FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Macfadyen Sir David Edward	[2007] CSIH 66 XA70/07 OPINION OF THE COURT delivered by THE LORD PRESIDENT in APPEAL by DR. JAMES IAN COBB Appellant; against THE GENERAL CHIROPRACTIC COUNCIL Respondent: _______

Act: Jones, Solicitor Advocate; Brechin Tindall Oatts

Alt: Webster; Balfour & Manson

17 August 2007

Proceedings before the Committee

[1] On or about 28 August 2006 notice was given to the appellant, a registered chiropractor, of an allegation made against him of unacceptable professional conduct. The allegation had been referred, under the General Chiropractic Council (Professional Conduct Committee) Rules 2000, to the Professional Conduct Committee of the General Chiropractic Council for consideration.

[2] The allegation ran to ten paragraphs, some of these being divided into subparagraphs. All related to the conduct of the appellant in relation to a single patient, Patient A, between December 2002 and May 2003. When the Professional Conduct Committee ("the Committee") convened on 15 February 2007, intimation was given on behalf of the General Chiropractic Council ("the Council") that it was not offering any evidence on the matters contained in paragraphs 3(f) and 9 of the allegation. The Committee accordingly found these matters to be not proved. Intimation was further given on behalf of the appellant that certain matters were admitted by him. These were the matters referred to in paragraphs 1, 2, 3(a) - (e), 4, 5, 6(a), 8(i) and (iii) and 10 of the allegation. In the event, accordingly, there remained in dispute, so far as concerned issues of fact, only the matters referred to in paragraphs 6(b) and 8(ii). The Committee heard evidence on 15 and 16 February. Evidence was led for the Council from a Dr. Brown and for the appellant from the appellant himself and from a Dr. McCrossin. Having heard counsel on the evidence and taken advice from its Legal Assessor, the Committee then adjourned the hearing.

[3] On 6 March 2007 it reconvened and gave its decision on the disputed matters. It held that in relation to the matters referred to in paragraph 6(b) (the keeping of an adequate record in relation to an examination of Patient A on 3 February 2003) the allegation in subparagraph (ii) was not established but those in relation to subparagraphs (i) and (iii) were established; it also held that the matter referred to in paragraph 8(ii) (the re-x-raying of Patient A on 7 April 2003) was established in both its limbs, namely, that taking of such x-rays was not clinically indicated and that it was contrary to the best interests of Patient A. In relation to paragraph 8(ii) the Committee said:

"(a) not clinically indicated:

Patient A was a 33 year old woman of child bearing age, who was first x-rayed at the Paisley Branch of Glasgow Chiropractic on 19 November 2002 by a colleague of Dr. Cobb's. It is admitted by Dr. Cobb that he took two further x-rays of Patient A's lumber spine on 7 April 2003.

Dr. Cobb accepted that he had not carried out a proper orthopaedic or neurological examination of Patient A prior to the decision to re-x-ray her, but contended her failure to improve was clinical justification for taking those x-rays. In his letter of 31 May 2005, Dr. Cobb stated that 'whilst her condition had not worsened in any way there was little evidence of any improvement', and argued that failure to improve was sufficient justification for him to proceed.

Dr. Cobb accepted that his reason to re-x-ray Patient A on 7 April 2003 was not taken in order to determine serious pathology. His explanation was that he was looking for a deterioration in Patient A's fifth lumbar vertebra and L4-5 disc space that might have occurred since the x-rays taken on 19 November 2002.

However, under questioning both Dr. Cobb and his expert witness, Dr. McCrossin, admitted that it would be highly unlikely, in the absence of serious pathology, for any structural changes to be visible on x-ray over this period (approximately 140 days).

The Committee rejects the argument that a failure to improve was adequate justification by itself for re-x-raying this patient in April 2003. This is because in the absence of a suspicion of a serious pathology, it was too soon after she had been x-rayed in November 2002. For these reasons the Committee concludes that the taking of lumbar x-rays by Dr. Cobb on 7 April 2003 was not clinically indicated. Taking x-rays which are not clinically justified is contrary to the requirements of the Ionising Radiation (Medical Exposure) Regulations 2000.

