was inadequate. During her oral evidence, the Registrant informed the committee that she was brought in by the Practice to 'broaden their scope' and had to regularly explain to patients that her approach was different from what they may have experienced with her colleagues at the Practice or elsewhere. When the Registrant was asked by the committee to explain what she told patients her response was far from clear. The Committee made appropriate allowances for the inherent stresses of giving evidence but found her response to be very technical and more appropriate for a discussion between peers. The Committee took the view that overall the Registrant did not provide an explanation in layman terms. The Committee concluded that it was unsurprising, if the same or similar explanation was provided to Patient A and/or his mother they did not appreciate the nature of the treatment that would be provided. In reaching this conclusion the committee took into account the negative response by Patient A's mother to the treatment that had been provided and her prompt decision to change to another osteopath within the Practice. The Committee concluded that the reaction was predominantly because the Registrant did not adequately explain the treatment she intended to provide.

45. Accordingly, paragraph 3(a) was found proved on the basis that the Registrant may have given some explanation of the treatment that would be provided, but that this explanation was not adequate."

40. In my judgment, these findings by the PCC failed to get to grips in any kind of adequate way with the fundamental dispute of fact between the Registrant and Patient A's mother as to the treatment that was actually provided. It seems to me that, before the committee could consider whether the explanation for the treatment that was going to be provided was or was not adequate, the PCC needed to make a clear finding of fact as to what treatment had in fact been given. Mr Paul submitted that the Committee rejected the evidence of Patient A's mother that the Registrant had effectively not touched Patient A at all and I agree that this is the implication, at any rate, from the passage just quoted. However, no such explicit finding was made and it seems to me that this may have been because of the difficulty which this presented for the PCC in relation to the allegations as to whether an adequate explanation of the treatment had been given.
41. The PCC found that the Registrant "may have given some explanation of the treatment that would be provided" but if the treatment was cranial osteopathy, then this must have been an explanation which at least covered the basics of cranial osteopathy which certainly involved the touching of the patient by the Registrant. It is difficult to understand how the PCC could properly have married up the evidence from Patient A's mother that her son was not even touched by the Registrant with acceptance of the evidence from the Registrant that some explanation of proposed treatment was given which must, by definition, have included the touching of the patient. In the end, the evidence of the patient's mother, because of its extreme nature, could not have formed the basis for a finding by the PCC that the explanation given by the Registrant was inadequate. As submitted by Mr Paul, it was necessary for the committee to make findings of fact as to exactly what explanation was given by the Registrant and then go on to consider the ways in which it was inadequate. No such findings of fact are to be found in the decision of the PCC and, in my judgment, the decision in this regard was therefore fundamentally flawed.
42. It is impossible to think that a patient, expecting to be provided with spinal manipulation, would say nothing - not simply because cranial osteopathy was being provided instead but because, on Patient A's mother's account, no treatment at all was given which involved the patient being touched. The patient and/or his mother would surely have protested at the time and the PCC's finding that some explanation was given albeit an inadequate explanation is impossible to square with the PCC's finding at paragraph 21 as follows:

"The committee was mindful that Patient A's mother was an observer rather than the patient being treated, but had no reason to doubt that she was anything other than a credible and reliable witness."

This observation by the committee is impossible to reconcile with the same findings which the committee later made in relation to the allegations under 3 (a) and 3 (b). It is of concern that the PCC does not appear in its decision to have recognised this inconsistency, which has implications for its findings not only in relation to Patient A but also in relation to Patients B and E.

43. In the circumstances, I find that, on the evidence, no reasonable PCC could have found the facts alleged in paragraph 3 (a) to have been proved.
44. So far as paragraph 3 (b) is concerned, the committee's finding was as follows:

"46. The committee acknowledged that the Registrant's contemporaneous note, as indicated by the abbreviation 'VCG', suggested that consent had been obtained. The committee had no reason to doubt that the Registrant genuinely believed that she had obtained consent. However, the committee accepted the oral evidence of Mr McClune that valid consent requires the patient to be informed about the treatment to be provided and that the Registrant's intention to provide cranial osteopathy as opposed to the spinal manipulation that Patient [A] was used to receiving, should have been explicitly stated and made clear.

47. The committee took into account its finding in relation to paragraph 3 (a). As the committee had already determined that the Registrant did not provide an adequate explanation of the treatment she intended to provide, it concluded that valid consent had not been obtained.

48. Accordingly, paragraph 3 (b) was found proved."

However, in my judgment the finding of the PCC that paragraph 3 (b) was proved cannot stand in the light of my decision in relation to the flawed finding in relation to paragraph 3 (a).

Patient B

45. At paragraph 52 of its findings, the PCC set out the evidence of Patient B who stated that the Registrant had failed to explain the treatment she would provide before carrying out the treatment. It said:

"Patient B informed the Committee that she recognised the treatment as cranial osteopathy because she had received this treatment before from her previous osteopath (in conjunction with more conventional osteopathy) but not because it was explained to her by the Registrant."

