Gage v General Chiropractic Council [2004] EWHC 2762 (Admin)

Case No 4041/2004[2004] EWHC 2762 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 1st November 2004
Strand
London, WC2
B E F O R E:
MR JUSTICE JACKSON
Between
DR. WARREN GAGEAppellant-v-
Between
GENERAL CHIROPRACTIC COUNCILRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR J BURTON (instructed by Bankside Law Ltd., London, SE1) appeared for Appellant.MISS A. FOSTER Q.C.(instructed by Messrs Penningtons, London, EC4) appeared for Respondent.
J U D G M E N T
[1]MR. JUSTICE JACKSON: This judgment is in 12 parts, namely part 1, introduction, part 2 the facts, part 3 the present proceedings, part 4 the effect of failing to disclose Dr. Brown's report, part 5 the allegation of bias, part 6 the standard of proof, part 7 whether the CAP Code was breached, part 8 the honesty issue, part 9 whether there was a breach of paragraph 8.12 of the Chiropractors Code, part 10 the 7th and 8th grounds of appeal, part 11 the effect of the order made by the panel, part 12 conclusion. Part 1: Introduction[2]This is an appeal by a chiropractor against the decision of a disciplinary tribunal that he is guilty of unacceptable conduct and that he should be suspended for a period of time. It is first necessary to set out the statutory background and other relevant provisions. The practice of chiropractic is regulated by the Chiropractors Act 1994 ("the 1994 Act"). Section 1 of the 1994 Act provides:
"(1) There shall be a body corporate to be known as the General Chiropractic Council (referred to in this Act as 'the General Council'). (2) It shall be the duty of the General Council to develop, promote and regulate the profession of chiropractic."
Section 19 provides:
"(1) The General Council shall prepare and from time to time publish a Code of Practice - (a) laying down standards of conduct and practice expected of registered chiropractors; and (b) giving advice in relation to the practice of chiropractic." .... (4) Where any person is alleged to have failed to comply with any provision of the Code, 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."
Section 20 of the 1994 Act provides:
"(1) This section applies where any allegation is made against a registered chiropractor to the effect that - (a) he has been guilty of conduct which falls short of the standard required of a registered chiropractor; (b) he has been guilty of professional incompetence; (c) he has been convicted (at any time) in the United Kingdom of a criminal offence; or (d) his ability to practise as a chiropractor is seriously impaired because of his physical or mental condition. (2) In this Act conduct which falls short of the standard required of a registered chiropractor is referred to as 'unacceptable professional conduct'. (3) Where an allegation is made to the General Council, or to any of its committees (other than the Investigating Committee), it shall be the duty of the Council or committee to refer the allegation to the Investigating Committee. (4) The General Council may make rules requiring any allegation which is made or referred to the Investigating Committee to be referred for preliminary consideration to a person appointed by the Council in accordance with the rules. (9) Where the Investigating Committee is required to investigate any allegation, it shall - (a) notify the registered chiropractor concerned of the allegation and invite him to give it his observations before the end of the period of 28 days beginning with the day on which notice of the allegation is sent to him; (b) take such steps as are reasonably practicable to obtain as much information as possible about the case; and (c) consider, in the light of the information which it has been able to obtain and observations duly made to it by the registered chiropractor concerned, whether in its opinion there is a case to answer. (10) The General Council shall by rules make provision as to the procedure to be followed by the Investigating Committee in any investigation carried out by it under this section. (12) Where the Investigating Committee concludes that there is a case to answer, it shall - (a) notify both the chiropractor concerned and the person making the allegation of its conclusion; (b) refer the allegation, as formulated by the Investigating Committee - (i) to the Health Committee, in the case of an allegation of a kind mentioned in subsection (1(d); or (ii) to the Professional Conduct Committee, in the case of an allegation of any other kind."
Section 22 provides:
"(1) Where an allegation has been referred to the Professional Conduct Committee under section 20 or by virtue of any rule made under section 26(2(a), it shall be the duty of the Committee to consider the allegation. (2) If, having considered it, the Committee is satisfied that the allegation is well founded it shall proceed as follows. (3) If the allegation is of a kind mentioned in section 20(1(c), the Committee may take no further action if it considers that the criminal offence in question has no material relevance to the fitness of the chiropractor concerned to practise chiropractic. (4) Otherwise, the Committee shall take one of the following steps - (a) admonish the chiropractor; (b) make an order imposing conditions with which he must comply while practising as a chiropractor (a 'conditions of practice order'); (c) order the Registrar to suspend the chiropractor's registration for such period as may be specified in the order (a 'suspension order'); or (d) order the Registrar to remove the chiropractor's name from the register. (9) At any time while a suspension order is in force with respect to a chiropractor under this section or by virtue of a recommendation under section 31(8(c), the Committee may (whether or not of its own motion) - (a) extend, or further extend, the period of suspension; and (b) make a conditions of practice order with which the chiropractor must comply if he resumes the practice of chiropractic after the end of his period of suspension. (10) The period specified in a conditions of practice order or in a suspension order under this section, and any extension of a specified period under subsection (7) or (9), shall not in each case exceed three years."