(b) contrary to the best interests of Patient A:

Taking any x-rays without clinical justification is contrary to the best interests of any patient because it exposes the patient to an unnecessary dose of ionising radiation. The effects of ionising radiation exposure are cumulative. In this case Patient A was a female of child bearing age and the consequences of exposing her to unnecessary radiation are potentially even more serious."

[4] Paragraph 10 of the allegation was in the following terms:

"Your conduct as set out at 2 to 9 above was:

(a) Inappropriate;

(b) Unprofessional;

(c) Contrary to the best interests of Patient A;

And that, in relation to the facts and matters alleged, you are guilty of unacceptable professional conduct."

[5] The Committee, having identified that there were three themes to its findings, including admitted matters, namely, failure to keep adequate records, taking of x-rays without justification and failure to reassess the patient, discussed these themes and held that in relation to each of them the appellant's conduct was inappropriate, unprofessional and contrary to the best interests of Patient A. It further considered whether the proven (including the admitted) facts amounted to unacceptable professional conduct, that is, conduct which fell short of the standard required of a registered chiropractor (Chiropractics Act 1994 section 20(2)) and concluded that they did.

[6] The appellant, by reason of a prior commitment, was not present on 6 March. Submissions in mitigation were made on his behalf by counsel, who invited the Committee to dispose of the allegation by admonishing the appellant. The Committee having conferred, the Chairman said:

"The Committee indicated when we adjourned that Dr. Cobb's absence today would not prejudice him. Consequently, the Committee has determined to adjourn this hearing under Rule 10 of the Professional Conduct Committee Rules. This is because it has concluded that it does not have sufficient information before it as to how Dr. Cobb is practising now. In particular, how his current practice addresses the areas of record-keeping, patient assessment and compliance with IRMER [Ionising Radiation (Medical Exposure) Regulations 2000].

It points out that the new record sheets before it are only blank pro forma, and the Committee indicates that it may well be assisted in determining an appropriate and proportional sanction that is the minimum necessary to protect the public by seeing further evidence in these areas."

[7] On 11 April 2007 the Committee reconvened. There was at that stage placed before it on behalf of the appellant a further report (entitled "Independent Professional Audit") prepared by Dr. McCrossin. It was dated 10 March 2007, though its true date may have been 10 April 2007. From a list of between 150 and 200 patients of the appellant Dr. McCrossin had randomly selected 12 patients. Of these 12, nine gave their consent to use of their records for the purposes of the audit. The report addressed two matters of practice, namely, (1) whether the practitioner had obtained appropriate consent before investigating conditions and providing treatment and (2) whether the practitioner made records promptly and included all relevant information in clear and legible form. Among other matters examined in relation to note-taking were "Justification for X-Rays", "Reporting on X-Rays" and "X-Ray factors". The results were presented in tabulated form. On its face the results were favourable to the appellant.

[8] The appellant was examined by his counsel on Dr. McCrossin's report. He was then questioned by members of the Committee, principally by Dr. Copland-Griffiths, a chiropractor member of the Committee. Having questioned the appellant generally about note-taking Dr. Copland-Griffiths' examination of the appellant continued:

"Q. ... I would like to move on to compliance with the IRMER Regulations. I just want you to go through and interpret for me some of the justification and the reports there. We turn to patient No. 1 and I think we need to go to page 22 in the bundle for that. Could you show me where the justification is recorded?

A. Certainly. On the right side of the page, the middle section, you will see the grid with various headings, 50+, trauma, neurological. I have circulated trauma, biomechanical and posture.

Q. So you have got a tick box that you follow through?

A. Yes.

Q. With regard to that tick box, where is the justification for each of these items that you have ticked off?

A. The trauma was reported by the patient in her history. She had been involved in a motor vehicle accident.

Q. What about the biomechanical?

A. The biomechanical, there was a restricted range of motion in the cervical spine and also some positive orthopaedic tests on cervical compression.

