High Court considers meaning and application of ‘unacceptable professional conduct’

The appellant, Dr Peter Spencer, successfully appealed a finding of unacceptable professional conduct made by the Professional Conduct Committee (PCC) of the respondent Council.

The case is the first that considers the meaning and application of “unacceptable professional conduct” as set out in the Osteopath’s Act 1993 (the 1993 Act). The term is defined in section 20 (2) of the 1993 Act as “conduct which falls short of the standard required of a registered osteopath”. Before the PCC, the appellant had admitted a failure to take adequate notes of a consultation with a patient on two separate occasions and in so doing admitted breaching the Osteopathic Code of Practice. The PCC found that this amounted to unacceptable professional conduct and in line with the 1993 Act a sanction automatically followed. In this case, the lowest sanction available of admonition was imposed.

Mr Justice Irwin accepted the arguments advanced on behalf of the appellant that when considering “unacceptable professional conduct” it was appropriate to draw analogies with similar terms found within the legislation governing the medical and dental professions. The Medical Act 1983 refers to “serious professional misconduct” as being a ground capable of giving rise to a finding of impaired fitness to practise for a doctor. Amended in 2002, the term was succeeded by the simpler legislative formulation of “misconduct”. The Court of Appeal in Meadow v General Medical Council [2007] 2QB 462 concluded that the change in terminology did not “signify a lower threshold of disciplinary intervention by the GMC”. The concept that conduct should be “serious” should be retained when considering what will constitute “misconduct”.

Following that guidance together with those principles set out in Calhaem v General Medical Council [2008] LS Law Med 96, Mr Justice Irwin found that the admitted instances of poor record keeping could not constitute unacceptable professional misconduct. In relation to those two instances of poor record keeping, no criticism had attached to the appellant in respect of his assessment or indeed treatment of the patient, therefore the threshold, as set out in Meadow (supra) of “incompetence or negligence to a high degree” was not made out. Mr Justice Irwin offered his opinion that regardless which term was used, “misconduct” in relation to doctors or “unacceptable professional conduct” for osteopaths, the language implies some degree of moral blameworthiness such that “the ordinary intelligent citizen” would consider it so.

This case is a reminder that whilst different acts of parliament govern the various medical, health and caring professions, there is a desirability in maintaining uniformity in the way those professions’ respective disciplinary tribunals approach similar terms. With suggestions of a super-regulator on the agenda for possible reform, uniting the regulation of these professions, cases such as this will give heart to those who would champion the same on the basis of ensuring consistency across the sector.