Spencer v General Osteopathic Council
 EWHC 3147 (Admin)
The question 'what is misconduct?' goes to the heart of what it means to be fit to practise.
A number of allegations against Mr Spencer, an osteopath, were investigated following a complaint by patient A. The only allegations found proved by the Professional Conduct Committee of the General Osteopathic Council (GOsC) related to failure to record adequately the patient's case history in relation to two of the six visits the patient made to him.
These allegations had been admitted by Mr Spencer and the committee made a finding of unacceptable professional conduct. It decided that the appropriate sanction was an admonishment of Mr Spencer under section 22(4)(a) of the Osteopaths Act 1983. This was the lowest sanction available to the committee; the option of no sanction not being open to it.
Mr Spencer appealed, seeking to challenge the conclusion of the committee that its findings of fact were sufficient to amount to unacceptable professional conduct. (Given that the findings of facts were found proved on the basis of admissions by Mr Spencer, he did not seek to appeal them.)
Unacceptable professional conduct is defined in the Act as conduct which falls short of the standard required of a registered osteopath.
The Act imposes an obligation on the council to publish a Code of Practice which lays down the standards of conduct and practice expected of registered osteopaths.
The Act also states that breach of the code will not in itself constitute unacceptable professional conduct, but will be taken into account in proceedings of the committee.
The Code of Practice in force at the relevant time set out the requirement for registered osteopaths to keep case notes, and identified what, as a minimum, should be recorded in those notes.
Because of the lack of specific judicial interpretation regarding the Act, many of the submissions made on appeal focused on the relevant terms in the legislation governing doctors and dentists.
The relevant wording in the Medical Act had been ‘serious professional misconduct’ which, after amendment, had become simply ‘misconduct’. It had been held in Meadow v General Medical Council  EWCA Civ 1390 that the change in the term did not signify any lowering of the threshold for disciplinary intervention by the GMC.
Counsel for Mr Spencer submitted that the authorities in relation to misconduct which applied to doctors through the Medical Act applied, by analogy, to unacceptable professional conduct, being the relevant term in the Osteopaths Act. It was also submitted on behalf of Mr Spencer that, as a matter of policy, it was desirable that the same standards should apply when judging professional misconduct across related professions.
Following this analogy, it was then submitted on behalf of Mr Spencer that, relying on a series of authorities which dealt with the separate but related concepts of ‘negligence’, 'misconduct' and 'deficient professional performance' the facts found against him did not amount to misconduct, and thus unacceptable professional conduct.
In particular, the review of authorities contained in the case of Calhaem v General Medical Council  EWHC 2606 (Admin) stated that:
- negligence does not constitute misconduct, although an act or omission which is particularly serious may amount to misconduct;
- although a single act or omission may amount to misconduct, this was much less likely than in the case of multiple acts or omissions;
- deficient professional performance (within the meaning of the relevant section of the Medical Act) was a separate concept from both negligence and misconduct;
- a single instance of negligent treatment would be unlikely to be deficient professional performance, unless the negligence was very serious;
- the definition of deficient professional performance should not be broadened to include matters which constitute misconduct.
Countering these submissions, counsel for the GOsC, submitted that the regulatory regimes of the GOsC and the GMC contained important differences, to the extent that the analogies referred to above were unnecessary and unhelpful.
The original decision of the committee had been based on an application of the principles of the Calhaem case (outlined above). Irwin J considered that the committee had been correct to apply those principles, but found that they had applied them wrongly. He noted that the statutory definition of unacceptable professional conduct stated in the Osteopaths Act was not helpful, but considered that the key point was that it implied some form of moral blameworthiness and a degree of opprobrium. Irwin J held that the failings of Mr Spencer amounted to two occasions on which proper notes had not been taken, but that there had been on both occasions proper assessment of the patient, a proper plan for treatment, and proper treatment given. In Irwin J’s view, this did not, to use the wording of Meadow v GMC, amount to ‘incompetence or negligence of a high degree’. Accordingly, the finding of unacceptable professional conduct was quashed.