Q. So anywhere where you find a restriction, that would justify an x-ray?

A. Not necessarily, not necessarily. I was again just wanting to provide as much justification as possible.

Q. In patient No. 1 you have got justification which is reduced range of movement, is that right?

A. That is right.

Q. And also posture?

A. That is correct.

Q. Can you point to me where the postural justification is shown?

A. I have not notated posture on that original examination."

[9] Thereafter, the questioning, which included questions from other members of the Committee, continued in respect of other patients examined in the audit. The questioning explored, in particular, whether there were noted in the patients' records factors which would justify the taking of an x-ray. At times the questioning touched on whether there was justification in fact for such procedure. In response to these questions the appellant gave explanations, acknowledging in some instances that factors relied on by way of justification had not been appropriately noted. It was elicited that all the adult patients in the sample (8 out of 9) had been x-rayed. When asked: " ... you did say earlier that you probably would x-ray the majority of your patients. Could you give an estimate in percentage terms? Would it be 80% or 90%?", the appellant responded: "To be honest, I would probably estimate about 90%." No objection was taken by the appellant's counsel to the line of questioning pursued by the Committee. In a brief re-examination the appellant was asked whether, so far as x-raying was concerned, he would seek clinical justification before doing so. He responded that he would do so in every case.

[10] The Committee having withdrawn to deliberate, on its return the Chairman said:

"Dr. Cobb, the Committee has carefully considered the submissions that have been made on your behalf, your oral evidence and that of your expert witness, Dr McCrossin, together with his report of a recent audit. It has also noted the bundle of supporting testimonials and taken into account the advice of the Legal Assessor.

The Committee is mindful that its role is to protect patients and the wider public, to maintain public confidence in the profession and to declare and uphold proper standards of conduct.

In determining an appropriate sanction, the Committee has taken into account the GCC Indicative Sanctions Guidance, and the fact that any sanction should be proportionate and is not intended to be punitive, although that may be its effect.

The Committee accepts that you are of previous good history; that you admitted the majority of the allegations and that you further admitted that they amounted to unacceptable professional conduct. It concludes therefore that you have some limited insight into your failings.

At the resumed hearing on 6 March 2007, which proceeded in your absence by mutual consent, the Committee found you guilty of unacceptable professional conduct.

This finding of unacceptable professional conduct was based upon serious failings in three separate areas of your practice:

- Taking of X-rays without adequate justification contrary to Ionising Radiation (Medical Exposure) Regulations;

- Inadequate assessment and reassessment of a patient.

- Inadequate records.

On 6 March 2007 the Committee heard submissions from the GCC and from Mr Burton on your behalf and concluded that you might be disadvantaged if the sanction was determined in your absence. The Committee was concerned that it did not have sufficient information about your current practice and therefore adjourned until today to allow you to provide further evidence of your current practice.

Unfortunately the Committee has not been reassured by the records submitted as part of the audit report, some of which are dated immediately before the initial hearing in February 2007. In particular, the Committee is concerned that all 8 adult patients were X-rayed without adequate justification. Whilst tick boxes may be a useful aide memoire, the Committee was not satisfied that sufficient justification was present in the notes to support each of the boxes that you ticked. Your reasons given in every case included 'posture' and 'biomechanical', often with insufficient recorded evidence to justify reliance on these factors. On questioning, the Committee was further concerned to learn that you X-rayed about 90% of your new patients. This is far in excess of that which it would expect. Furthermore, there is no evidence in these records that you explored and discussed with them any alternative forms of assessment.

In the records, the neurological examinations were very limited, and frequently not dated; the care plans simply noted the number and frequency of proposed treatments without any explanation of the reasons for, and objectives or outcome measures of, treatment.

For these reasons, the Committee consider an admonishment would not be sufficient to protect the public.

The Committee then considered whether or not a conditions of practice order would be sufficient.

Whilst there are areas of your practice which require remedy and these are identifiable, your failings are substantial, and pose a significant threat to public and patient safety. In particular, your admitted practice of X-raying 9 out of 10 of your new patients is inconsistent with that of a reasonable chiropractor. The Committee was also concerned that although female patients of child-bearing age sign to confirm they are not pregnant, you do not explore their assurance adequately, thus exposing these patients to further potential risk.

