Allison Beard v General Osteopathic Council [2019] EWHC 1561 (Admin)

**Allison Beard v General Osteopathic Council [2019] EWHC 1561 (Admin)** concerned an appeal by Ms Beard against the decision of the General Osteopathic Council’s Professional Conduct Committee, which in August 2018 imposed conditions of practice on her registration for 12 months following findings of misconduct. Mr Justice Kerr allowed the appeal, holding that the hearing had been rendered unjust by a serious procedural irregularity, namely hostile and protracted questioning of Ms Beard by a committee member.

Ms Beard was an osteopath with unblemished credentials until these proceedings arose. In July 2016, she treated Patient A for a foot problem over two appointments. He subsequently made a formal complaint alleging that she had failed to conduct an adequate assessment, provided no diagnosis, did not discuss treatment or obtain valid consent, used excessive force, and communicated inappropriately by ranting at him when he questioned the use of ultrasound therapy. He attributed to her comments such as “How dare you challenge my professional ability?” and “I am not used to my professional decisions being challenged”. Ms Beard denied the allegations.

The case turned on credibility. Patient A sent Ms Beard lengthy, aggressive and opinionated correspondence after the appointments, demanding refunds and academic evidence to support her treatment choices. His letters and emails adopted an inappropriately arrogant and threatening tone, describing Ms Beard as a tradesperson selling services to consumers. The joint statement of the expert osteopaths called by each side emphasised that the conflict of evidence required the committee to resolve the factual disputes on credibility.

At the hearing in January 2018, before a committee comprising Mr Cannon (lay chair), Ms Neville (lay member and solicitor), and Mr Bedford (osteopath), the Council’s advocate, Mr Gillespie, cross-examined Ms Beard competently for approximately one and a half hours. He put the case against her fully. She maintained her version of events and denied ranting, though she accepted using some phrases such as referring to her successful past use of ultrasound. Following re-examination, the chairman indicated the committee had nine questions.

Ms Neville then questioned Ms Beard at length in a hostile and challenging manner. She probed why Ms Beard had felt intimidated by Patient A’s correspondence, took her through that correspondence in detail, asked why she had characterised it as harassment, explored her past academic career and demanded she look at her CV, and repeatedly demanded explanations for language Ms Beard had used in her response letters. The questioning was protracted, repetitive and, in the judge’s assessment, largely irrelevant to the charges. At one point Ms Beard said “you’re asking so many questions and I’m not quite sure what your asking about”. She broke down in tears and the hearing was paused. The chairman then took over and continued questioning for a further 34 minutes. The committee’s questions in total lasted approximately one hour 45 minutes, longer than Mr Gillespie’s cross-examination.

The committee found all charges proved, accepting Patient A as logical, consistent, clear, fair, measured, credible and reliable. It rejected Ms Beard’s evidence as guarded, evasive and unreliable, noting multiple inconsistencies and finding her clinical notes not reliable. The committee accepted that Ms Beard had used the attributed words in anger and with an aggressive tone, and found her conduct unacceptable professional conduct.

Ms Beard then instructed Queen’s Counsel, Ms O’Rourke, who obtained a transcript and applied in July 2018 for Ms Neville to recuse herself, or for the entire committee to stand down, on grounds of apparent bias or pre-judgment. The application failed. At the mitigation hearing the committee learned for the first time about Ms Beard’s serious personal difficulties in 2016, including an acrimonious divorce and a stressful readmission to the Jehovah’s Witnesses faith two days before treating Patient A. A 12-month conditions of practice order was imposed in August 2018.

Ms Beard appealed under section 31 of the Osteopaths Act 1993, which permitted the High Court to allow an appeal only if the committee’s decision was wrong or unjust because of a serious procedural or other irregularity. The first ground of appeal was that the fairness of the hearing was compromised by Ms Neville’s questioning, which amounted to stepping into the ring as a second prosecutor through hostile, oppressive and bullying questions. The second ground was that the committee should have recused Ms Neville or stood down entirely. Further grounds challenged the reasoning and adequacy of reasons for preferring Patient A’s evidence over the contemporaneous clinical notes.

