"(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."

"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."

"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."

"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."

"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."

The statutory framework

"(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."

"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

"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."

"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

"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.

"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.

"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."

"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.