In addition, the Committee take the view that your standard of record-keeping is still woefully inadequate. In order to understand your records, it was necessary for the Committee to ask you to interpret and explain your entries. In the interests of patient safety, it is essential that records are understandable to other colleagues who might need to read them.

Consequently, the Committee concludes that patients and public would not be adequately protected by a conditions of practice order, and such an order would therefore be an insufficient sanction.

The Committee then considered whether or not a suspension order would be an appropriate sanction. Although it takes a serious view of your professional shortcomings, it does not regard your behaviour as incompatible with your continued practice as a chiropractor and in this context we note the favourable references which you have provided from clients and professional colleagues. However, the Committee is concerned that even now your insight into your failings remains limited. For that reason, the Committee proposes to impose a suspension order for six months. This suspension order will be reviewed shortly before it ends when the Committee will be helped in its consideration by evidence that you have reflected on those aspects of your professional practice which have been of particular concern to this Committee. In particular, you should study the IRMER Regulations in order to ensure that you understand and comply fully with them in the future, reflect on and propose improvements to your present standard of patient assessment and record keeping. The Committee will be further helped if you have taken and passed the Test of Competence.

At the review hearing, the Committee has the power to extend the period of suspension or to make a conditions of practice order or to allow the suspension to run its course. At that hearing, should the Committee be minded to impose a conditions of practice order, that order may well include a requirement that you should pass the Test of Competence, if you have not already done so."

[11] The Committee then proceeded to consider whether it should impose an interim suspension order to cover the period until the substantive order came into effect or until any appeal. It decided to impose such an order. That order remains in force until the disposal of the present appeal, which has been brought to this court under section 31 of the 1994 Act (as amended). The appeal is in substance restricted to a challenge to the sanction of suspension from practice for six months imposed by the Committee. The appellant also challenges the interim suspension.

The statutory framework

[12] The 1994 Act provides by section 22:

"(2) If, having considered it, the Committee is satisfied that the allegation is well-founded it shall proceed as follows.

...

(4) ... The Committee shall take one of the following steps -

(a) admonish the chiropractor;

(b) make an order imposing conditions with which he must comply while

practising as a chiropractor (a 'conditions of practice order');

(c) order the Registrar to suspend the chiropractor's registration for such

period as may be specified in the order (a 'suspension order'); or

(d) order the Registrar to remove the chiropractor's name from the register.

...

(9) At any time while a suspension order is in force with respect to a chiropractor under this section ... 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 chiropractor must

comply if he resumes the practice of chiropractic after the end of his period of suspension.

(10) The period specified in a conditions of practice order or in a suspension order under this section, and any extension of a specified period under subsection ... (9), shall not in each case exceed three years.

...

(13) In exercising its powers under subsection ... (9), the Committee shall ensure that the conditions imposed on the chiropractor concerned are, or the period of suspension imposed on him is, the minimum which it considers necessary for the protection of members of the public."

[13] The General Chiropractic Council (Professional Conduct Committee) Rules provide by Rule 6(8):

"If, after the conclusion of proceedings under paragraph (6), the Committee determines that the allegation is well founded, it may if it thinks fit hear further evidence or submissions from the parties for the purpose of determining the steps to be taken under subsection ... (4) of section 22 of the Act ... ".

Other relevant framework provisions

[14] The Council has developed guidance (the Indicative Sanctions Guidance) for use by the Committee when it is considering what sanction to impose upon a chiropractor following upon a finding of unacceptable professional practice. At paragraph 2 of the Guidance it is stated that members of the Committee are obliged to exercise their own judgment in making decisions as they are acting in a judicial capacity, but within a framework set out by the General Council. That framework, it is added, is reflected in that Guidance. Paragraphs 58 and 59 of the Guidance are in the following terms:

"58. In any case before it, the PCC will need to have due regard to any evidence as presented by way of mitigation by the chiropractor. This could include

·       evidence that the chiropractor has not previously had a finding made against him by the PCC or any other of the GCC regulatory Committees

·       time lapse since the incident

·       any apologies to the complainant/person in question or other expressions of remorse

·       efforts to avoid such behaviour reoccurring.

