Elsworth Wray v The General Osteopathic Council

In professional disciplinary proceedings, the complaint must identify clearly and fairly the facts and case to be met. In a conduct case, only facts alleged in the complaint and admitted or proved may support a finding of unacceptable professional conduct.

A conditional discharge prevents reliance on the conviction as such, but does not prevent a regulator alleging and proving the underlying conduct by admissible evidence. There is no absolute rule preventing a registrant from explaining or challenging those facts, subject to abuse of process.

Relevant contextual evidence may be received before the factual and UPC determinations, provided the process remains fair. An appeal by way of rehearing permits the appellate court to reach its own view, with appropriate respect for specialist regulatory expertise.

The Registrant, a registered osteopath, pleaded guilty to possessing an offensive weapon in a public place and received a conditional discharge. The Council subsequently brought proceedings for unacceptable professional conduct under section 20(1)(a) of the Osteopaths Act 1993, rather than proceedings based on conviction under section 20(1)(c).

The Professional Conduct Committee found the facts admitted, found UPC proved and imposed an admonishment. On an appeal by way of rehearing, Collins Rice J allowed the appeal and quashed the findings, holding that the procedure had been hybrid and unfair: [2020] EWHC 3409 (QB).

The Council appealed. The central issues were the effect of a conditional discharge, whether the Registrant could challenge the factual basis of his guilty plea, the scope of the complaint and the admissibility of contextual evidence, and whether the conduct amounted to UPC.

1. Appeal dismissed. The High Court had erred in characterising the Professional Conduct Committee’s procedure as hybrid and in treating the proceedings as improperly dependent on the conviction. The complaint expressly brought a conduct case under section 20(1)(a) of the Osteopaths Act 1993. Section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 prevented reliance on the conviction as such, but permitted reliance on admissible evidence of the underlying facts.
2. The distinction drawn in R v Statutory Committee of the Pharmaceutical Society of Great Britain ex p Pharmaceutical Society of Great Britain, R v Harris and Simpson v General Medical Council was applicable. A guilty plea may be evidence of the underlying facts and criminality, but in a conduct case the Council must prove facts not admitted. There is no black-letter rule preventing a registrant from explaining or going behind those facts, although an abusive collateral attack may be rejected. The registrant’s unequivocal admissions before the Committee meant that no further proof was required in this case.
3. The Committee was entitled to receive the Registrant’s evidence and to question him about the public setting before determining the facts and UPC. Evidence could not be introduced between the Rule 29 and Rule 30 determinations, but relevant contextual evidence could be received earlier if the questioning remained fair and the Committee considered whether amendment or exclusion was required.
4. Despite those procedural errors in the High Court’s analysis, the appeal there was by way of rehearing. The Judge was entitled to form her own view on UPC, subject to appropriate deference to the specialist Committee. She applied the correct threshold and was entitled, on the highly unusual facts, to conclude that the conduct did not amount to UPC. That conclusion was fact-specific and was not to be treated as a precedent for other cases.

1. Court of Appeal (Civil Division) dismissed the Council’s appeal and upheld the conclusion that the conduct did not amount to UPC.
2. Queen’s Bench Division, Administrative Court allowed the statutory appeal by way of rehearing and quashed the Professional Conduct Committee’s finding of UPC and admonishment: [2020] EWHC 3409 (QB).
3. Professional Conduct Committee found UPC proved and imposed an admonishment.