Beard v General Osteopathic Council

A professional disciplinary hearing must remain fair and even-handed, even where the tribunal has an inquisitorial function. Tribunal members may ask questions, but questioning must not become hostile, protracted or irrelevant, or create a serious risk that the tribunal has descended into the arena and impaired its ability to assess the evidence impartially. The fairness of the hearing is assessed in the context of the proceedings as a whole. Where credibility is central, particular care is required to ensure balanced treatment of the competing accounts. A serious procedural irregularity rendering the decision unjust requires the disciplinary decision to be set aside.

Allison Beard appealed under section 31 of the Osteopaths Act 1993 against a Professional Conduct Committee decision finding allegations of unacceptable professional conduct proved and imposing a 12-month conditions of practice order.

The case concerned disputed evidence about two consultations with a patient. The principal complaint was that a lay committee member, who was also a solicitor, had subjected Ms Beard to lengthy, hostile and irrelevant questioning, while the committee had asked the patient very few questions. The central issue was whether the questioning caused a serious procedural or other irregularity making the committee’s decision unjust.

1. Appeal allowed. The committee’s decision and the 12-month conditions of practice order were set aside under CPR rule 52.21(3)(b).
2. The committee’s function was inquisitorial only up to a point. The applicable procedural rules provided for an adversarial hearing after investigation and charge, including legal representation, disclosure, witnesses and submissions. In this case the decisive issue was a forensic conflict of factual credibility between Ms Beard and the patient.
3. The authorities established that tribunal intervention is permissible within the bounds of fairness and impartiality. The question is whether the interventions, viewed in the context of the hearing as a whole, created a serious risk that the tribunal had closed its mind, adopted the role of an advocate, or impaired its ability to evaluate the evidence.
4. Ms Neville’s questioning about the patient’s correspondence, Ms Beard’s reaction to it and her previous career was lengthy, hostile and insufficiently connected to the issues requiring decision. The correspondence was plainly aggressive and upsetting. The questioning added no material assistance and substantially increased Ms Beard’s distress. The chairman’s subsequent questioning did not cure the problem.
5. The irregularity was serious because the case turned on whether the committee preferred Ms Beard’s evidence or the patient’s. The questioning created a serious risk that Ms Neville’s ability to assess the evidence had been impaired and that her approach may have influenced the other committee members.
6. The remaining grounds did not independently justify intervention. The committee was entitled to reject clinical notes as a complete and accurate record, could prefer the patient’s evidence, and had given adequate reasons. A finding that notes were unreliable did not require a finding of forgery or deliberate falsification.
7. The matter could be referred to a differently constituted committee, but the Council was expected to consider carefully whether a rehearing was appropriate in light of the distress caused and the relatively moderate seriousness of the allegations.

The appeal was brought to the High Court under section 31 of the Osteopaths Act 1993 from the Professional Conduct Committee’s decision of 29 August 2018. The High Court allowed the appeal and set aside the committee’s findings and sanctions. A rehearing before a differently constituted committee remained open to the Council.