59. Mitigation could also relate to the circumstances leading up to the incident(s) in question, as well as the character and previous history of the chiropractor."

[15] The Council has also produced a "Guide to the Regulatory Proceedings of the General Chiropractic Council for Respondent Chiropractors & Professional Associations". At paragraph 16(a) of the section of that Guide concerned with hearings it is stated:

"Before deciding on or announcing any sanction the PCC intends to impose, the PCC may hear any further evidence or explanation of the circumstances surrounding the allegation(s) from the Solicitor [the prosecutor before the Committee], and submissions from the Respondent or Respondent's Solicitor in relation to the appropriate sanction to be imposed."

With respect to a situation where allegations are admitted, paragraph 16(bis) states:

" ...

16(b) Before deciding on or announcing any sanction the PCC intends to impose, the PCC shall hear any explanation of the circumstances surrounding the allegation(s) that are relevant from the Solicitor.

16(c) The PCC shall then hearing in (sic) submissions in mitigation from the Respondent or Respondent's Solicitor."

Submissions of parties

[16] Mr. Jones, solicitor advocate for the appellant, observed that the Guidance and the Guide appeared to envisage a more restricted ambit of the power conferred by Regulation 6(8) than the terms of that Regulation themselves might suggest. The right of appeal to this court was not restricted to points of law but was unfettered. The proper approach was that set out in McMahon v Council of the Law Society of Scotland 2002 SC 475, especially at paras. [13] - [16]. Reference was also made to Ghosh v General Medical Council [2001] 1 WLR 1915. The allegation made against the appellant related to his conduct in relation to the treatment of a single patient, Patient A, between December 2002 and May 2003. The Committee's findings on the merits of the allegation (including the issues which had been in dispute) were not challenged in the appeal. However, when in the course of the hearing in mitigation the members of the Committee had questioned the appellant, they had in effect cross-examined him in relation to the nine patients who had been the subject of Dr. McCrossin's audit. Although they had made no express findings about these nine patients, the Committee had clearly relied on the results of that cross-examination in deciding what sanction to impose. The appellant had not been charged with misconduct in relation to any patient other than Patient A nor had he been otherwise warned that he might be faced with allegations in relation to these nine patients, including charges of breaches of the Ionising Radiation (Medical Exposure) Regulations 2000 in respect of any of them. Had he been given fair notice of this, he would have sought appropriate advice and prepared a defence. It was also important to note that the allegations in respect of Patient A were of re-x-raying. The eight patients in the audit who had been x-rayed by the appellant had been so x-rayed on only one occasion. On several occasions the point of the cross-examination (lack of justification for x-raying) had not been put expressly to the appellant. On other occasions the point had not been explored or fairly explored. On one occasion he had not been permitted adequately to explain his notes. Leading questions had been put to him. The Chairman, who was a lay person, had sought to cross-examine the appellant about his practice of x-raying. She had incorrectly suggested that he wrote up his notes on patients at the end of the day from memory, rather than at the time of examination. Paragraphs 58 and 59 of the Indicative Sanctions Guidance identified the sorts of matters which might appropriately be expressed in evidence in mitigation. The Committee might also ask questions to clarify matters or to investigate pertinent lines of enquiry. The questioning undertaken by the Committee had gone far beyond that. While the Committee would have been entitled to give no weight to the audit report or to the appellant's answers in respect of it, it was not entitled to impose a sanction which went beyond that which was justified by its findings in the allegation itself. What the Committee in essence had done was to suspend the appellant because of a perceived threat to the public, particularly pregnant women, if the appellant was routinely x-raying patients without proper justification. That perception had proceeded on matters not proved before it. There had been a clear breach of the appellant's right to a fair hearing under Article 6 of the European Convention on Human Rights and Fundamental Freedoms. Reference was made to Peace v General Teaching Council for Scotland 2003 SLT 587, per Lord McCluskey at para. [5]. The appellant had not been given fair notice of the matters which were in the event relied on as justifying imposition of the sanction of suspension. The Committee, distracted by the conclusions it had reached as a result of its questioning during the proceedings in mitigation, had not properly addressed, on the basis of its findings on the merits of the allegation, the matter of disposal. In particular, it had not properly addressed the sanction of a conditions of practice order, the suitability of which required to be addressed before the Committee went on to consider the sanction of suspension. If the perceived risk to the public was of x-raying without justification and/or inadequate note-taking, it would have been possible for the Committee to impose conditions of practice which prohibited the appellant from sanctioning x-rays without approval from a colleague and/or required auditing of the appellant's note-taking. Such conditions had not been discussed by the Committee. No reasons had been given of why it was not possible to proceed by the imposition of such conditions. The Committee was obliged to give reasons for its decision on disposal (General Chiropractic Council (Professional Conduct Committee) Rules, Rule 18(1)(a); Indicative Sanctions Guidance, para. 12). The Committee had imposed an interim suspension, which had had the effect of suspending the appellant's ability to practice since 12 April 2007. An appeal having been taken, the six months suspension of practice did not take effect until the disposal of the appeal. In all the circumstances, regard being had to, among other things, the testimonials produced from patients and fellow practitioners, the court should now admonish the appellant, failing which it should remit the case to the Committee with a direction that it impose a conditions of practice order. In any event any suspension order should be restricted so that the total period of suspension did not exceed six months from 12 April 2007.