On the other hand, the Registrant had stated that to have made physical contact with Patient B in the way they both described would have required some explanation in order for this to be possible. The committee stated:

"53. …Although the Registrant could not remember what she said to Patient B, she informed the Committee that based on contemporaneous note, consent was obtained to examine, treat and make physical contact with Patient B's pelvis, neck and sacrum."

46. The Committee then made its finding as follows:

"54. The Committee took into accounts its finding in relation to paragraph 3(a). Although the Committee accepted that the Registrant may have provided some explanation of the treatment she intended to provide, it concluded that it was inadequate. The Registrant was unable to demonstrate to the Committee in layman's terms the explanation that she provided. The Committee concluded that it was unsurprising that, if the same or similar explanation was provided to Patient B, she would not understand that the Registrant intended to treat her with cranial osteopathy."

Discussion

47. [Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture]This finding by the PCC that paragraphs 6(a) was proved is, unfortunately, as flawed as its finding in relation to paragraph 3(a). Firstly, in taking into account its finding in relation to paragraph 3(a), the Committee took into account something it should not have done given my finding that its decision in relation to paragraph 3(a) was fundamentally flawed. However, more importantly, again the Committee failed to make any kind of adequate finding as to the explanation that was in fact given but instead jumped to the conclusion that the explanation given was inadequate without providing a factual basis for that finding.
48. As shown by paragraph 54, the Committee was clearly influenced by the fact that it considered that the Registrant had been unable to demonstrate to the Committee in layman's terms the explanation that she provided. This appears to be a reference to the passage in her evidence where the Registrant was asked questions by one of the PCC members, Ms Neville. The exchange was as follows:

"Q: Going back to Patient B, you confirmed in your evidence that what you were giving her was cranial treatment and you said: 'I do not remember what I said to her at the time, but it was necessary for me to explain cranial osteopathy to many patients at Weaver House as it was different to the treatment they had had before.' If I come to you for the first time, with some presenting complaint and you decide that your treatment choice is cranial, how would you explain that to me? What would you say?

A: I might say that I would like to use a gentle but effective technique, which affects more subtle tissues of the body. Sometimes I give the analogy – sometimes I talk about, because people can relate to it, the thin film of white stuff you can see on a piece of meat and how that fascia surrounds all of the muscles and organs of the body and you can work on that level to release restrictions, so that people can get a feel for what kind of subtly and what kind of level you might be working on.

Q: Is there anything else that you would explain to me, to explain what cranial osteopathy is as opposed to other osteopathic treatment?

A: I might say it is a slightly misleading term, because it does not only pertain to the cranium, it can be about many parts of the body.

Q: Would you use the expression 'cranial osteopathy'?

A: Yes

Q: Anything else?

A: That is when I might talk about possible after effects.

Q: What would you say to me?

A: You may feel tired and because of releasing certain restrictions in the body there may be inflammation, causing – symptoms may be worse for one or two days before that calms down. It does not happen all the time but …

Q: Suppose I said that I'm not sure about that, I'm not sure I want something that might be worse for one or two days. Are there any alternatives? Would you offer alternatives?

A: Yes

Q: What would you wait for me to ask or would you offer alternatives?

A: I would – after the examination, I would explain the treatment that I felt was [most] appropriate for that patient on that day, according to what they came in with and everything that had gone before. If they were not comfortable with that, then I would not do it."

49. In so far as the above passage formed the basis for the Committee's adverse findings against the Registrant, it seems to me that the Registrant was not fairly treated. Given that each patient is different and, as I understand it, the treatment is adapted or calibrated for the particular patient, there is a certain difficulty in the osteopath explaining in general terms or "in vacuo" the explanation which they would give to any patient, and allowance for this should have been made by the Committee. In circumstances where the Registrant could not be expected to remember the precise explanation which she gave to the patient given the passage of time, she could do no better than speak in generalities and in so far as this came over as unconvincing to the Committee, the difficulty faced by the Registrant in giving evidence in those circumstances should have been taken into account.
50. Furthermore, as submitted by Mr Paul, the complaint by Patient B was made in November 2016 in relation to treatment received in December 2015 and January 2016. Therefore Patient B's recollection of specific factual matters was unlikely to be good. However, she agreed that a full and detailed history was taken in the course of a 15 minute discussion, that she was a long-standing patient and had gone specifically in order to receive cranial osteopathy. Therefore, as Mr Paul submitted, any discussion about consent would have been limited in the particular circumstances of that patient. In her evidence, Patient B agreed that the treatment was probably similar to that which had previously been given by a different cranial osteopath. This was therefore an unpromising basis upon which to assert, many months later that the explanation given at the first appointment had been inadequate, particularly where the patient had returned for a further appointment a month later.
51. In the circumstances, in my judgment, the finding by the PCC that paragraphs 6(a) and 6(b) had been proved was wrong and was one which no reasonable committee could have found on the basis of the evidence heard and on the basis of its findings of fact, which were in any event inadequate. With the fall of its findings in relation to paragraphs 6(a) and 6(b), its findings in relation to paragraphs 8(a) and 8(b) also fall and those allegations should equally not be found to be proved.

