Teasdale v General Osteopathic Council

An appeal from a professional conduct committee is concerned with whether the decision was wrong or unjust because of serious procedural irregularity. Even where the appeal is by way of rehearing, the High Court generally exercises a secondary judgment and respects the committee’s specialist expertise. Fresh evidence should be admitted sparingly and should not provide a second opportunity to revisit an otherwise valid sanction. A committee must make sufficiently clear findings about what treatment and explanation were actually given before deciding whether communication or consent was inadequate. Where findings are fundamentally flawed, associated findings and sanctions cannot stand. The court may substitute its own sanction in a rare case where the remaining misconduct is isolated and the original sanction has materially lost its foundation.

The claimant, a registered osteopath, appealed under section 31 of the Osteopaths Act 1993 against findings of unacceptable professional conduct and a 12-month conditions of practice order imposed by the General Osteopathic Council’s Professional Conduct Committee.

The committee found failures concerning communication and informed consent in the treatment of Patients A, B and E, and failures concerning assessment, management and aftercare following the treatment of Baby C. The claimant challenged the factual findings, the classification of the conduct as unacceptable professional conduct, and the sanction. The central issues were the proper approach to a rehearing appeal, the admission of fresh evidence, the adequacy of the committee’s reasoning, and the appropriate sanction.

1. Appeal approach. The appeal was governed by CPR 52.21 and paragraph 19.1 of the relevant practice direction. The question remained whether the committee’s decision was wrong or unjust because of serious procedural irregularity. Although the appeal was by way of rehearing, the High Court would not generally rehear witnesses or disregard the committee’s specialist expertise. The court’s function was a secondary judgment.
2. Fresh evidence. The statutory power in section 22(6) of the Osteopaths Act 1993 provided a mechanism for reviewing, varying or revoking conditions where circumstances changed. Fresh evidence relating to subsequent personal circumstances or remedial activity should therefore be admitted sparingly. It should not enable a registrant to obtain a second reconsideration of a sanction which was correct when imposed.
3. Patients A, B and E. The committee’s findings on communication and consent were fundamentally flawed. It accepted that some explanation might have been given but failed to identify what the explanation actually was before deciding that it was inadequate. In relation to Patient A, the findings were internally inconsistent and could not support the conclusion that the allegation was proved. The findings concerning Patients B and E were materially dependent on the defective reasoning concerning Patient A and likewise could not stand. The associated consent findings also fell.
4. Baby C. The committee was entitled to find that appropriate aftercare advice had not been given following treatment of a child with a head injury. The evidence established that warning signs requiring medical attention should have been explained. The omission amounted to unacceptable professional conduct.
5. Sanction and outcome. Once the communication and consent findings were quashed, the remaining misconduct concerned an isolated failure relating to Baby C. The conditions directed to communication and consent were no longer appropriate. In the exceptional circumstances, the court substituted admonishment for the 12-month conditions of practice order. The appeal was allowed to that extent.

Professional Conduct Committee: On 24 October 2017, the committee found several allegations proved, determined that the claimant had engaged in unacceptable professional conduct, and imposed a 12-month conditions of practice order.

High Court (Administrative Court): The appeal was allowed to the extent stated in [2018] EWHC 1679 (Admin). The findings concerning communication and consent were quashed, the remaining finding concerning Baby C was upheld, and admonishment was substituted for the conditions of practice order.