Teasdale v General Osteopathic Council, Court of Appeal - Administrative Court, July 04, 2018, [2018] EWHC 1679 (Admin)

Resolution Date:July 04, 2018
Issuing Organization:Administrative Court
Actores:Teasdale v General Osteopathic Council
 
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Neutral Citation Number: [2018] EWHC 1679 (Admin)

Case No: CO/5593/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Administrative Court

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 04/07/2018

Before :

MR JUSTICE MARTIN SPENCER

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Between :

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Matthew Paul (instructed by Messrs William Graham Law) for the Claimant

Andrew Faux (instructed by The General Osteopathic Council) for the Defendant

Hearing date: 9 May 2018

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Judgment Approved

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) CPR 52.11 has now been re-enacted in the same terms by CPR 52.21: see paragraph 2 above..

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...

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