Moody v General Osteopathic Council

In professional disciplinary proceedings, evidence concerning a practitioner’s general practice may be considered when determining sanction, although the practitioner may be penalised only for misconduct proved against him or her. Where the practitioner asserts that the proved conduct reflects usual practice, and that assertion fails, a public-protection tribunal may treat the conduct as evidence of chronic or systemic risk rather than an isolated lapse. Considering that evidence does not breach fair notice where the practitioner raised the issue and had an opportunity to address it. An appellate court should exercise substantial restraint before interfering with a sanction imposed by the statutory tribunal. Striking off may be permissible where lesser measures cannot adequately protect the public. A lighter sanction in another case does not itself establish disproportionality.

Mr Moody, a registered osteopath, faced five charges arising from his treatment of one patient. The Professional Conduct Committee found three charges proved and removed his name from the Register. The High Court dismissed his appeal against the disciplinary findings and sanction in [2007] EWHC 2465 Admin. The findings of misconduct were not renewed on appeal. The second appeal concerned whether the Committee could consider evidence about Mr Moody’s general practice when determining sanction, whether that approach offended fair notice, and whether removal from the Register was disproportionate or irrational.

The Court of Appeal unanimously dismissed the appeal. Sedley LJ gave the leading judgment, with Rimer LJ and the Master of the Rolls agreeing.

1. Evidence relevant to sanction. The inculpating evidence proving a disciplinary accusation must be confined to the charges laid and proved. Once misconduct is established, however, the tribunal must determine its seriousness and the appropriate sanction. It may therefore consider whether the misconduct was an isolated lapse or part of chronic bad practice. The practitioner remains punishable only for the proved offence.
2. General practice and fair notice. Mr Moody had made it part of his defence that his treatment of the patient reflected his usual practice and was professionally acceptable. Once that defence failed, the Committee was entitled to consider his evidence about the generality of his practice in assessing risk to patients and sanction. A body charged with protecting the public could not ignore that evidence. Fair notice was not infringed because Mr Moody himself raised the issue and the evidence was directed to it.
3. Sanction and appellate review. The Committee considered admonishment, conditions of practice and suspension before concluding that none would adequately protect the public. Removal from the Register was severe but fell within the sanctions properly open to it. An appellate court should be slow to interfere with such a decision. The lighter sanction imposed in Khokhar v HPC [2006] EWHC 2484 could not establish that Mr Moody’s sanction was unlawful, disproportionate or irrational.
4. Evidence considered and final position. The Committee expressly stated that it had read and taken account of the testimonials. There was no sufficiently powerful internal indication that it had overlooked them. Removal did not prevent an application for restoration after the statutory minimum period under the Osteopaths Act 1993. The appeal was dismissed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the disciplinary sanction and rejected the challenge to the consideration of evidence concerning general practice.
2. High Court (Queen’s Bench Division): Stanley Burnton J dismissed Mr Moody’s appeal against the Professional Conduct Committee’s findings and sanction in [2007] EWHC 2465 Admin.