Moody v General Osteopathic Council

On an appeal against professional disciplinary sanction, the court conducts a rehearing and may substitute its own decision, while giving appropriate weight to the specialist tribunal. The tribunal’s decision must not be disturbed merely because the court might have imposed a different penalty. Intervention is justified where the sanction is clearly wrong. A protective condition must be related rationally to the risk or misconduct it addresses. Exceptional facts may make a relationship-based breach suitable for admonishment rather than a continuing condition of practice, particularly where there is no evidence of wider risk to patients.

The claimant, a registered osteopath, admitted conducting a long-term emotional and sexual relationship with a patient and breaching patient confidentiality. The Professional Conduct Committee of the General Osteopathic Council found unacceptable professional conduct and imposed a conditions of practice order requiring an independent chaperone during every consultation with or treatment of a female patient.

The claimant appealed under the Osteopaths Act 1993. The central issues were the proper approach to the statutory appeal and whether the imposed condition was an appropriate and proportionate response to the admitted misconduct.

1. The appeal was by way of rehearing. The court was entitled to substitute its own decision, but had to give appropriate weight to the Professional Conduct Committee’s expertise. The greatest weight was due on questions of professional competence and standards. Intervention was nevertheless required where the committee’s decision was clearly wrong. This approach was adopted from Langford v The Law Society [2002] EWHC 2802 (Admin), applying the guidance in Ghosh v General Medical Council [2001] 1 WLR 1915.

2. The admitted relationship was unacceptable professional conduct. The motives of the complainant were of only marginal relevance because the conduct itself breached the professional standard. The confidentiality breach appeared to be at the lowest end of that form of misconduct and had not been relied on by the committee as a reason for the sanction.

3. The chaperone condition was intended to protect future female patients and restore public confidence. However, there was no evidence that the claimant had behaved inappropriately towards any other female patient or that he was likely to do so. Requiring a chaperone for every female patient could wrongly imply that such patients were at risk. The condition therefore bore no proper relationship to the particular offending and was clearly wrong in the exceptional circumstances.

4. Under section 31(8) of the Osteopaths Act 1993, the court substituted an admonishment for the conditions of practice order. The admonishment remained a disciplinary penalty and was to remain on the claimant’s professional record. The appeal was allowed to that extent, and the claimant was awarded the costs of the appeal.

1. Professional Conduct Committee, General Osteopathic Council: found the claimant guilty of unacceptable professional conduct and imposed a conditions of practice order requiring an independent chaperone during consultations with or treatment of female patients.
2. High Court (Administrative Court): allowed the appeal to the extent of substituting an admonishment and ordered the defendant to pay the appeal costs.