Lewis v General Osteopathic Council

Neutral Citation Number: [2015] EWHC 4092 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT CO/4199/2015 Royal Courts of Justice Strand London WC2A 2LL Thursday, 26 November 2015 Be f o r e: MR JUSTICE FOSKETT - - - - - - - - - - - - - - - - Beeetwn: LEWIS v GENERAL OSTEOPATHIC COUNCIL - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Claimant Defendant The Claimant appeared in person Mr Andrew Faux (instructed by The Osteopathic Council in house) appeared on behalf of the Defendant - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE FOSKETT: When I had, read prior to this hearing the papers, it was not entirely clear to me what the procedural position was today. I am still not entirely clear of the basis upon which it was intended that the proceedings should be before me today, but with the assistance of Mr Faux who appears for the General Osteopathic Council, I have decided to treat this as a statutory appeal by Miss Lewis, who I will henceforth call the appellant against the decision of a committee of the council, to make her the subject of an interim suspension order in August of this year. If this case was treated (as it is possible that the appellant had intended) as a renewed application for permission to apply for judicial review, the grounds might well have been narrower than the grounds upon which I can interfere with the decision of the committee to which I have referred. If I am satisfied that the decision of the committee was wrong or that there was some serious procedural irregularity, then I could and should intervene and I propose to approach my evaluation in this case in that way. 2. The hearing that took place in August was intended to be the final hearing concerning the issue of the appellant's fitness to practise as an osteopath. There had been a number of hearings prior thereto starting I think in March 2014 and various interim suspension orders were made in the meantime. Unfortunately, the appellant does suffer from or has suffered from a bipolar affective disorder. I have not myself digested all aspects of the medical material in this case, but I have to assume that this may involve some of the familiar features of that particular condition. However, the committee that made the decision in August did have its own psychiatric assessment of the appellant with some significant parts of which the appellant plainly disagreed. 3. Having looked at some parts of the transcript of the proceedings, it is obvious that she was cross-examined, she representing herself, I should add, on that occasion as indeed today. She was cross-examined about her condition and certainly in one part of the transcript accepted that she suffered from it. I have not read the full transcript but it is quite plain that she became upset about the tone and content of some of the questioning and walked out of the hearing. That inevitably left the committee having to decide what to do. They took legal advice from the legal assessor and I have seen the nature of the advice that the assessor gave. 4. Putting the matter extremely shortly for present purposes, they adjourned for a while to see if contact could be made with the appellant rather than immediately deciding to proceed in her absence, but having failed to make contact then decided that they should proceed. Again, in short, they were advised to address the question of whether to make a further interim suspension order by asking the question whether it was necessary to do so to protect members of the public and by that, of course, it means potential patients or clients. The appellant of course was not there at the time they addressed this question to make her own submissions about it. It is quite clear from her submissions to me that she disputes that she is a danger to patients and says there has been no complaint about her by any patient in the 20 years or so she has practised as an osteopath. Obviously, I am not in a position to comment about that, but it would plainly be a relevant consideration, if it is true, for the committee in deciding on the ultimate outcome of this case. 5. The reasons the committee gave for making the interim suspension order, which I should say they made for a period of six months, was as follows and I am quoting page 355 of the bundle that is being provided to me: 6. "The committee noted that these proceedings have not yet concluded and that Miss Wilkinson [as the appellant was known] was informed when she was provided with written notice of today's hearing, that an application for an ISO would be made should this hearing not conclude within the allotted time.” 7. In considering the necessity for an order on the grounds of patient safety, the committee took into account the background circumstances of this case and the most up to date psychiatric report from Dr Holloway [a psychiatrist instructed on behalf of the Council] which supports the committee's factual finding that Miss Wilkinson suffers from bipolar affective disorder. There was also evidence before the committee based on Dr Holloway's report that this mental health condition is relapsing and remitting in nature. Dr Holloway also indicated in her report that as Miss Wilkinson is not on medication, a relapse is likely some time in the future. Dr Holloway stated in her oral evidence that any such relapse is likely to occur "within weeks rather than days or months." 