Lewis v Prosthetists & Orthotists Board

A professional disciplinary body may consider conduct occurring before the practitioner’s registration where the practitioner is registered when the disciplinary process takes place. The relevant question is whether the conduct amounted to infamous conduct in a professional respect, not whether it occurred during the period of registration.

The existence or potential existence of criminal proceedings does not deprive the disciplinary committee of jurisdiction under section 9(1)(b) of the Professions Supplementary to Medicine Act 1960. The committee’s jurisdiction is not confined to conduct resulting in a criminal conviction. Any retrospective effect concerns the consideration of past conduct and the making of a prospective decision about continued registration.

The appellant, an orthotist, was registered by the Prosthetists and Orthotists Board in 1998. The Board began disciplinary proceedings concerning an alleged inappropriate relationship with a patient between February 1997 and April 1998.

The disciplinary committee rejected the appellant’s preliminary jurisdictional objection. Mr Justice Hunt dismissed the appellant’s judicial review challenge on 18 December 2000. The Court of Appeal granted permission to appeal. The issues were whether section 9(1)(b) applied to conduct before registration and whether conduct capable of constituting a criminal offence could be considered by the disciplinary committee without a criminal conviction.

1. The appeal was dismissed. The disciplinary committee had jurisdiction to consider the allegations.

2. Conduct capable of amounting to a criminal offence is not thereby excluded from section 9(1)(b) of the Professions Supplementary to Medicine Act 1960. Section 9(1)(a) is concerned with a criminal conviction by a court in the United Kingdom. Section 9(6) also confirms that matters not included in the committee’s statement of infamous conduct may still be considered. It would be irrational if the absence of a prosecution deprived the committee of jurisdiction.

3. Section 9(1)(b) permits consideration of conduct occurring before registration, provided that the person is registered when the disciplinary committee makes its decision. The statutory purpose is to maintain professional standards and protect the public. Registration does not mark the beginning of professional practice, and conduct shortly before registration cannot automatically be ignored.

4. The application of section 9(1)(b) is limited to conduct connected with the practice of the profession. Criminal conduct wholly unrelated to professional practice would fall outside the committee’s jurisdiction.

5. Considering past conduct in deciding whether registration should be cancelled prospectively does not impermissibly give the statute retrospective effect. The court relied on the reasoning in The Queen v General Council of Medical Education (1861) 3 E & E 525 and the dictum in In re a Solicitor's Clerk [1957] 1 WLR 1219.

Lord Justice Clarke and Lord Justice Laws agreed with Lord Justice Waller. The order was appeal dismissed, with a public funded costs assessment for the appellant.

• Court of Appeal (Civil Division): The appeal from the Administrative Court was dismissed.
• Administrative Court: Mr Justice Hunt dismissed the judicial review challenge on 18 December 2000.