[3]Section 31 of the 1994 Act has been amended by section 34(6) of the National Health Service Reform and Health Care Professions Act 2002. Unfortunately, the court bundle does not include any copy of section 31 in its amended form. However, I have done my own scissors and paste exercise. I would ask counsel to check the wording that I read out. Section 31 of the 1994 Act, as amended by section 34 of the 2002 Act, provides as follows:
"(1) Any person with respect to whom - (a) a decision of the Professional Conduct Committee is made under section 8 or 22, or (b) a decision is made by an appeal tribunal hearing an appeal under section 30 may, before the end of the period of 28 days beginning with the date on which notification of the decision is served on him, appeal against it to the relevant court. (1A) In subsection (1), 'the relevant court' (c) in the case of any other person, means the High Court of Justice in England and Wales. (2) No such decision shall have effect - (a) before the expiry of the period within which an appeal against the decision may be made; or (b) where an appeal against the decision has been duly made, before the appeal is withdrawn or otherwise disposed of. (6) On an appeal under this section, the General Council shall be the respondent. (8) On an appeal under this section, the court may - (a) dismiss the appeal. (b) allow the appeal and quash the decision appealed against. (c) substitute for the decision appealed against any other decision which could have been made by the Professional Conduct Committee or (as the case may be) Health Committee, or (d) remit the case to the Committee or appeal tribunal concerned to dispose of the case in accordance with the directions of the court. and make such order as to costs (or, in Scotland, expenses) as it thinks fit."
It should be noted that in the amended version of section 31 of the 1994 Act there are no subsections numbered (3), (4), (5) or (7).[4]The General Chiropractic Council has made rules in the exercise of its powers under section 20(10) of the 1994 Act. Those rules are called The General Chiropractic Council (Investigating Committee) Rules Order of Council 2000. I shall refer to these rules as "the investigation rules". The Investigation Rules include the following:
"3(1) Any notification and invitation under section 20(9)(a) of the Act shall be made by notice in writing given on behalf of the Committee by the Registrar, and a copy shall be given to the Chairman. 4(1) Where an allegation to be investigated by the Committee is of a kind mentioned in section 20(1(a) or (b) of the Act, the Committee shall, before the beginning of the period of three weeks ending with the day on which notice is served under Rule 3(1), invite the person making the allegation, and any other person appearing to it to have information relevant to the question whether there is a case to answer, to make a statement of evidence by statutory declaration or affidavit as to the matters giving rise to the allegation; and the Committee may invite such evidence in any other case. (2) A copy of any statement of evidence provided to the Committee under paragraph (1) shall be sent to the chiropractor concerned with the notice given under Rule 3(1), or as soon as practicable thereafter, and (if not sent with that notice) shall be accompanied by an invitation to submit observations within such period (expiring not less than 14 days after the day on which the invitation was served) as may be specified in the invitation. (3) Where an allegation to be investigated by the Committee appears to the Committee to raise the issue mentioned in section 20(1)(d) of the Act, the Committee may, if it thinks fit - (a) invite the chiropractor to attend before a medical assessor appointed under section 28 of the Act with a view to that assessor examining him and reporting on his physical or mental condition or, if the information received by the Committee includes reports on the chiropractor by medical practitioners who have recently examined him, and it appears to the Committee that such reports afford sufficient medical evidence that the chiropractor's ability to practise as a chiropractor may be seriously impaired because of his physical or mental condition, so inform him; and (b) inform the chiropractor that it is open to him to nominate other medical practitioners to examine him at his own expense and report to the Committee on his ability to practise (which may as the Committee thinks fit be in place of or in addition to any report from a medical assessor under sub-paragraph (a). (4) An invitation under paragraph (3(a) to attend before a medical assessor shall contain a statement that if the chiropractor fails to attend for an examination without good reason, the Investigating Committee will take that into account and may conclude that there is a case to answer. (5) Subject to paragraph (6), where the Committee receives a report from a medical assessor or other medical practitioner pursuant to paragraph (3), the Committee shall send a copy of the report to the chiropractor concerned, and shall invite him to submit observations in writing to the Committee within such period (expiring not less than 14 days after the day on which the invitation was served) as may be specified in the invitation. (6) If in the opinion of the Committee any report of a medical practitioner required to be sent to the chiropractor concerned under this Rule contains material which is not relevant to the present ability to practise of the chiropractor and which it would not be in the best interests of the chiropractor to see, the Committee may exclude such material from the documents sent to the chiropractor (in which case the excluded material shall not be taken into account by the Committee). 5(1) Where the Committee has invited observations from the chiropractor concerned under Rule 4(2) or (5) on a statement or report, it shall not reach a decision on the question whether there is a case to answer until the period specified in the invitation as the period within which the chiropractor may submit his observations has expired, unless it has received those observations or the chiropractor has indicated that he does not propose to make any observations. (2) Nothing in Rule 4 shall prejudice the power of the Committee to make such further investigations as it considers are reasonably practicable for the purposes of fulfilling its functions under section 20(9)(b) of the Act."
[5]In the exercise of other statutory powers the General Chiropractic Council has made rules to regulate the procedure of the Professional Conduct Committee. I shall refer to this Committee as "the PCC." The rules governing the procedure of the PCC are the General Chiropractic Council (Professional Conduct Committee) Rules Order of Council 2000. I shall refer to these rules as "the procedure rules." Rule 18(1) of the Procedure Rules provides:
"As soon as practicable after the Committee has made its decision on whether an allegation is well founded and as to any steps to be taken under section 22(3) or (4) of the Act, whether or not that decision was announced at the conclusion of a hearing under Part 111 the Committee shall, by notice given by the Registrar notify, notify - (a) the respondent of its decision and its reasons for reaching it, and (if the allegation is found to be well founded) of the respondent's right of appeal under section 31 of the Act...."
[6]In the exercise of its powers under section 19 of the 1994 Act the General Chiropractic Council has published a Code of Practice. I shall refer to this code as "the Chiropractors Code". The Chiropractors Code includes the following provisions: Section 8 Publicity and the Promotion of Practice:
"8.1 Generally. Chiropractors may publicise their practices, or permit another person to do so, subject to the provisions of the principles of the British Code of Advertising Practice and Sales Promotion for the time being in force, and to the following provisions. 8.4 Honesty. The publicity of a chiropractor shall be worded in such a way that it does not abuse the trust of members of the public nor exploit their lack of experience or knowledge, either of matters of health or of chiropractic services. 8.12 Claims to superiority. No claim shall be made by chiropractors that the services which they are able to offer, or their personal qualities or skills, are in any way superior to that of any other chiropractor."
