In an important decision for Chiropractors and Osteopaths the High Court (Mr Justice Irwin) has ruled over what constitutes "unacceptable professional conduct" for osteopaths. As the Osteopaths Act 1993 is almost identical to the Chiropractors Act 1994 this decision should be equally applicable to chiropractors. Both Acts use the term "unacceptable professional conduct" and rather unhelpfully define it as conduct which falls short of the standard required of a registered osteopath or chiropractor. As Mr Justice Irwin suggested this is rather circular. Both Acts refer to a failure on the part of the professional to comply with the provisions of the Code of Practice but also state that "Where any person is alleged to have failed to comply with any provision of the Code [of Practice], that failure – (a) shall not be taken, of itself, to constitute unacceptable professional conduct on his part; but (b) shall be taken into account in any proceedings against him under this Act."
The system of regulation for doctors, dentists and indeed most health regulators has established that the conduct complained of must be serious in view of the damaging consequences on the reputation of a professional person which a disciplinary finding carries. This requirement for the conduct complained of to be "serious" was not always accepted by prosecuting regulators for Chiropractors nor necessarily by Investigating Committees when deciding whether to refer a case to a Professional Conduct Committee.
Mr Justice Irwin clearly took the view that the definition of "unacceptable professional conduct" carried with it some sense of moral opprobrium He held:-
"The critical term is "conduct". Whichever dictionary definition is consulted, the leading sense of the term "conduct" is behaviour, or the manner of conducting oneself. It seems to me that at first blush this simply does imply, at least to some degree, moral blameworthiness. Whether the finding is "misconduct" or "unacceptable professional conduct", there is in my view an implication of moral blameworthiness, and a degree of opprobrium is likely to be conveyed to the ordinary intelligent citizen. That is an observation not merely about the natural meaning of the language, but about the likely effect of the finding in such a case as this, given the obligatory reporting of the finding under the Act. "
Mr Justice Irwin referred to the consequences for a Registrant of a finding and concluded this elevated the interpretation of "unacceptable professional conduct" to the same level of seriousness as for doctors or dentists - "As it is, the Act stipulates that if unacceptable professional conduct is made out, there has to be at least a formal admonition and publicity which is bound to affect the Registrant's professional reputation. Those are considerable sanctions. In my view, they support the natural meaning of the language contained in the statute and point to a threshold for a finding of "unacceptable professional conduct" which there is no reason to distinguish from "misconduct" in the medical and dental legislation."
The facts in this case related to an admitted failure on the part of Dr Spencer to adequately record the onset of symptoms and examination findings for a patient in his notes. As Mr Justice Irwin found "They [the PCC] were dealing not with one single act of poor performance but two: two examples on two dates, on which proper notes had not been taken. There had been proper assessment of the patient, a proper plan for treatment, proper treatment given. It seems to me that this is not "incompetence or negligence of a high degree" or at least not self evidently so. It seems to me that it is hard to construe these failures as worthy of the moral opprobrium and the publicity which flow from a finding of unacceptable professional conduct. " The finding of unacceptable professional conduct in this case was quashed.
The link to the full judgment in Dr Spencer's case is http://www.bailii.org/ew/cases/EWHC/Admin/2012/3147.html. The Law Commission is reporting on health regulation in 2014. One of the areas they are looking at is uniformity of approach across the health care regulators. This decision is to be welcomed for providing consistency of approach and a recognition that "unacceptable professional conduct" carries with it some sense of moral opprobrium on the part of the conduct of the registered health professional.
