Wray v General Osteopathic Council

Professional disciplinary proceedings alleging unacceptable professional conduct must follow the procedure applicable to that allegation. A regulator cannot combine the fact-finding and evaluative stages of unacceptable professional conduct proceedings with the procedure applicable to criminal convictions.

A spent conviction cannot be alleged indirectly by reciting the charge, guilty plea and sentence. In a non-conviction case, the practitioner must know the factual case relied on, and facts adverse to the practitioner must be admitted or properly proved before the professional-conduct test is applied. The test requires an objective assessment of whether the conduct would be regarded as deplorable by fellow professionals and deserving of moral opprobrium by an informed member of the public.

Mr Wray, an osteopath, self-reported an incident in which he took a softball bat from his car before confronting a group of young men who had threatened his daughter. He was attacked and injured, but later pleaded guilty to possession of an offensive weapon under section 1 of the Prevention of Crime Act 1953. The conviction was followed by a six-month conditional discharge, which had expired.

The General Osteopathic Council brought proceedings under section 20(1)(a) of the Osteopaths Act 1993 for unacceptable professional conduct, rather than under the conviction provision in section 20(1)(c). Its Professional Conduct Committee treated the charge, plea and sentence as established facts, considered further factual material, and found unacceptable professional conduct. The central issues were whether the procedure was seriously irregular and whether the finding could fairly stand.

1. Appeal allowed. The Professional Conduct Committee’s decision was quashed.
2. The proceedings were brought as a case of unacceptable professional conduct. Such a case requires a prior fact-finding stage in which the facts relied on are admitted or proved, followed by an evaluative assessment of whether those facts amount to unacceptable professional conduct. The conviction-case procedure serves a different purpose and applies different questions.
3. The allegation, although not using the word conviction, recited the criminal charge, guilty plea and sentence. In substance it identified Mr Wray as convicted, contrary to the effect and policy of section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000, under which the expired conditional discharge meant that the conviction was to be treated as no conviction for relevant purposes.
4. The allegation did not clearly identify facts of intention to injure or absence of reasonable excuse. Mr Wray’s evidence denied both matters. His acceptance of the alleged factual particulars could not fairly be treated as admission of facts he had not understood himself to accept. The bare guilty plea did not, in these UPC proceedings, conclusively establish the underlying criminal facts.
5. The Committee then mixed conviction-case evaluation with UPC fact-finding. It introduced and relied on adverse factual conclusions without an evidential basis, accepted that Mr Wray’s purpose was deterrence or self-defence while treating the conduct as involving the criminal intention, and failed to maintain a clear distinction between factual bystanders’ reactions and the objective UPC test.
6. The UPC test required the Committee to stand back and assess the whole circumstances objectively. The conduct had to be sufficiently serious to be regarded as deplorable by fellow practitioners and worthy of moral opprobrium by an informed member of the public. On the substantially accepted account, those thresholds were not met. The circumstances might be regarded as foolish or ill-advised, but moral opprobrium and professional deplorability were not established.
7. Although the appeal was by way of rehearing, remittal was not in the interests of justice. The procedural errors were material, the factual position was substantially clear, and the Committee itself regarded any sanction beyond the minimum as disproportionate. The decision was therefore set aside rather than remitted.

The judgment describes an appeal under section 31 of the Osteopaths Act 1993, by way of rehearing under paragraph 19(2) of Practice Direction 52D.

• Professional Conduct Committee of the General Osteopathic Council: found unacceptable professional conduct proved on 30 July 2020 and administered an admonishment.
• High Court (Queen’s Bench Division): allowed the appeal and quashed the Committee’s decision.