[7]The British Code of Advertising Practice and Sales Promotion, which is referred to in paragraph 8.1 of the Chiropractors Code, is commonly referred to as the CAP Code. I shall follow suit and use this abbreviation. The CAP Code includes the following provisions:
"14.3 Testimonials alone do not constitute substantiation and the opinions expressed in them must be supported, where necessary, with independent evidence of their accuracy. Any claims based on a testimonial must conform with the Code. 50.3 Marketers should not discourage essential treatment. They should not offer specific advice on, diagnosis of or treatment for serious or prolonged conditions unless it is conducted under the supervision of a doctor or other suitably qualified health professional (eg one subject to regulation by a statutory or recognised medical or health professional body). Accurate and responsible general information about such conditions may, however, be offered."
Having set out the statutory background and the other relevant provisions, I must now turn to the facts of the present case. Part 2: The Facts[8]Dr. Gage has practised as a chiropractor since 1997, initially in Canada and latterly in the United Kingdom. He has a practice at Sutton in Surrey known as "The Back to Health Chiropractic Clinic". His fellow practitioner is Dr. Suzette Lip. During 2003 Dr. Gage's practice was distributing copies of a booklet to patients and other members of the public. This booklet gave information about the clinic and also set out the stories of certain patients. These included the following "Success Story # 1":
"Before starting my chiropractic care I had suffered for years from MS. At times I was unable to walk and had severe pain in the lower back, neck and shoulders all the time. When I did manage to walk I felt a grinding pain shooting up my spine that was only eased by taking very strong doses of painkillers, with resulting side effects. Since receiving chiropractic adjustments over the last fives years, combined with a less stressful life, I am in good health. I have no difficulty walking anymore, and find the regular adjustments keep me pain free and capable of living a normal life without medication. I am grateful to Dr Warren for his expertise."
Success story # 5 in the booklet begins by describing how the patient encountered Dr. Gage by chance following a visit to the optician in July. Success Story 5 then continues as follows:
"The most unexpected of all was the improvement in my right eye. When I had visited the optician in July, he told me once again that I still had a cataract in that eye, but it was not yet serious enough to require surgery. The cataract was a bit bothersome when driving, so I hoped it would quickly develop to the operation stage. However, a few weeks ago, I found that I was not experiencing the 'misty' problem in that eye any longer. I could even see as well out of that eye as my other eye! Dr. Gage has organised 'presentations' explaining the all-important role of our nervous system and how regular adjustments keep us well. I learned about the ability of the body to heal itself. So, hardly believing what had happened to my cataract, I asked him if it was possible the treatment I was receiving from him could have led to the cataract healing itself, and he said it was quite possible. Had I not gone to my optician on that day last July, I would not be feeling as well as I do today, and if anybody who reads this would like to experience the same, all they have to do is call 0208 255 1881."
Success story 12 includes the following passages:
"Having experienced neck and back problems for many years I have had physiotherapy, osteopathy, and traditional chiropractic treatment, all of which helped only temporarily. However, it was not until I responded to an advertisement of a complete 'spinal check' and got the whole 'picture' of my back that I realised how unsatisfactory these isolated treatments had been. Dr. Warren's complete 'Back to Health' program is so different, and has effective long-term results. I don't suffer any longer with pain. Come and experience the sheer relief and confidence one feels to discover there is real help for YOU."
Success story 13 includes the following passage:
"I first approached Dr. Suzette with a problem with my 'nerves' whereupon my left hand would shake considerably from time to time. I feared the worst as my GP told me that my shaking would develop into Parkinson's disease within 2 years. This was very distressing news and I decided to try a course of chiropractic care. Although only halfway my first course of 24 adjustments, I am having marvellous results. My hand has ceased shaking and my depression is gone."
A little later in the booklet there is a section about the power that flows through the central nervous system. This includes the following paragraph:
"When symptoms do exist some people choose to take medication. Medication may occasionally be required, in an emergency situation; however, it is important to understand this only serves to mask the symptoms, and does not change the disease process."
I will refer to this passage as "the medication paragraph". The next section of the booklet is headed Common Questions About Chiropractic." The third question in this section, together with its answer, reads as follows:
"Should a person with cancer be adjusted? It is important to realise that all cells are continuously destroyed then replaced by new healthy ones. 2.5 million cells die and are replaced every minute in our body. Unfortunately, every cell that is created is not always normal. The ones that are abnormal are quickly recognised and destroyed by the immune system. When the immune system is weakened these abnormal cells grow uncontrolled, resulting in cancer. Immune function is directly controlled by the nervous system. Subluxations interfere with the proper functioning of the nervous system. The fact remains that the medical profession is losing the war on cancer. Cancer today is the #1 killer of children and the #2 killer of adults. While chemotherapy and radiation further weaken the immune system, chiropractic care strengthens it."
