Spencer v General Osteopathic Council

“Unacceptable professional conduct” under the Osteopaths Act 1993 requires conduct falling below the required professional standard and carrying an element of moral blameworthiness or professional opprobrium. A breach of a professional code is relevant, but cannot alone establish unacceptable professional conduct or raise a presumption that it is established. The threshold is not lower merely because the statutory disciplinary scheme requires at least an admonishment once the allegation is proved. A small number of inadequate records, without more serious incompetence or negligence, will not necessarily meet that threshold.

Dr Peter Spencer, a registered osteopath, appealed under section 31(1) of the Osteopaths Act 1993 against a finding by the General Osteopathic Council’s Professional Conduct Committee that he had committed unacceptable professional conduct. The admitted deficiencies concerned inadequate recording of aspects of a patient’s history and the examination of the hip joints on two consultations. Other allegations were not proved, and there was no criticism of the treatment provided.

The Committee imposed an admonishment under section 22(4)(a). The central issue was whether the admitted failures crossed the statutory threshold.

1. Appeal allowed. The finding of unacceptable professional conduct was quashed.
2. Under the Osteopaths Act 1993, “unacceptable professional conduct” involves conduct falling below the required standard and carries an element of moral blameworthiness. The finding also conveys professional opprobrium, particularly because findings and sanctions must be publicised.
3. A breach of the Code of Practice is relevant under section 19(4), but is not conclusive. It does not itself constitute unacceptable professional conduct, establish professional incompetence, or raise a presumption that either has been proved. The statutory availability of an admonishment did not justify lowering the threshold.
4. The principles collected in Calhaem v General Medical Council [2008] LS Law Med 96 were appropriately applied. Mere negligence does not ordinarily amount to misconduct, although a particularly serious act or omission may do so. Deficient professional performance is conceptually distinct from negligence and misconduct.
5. The Committee nevertheless misapplied those principles. There were two instances of inadequate note-taking, but proper assessment, treatment planning and treatment. The failures were not incompetence or negligence of a high degree and did not warrant the moral opprobrium and publicity attached to a finding of unacceptable professional conduct.

The judgment does not state the outcome of any earlier decision beyond the Professional Conduct Committee’s finding and sanction. The appeal to the Administrative Court under section 31(1) was allowed and the finding was quashed.