Patient E

52. In relation to Patient E, the Committee found paragraph 18(a) of the charges proved, finding as follows:

"104. The Committee took into account its findings in relation to paragraphs 3(a), 6(a) and 8(a). Although the Committee accepted that the Registrant may have provided some explanation of the treatment she intended to provide it concluded that it was inadequate. The Registrant was unable to demonstrate to the Committee in layman's terms the explanation that she provided. The Committee concluded that it was unsurprising that, if the same or similar explanation was provided to Patient E, she would not understand that the Registrant intended to treat her with cranial osteopathy."

53. It will be observed that the terms in which the Committee found paragraph 8(a) to be proved are almost identical to those relating to paragraphs 6(a) and 3(a). All that I have said in relation to paragraphs 3(a) and 6(a) and the Committee's findings vis a vis Patients A and B apply equally to its findings in relation to Patient E and, for the same reasons, the findings are flawed and, in my judgment, the decision of the PCC was wrong.
54. It follows from the above that the Committee's finding and decision that the Registrant's omissions in respect of communication and consent amounted to UPC cannot stand and was, in my judgment, wrong.

Assessment, management and aftercare: Baby C

55. The Committee also found that the Registrant had been guilty of UPC in relation to her assessment, management and aftercare: these findings related specifically and exclusively to the Registrant's dealings with Baby C.
56. Baby C was an 18-month-old toddler whose mother was a receptionist at the Weaver Practice where the Registrant worked. On the evening of 22 February 2016, Baby C had fallen and sustained some injury to his head. As a result of a conversation between Baby C's mother and the Registrant on the morning of 23 February 2016, the baby was brought into the Practice by his grandfather to be seen by the Registrant. The Committee found that, when seen by the Registrant, Baby C presented with swelling and bruising to his forehead.
57. Although it was submitted by Mr Paul on behalf of the Registrant that the evidence of Baby C's mother should not have been admitted as hearsay evidence, in my judgment the Committee were entitled to consider this evidence without needing to hear from Baby C's mother in person. In fact, any important dispute of fact was resolved in the Registrant's favour and the allegations of UPC were essentially founded on the expert evidence.
58. In this regard, Mr McClune had given evidence in his report as follows:

"53. In my view, if the PCC determine that the Registrant was qualified to provide a diagnosis and treatment for Baby C's head and facial injuries, then she should have advised the parents/grandparent to be aware of any signs of abnormal activity, e.g. excessive sleeping or significantly more irritable than usual, and if any warning signs were observed, that they should have advised to seek an immediate medical opinion from A&E or their GP. However, I am not an expert in paediatric care, my comments are made within my knowledge only as a practising general osteopath. I have seen no evidence that any advice concerning the above warning signs was provided by the Registrant."

59. So far as the Registrant's expert, Ms Stone, was concerned, she stated:

"Aftercare advice regarding ongoing watchful waiting after treatment in the absence of the immediate need for referral to a medical practitioner is frequently considered advisable and I consider most reasonable osteopaths may have included it in a case similar to this. Baby C's mother account gives no evidence of this discussion and could be taken as implying that it did not occur and if this account is accepted then this aspect of reasonable aftercare was therefore possibly unreasonably omitted. This of course needs clarification by the committee before an opinion can be formed."

60. In addition, the matter was considered by the experts at their joint experts' meeting as reflected in their joint statement dated 16 October 2017. They agreed as follows:

"10) We agree that some advice regarding watchful waiting should have been discussed with Baby C's mother, regarding abnormal activity in Baby C, the exact comments would depend on the clinical circumstances."

61. When the Registrant gave evidence, it was put to her that, in treating Baby C, the Registrant had gone outside the limits of her expertise. However, the Registrant did not accept that she should have referred Baby C to a GP. There was this exchange in cross-examination:

"Q: You did not refer Baby C to a GP, did you, after either of these appointments?

A: No

Q: Do you think now perhaps you should have done?

A: No. I feel that to advise the mother to monitor and if she saw any of the changes we had mentioned, then to take him to a GP or to A&E but I saw no need to do that.

Q: No in fact, you did not give that aftercare advice did you? The aftercare advice you gave was in relation to the treatment you had provided?

A: Yes

Q: Do you see that if you have a patient (baby or toddler) with a head injury, that aftercare advice should also relate to that?

