Moody v General Osteopathic Council

A professional disciplinary tribunal may infer general professional incompetence from particular proved failings where the evidence demonstrates a fundamental defect in the practitioner’s approach and the practitioner has had a fair opportunity to address the case. The tribunal must ordinarily allege generic failings if it relies on them, because failing to do so risks unfairness. However, the tribunal’s protective jurisdiction may permit consideration of the wider implications of proved allegations where the generic nature of the practice emerges from the evidence. Removal from a professional register is reserved for the most serious cases and is justified where lesser sanctions would not adequately protect the public.

Donald Moody appealed under section 31 of the Osteopaths Act 1993 against findings of professional incompetence and the consequential removal of his name from the register by the General Osteopathic Council’s Professional Conduct Committee. The allegations arose from his treatment of one patient, SW, in September 2005.

The Professional Conduct Committee found proved failures to obtain and evaluate an adequate medical history, conduct sufficient examinations, reassess the patient’s condition and treatment, and appropriately advise him about an MRI scan. It found other allegations unproved. The central issues were whether the findings were supported by the evidence, whether they established professional incompetence, and whether removal from the register was proportionate.

1. The appeal was dismissed. The findings of the Professional Conduct Committee were adequately supported, save that some reasons were expressed inadequately. The underlying basis of those findings was nevertheless apparent from the evidence, including the appellant’s own admissions.
2. A professional tribunal is entitled to assess expert evidence concerning the standard of professional practice. The Committee was entitled to accept the evidence that an osteopath must elicit the information required for diagnosis and treatment, rather than rely on the patient to volunteer it. It was also entitled to find that the examinations undertaken were insufficient and that the appellant should have reconsidered his diagnosis and treatment when the patient’s condition deteriorated.
3. The advice not to undergo the scheduled MRI scan was properly found inappropriate. The scan could have provided information relevant to further treatment or referral. Any risk associated with travel or lying on the scanning bed was a matter for the Committee to assess and did not justify the broader advice that the scan was unnecessary.
4. Although the allegations concerned one patient and did not expressly allege generic incompetence, the Committee could consider whether the proved failings disclosed a general failure where that issue emerged from the appellant’s evidence. The protective purpose of the disciplinary jurisdiction made that course appropriate in the circumstances, subject to fairness.
5. The evidence established a rigid treatment system, inadequate clinical assessment, failure to adapt treatment to the patient’s circumstances, and a consequent risk of missing underlying pathology. Those matters justified the finding of professional incompetence under section 20(1)(b) of the Osteopaths Act 1993.
6. Removal from the register under section 22(4)(d) was proportionate. It was the most serious sanction and had to be reserved for serious cases, but the Committee had carefully considered admonishment, conditions of practice and suspension. It reasonably concluded that none would adequately protect the public.

• Professional Conduct Committee: found allegations of professional incompetence proved and ordered removal of the appellant’s name from the register.
• High Court (Administrative Court): the appeal against the substantive findings and removal order was dismissed. An earlier appeal against an interim suspension order had been dismissed by Mr Justice Wyn Williams.