8. Continuing with the committee's reasoning, although the committee has not yet made a finding as to whether Miss Wilkinson's mental health condition seriously impedes her fitness to practise, it was satisfied that there was a risk of significant harm to patients and that an ISO was a necessary and proportionate response to that risk. 9. In reaching this decision, the committee bore in mind Miss Wilkinson's erratic behaviour during this hearing and her acceptance during cross-examination that she suffers from paranoia. The committee then went on in this sentence says this: 10. "In addition to being in the public interest, the committee is also satisfied that an ISO was made in Miss Wilkinson's own interest." 11. Mr Faux has said very properly that that reason was not a legitimate reason for the committee to advance because it is not something which statutes entitles them to take into account. However, it is plain that the most significant part of the committee's reasoning was that quoted already which focuses on patient safety. 12. As that quotation will have indicated, the committee did not see that hearing as the end part of the process and I am told that a further two days have been set aside on 1st and 2 February next year for this hearing to be continued and thus concluded. Indeed, on paragraph 355 of the bundle, going back a little bit in the decision of the committee as set out there, the following appears: 13. "In light of this decision, the hearing will have to be adjourned to a date to be notified. The reconvened hearing will continue from where this hearing left off. It is anticipated that the hearing will conclude on the next occasion and Miss Wilkinson should - 1. Submit any additional documents or statements she wishes the committee to consider including her own psychiatric report and/or report from her GP. 2. Make arrangements for the attendance of any witnesses she intends to call. In the event Miss Wilkinson is unable to attend the reconvened hearing due to ill health, the committee will expect a medical certificate to be obtained which should specifically address reasons why she is unfit to attend the hearing." 14. So that is how the matter has been left at the level of the committee. The hearing is to be resumed in February of next year. 15. The only question I have to address is whether their decision to issue a further interim suspension order was wrong. It is plain that no procedural irregularity occurred. During the course of those proceedings, the committee was given legal advice and they proceeded in a procedurally correct fashion. As I say, the question is whether the decision to make a further order was wrong. The approach of this court in all matters of this nature is to accord to the fitness to practise committee of organisations such as the Osteopathic Council a degree of deference given their knowledge of what their profession requires and what their patients are entitled to expect from its practising professionals. That, I emphasise, does not mean that this court simply adopts their decisions but does accord to them a considerable degree of weight. 16. On the evidence available to the committee, it seems to me that they were justified in making the further order pending the final hearing. It is only at that final hearing that the case be concluded. The appellant will be well advised to take part in it, whatever her strongly held views about the Council as a body may be. It will be in that way that she ought to seek to protect her own interests and endeavour to persuade the committee that intervention in her ability to practise as an osteopath in the future should not take place. However, that is entirely a matter for her. So far as today is concerned, I can detect no basis to interfere with the decision and accordingly this appeal, which as I say is the way I have treated these proceedings, must be dismissed. 17. I am very grateful to you for the way you put it. You did not do yourself any disadvantage by being here in person. You put the case very well but I am sorry I am not persuaded that I can interfere. Thank you for your help Mr Faux. 18. MISS LEWIS: The restraining order that they were going to make. 19. MR JUSTICE FOSKETT: Well, that is a matter for Mr Faux to advance if he wishes to do so. It can be dealt with either now or in writing subsequently if that is what you wish to do. I have not looked to see whether all the parameters that are necessary for such an order are. No doubt I am quite aware that some total without merit findings have been made in the past. 20. MR FAUX: My Lord, first of all the first step would be the judgment that you have just given indicates that the appeal was totally without merit. It is difficult in the context of an appeal. On paper it was quite different from that presented orally and I am conscious of that. 21. MR JUSTICE FOSKETT: Yes. If this appeal had been properly constituted in advance of today, I would certainly said it was highly unlikely to succeed. That does not always necessarily mean it is totally without merit. The two are not necessarily coterminate. 22. MR FAUX: No. My Lord may I turn my back briefly. 23. MR JUSTICE FOSKETT: Of course. 24. MR FAUX: Given how Miss Lewis has presented her oral argument to the court, I am not instructed to pursue any form of restraint order against her. However, can I invite to you look at page 56 of the bundle. 25. MR JUSTICE FOSKETT: Of the big bundle. 26. MR FAUX: This is the judgment in relation to an application for judicial review. 27. MR JUSTICE FOSKETT: Yes. 28. MR FAUX: It contains a restraining order with an unusual set of unusual terms saying: "The above named William Ellis be restrained, being corrected to, from taking any steps whatsoever with the Administrative Court office or the Administrative Court whether in face or otherwise by acting or purporting to act on behalf of any person other than himself in legal proceedings in this court save with the leave of the Administrative Court such need to apply for by way of a formal application notice and his ability to reply." 