[17] Mr. Webster, counsel for the Council, observed that, as regards conditions of practice, the Committee had no power to require another practitioner to exercise supervision over the instruction of x-rays or the taking of adequate notes. Practical proposals in that regard would require to be put forward by the appellant. He had not done so before the Committee, where the only disposal urged on his behalf was of admonition. A similar disposal had been urged before this court. The Committee had been justified in taking a serious view of the appellant's conduct and in imposing the sanction of suspension for six months, which would require the appellant to give serious thought to his failures. The appellant had been aware from the summer of 2006 (when notice of the allegation had been given) of what was said against him in relation to Patient A. He had had the opportunity of putting in hand an audit of his professional practice in the period up to the hearing in March 2007. Such an audit had been conducted by Dr. McCrossin and put in evidence by way of mitigation. The appellant had elected to speak to it. The Committee was entitled to test his evidence - in particular as to whether he had insight into the failures in record-keeping etc. which had been demonstrated in relation to Patient A. Questioning by the Committee had brought out that, in relation to the patients discussed in the audit (all but one of whom had been x-rayed), there had been a failure adequately to record conditions which could justify the instruction of x-rays. The absence of justification for x-raying had been one of the matters of complaint in relation to Patient A. The Committee had been entitled to conclude, as it had, that it had not been reassured by the audit that the appellant's current practice met the concerns demonstrated in relation to Patient A, namely, inadequate justification for taking x-rays, inadequate assessment and reassessment of the patient and inadequate records. The Committee was not saying that there had in fact been breaches of professional conduct in relation to the patients in the audit, simply that there was an absence of material to demonstrate that there had been a change. On the basis of Dr. Brown's evidence and its own professional expertise, it was entitled to conclude that the admitted extent of the appellant's x-raying of patients was unreasonable. The Indicative Sanctions Guidance was not binding on the Committee or on the court but, together with the relevant body of case law, might assist the Committee to reach consistent decisions while at the same time taking account of the particular circumstances of each case (Council for the Regulation of Health Care Professionals v General Medical Council [2004] 1 WLR 2432, per Leveson J. at para. 29). In the circumstances of this case the sanction selected by the Committee was both reasonable and appropriate. Even if the court were to hold that there had been some error on the part of the Committee, the court should hold that that sanction was appropriate. The appeal should be dismissed.

Discussion and Disposal

[18] The Committee, having noted certain admissions made by the appellant and having heard evidence on certain disputed matters, was satisfied that, subject to certain restrictions, the allegation made against the appellant was well-founded. That allegation was in respect of conduct in relation to a single patient, Patient A, between December 2002 and May 2003. The Committee held that the conduct in question, admitted and proved, constituted unacceptable professional conduct. In these circumstances it required to go on to consider which of the steps identified in section 22(4) of the 1994 Act it should then take.

