Impaired fitness to practise after a conditional discharge

In Wray v The General Osteopathic Council ("GOsC") (2021) EWA Civ 1940, the procedure in which regulators approach registrants who have been "conditionally discharged" by the criminal courts was carefully reviewed. The decision reiterates that there is a clear distinction between the procedure followed by regulators in conviction cases and in conduct cases.

The decision reviews the 'grey area' created by a conditional discharge. In such situations, regulators must follow the procedure of a conduct case, as the individual has not been convicted of an offence. The decision confirms that regulators cannot rely on a conditional discharge as proving the conduct, which allegedly amounts to evidence of Unacceptable Professional Conduct (“UPC”) or elsewhere impairment fitness to practise; however, they may rely on the underlying facts of the conditional discharge including the admission of a guilty plea.

Background

On 10 March 2018 Mr Wray ("the Registrant"), a registered Osteopath, was involved in an altercation when a group of assailants set upon him as he got out of his car holding a softball bat.  He was charged with possession of an offensive weapon in a public place, contrary to s. 1(1) of the Prevention of Crime Act 1953. 

Following the advice of his solicitor, he pleaded guilty before Highbury Corner Magistrates’ Court and was conditionally discharged. Mr Wray's solicitor had apparently advised him to plead guilty last minute at the hearing and although he subsequently identified that he might have had a defence, he was out of time to appeal.
 
At the GOsC the allegation against Mr Wray was that he was guilty of Unacceptable Professional Conduct, contrary to Section 20(1)(a) of the Osteopaths Act 1993, in that:
 

1. On 10 March 2018, at Genotin Road, Enfield, EN1, without lawful authority or reasonable excuse, the Registrant had with him in a public place an offensive weapon, namely a softball bat, contrary to Section 1(1) of the Prevention of Crime Act 1953.

 

2. On 27 February 2019, at Highbury Corner Magistrates Court, the Registrant pleaded guilty to the above offence and;
   1. was conditionally discharged for a period of 6 months; and 
   2. made to pay a surcharge of £20 to fund victim

 
Reference to Mr Wray's conditional discharge was made in a footnote on the first page of the skeleton argument, and noted that a conditional discharge does not constitute a conviction. The skeleton argument provided an account of the incident based upon the Police form MG5 and said that Mr Wray admitted the factual allegations set out in paragraphs 1 and 2 of the complaint (but not UPC). 

He said that he had to accept paragraph 1 because his appeal had been dismissed as he was out of time due to incorrect legal advice. He also accepted that the Council was entitled to adduce the facts underlying the “conviction” as evidence. Finally, in his witness statement he said that he did not admit the facts in paragraph 1 of the complaint “but I was advised to plead guilty so I did.”

On the 30 July 2020, GOsC's Professional Conduct Committee ("PCC") found the Registrant guilty of UPC.  UPC is defined by s. 20(2) of the Osteopaths Act 1993 as “conduct which falls short of the standard required of an osteopath”. The Registrant appealed to the High Court.

On 15 December 2020, Collins Rice J quashed the finding of UPC and allowed the appeal and her decision immediately caused consternation for regulators about how such cases should be presented. 
 
High Court Appeal Decision by Collins Rice J (15 December 2020)

Collins Rice J reviewed the PCC's decision-making process. In reaching her conclusion, she made a key observation that S. 14(1) of Powers of Criminal Courts (Sentencing) Act 2000 (“PCCSA”)outlines that conviction of an offence for which an order is made discharging the offender conditionally shall be deemed not to be a conviction for any subsequent proceedings which may be taken against the offender.

She also referred to the judgement of Humphreys J in R v Harris [1950] 2 All ER 816 who drew the distinction between relying on the conditional discharge and proving by admissible evidence (including evidence of a formal admission) the facts underlying the conditional discharge. The former was prohibited; the latter was not. In addition, she noted that Viscount Simonds in Simpson v General Medical Council highlighted it is " not open to the committee whose duty it was to review the conduct of the appellant to proceed upon the footing that he had been convicted of a crime."

In light of this, she stipulated that the correct procedure for the PCC to follow was to treat the matter as a conduct case. Therefore, the PCC could not rely upon "the conviction" to prove elements of the conduct, which could to amount to UPC, but they could prove the facts by any properly admissible evidence.

In her Judgment, Collins Rice J asserted that the PCC had wrongly treated the case as if it were one relating to conviction rather that one relating to conduct and described the case as appearing “hybrid”. The Judge outlined that the allegation “did not lay out a set of facts and an express allegation of UPC.  It simply cited the criminal charge brought against [the Registrant], and the historic facts of his plea and (spent) sentence.” Therefore, this was contrary to s. 14(1) of PCCSA and case law.
 
In addition to her points as to the approach she also considered that the PCC had failed to apply the UPC objective bystander test by standing back and objectively considering the case as a whole, and questioning "if an objective bystander knew all the facts, would the registrant's behaviour be considered deplorable by other practitioners?".
 
In light of this, Collins Rice J quashed the finding of UPC and allowed the appeal. GOsC appealed and the matter was decided by the Court of Appeal on 17 December 2021.
 
Appeal decision by Stuart-Smith LJ (17 December 2021)
 
The GOsC Appeal focused on two points

1. Rice J's decision "wrongly went ‘behind’ the adjudication of a criminal court and dealt with a registrant in a manner that was inconsistent with his guilty plea before a criminal court: and, in so doing; wrongly interpreted section 14 Powers of Criminal Court Sentencing Act 2000 to the effect that it requires a statutory regulator to re-litigate the factual basis of a guilty plea before a criminal court".  
2. Her decision "wrongly found that it was not permissible for a regulatory committee to hear contextual factual evidence after announcing it's “finding of fact” and wrongly found the procedural rules of the Appellant required them to consider Facts and UPC together".

The first ground of appeal was dismissed by Stuart- Smith LJ, as he ultimately concluded that the conduct did not amount to UPC. He noted that the Judge’s approach to the issue of UPC was "correct in principle, applied the correct test for UPC, and demonstrates no error of application."
 
He did disagree with some of the Judge's reasoning, as he believed the PCC did in fact treat this as a conduct case and they were required to "re-litigate" the factual basis of the guilty plea before the criminal court that had resulted in the conditional discharge.  Effectively he recognised that this was drafted as a "conviction" and the factual basis was to be relied upon as constituting UPC.
 
The second ground of appeal was upheld by Stuart-Smith J, as the PCC did not rely on the conviction in their written decision, and the registrant had agreed that the PCC could rely on facts underlying the conditional discharge. He concluded: “I would therefore uphold the Council’s submission that the Judge erred in her interpretation of what happened before the PCC.”
 
Ultimately, Stuart Smith LJ concluded that:  “Although I disagree with the Judge’s approach to the procedure that was adopted by the PCC, I would uphold the Judge’s conclusion that the Registrant’s conduct did not amount to UPC.”
 
Despite the Stuart Smith LJ concluding that the PCC had followed the correct procedure in treating the matter as a conduct case, the conduct in question did not meet the threshold for UPC. However, this decision is useful in clarifying the correct procedure for regulators in future cases involving individuals who have been "conditionally discharged" by the criminal courts. Although, he concludes the facts of this particular case are "unique" and the decision "should not be taken as any form of precedent" we would suggest that it rehearses some key principles that should help regulators ensure that they approach these cases in the correct way.

This article was co-authored by Ella Thornton.