Moody, R (on the application of) v The General Osteopathic Council

On an appeal against an interim suspension order made to protect the public, the appellate court may consider the merits of the substantive appeal. However, it should generally treat the decision as wrong only where it is strongly satisfied that the substantive appeal is bound to succeed. The same approach applies where the substantive sanction may be reduced: the court should not set aside an interim order unless it is strongly satisfied that the proven conduct would not warrant suspension. The court should also consider hardship caused by delay and direct an expeditious hearing where appropriate.

The claimant appealed to the Administrative Court against an interim suspension order imposed by the Professional Conduct Committee of the General Osteopathic Council. The Committee had found three charges proved, concluded that the claimant was professionally incompetent, ordered removal of his name from the register, and then made an interim suspension order pending the claimant’s substantive appeal.

The present appeal concerned only whether the interim suspension order was wrong. The substantive appeal against the finding and sanction remained outstanding. The central issue was the extent to which the court should assess the prospects of that substantive appeal when reviewing an interim order made for public protection.

1. Appeal dismissed. The interim suspension order was upheld. The order had been made under rule 40 of the relevant rules and section 24(2) of the Osteopaths Act 1993 on the basis that it was necessary to protect members of the public.
2. The appeal was a statutory appeal governed by Civil Procedure Rule 52, including rule 52.11(3). The court could allow the appeal only if it considered that the Committee’s decision was wrong.
3. It was permissible to examine the merits of the substantive appeal when deciding whether the interim order was wrong. Ordinarily, however, the court could not form a definitive view on those merits at this stage. Unless it was strongly of the view that the substantive appeal was bound to succeed, it should be slow to categorise as wrong a decision whose purpose was public protection.
4. The same threshold applied to the sanction. The order should not be treated as wrong unless the court was strongly satisfied either that the finding of professional incompetence would be set aside or that any incompetence proved would not warrant suspension measured in months.
5. The Committee had relied on findings that the claimant’s practice involved inadequate clinical assessment, created a significant risk to patient safety, and disclosed extensive deficiencies which could not adequately be addressed by conditions of practice or a period of suspension. Those findings made the interim order difficult to characterise as wrong, despite the appeal being genuinely arguable.
6. The court recognised that interim suspension could cause significant hardship to a sole practitioner. It therefore directed that the substantive appeal be dealt with expeditiously, if practicable by the end of October, and reserved costs.

The judgment records that the claimant had appealed to the Administrative Court against the Professional Conduct Committee’s finding of professional incompetence, the sanction of removal from the register, and the interim suspension order. Only the appeal against the interim suspension order was determined in this judgment; the substantive appeal remained to be heard.