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31 JAN 2013

Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin); (2012) PLLR 140

Osteopaths - Osteopaths Act 1993 - General Osteopathic Council Professional Conduct Committee - ‘unacceptable professional conduct' - meaning ­ professional opprobrium

The failure of an osteopath to keep proper notes on two occasions could not be said to amount to unacceptable professional conduct, which was to be taken as meaning behaviour including some degree of moral blameworthiness.

8 November 2012

Administrative Court

Irwin J

(1)        The claimant (S), an osteopath, admitted failing to take proper notes during a consultation. The defendant's Professional Conduct Committee (the PCC) found S guilty of unacceptable professional conduct under sections 20(1)(a) and 22 of the Osteopaths Act 1993 (the Act).

(2)        S appealed under section 31 (1) of the Act, claiming that the facts did not justify that this finding.

(3)        Irwin J found (i) that the term ‘conduct' implied some degree of moral blameworthiness and that a finding of unacceptable professional conduct was likely to suggest as much to the ordinary person. This conclusion was supported by the fact that section 19(4) of the Act states that breach of the Code of Practice does not, of itself, amount to unacceptable professional conduct [23] - [24]. The fact that such a finding was necessary in order to sanction S was not sufficient reason to allow otherwise; had Parliament wished to give the PCC the power to sanction a practitioner who had breached the Code of Practice but whose behaviour did not amount to unacceptable professional conduct, it could have done so [25]. (iii) That the PCC had erred in following Calhaem v General Medical Council [2008] LS Law Med 96, and that S's omissions did not amount to ‘incompetence or negligence of a high degree' and did not justify the moral blameworthiness a finding of unacceptable professional conduct implied [28].

Finding quashed

Key paragraphs

[1] Introduction

[2] - [3] Background and facts

[4] - [20] The statutory scheme of the Osteopaths Act 1993

[21] - [22] The decision in this case

[23] - [29] Conclusions    

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