Sayer v General Osteopathic Council

The completion of a course of treatment does not necessarily end the professional relationship between a healthcare practitioner and patient. Its duration is an evaluative matter for the specialist disciplinary tribunal, having regard to the parties’ conduct and the need to maintain trust and professional boundaries.

Sexual motivation includes conduct pursued for sexual gratification or a future sexual relationship. It may be inferred from established facts, with appropriate respect for a tribunal’s credibility assessments.

A practitioner’s denial of misconduct does not itself justify a greater sanction or preclude insight. The tribunal may, however, consider the practitioner’s attitude when assessing insight and the risk of repetition. Appellate interference with a professional sanction requires an error of principle or a conclusion outside the bounds of reasonable judgment.

A registered osteopath appealed under section 31 of the Osteopaths Act 1993 against a Professional Conduct Committee decision finding unacceptable professional conduct and suspending him for six months. The proceedings concerned his development of a personal and ultimately sexual relationship with a patient.

The challenged findings were that the professional relationship continued until the patient’s care was transferred to a colleague; that the osteopath entered a personal relationship before that transfer; and that his use of a personal telephone and failure to transfer care were sexually motivated. He also alleged that the legal assessor should have advised the Committee about his good character and that the misconduct finding and sanction were wrong.

The central questions were whether the Committee’s factual and evaluative findings were wrong, whether any omission concerning good character caused serious injustice, and whether the suspension was a permissible professional sanction.

1. Appeal dismissed. The Committee was entitled to find that the professional relationship continued until the patient’s care was transferred on 14 March 2019. Completion of treatment on 29 January did not necessarily terminate the wider practitioner-patient relationship. The osteopath’s later statements and conduct showed that both parties continued to regard him as her osteopath. The Committee wrongly placed some reliance on an ambiguous note of a later disciplinary meeting, but that error did not undermine its otherwise sound reasoning.

2. The finding that the osteopath failed to transfer care until after entering the personal relationship was correct. The Committee had specialist responsibility for evaluating the nature and duration of the professional relationship, although clearer professional guidance about termination and transfer of care might be desirable.

3. The finding that a Sunday call from the osteopath’s personal telephone was sexually motivated was justified. The Committee could rely on the flirtatious character of an earlier call, the provision of a private means of communication and its rejection of the asserted professional explanation. Conduct pursued with a view to a future sexual relationship can be sexually motivated.

4. The Committee’s reasoning that the earlier failure to transfer care was sexually motivated was internally inconsistent because the charge and findings did not establish that the personal relationship began at the earlier date. Nevertheless, its ultimate finding remained sound. Once the sexually motivated personal relationship had begun, the failure to transfer care could properly be inferred to share that motivation. The court would alternatively draw that inference under rule 52.21(4) of the Civil Procedure Rules 1998.

5. No good-character advice was required. Professional disciplinary proceedings are not directly analogous to a criminal jury trial, and no universal rule requires such advice. Even if credibility advice might have been appropriate, its omission was neither a serious procedural irregularity nor a cause of injustice.

6. The Committee could consider the osteopath’s denial of sexual motivation when assessing the extent of his insight. It did not treat denial as an automatic bar to insight or as an aggravating factor.

7. The Committee erred in treating a notional effect on professional confidence as a risk to patient safety. That was a factual error concerning one factor, not an error of principle warranting appellate intervention. Suspension for six months remained within the range reasonably open to the specialist tribunal. It properly reflected the inherent seriousness of sexual misconduct, professional standards and public confidence, while recognising that the conduct was non-predatory and at the lower end of the spectrum.

• High Court (Administrative Court): The appeal under section 31 of the Osteopaths Act 1993 was dismissed. The court upheld the findings of unacceptable professional conduct and the six-month suspension.
• Professional Conduct Committee of the General Osteopathic Council: On 24 August 2020 the Committee found unacceptable professional conduct and directed suspension from the register for six months.