I shall refer to this passage as "question and answer 3".[9]This booklet caused consternation to an osteopath called D S Bhullar who made a formal complaint to the General Chiropractic Council by letter dated 5th May 2003. The General Chiropractic Council referred this complaint to the investigation committee in accordance with section 23 of the 1994 Act. On 2nd June 2003 Mr Price, the clerk to the investigation committee, wrote to Dr. Gage notifying him of the complaint and inviting him to send his observations within 28 days in accordance with section 29A of the 1994 Act. Dr. Gage duly submitted his observations on 23rd June 2003. On 5th August 2003 Mr Price wrote to Dr. Brown, a registered chiropractor, and asked him to comment on Dr. Gage's booklet. By this letter Mr Price also asked Dr. Brown whether the booklet complied with the Chiropractors Code. On 10th September Dr. Brown sent his report to Mr Price. The report was 37 pages long and was accompanied by 30 pages of appendices. The gist of Dr Brown's advice was that, by distributing the booklet, Dr. Gage had acted in breach of the Chiropractors Code in a number of respects. Neither Dr. Brown's report nor the fact that he had been instructed was disclosed to Dr. Gage during the investigation stage. The investigation committee considered Dr. Brown's report and the facts of this case for a period of seven months. On 2nd April 2004 the investigation committee notified all parties that it had formulated six allegations and was referring these six allegations to the PCC. The investigation committee devised a somewhat complicated numbering system for those six allegations. They were called allegation 2B, allegation 2C, allegation 3B, allegation 4B1, allegation 4B2 and allegation 5B. I hope that the parties will forgive me if I adopt a less bewildering numbering system and call the allegations 1, 2, 3, 4, 5 and 6. The allegations were as follows: 1. The publication of Success Stories 1, 5 and 13, constituted a breach of clause 14 of the CAP Code and consequentially a breach of paragraph 8.1 of the Chiropractors Code. 2. The publication of Success Stories 1, 5 and 13 constituted a breach of paragraph 8.4 of the Chiropractors Code. 3. The publication of Success Story 12 constituted a breach of paragraph 8.12 of the Chiropractors Code. 4. The publication of the medication paragraph constituted a breach of paragraph 6.2 of the standards of proficiency for the competent and safe practice of chiropractic. 5. The publication of the medication paragraph constituted a breach of paragraph 8.4 of the Chiropractors Code. 6. The publication of question and answer 3 constituted a breach of paragraph 8.4 of the Chiropractors Code. Finally, the investigation committee alleged that Dr. Gage's conduct in respect of those matters constituted "unacceptable professional conduct" with the meaning of section 22 of the 1994 Act.[10]Dr. Gage did not admit the charges. Accordingly a hearing of the PCC was convened to deal with these issues. The hearing took place over a period of five days in July 2004. The panel hearing the appeal comprised four members of the PCC. They were assisted by a legal assessor. The chairman was Mrs Linda Stone. Both parties were represented by counsel. Each side adduced factual and expert evidence. The witnesses were cross-examined. There were extensive legal submissions. It is clear from the transcript that all the allegations were explored in considerable detail. At the end of day 5 the chairman announced the decision of the panel to the following effect. Allegation 4 was not proved. The other five allegations were proved and those matters constituted "unacceptable professional conduct".[11]After hearing submissions in mitigation the panel retired to consider the matter of sentence. At 6.26 pm on the evening of day 5 the panel returned and the chairman announced the decision. The crucial part of what the chairman said was as follows:
"We have decided to impose a suspension order until 31st October 2004. You are advised to reflect on what has been said and how you can demonstrate your understanding of these issues, which you will have to do when we review your case to consider whether to reinstate you or extend the suspension, alone or together with a conditions of practice order. One way of addressing these issues, and which we might be minded to accept as a remedy, would be for you to pass the Test of Competence, which includes matters of judgment, for which you have been criticised today. The next sitting of the Test of Competence is 25th September 2004, and we understand that there are still two places available. We will set a date in October to review this case - it will be some time during the month, we are not going to set it today - and at that hearing, in addition to passing the Test of Competence, the Committee will explore your understanding of the issues we have raised this week. Should you satisfy the Committee at that time they will be unlikely to extend your suspension. This suspension will take effect in accordance with section 31 of the Chiropractors Act, 28 days after notice of it is served on you, and I understand that will be on Monday. I am sorry, when I said 'reinstate', it was when we further consider the case whether we consider that we should extend the suspension order and/or impose conditions."
[12]On 26th July Mr Price sent a letter by fax to Dr. Gage's solicitors formally giving notice of the Committee's decision in accordance with rule 18 of the Procedure Rules. The relevant part of this letter stated as follows:
"You will note that your client's registration will be suspended for a period until 31 October 2004. Subject to the provisions of section 31 of the Act, the period of suspension will have effect from 23 August 2004."
Mr Price enclosed with this letter a formal notice which set out verbatim what the chairman had said when announcing the panel's decision on 23rd July.[13]Dr. Gage was aggrieved by the decision of the PCC panel. Accordingly he began the present proceedings. Part 3: The present proceedings[14]By an appellant's notice dated 19th August 2004 Dr. Gage appealed to the Administrative Court against the decision of the PCC panel. The General Chiropractic Council was named as respondent to the appeal. The launching of this appeal triggered the operation of section 31(2)(b) of the 1994 Act. As a result Dr. Gage's suspension cannot begin before today being the date upon which his appeal is disposed of.[15]Dr. Gage has eight grounds of appeal which (taking into account the way they have been argued) I would summarize as follows.(1) The PCC ought to have stayed or dismissed the allegations because Dr. Gage had not been furnished with a copy of Dr. Brown's report during the investigation stage.(2) The chairman wrongly failed to recuse herself because of bias.(3) The Panel applied the wrong standard of proof.(4) On the evidence the Panel was not entitled to find any breach of the CAP Code.(5) The Panel ought to have dismissed allegations 2, 5 and 6 since the panel did not make any finding of dishonesty.(6) The panel erred in finding a breach of paragraph 8.12 of the Chiropractors Code.(7) The Panel erred in holding that such breaches of the Chiropractors Code as were proved amounted to "unacceptable professional conduct".(8) The penalty of suspension was too severe.[16]This appeal has been brought pursuant to section 31 of the 1994 Act as amended. Accordingly the appeal falls within paragraph 22.3 of the Practice Direction which supplements Part 52 of the Civil Procedure Rules. Paragraph 22.3(2) of that Practice Direction provides:
"Every appeal to which this paragraph applies must be supported by written evidence and, if the court so orders, oral evidence and will be by way of rehearing."
