Varley v The General Osteopathic Council

On an appeal against a professional disciplinary sanction, the High Court gives substantial respect to the specialist committee’s assessment of seriousness and the sanction required to protect patients, uphold professional standards and maintain public confidence. The court retains a secondary supervisory role and will intervene for material errors of fact or law, or where the sanction is disproportionate. A committee may impose the full range of statutory sanctions when a new allegation is referred for determination, even if it is considered alongside a review of an existing suspension. Deliberate circumvention of a suspension, dishonesty, practising without indemnity insurance and persistent lack of insight may make removal from the professional register proportionate.

John Varley appealed under section 31 of the Osteopaths Act 1993 against the Professional Conduct Committee of the General Osteopathic Council’s decision to remove him from the Register. The Committee found that, while suspended, he had dishonestly held himself out as an osteopath, conducted osteopathic examinations and treatment, and practised without appropriate professional indemnity insurance.

The appeal challenged the handling of the allegations and the proportionality of removal. It was also argued that the Committee’s review powers had been limited to extending suspension. The central issues were whether the statutory and procedural scheme permitted removal following determination of the new allegations, and whether removal was a proportionate sanction.

1. Appeal dismissed. The appellant was ordered, by consent, to pay the respondent’s costs assessed at £7,500 within three months.
2. Section 22(8) of the Osteopaths Act 1993 permits review of a suspension and enables the Committee to extend it or impose conditions on resumed practice. Rule 46 of the General Osteopathic Council (Professional Conduct Committee) (Procedure) Rules 2000 requires any new allegation referred since the original hearing to be dealt with first under rules 21–39. Those rules include consideration of sanction following a finding of professional misconduct.
3. Accordingly, if the April allegations had been referred before the review hearing, the Committee would still have had the sanctions in section 22(4), including removal from the Register. The Council’s timing therefore did not deprive the Committee of jurisdiction or alter the outcome.
4. The High Court’s role on a professional disciplinary appeal is secondary. It will correct material errors of fact or law and assess whether the statutory principles have been properly applied, but it accords appropriate respect to the Committee’s specialist judgment on seriousness, professional standards, public protection and public confidence. Sanction is protective and regulatory, rather than retributive, although the professional’s interests must receive due weight.
5. Removal was proportionate. The conduct involved calculated defiance of the earlier suspension, implicit dishonesty, treatment without insurance and a persistent lack of insight. In those circumstances, the Committee was entitled to conclude that the conduct was fundamentally incompatible with remaining an osteopath and that public confidence required removal.

The judgment records an appeal under section 31 of the Osteopaths Act 1993 from the Professional Conduct Committee’s decision of 6 November 2008 to remove the appellant from the Register.