[19] Central to the Committee's conclusion of unacceptable professional conduct were findings of inadequate record-keeping and of the taking of (further) x-rays without adequate justification. The Committee clearly took a serious view of the appellant's conduct. To avoid prejudice to him by reason of his absence on 6 March 2007, it adjourned the proceedings. At the close of the proceedings on that day the Chairman stated, amongst other things, that the Committee

"concluded that it does not have sufficient information before it as to how Dr. Cobb is practising now. In particular, how his current practice addresses the area of record-keeping, patient assessment and compliance with IRMER."

Although Dr. Cobb was not then personally present, it may be taken that he was advised by his representatives of the reason for the adjournment. In these circumstances he must have been well aware that, in deciding how to proceed in respect of disposal, the Committee would wish to be fully informed about the appellant's current practice in the areas identified. Paragraph 58 of the Indicative Sanctions Guidance identified as one of the matters to which the Committee would need to have due regard in relation to mitigation "efforts to avoid such behaviour reoccurring". At the adjourned hearing Dr. McCrossin's audit report was tendered to the Committee on the appellant's behalf and the appellant personally spoke to it. Unsurprisingly, the Committee took the opportunity to explore with him what could be derived from that report (and the associated patient records) in respect of the appellant's current practice.

[20] We are not persuaded that the appellant was unfairly prejudiced by the questioning pursued by the Committee or the conclusions which it drew from the responses it received. A principal element in the proven allegation was the taking of x-rays of Patient A in circumstances where that was not justified, so exposing her unacceptably to the risks of ionising radiation. In exploring the basis for the decision to x-ray, counsel for the Council had put to the appellant in cross-examination that a significant number of other patients had been x-rayed about the same time. On being asked whether x-raying was something which he did as a matter of routine, the appellant replied:

"At that time, in 2002, the technique that I was utilising at the time put quite an emphasis on biomechanical x-ray findings. I no longer utilise that technique, but at the time I would probably have been taking x-rays of most of my patients." (Record of proceedings, D2-12).

All the adult patients listed in Dr. McCrossin's audit had, as was obvious, been x-rayed relatively recently on the appellant's advice. Perusal of the audit report would inevitably give rise to concern on the part of Committee members about the appellant's current practice in relation to the taking of x-rays. The appellant, if he gave careful consideration to the audit report and its implications, should readily have anticipated that the Committee would have such a concern unless provided with satisfactory explanations. That report, together with the absence of satisfactory recording in the patient's records of bases for taking x-rays, did nothing to allay the Committee's concern. That concern was, no doubt, heightened by the appellant's volunteered response under questioning that he x-rayed about 90% of his new patients - a percentage far higher than that (15-20%) which Dr. Roberts would have expected and one which the Committee, assisted no doubt by its expert knowledge and having in mind the requirements of the Ionising Radiation (Medical Exposure) Regulations, considered to be "unreasonable". On a fair construction of the Committee's reasoning, it did not, in our view go so far as to hold positively that the eight adult patients in Dr. McCrossin's list had been x-rayed without justification. Rather, it concluded that the appellant's records of these recent patients did not reassure it as to the safety of his current practice as regards the taking of x-rays. That was, in our view, a conclusion which it was entitled to draw from the evidence placed before it. The matters explored by the Committee were legitimate "for the purposes of the steps to be taken" by it under section 22(4) of the Act (Rule 6(8) of the 2000 Rules). We are not persuaded that the appellant was unfairly prejudiced by any perception of a narrower scope of the hearing in mitigation which the Indicative Sanctions Guidance or the Guide may suggest. There was, in our view, no unfairness at common law to the appellant nor was there any breach of his rights under Article 6 of the European Convention. Lord McCluskey's observations in Peace v General Teaching Council for Scotland (which was concerned with the proper interpretation, without the benefit of access to supporting evidence, of a Committee's conclusions of fact) are not applicable to the present situation.

