Kern v General Osteopathic Council

In a professional disciplinary appeal, the High Court must correct material errors of fact or law and serious procedural irregularity, while giving appropriate weight to the specialist committee’s assessment of professional standards, credibility and sanction. A statutory appeal described as a rehearing does not generally require the court to rehear witnesses or substitute its own assessment.

Sexual contact of any kind between a healthcare professional and a patient undermines the fundamental professional relationship. In such a case, removal from the register may fall within the reasonable range even where there is no penetrative sex, no evidence of current risk, substantial mitigation and a long period of practice. Personal mitigation carries reduced weight where public confidence in the profession is central.

Michael Kern, a registered osteopath, appealed under section 31 of the Osteopaths Act 1993 against a Professional Conduct Committee determination. The committee found proved that he had pursued and maintained a sexual relationship with Patient A during and after treatment, and that a later invitation to his home was an attempt to re-establish an improper personal relationship. It found unacceptable professional conduct and directed removal from the register.

The appeal challenged the finding concerning the later invitation and the adequacy and proportionality of the sanction. The central issues were the proper approach to a statutory appeal by way of rehearing, the evaluation of the evidence concerning the invitation, and whether removal was within the reasonable range of sanctions.

1. Appeal dismissed. The appeal jurisdiction arose under section 31 of the Osteopaths Act 1993, CPR 52.21(3) and the applicable practice direction. The court could correct material errors of fact or law and serious procedural irregularity, but its judgment remained distinctly and firmly secondary.
2. Although the appeal was formally by way of rehearing, the High Court would not generally rehear the evidence or see the witnesses for itself. The committee was better placed to assess credibility and reliability, and had specialist knowledge of osteopathic standards. The court would therefore defer to professional judgments unless the decision was wrong or unjust in the statutory sense.
3. The finding on the later telephone invitation was reasonably open to the committee. The allegation was understood as alleging that the invitation was motivated by a desire to re-establish sexual contact, rather than as a technical criminal-law allegation of attempt. The committee was entitled to consider the late hour, the invitation to the appellant’s home while he was alone, the surrounding history and the fact that a previous invitation to the home had been followed by sexual contact.
4. The later invitation played little, if any, role in sanction. The gravamen of the case was the admitted and repeated sexual relationship during treatment. The conduct was improper, but the invitation alone would not have justified erasure.
5. The sanction reasoning was adequate. The case was materially different from Wisniewska and Arunachalam v GMC, where the decisions failed to show how mitigation had been evaluated and weighed. Sexual contact of any kind between a healthcare professional and a patient strikes at the fundamental trust underlying the relationship, whether or not it includes penetrative sex. In that context, personal mitigation carries less weight, and removal was within the reasonable range available to the committee.
6. The court would not substitute its own view of sanction. The removal order was not shown to be wrong or procedurally unjust.

The judgment does not state a prior reported judicial decision in the same litigation. The appeal was brought to the High Court under section 31 of the Osteopaths Act 1993 from the Professional Conduct Committee’s determination removing the appellant from the register.