In this instance the court did not order and neither party sought to adduce any oral evidence. Accordingly the appeal has proceeded on the basis of (a) the written evidence which was before the panel of the PCC in July, and (b) a transcript of the oral evidence which was called before the panel.[17]The test which this court must apply when determining the appeal is that set out in rule 52.11.3 of the Civil Procedure Rules. This court will not allow the appeal unless the decision of the panel was "(a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings below." It seems to me that both limb (a) and limb (b) of this test are relevant to the first two grounds of appeal. In relation to the other six grounds of appeal it is only necessary to focus upon limb (a) of the test set out in rule 52.11.3 of the Civil Procedure Rules.[18]The approach which this court should adopt in an appeal by way of rehearing from a professional disciplinary tribunal is that set out by Collins J in Moody v General Osteopathic Council [2004] EWHC 967, (Admin), paragraphs 12 to 14. In particular, the court must give proper weight to the views of the tribunal, bearing in mind that the tribunal members have substantial professional expertise and experience. The degree of weight which this court must attach to the views of the tribunal is summarised in paragraph 14 by Collins J of Moody as follows:
"As must be obvious, when it comes to questions of professional competence the committee's views are to be accorded the very greatest of weight. When it comes to decisions which do not so much depend upon professional expertise, this court may be in a better position to be able to form a judgment for itself. But this court must never act unless it is plain that in the circumstances the decision of the committee was one which was, as I would put it, clearly wrong."
[19]Let me return to the present case. The hearing of Dr. Gage's appeal took place on Thursday 28th and Friday 29th October. Mr John Burton, who had represented Dr. Gage at the hearing before the PCC, also represented Dr. Gage at the hearing in this court. Miss Alison Foster QC, who had represented the General Chiropractic Council at the hearing before the PCC also represented the General Chiropractic Council at the hearing in this court. I am grateful to both counsel for their considerable assistance. At the end of the hearing on Friday counsel indicated that they may wish to make further submissions concerning the effect of the PCC's decision. I agreed to accept any further written submissions on this point which either party wished to lodge that day. In the event Miss Foster lodged supplementary written submissions at 6 pm on Friday evening but Mr Burton relied upon his oral submissions at the hearing. I said that I would consider counsel's oral and written submissions over the weekend and give my decision on Monday morning. This I now do. Part 4: The effect of failing to disclose Dr. Brown's report[20]As previously stated, Dr. Brown's report was not disclosed to Dr. Gage during the investigation stage of the disciplinary process. The panel of the PCC considered this matter on Day 2 of the hearing. The panel refused to stay or dismiss the proceedings on this ground for two reasons. They were:(1) There was no duty on the investigating committee to disclose Dr. Brown's report to Dr. Gage.(2) Alternatively, no harm was caused by the non-disclosure. It was still possible to have a fair trial of the allegations.[21]I must address these two aspects of the matter separately. Let me consider first whether the investigating committee had a duty of disclosure. Miss Foster submitted, and I accept, that Dr. Brown's report was not "a statement of evidence" within the meaning of rule 4.1 of the Investigation Rules. That rule simply enables the investigating committee to gather relevant factual information before serving an initial notification under section 20(9)(a) of the 1994 Act. In those circumstances what rule does apply to the obtaining of Dr. Brown's report? Miss Foster submitted that the investigating committee's power to obtain an expert report either arose under rule 5.2 or alternatively was implied by the investigation rules generally. In my judgment the former submission is correct. Rule 5.2 must be read broadly so as to encompass the power to obtain an expert report. I cannot however accept the next stage of Miss Foster's argument which is that rule 5.2 confers a power to obtain expert evidence without disclosing it to the person under investigation. On this issue I prefer and accept the submission of Mr Burton. The power to obtain expert evidence which arises under rule 5.2 must denote expert evidence which is disclosed to the person under investigation. A silver thread which runs through the investigation rules is that any significant evidence which the Committee receives must be copied to the chiropractor so that he or she may comment (see rule 4.2, rule 4.5 and rule 4.6). Accordingly in my judgment the Panel were wrong to rule as they did at pages 25 and 26 of Day 2 that the Investigating Committee were under no duty to disclose Dr. Brown's report. At this point I should place on record that the Investigating Committee had subsequently changed its practice. The Committee now always discloses the expert evidence to the chiropractic under investigation. I commend the Investigating Committee for its present policy of openness which seems to me entirely proper and in accordance with the rules.[22]Let me return to the issues in the present case. What consequences flow from the non-disclosure? Mr Burton contends that non-disclosure of Dr. Brown's report constituted a breach of article 6 of the European Convention on Human Rights. He goes on to argue that the Panel ought to have stayed or dismissed the allegations on this basis. The Panel took a different view of this issue, which they dealt with on a hypothetical basis. The Panel ruled at Day 2 (pages 26 to 27) that even if Dr. Brown's report should have been disclosed, the non-disclosure did not prevent a fair trial. Accordingly, the hearing should proceed in any event.[23]On this issue I reject the submissions of Mr Burton and I hold that the Panel came to the right answer. I reach this conclusion for four reasons.(1) Even if Dr. Brown's report had been disclosed to Dr. Gage, there is nothing which he could have said or done to prevent the case going forward to the PCC. The evidence against Dr. Gage was of such a character that a full disciplinary hearing was inevitable.(2) Dr. Gage had a full opportunity to consider Dr. Brown's report before the hearing in July. At that hearing Dr. Gage had every opportunity to present his defence in full. It is clear that Dr. Gage had a fair trial in July in accordance with the provisions of article 6 of the European Convention on Human Rights.