[21] Some criticism was made of the manner in which the members of the Committee pressed their questioning. But, subject only to a possible misinterpretation in relation to when the appellant wrote up his findings on examination (which we do not regard as material), that questioning was, in our view, fairly conducted and the appellant given a fair opportunity to explain what appeared (or did not appear) in his notes.

[22] Paragraph 9 of the Indicative Sanctions Guidance states:

"The purpose of the sanctions is not to be punitive, but to protect patients and the public interest, although they may have a punitive effect."

The 1994 Act does not in terms identify the purpose of the initial steps which, under section 22(4), the Committee must in the relevant circumstances take - though section 22(13) (which is concerned with subsequent steps) may support the proposition that a primary purpose to be achieved generally by these means is the protection of the public; section 21(2) and 24(2) point to a similar purpose. The taking of any step (other than conceivably admonition) potentially also has a penal element: the effectual imposition of conditions may require the practitioner to arrange at his own expense for supervision or auditing of his professional activities by a colleague or colleagues; suspension from practice as a chiropractor will, almost inevitably, have an adverse effect on earnings. Paragraph 23 of the Indicative Sanctions Guidance states:

"Suspension can be used to send out a signal to the chiropractor, the profession and the public about what is regarded as unacceptable behaviour."

[23] The Committee appropriately addressed the steps open to it in inverse order of seriousness, beginning with admonition. It gave its reasons for considering that such a step was not sufficient to protect the public. It then considered whether or not a conditions of practice order would be sufficient and, for reasons which it gave, rejected that step. It then considered whether or not a suspension order would be sufficient. In that regard it said:

"Although it takes a serious view of your professional shortcomings, it does not regard your behaviour as incompatible with your continued practice as a chiropractor and in this context we note the favourable references which you have provided from clients and professional colleagues. However, the Committee is concerned that even now your insight into your failings remains limited. For that reason, the Committee proposes to impose a suspension order for six months. This suspension order will be reviewed shortly before it ends when the Committee will be helped in its consideration by evidence that you have reflected on those aspects of your professional practice which have been of particular concern to this Committee. In particular, you should study the IRMER Regulations in order to ensure that you understand and comply fully with them in the future, reflect on and propose improvements to your present standard of patient assessment and record-keeping. The Committee will be further helped if you have taken and passed the Test of Competence."

It is clear from the quoted passage that the Committee had in mind the possibility of imposing the most extreme sanction, namely, removal of the appellant from the Register, but considered that in the circumstances it was unnecessary to go that far. In our view the Committee's conclusion on sanction was justified and its reasons for arriving at that conclusion sufficiently clear. It did not, in any material respect, fall into error. Having reached the view that it did as to sanction, the making of an order of interim suspension was clearly appropriate.

[24] As the appeal to this court is unrestricted in scope, it is for us to consider whether suspension for a period of six months was in the circumstances appropriate. We reject the proposition that an admonition would suffice; the very serious failure in note-taking, particularly against the proven lack of justification for re-x-raying Patient A and the concern about adequate recording of bases for x-raying all the adult patients in the audit, renders such a disposal quite inappropriate - notwithstanding the testimonials submitted and that, since the Committee's disposal, the appellant has taken and passed the Test of Competence. As to a conditions of practice order, an initial difficulty is presented by the absence of any detailed proposals as to how compliance with any such conditions could effectively be monitored. In any event, this case is of sufficient seriousness to require a signal to be sent to the practitioner of the unacceptability of his conduct. That signal is sent by imposing a short period of suspension. We are fortified in this conclusion by that sanction having been selected by a professional Committee whose analysis of the circumstances is not open to serious criticism.

[25] The order of interim suspension imposed by the Committee ran in the first instance for 28 days from its imposition, that is, until 12 April 2007. Had the appellant not appealed, the suspension would have run from that date, expiring, subject to any renewal, on 12 October 2007. As the appeal, although unsuccessful, was not frivolous, it is inappropriate that the period for which the appellant is practically disabled from practice as a chiropractor should be longer than it would have been had no appeal been taken. We shall, accordingly, allow the appeal to the limited extent of varying the suspension order imposed by the Committee so as now to expire on 12 October 2007. Quoad ultra we shall refuse the appeal.