Mr Justice Kerr reviewed the authorities on judicial intervention in proceedings, including Jones v National Coal Board, Galea v Galea, Demarco Almeida v Opportunity Equity Partners Ltd, London Borough of Southwark v Kofi-Adu and Banerjee v General Medical Council. He accepted that the committee had an inquisitorial function but held that this did not displace the fundamental requirement of fairness. The case turned on contested facts where credibility was decisive, and the procedural rules closely resembled those for adversarial civil proceedings. The committee’s function in resolving this credibility contest was forensic and adversarial in nature.

Kerr J held that the questioning of Ms Beard was unfair. The committee, particularly Ms Neville, failed to recognise that Patient A’s correspondence was aggressive, inappropriate and bullying. Ms Neville’s lengthy questions about why Ms Beard was upset by that correspondence were unnecessary and contributed substantially to her distress without illuminating any issue the committee had to decide. The questions about Ms Beard’s past career and the repeated demands for explanations of her characterisation of the correspondence as harassment had no probative value and amounted to vexing the witness. The failure to recognise the objectionable nature of Patient A’s correspondence evinced hostility towards Ms Beard and indulgence towards Patient A.

The judge rejected the Council’s submission that the committee’s inquisitorial role justified the questioning. He distinguished Banerjee, where the advocate had not cross-examined the doctor on a key point, whereas here Mr Gillespie had put the case fully. The judge rejected the argument that Ms Beard’s distress was attributable to undisclosed health concerns rendering her unusually sensitive; the correspondence was objectively upsetting and the committee was well aware of her distress. The judge found that Ms Neville was allowed for too long to pursue hostile lines of questioning of nil or tenuous relevance. The solicitor representing Ms Beard had tried tactfully to restrain Ms Neville but was ignored. Re-examination would not have cured the unfairness. Neither the legal assessor nor the chairman stopped the questioning in time to preserve fairness.

Because credibility was the crucial issue, it was of utmost importance that this issue be treated in an even-handed manner. There was a serious risk that Ms Neville’s descent into the arena had hampered her ability to evaluate and weigh the evidence and impaired her judgment. The judge did not know what influence this had on the other members but found the procedural irregularity serious enough to render the decision unjust. He upheld the first ground of appeal; the second ground added nothing to it.

Kerr J rejected the remaining grounds. He held it was not perverse to prefer Patient A’s evidence despite the contemporaneous notes, as the committee was not bound to accept the notes at face value on disputed issues. The reasons given were adequate; they need not be expansive. The committee was not required to make an express finding of forgery or tampering before rejecting the notes as an unreliable account of what had happened.

The judge set aside the committee’s decision and the conditions of practice order. He declined to substitute his own decision, not having heard the oral evidence, and left it open to the Council to refer the allegations to a differently constituted committee. He emphasised, however, that the Council should hesitate and consider very carefully whether that was appropriate, given the distress caused to Ms Beard and the fact that the allegations were not of the most serious kind. He described Patient A’s correspondence as reprehensible and injurious even if his factual account were accepted, a factor not adequately weighed by the committee.

In short, the appeal succeeded because Ms Neville’s protracted, hostile and irrelevant questioning of Ms Beard on the central credibility issue rendered the disciplinary proceedings unjust and the committee’s decision unsafe.

Jones v National Coal Board [1957] 2 QB 55, [1957] 2 WLR 760 , [1957] 2 All ER 155
Demarco Almeida v. Opportunity Equity Partners Ltd [2006] UKPC 44
London Borough of Southwark v Kofi-Adu [2006] EWCA Civ 281
Banerjee v. General Medical Council [2017] EWCA Civ 78
Roylance v General Medical Council (No 2) [2000] 1 AC 311, [1999] 3 WLR 541