(3) Whilst undoubtedly Dr. Gage has rights which must be protected, so also do the general public. There is a strong public interest in ensuring that serious allegations of misconduct made against health professionals proceed to a full and proper investigation (see R v General Medical Council ex parte Toth [2000] 1 WLR 2209, 2218 to 2220; R (Richards) v General Medical Council, Administrative Court 18th December 2000, paragraphs 58 to 62; R (Homes) v General Medical Council [2001] EWHC Admin 321, paragraph 25.(4) In the context of criminal proceedings a procedural irregularity of the kind which has occurred in the present case would not lead to those proceedings being stayed or dismissed (see R (Ibrahim) v Feltham Magistrates' Court [2001] EWHC Admin, 130; [2001] 1 WLR 1293).[24]Let me now draw the threads together and address Dr. Gage's first ground of appeal by reference to the two limbs of rule 52.11.3 of the Civil Procedure Rules. As to limb (a), for the reasons set out above I hold that the Panel were wrong to find that Dr. Brown's report need not be disclosed during the investigation stage. On the other hand, the Panel were right in their final conclusion that the disciplinary proceedings should not be stayed or dismissed on this basis. As to limb (b) I hold that there was a procedural irregularity in this case, namely the failure to disclose Dr. Brown's report during the investigation stage. On the other hand, for the reasons set out above I reject the suggestion that this was a serious procedural irregularity which makes the final decision of the panel unjust. Accordingly, in the result Dr. Gage's first ground of appeal must be dismissed. Part 5: Allegation of bias[25]On the first day of the hearing in July Mr Burton made an application that the chairman of the Panel, Mrs Linda Stone, should recuse herself. The Panel as constituted comprised three chiropractors and one pharmacist. Mrs Stone, the chairman, was a distinguished pharmacist. She had previously been President of the Royal Pharmaceutical Society and had recently been awarded that Society's gold medal. The basis of the application which Mr Burton made was this. Because of Mrs Stone's occupation and position any fair minded observer would think that there was real possibility of bias (see Porter v Magill [2002] 2 WLR 37, paragraph 103). The Panel unanimously rejected this submission and Mrs Stone declined to recuse herself. I have no doubt whatsoever that both Mrs Stone and the Panel were correct in this regard. Having regard to the issues in this case, no fair-minded observer could conceivably think that there was any possibility of bias. On the contrary, the Panel was fortunate to have such a distinguished and well qualified chairman as Mrs Stone. The second ground of appeal is dismissed. Part 6: The standard of proof[26]Section 22(2) of the 1994 Act empowers the PCC to impose a penalty if "the committee is satisfied that the allegation is well founded". The question which then arises is whether the PCC must be satisfied to the criminal standard of proof or to the civil standard. In my view, it is clear on the authorities that a tribunal such as the PCC of the General Council of Chiropractors must apply the civil standard of proof subject to one qualification. The one qualification is this. The more serious an allegation of professional misconduct is the stronger must be the evidence before that allegation is proved on the balance of probabilities. The authorities which support this conclusion include R v Hants County Council, ex parte Ellerton [1985] 1 WLR 749, R v Securities and Futures Authority Limited ex parte Fleurose [2001] EWHC Admin 292, paragraphs 50 to 52; R v Securities and Futures Authority, ex parte Fleurose [2001] EWCA (Civ) 2015; [2002] IRLR 297; the judgment of Lord Fraser giving the decision of the Statutory Committee of the Royal Pharmaceutical Society in the case of Bhatt on 11th September 2001, pages 4 to 6.[27]Let me now turn to the present case. The Panel heard submissions about the standard of proof on Day 2 of the hearing. The chairman ruled as follows at page 46 of the transcript:
"The Committee has decided in this case for the following reasons to apply the civil flexible standard of proof: (1) we do not agree that the words 'well founded' necessarily imply the criminal standard of proof. (2) we do not agree that the words 'well-founded' whilst not necessarily equating with 'probably', mean that a higher standard of proof than on the balance of probabilities is required. (3) we accept the submissions of Miss Foster. (4) this case has no criminal elements in it. (5) the civil flexible standard is well known as the standard that this Committee habitually employs and we see no reason to change it."
In my judgment this ruling was entirely correct. Mr Burton submits that in practice the Panel did not apply the civil flexible standard of proof correctly. He points out that the chairman made no reference to the standard of proof in the course of giving judgment orally on Day 5. I reject this submission for three reasons: (1) having given the ruling on Day 2 which I have quoted there was no need to repeat it in the final judgment at the end of the hearing; (2) in any event, it is clear from the transcript that the panel had the appropriate standard of proof in mind very shortly before they gave judgment (see Day 5, page 37); (3) the issues in this case turn substantially on the meaning and effect of certain words used in publicity material. In a case such as this the precise standard of proof applicable is unlikely to affect the outcome. I have come to the conclusion that the Panel cannot be faulted in respect of the standard of proof which they applies. Accordingly, the third ground of appeal is dismissed. Part 7: Whether the CAP Code was breached[28]The panel held that the publication of Success Stories 1, 5 and 13 constituted a breach of clause 14.3 of the CAP Code because the opinions and assertions in these three success stories were not supported by independent evidence as to their accuracy. The Panel went on to hold that these breaches of the CAP Code caused Dr. Gage also to be in breach of paragraph 8.1 of the Chiropractors Code. In announcing this part of the decision, the chairman said at day 5, page 40:
"Reading these testimonials as a reasonable member of the public, both individually and in the context of the whole booklet, we concluded that, on a reasonable reading of the marketing material, it could be said that the public could gain the impression that Dr Gage may provide effective treatment for, or a cure for, Multiple Sclerosis, Cataracts and Parkinson's Disease. These are serious and/or prolonged conditions and the impression given was not supported by independent evidence, thus breaching Rule 14.3 and rule 50.3 of the CAP Code."