A: Yes

Q: You did not provide that though, did you?

A: No."

Thus, in the course of her evidence, the Registrant accepted that aftercare advice in relation to Baby C should have been provided by her but that she failed to do so. In those circumstances, as Mr Faux submitted, the mother's evidence which the Committee accepted as hearsay was not relevant as the Committee's findings were based on the Registrant's own account as given in her evidence. Given that evidence, it is not surprising that the Committee found proved, in relation to the appointment on 23 February 2016, that the Registrant had failed to provide appropriate aftercare advice to Baby C's mother. In my judgment, it was inevitable that the Committee would find paragraph 11 of the allegations proved.

62. In seeking to support and uphold the Committee's findings that paragraphs 11, 12, 13(a), 15(a) (in relation to paragraph 11) and 15(b) (in relation to paragraph 11) were proved, Mr Faux referred me to NHS guidance on symptoms of a minor head injury in patients. This guidance includes the following:

"Close observation If your child or someone you know has sustained a head injury, observe them closely for 24 hours to monitor whether their symptoms change or get worse."

Mr Faux submitted that if Baby C had in fact suffered an intra-cranial bleed, then that can be catastrophic and the advice which the Registrant had given had the potential of giving false reassurance so that if the child exhibited signs of cerebral irritability, they would go unheeded. This was a reference to paragraph 50 of the Registrant's witness statement where she stated:

"I acknowledge that no aftercare advice is recorded as having been given within Baby C's notes for this appointment. However, I recall having advised [Baby C's mother and/or grandfather] that Baby C may be tired and irritable after the treatment session and that Baby C should rest as possible and stay well hydrated."

Thus, the tiredness and irritability which were identified by the Registrant as potential side-effects of the treatment provided were also potential signs of cerebral irritability and therefore indicative of a serious head injury, and by telling the baby's mother and grandfather that these were potential side-effects of the treatment, the Registrant was giving them false reassurance when, had those symptoms occurred, they should have led to the mother and/or grandfather seeking urgent medical attention.

63. In my judgment, the PCC was plainly justified, on the basis of the evidence before it and the other material relied upon by the Council, in making the findings that it did and, further, in finding that the Registrant's failings amounted to unacceptable professional conduct.

Sanction

64. Given the decisions which I have made, the question is whether this court should uphold the sanction imposed by the Committee, namely to impose conditions of practise for a period of 12 months. Clearly, the conditions which relate to communication and consent should no longer apply as I have overturned the decision of the PCC that the Registrant was guilty of omissions in relation to communication and consent which amounted to unacceptable professional conduct. Thus, it is no longer appropriate that she should be required to complete a course of training in communication and consent which addresses deficiencies relating to explanation of treatment, explanation of risk and the gaining and maintaining of informed consent. Equally, the condition imposed by the Committee that the Registrant should submit two pieces of reflective work covering deficiencies in communication and consent as well as assessment, management and aftercare is no longer appropriate so far as the communication and consent is concerned.
65. In considering its sanction, the Committee rejected admonishment as an appropriate sanction on the basis that the Registrant's failings were not considered to be at the lower end of the unacceptable professional conduct spectrum. They stated:

"148. … Furthermore the Registrant's failings could not be properly characterised as an isolated incident as they related to wide-ranging and persistent fundamental errors over a significant period of time. … Furthermore, the Registrant has only demonstrated very limited insight, in that she only conceded that her aftercare advice for Baby C's mother was inappropriate during cross-examination. As a consequence the Committee could not be satisfied that she is fit to practise without any restrictions."

66. Given my decision to quash the PCC's findings in relation to communication and consent, the remaining allegation which I have upheld is in fact an isolated incident as it pertains only to the advice which the Registrant gave to Baby C's mother and grandfather on 23 February 2016. Furthermore, I consider that I am entitled to take into account two further matters: first, the Registrant did recognise her own failings by virtue of the evidence and the replies that she gave in cross-examination; secondly, no harm actually befell Baby C and the signs of cerebral irritability which, had they occurred, should have led to a GP or medical referral, never actually occurred. Thus, the Registrant's assessment of Baby C's head injury as being minor and of no real concern was in fact correct.
67. I have no doubt that the process of going through the hearing before the PCC, as well as the hearing before me, will have had a salutary effect on the Registrant and will have made her aware that, on this one occasion, her conduct fell below that to be expected of a registered osteopath because the advice that she gave Baby C's mother and grandfather was inappropriate. In my judgment, this is one of those rare occasions when a court can substitute its own sanction for that which was imposed by the PCC and the sanction substituted is one of admonishment.
68. In the circumstances and to the extent indicated in this judgment, the appeal of the Registrant is allowed.

Note 1   CPR 52.11 has now been re-enacted in the same terms by CPR 52.21: see paragraph 2 above.    [Back]