29. The court office have been good enough to furnish me with another general civil restraint order in respect of Mr Ellis which is issued at the request of the Solicitors Regulatory Authority and that is why in the skeleton argument I refer to the need to combine (I don't think that is the word I use), but look at this issue together. Those who instruct me are concerned by the voluminous correspondence they received which appears to emanate from Miss Lewis and occasionally directly from Mr Ellis and that which comes from Miss Lewis is sent, as she has told us today when she made submissions to you, with the assistance of Mr Ellis. 30. It is difficult for a body such this regulator with limited resources to know how to deal with such endless potential litigation without incurring unreasonable and disproportionate cost. So we would invite you to reissue this restraining order. If it is possible to make the terms anymore robust or clear setting out that it is not appropriate for Mr Ellis to proffer the assistance he apparently is continuing to proffer because it does not bring clarity to any proceedings. It is brings confusion. 31. MR JUSTICE FOSKETT: This order as I understand it relating to Mr Ellis still exists. It was made on whatever date it was, July 2014. 32. MR FAUX: Yes. 33. MR JUSTICE FOSKETT: It not expressed to have any limit as to time. 34. MR FAUX: I fear it may be not because the practice direction makes clear that such order must be time limited. 35. MR JUSTICE FOSKETT: Right. So does that mean that -- 36. MR FAUX: It is arguably not a good order is what I fear arises from that. 37. MR JUSTICE FOSKETT: Right. Well, if it is not a good order and there is evidence that this is something that is continuing, then at least prima facie there would be reason for the court to make a further order. What I think I suggest, this is an order that affects Mr Ellis particularly, so he must be in a position be given an opportunity to respond. 38. MR ELLIS: I am here. 39. MR JUSTICE FOSKETT: I know you are Mr Ellis but thank you very much. Sit down. 40. If your clients are very concerned about this, then I suggest they put together some material upon which the court can be invited to conclude that Mr Ellis has been behaving in this fashion and then the court can decide on the basis of that and anything that he wishes to say whether to make a further order or not. At the moment it does not seems to me to directly involve Miss Lewis. 41. MR FAUX: Could I invite you to look briefly at page 63 of the bundle. 42. MR JUSTICE FOSKETT: 63. 43. MR FAUX: This an email coming from Mr Ellis on 23 September of this year to people at the General Osteopathic Council. It is not on the face of the copy to Miss Lewis. It clearly purports to act on her behalf and attaches a vast number of documents which are part of the other bundle which you may have noted upon your perusal contains, for example, references to Court of Appeal equity lawyer Mr Ellis v Law Profession Authorities. 44. MR JUSTICE FOSKETT: Yes. 45. MR FAUX: So to be absolutely clear, my Lord, those who instruct do not wish to be engaged in further litigation with Mr Ellis, potentially litigation alleging him to be in breach of the existing order whether or not it is good or bad because it does not have date on it. They would instead seek a renewal and certainty order going forward and in my respectful submission there is ample evidence in the tone of the appeal from Miss Lewis in terms of her telling she has had Mr Ellis' assistance and from this email for you to conclude that such an order is appropriate. 46. MR JUSTICE FOSKETT: What I am going to invite you to do is to put together a note to me indicating where it is that your solicitors suggest that Mr Ellis has been involved in this particular case and where they have had to deal with it. The note must be sent to Mr Ellis and he will be invited to say in writing whether he accepts or does not accept what is suggested about him and I will consider the matter on the papers, but I need something more focused than trying to just go through this bundle. 47. MR FAUX: My Lord can I invite you to impose a limit on the volume of the response from Mr Ellis with regard to our note. 48. MR JUSTICE FOSKETT: If it is so voluminous that I shall not read it, that is his downfall. I need to know whether he accepts or does not accept the suggestions that are going to be made that he was behind a particular action or behind a particular email. I can see this particular one and he will want to explain to me I imagine why he got involved in it. But I am certainly happy to receive the material you suggest. I have to give him an opportunity to respond. He needs to understand it would sensible to be moderate in the way in which he respond. 49. MR FAUX: Just concerning timing, direct us to make such enquiry or to set out for Mr Ellis how we assert he has assisted Miss Lewis in this case within 14 days. 50. MR JUSTICE FOSKETT: Certainly. I will give him 14 days thereafter to respond in writing and the response should be sent in writing to the Administrative Court office. It does not require personal delivery on his part to the office. It can be sent by recorded delivery or whatever the current equivalent of that is, alright. 51. MR FAUX: And he need not serve his response on the Osteopathic Council. 52. MR JUSTICE FOSKETT: That is a matter for you and for him. I am the person who has to see it first of all. 53. MR FAUX: Thank you. There is no application to costs. 54. MR JUSTICE FOSKETT: I am very grateful to everybody. Thank you very much.