[29]Mr Burton attacks this finding on two bases:(1) the panel had no expert evidence as to how the relevant provisions of the CAP Code were applied in practice and, furthermore, the Panel did not obtain any ruling from the Advertising Standards Agency;(2) there was no evidence upon which the Panel were entitled to be satisfied that the "where necessary" requirement in clause 14.3 of the CAP Code was satisfied.[30]As to the first line of attack it should be noted that the CAP Code is a clear and simple code of guidance. It is intended to be readily understood both by the professions and by committees such as the PCC of the General Chiropractic Council. In my judgment, the panel did not need either expert evidence or a ruling from the Advertising Standards Agency in order to understand and apply the CAP Code in the present case. There is however a further point. The panel did in fact hear expert evidence, both from Dr. Brown and from Dr. Stick upon matters relating to the CAP Code.[31]I turn to Mr Burton's second line of attack. Mr. Burton argues that success stories 1, 5 and 13 did not contain any opinions which required independent evidence as to their accuracy. I do not agree. By publishing these stories Dr. Gage was leading members of the public to believe that chiropractic may provide effective treatment for Multiple Sclerosis, cataracts and Parkinson's Disease. Such assertions plainly required supporting independent evidence. None was provided. Mr. Burton draws attention to certain official publications concerning chiropractic which claim that chiropractic can help in the treatment if a number of ailments. I note these publications. However, none of them suggests that chiropractic may provide effective treatment for Multiple Sclerosis, cataracts or Parkinson's Disease. For all these reasons I am not persuaded by Mr Burton's submissions. The Panel were fully entitled to find breaches of the CAP Code as they did. The fourth ground of appeal is dismissed. Part 8: The honesty issue[32]Mr Burton submits that the panel ought to have dismissed allegations 2, 5 and 6 since the Panel did not make any finding of dishonesty. It may be helpful if I set out the panel's decision and reasoning in respect of each of these three allegations. In respect of allegation 2 the panel said this:
"We find this proved. We believe that a reasonable member of the public would consider that these testimonials clearly imply that chiropractic can treat multiple sclerosis, cataracts and parkinson's disease. We find that they breach section 8.4 of the Code of Practice."
In respect of allegation 5 the panel said this:
"We find this allegation proved. We adopt the reasoning in paragraph 15 of Miss Foster's reasons, to the effect that: 'These statements are broad, assertive and unqualified, and that they could very easily be construed as an exhortation to stop medication - here described in terms of no real utility at all. Only an 'emergency', undefined, might call for medication.' We find section 8.4 of the Code of Practice breached."
In respect of allegation 6 the Panel said this:
"We find this allegation proved. The paragraph referred to, taken in the context of the booklet, is at least misleading. We prefer the view taken by Dr. Brown to that of Dr. Stick - that the assertion that chiropractic strengthens the immune system is not a fact, but a contention. As Miss Foster submits: 'The plain meaning operates as a discouragement to traditional therapy which, on the logic of the paragraphs in question, is itself the cause of the immune deficiency that contributes to cancer.' We agree with her submission, and we find breach of section 8.4 of the Code of Practice."
[33]Mr Burton is quite correct in submitting that the Panel did not make any finding that Dr. Gage was being deliberately untruthful in the various passages quoted from his booklet. On the other hand, Dr. Gage did make claims about chiropractic in those passages which were incorrect. Dr. Gage had no proper basis for making those claims. Furthermore, the passages in question could clearly be injurious to individual members of the public who acted in reliance upon them. The text of paragraph 8.4 of the Chiropractors Code reads as follows:
"The publicity of a chiropractor shall be worded in such a way that it does not abuse the trust of members of the public nor exploit their lack of experience or knowledge, either of matters of health or of chiropractic services."
In my judgment the panel were fully entitled to find that the passages in question breached that rule.[34]The question then arises whether the heading "honesty" adds some additional ingredient of the offence which must be proved. In my judgment it does not, for three reasons:(1) the heading is a signpost. It is not part of the substantive rule which chiropractors are required to obey;(2) the origin of this signpost is clear. The headings of paragraphs 8.2, 8.3, 8.4 and 8.5 of the Chiropractors Code are all headings taken from page 4 of the CAP Code. These headings have not been put into the Chiropractors Code in order to change the meanings of the substantive provisions;(3) the purpose of paragraph 8. 4 is to protect members of the public from extravagant or inappropriate claims about chiropractic. If members of the public rely upon such claims they might refrain from receiving medical treatment and thereby suffer injury. The precise state of mind of the chiropractor who publishes the literature is a separate matter. This does not affect the degree of risk caused to the public.[35]Mr Burton makes the further submission that there was no evidence that the trust of anyone had been abused or any member of the public had been exploited. In my judgment such evidence was not necessary. The panel members were well able to assess what would be the effect of Dr. Gage's booklet upon members of the public. It is quite right, as Mr Burton points out in paragraph 12 of his skeleton argument, that Dr. Stick gave evidence favourable to Dr. Gage on this point, amongst others. However, the panel were not obliged to accept that evidence. For all of these reasons the 5th ground of appeal must be rejected. Part 9: Whether there was a breach of the Chiropractors Code[36]In success story 12 the patient expressly stated that he had only gained temporary help from other chiropractors, whereas treatment from Dr. Gage had achieved long term results. This was an explicit claim that Dr. Gage's treatment was superior to that of a number of other chiropractors. In relation to allegation 3 the Panel were bound to find a breach of paragraph 8.12 of the Chiropractors Code and they duly did so. Accordingly, the sixth ground of appeal is dismissed. Part 10: The 7th and 8th grounds of appeal[37]It is convenient to deal with these two grounds of appeal together since they both concern the subjective judgments made by members of the Panel. I will deal with the 7th ground first. The panel had, quite correctly, found that five allegations of breaches of the Chiropractors Code had been proved. These breaches were self-evidently harmful to members of the public and injurious to the profession of chiropractic generally. The Panel's conclusion that these breaches amounted to "unacceptable professional conduct" is unobjectionable. Indeed, I should have been surprised if the Panel had come to any different conclusion. Therefore the 7th ground of appeal fails.[38]I come now to the 8th and final ground of appeal. The sentence which the panel imposed was a period of suspension terminating on 31st October. The precise start date would depend upon circumstances beyond the Panel's control but the maximum possible period of suspension would be 69 days. This was, on any view, a short period of suspension. It is possible for a professional person to be absent from work for 69 days without thereby losing his livelihood. The Panel gave very sensible and constructive advice as to how that period of suspension should be used. The whole purpose of the order made by the Panel was to improve Dr. Gage's understanding of chiropractic. I am bound to say that a short period of suspension seems to me entirely appropriate for the breaches of the Chiropractors Code which had been proved. Furthermore, the riders which the chairman added were very sensible.[39]There is, however, a more fundamental point here. In relation to the seriousness of the offence and level of sentence the members of the Panel were drawing upon their own professional experience and knowledge of the world of chiropractic. The Panel were fixing upon a sentence which would not only be just and fair from Dr. Gage's point of view but which would also protect the public and uphold the high standards of the chiropractic profession. Although the appeal to the Administrative Court proceeds by way of rehearing, I must pay proper regard to the views of the Panel in relation to the matter of sentence. At the end of the day, this court must address the question posed by rule 52.11.3A of the Civil Procedure Rules. Can it be said that the sentence imposed by the Panel was wrong? In my judgment, it cannot be said that the sentence was wrong. Accordingly, the 8th ground of appeal is dismissed. Part 11: The effect of the order made by the Panel[40]As previously mentioned the panel did not suspend Dr. Gage for a period of specified length. Instead, and somewhat unusually, they suspended Dr. Gage from an unspecified date until 31st October. As to the start date of suspension the chairman said:
"This suspension will take effect in accordance with section 31 of the Chiropractors Act, 28 days after notice of it is served on you, and I understand that will be on Monday."
In those remarks the chairman acknowledged that the future date of service was uncertain and accordingly that the start date of the suspension was uncertain. Furthermore, the chairman acknowledged that the start date would be affected by the operation of section 31. On Monday, 26th July 2004 Mr Price sent formal notification of the PCC's decision in accordance with rule 18.1 of the Procedure Rules. In his letter Mr Price acknowledged that the start date (but not the end date) of suspension was subject to the provisions of section 31 of the 1994 Act.[41]The manner in which the sentence was formulated is, to say the least, unfortunate. Miss Foster submits that this court should interpret the sentence as being one of 69 days' suspension and that the suspension should begin on the date when Dr. Gage's appeal is dismissed. Mr Burton makes the opposite submission. Mr. Burton contends that there was no fixed length of suspension. There was simply a period of suspension which would end on a specified date.[42]On this issue I accept the submission of Mr Burton and reject that of Miss Foster. This conclusion has bizarre consequences. Today is Monday, 1st November, one day after the specified end date of Dr. Gage's suspension. Nevertheless the consequence of section 31(2) of the 1994 Act as amended is that Dr. Gage's suspension cannot start until today, being the date his appeal is disposed of. For the reasons set out in Parts 4 to 10 of this judgment, Dr. Gage has failed on each of his grounds of appeal. Therefore the only order which I am empowered to make is an order that Dr. Gage's appeal be dismissed.[43]There was some discussion between counsel whether it would be appropriate for me to make one of the other orders which are referred to in section 31(8) of the 1994 Act as amended. However, it seems to me that it would not be proper for this court to make any order, other than an order dismissing the appeal, in circumstances where every single ground of appeal advanced by the appellant has been dismissed. The consequence of the concatenation of events which have occurred is that, despite losing his appeal, Dr. Gage will not in fact have to serve any period of suspension of his registration as a chiropractic. It is not possible for me on an appeal against sentence by Dr. Gage to substitute a more adverse sentence from Dr. Gage's point of view. It is only possible for the court to take that course if there has been a reference by the Council for the Regulation of Health Care Professionals (see Ruskillo v the Council for the Regulation of Health Care Professionals [2004] EWCA (Civ) 1356. There has been no reference by the Council for the Regulation of Health Care Professionals in this case. In the result, therefore, the consequence of the Panel's order and of the operation of section 31 of the 1994 Act is that Dr. Gage will never have to serve any period of suspension. Part 12: Conclusion[44]For the reasons set out in Parts 4 to 10 above Dr. Gage fails on each of his grounds of appeal. Accordingly, this appeal must be dismissed. For the reasons set out in Part 11 of this judgment it is not possible for me to vary the date of 31st October which the Panel originally fixed as the date for termination of suspension. Therefore, the suspension order made by the Panel must remain in its original form. Regrettably, the consequence is that Dr. Gage's suspension has ended before it could begin. Subject to any observations which counsel may make, it seems to me that a suitable form of order, which would incorporate all of the conclusions reached in the course of this judgment, would simply be "appeal dismissed".[45]MISS FOSTER: I am content with that order. I would ask for the costs of the GCC following on from the event.[46]MR. BURTON: It is an unusual event. Your Lordship will bear that in mind in relation to the application. In the circumstances your Lordship's finding is that this order that was appealed against was wrongly drawn up. One does question in the circumstances whether there should be any order for costs.[47]MISS FOSTER: The public has not been protected. This was not a point argued as a matter of appeal against us. I would say that it does not necessarily redound to Dr. Gage's credit, on the basis of the substance of the appeal. The Chiropractic Council is grateful for the guidance as to how it may draw its orders. Save for that, costs should follow the event. The event is that he has lost the appeal.[48]MR. JUSTICE JACKSON: In my judgment there must be some adjustment of the costs order in this case to reflect the fact that the victory won by the General Chiropractic Council is, from one point of view, a Pyrrhic victory. In my judgment, the proper order for costs is that Dr. Gage should pay 80 per cent of the General Chiropractic Council's costs. This order reflects the fact that Dr. Gage has lost on all the issues in the appeal but has nevertheless established that he should not serve any period of suspension.

Cited in 2 later judgments