Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 39
P1534/09	OPINION OF LORD WHEATLEY in Petition of GENERAL OSTEOPATHIC COUNCIL Petitioners; against RICHARD SOBANDE Respondent: for Interdict and Interim Interdict ­­­­­­­­­­­­­­­­­________________

Pursuer: Dunlop, Q.C.; Balfour + Manson LLP

Defender: Party

1 March 2011

[1] The Osteopaths Act 1993 was enacted to provide a statutory scheme for the practice of osteopathy in the United Kingdom. In terms of the preamble to the Act its purpose was to establish a body to be known as the General Osteopathic Council to provide for the regulation of the profession of osteopathy, including making provision as to the registration of osteopaths, and as to their education and conduct; to make provision in connection with the development and promotion of the profession; and for various other purposes. Prior to the introduction of the Act, there had existed a number of voluntary organisations, to which most practising osteopaths belonged, which sought in various ways and to varying effect to provide for the regulation of osteopathic practice. The largest of these groups was the General Council and Register of Osteopaths, to which the respondent belonged until it was disbanded by the introduction of the General Osteopathic Council. Under the supervision of the earlier organisation, the respondent had undergone training and certification (in 1986), as had a number of other osteopaths.

[2] The scheme of the 1993 Act, particularly as it has relevance to the present action, is relatively straightforward. Section 1 sets up the General Osteopathic Council and explains that its duty is to develop and regulate the profession of osteopathy. In terms of section 2, the Registrar of the Council requires to establish and maintain a register of osteopaths in accordance with the provisions of the Act. Section 3 provides that anyone who satisfies the conditions contained therein is entitled to be registered as a fully registered osteopath. For the purposes of the section, an applicant is entitled to be so registered if he has paid the prescribed fee, satisfied the Registrar that he is of good character, in good health both physically and mentally, and has a recognised qualification. The applicant has a recognised qualification if, in terms of section 3(3), he satisfies the Registrar that for a period of at least five years he has spent a substantial period of his working life in the lawful, safe and competent practice of osteopathy. Provision is also made for conditional registration (section 4). The General Council is instructed to determine the standards of proficiency required for the competent and safe practice of osteopathy (section 13); is given the responsibility for continuing professional development (section 17); is required to prepare a Code of Practice (section 19); and is given extensive responsibility in respect of professional conduct and fitness to practice (sections 20-26). In sections 29 and 29A provision is made for appeals against decisions of the Registrar; in brief, persons aggrieved about a Registrar's decision have a right of appeal to the General Council within 28 days of the Registrar's decision, and thereafter an appeal lies against the General Council's decision to the sheriff. It is an offence in terms of section 32 for anyone to describe themselves as an osteopath in any way who is not registered with the Council. A person guilty of such an offence is liable on summary conviction to a fine not exceeding level 5 on the Standard Scale. Section 37 makes provision for osteopaths to have professional indemnity insurance. By virtue of paragraph 15 of the Schedule to the Act the General Osteopathic Council is given very wide powers in the exercise of its functions.

[3] In general terms therefore it was the purpose of the Act to draw together the disparate and differing qualifications and practices of osteopathy which had previously existed into a common organisation, so that there was a regulated and universal professional school of practice, subject to common standards of proficiency and accompanied by continuing professional development, proper regulation and appropriate insurance. In order to achieve these ends, the General Osteopathic Council, once it had been established, decided that in order properly to register all those who wished to practice as osteopaths the only fair and practical approach was to treat all applicants equally, irrespective of their previous training and experience and qualifications. To that end they set up a system of assessment to be organised and run by a group of suitably qualified officials in order to discover whether applicants had the necessary qualifications in terms of section 3(3) and thus qualify for registration.

[4] The first step in the process required applicants to fill in a form, comprising a series of questions, which allowed applicants to describe their qualifications, knowledge and experience and which was also designed to allow applicants to demonstrate their clinical and other skills. If this exercise did not allow the candidate to demonstrate the necessary qualifications, the second step was an interview with the applicant, conducted by officials of the General Osteopathic Council. If that failed to satisfy the Council that the applicant was a suitable candidate for registration, the third and final step was a clinical assessment of the candidate, conducted by two assessors and a moderator, in the course of which, among other things, the applicant carried out a practical examination of two patients.

[5] In seeking registration in 2001, the present respondent duly filled in the appropriate form for the first step in the process, which was available as a production in the present case. The initial assessment by the petitioners concluded that the respondent had not taken the opportunity, in completing the form, to show that he had the necessary experience and qualifications to practice as an osteopath. Although it is not necessary for the purposes of this decision, it is apparent from an examination of the form that the Council was fully entitled to reach that conclusion. A number of the respondent's answers are not wholly appropriate responses to the questions asked. What was abundantly clear from the evidence (particularly that of Madeline Craggs, the former Chief Executive and Registrar of the General Osteopathic Council, and Mark Piper, an osteopath with a considerable degree of professional qualifications and experience who carried out the final clinical assessment on the respondent) was that the conclusions reached by the General Osteopathic Council at this point in the respondent's assessment was not that he had demonstrated that he was unqualified and unsuitable to practice as an osteopath, but that he had failed to take the opportunity, in filling out the form appropriately, to demonstrate that he was so qualified and suitable. It may be that this simple error lies at the heart of all the difficulties that then followed. The respondent's interview was similarly inconclusive, and he then underwent a clinical assessment which was conducted by Mark Piper and another osteopath, supervised by a moderator. At the end of this process, both assessors and moderator were satisfied that the respondent should be offered a conditional registration so that he would be allowed to practice on the condition that another osteopath acted as a mentor to him.

[6] The respondent's response to this offer was extreme and wholly disproportionate, a position which he has maintained to the present day. He was, to put it mildly, very angry, and his evidence in the witness box, and the presentation of his appeal generally (he represented himself throughout the hearing) was, at times, almost incoherent with rage. He attributed the offer of conditional registration, which would have allowed him to practice as a duly qualified osteopath under the Act, to vindictiveness of a personal nature at the instance of Madeline Craggs (because he had criticised the Government's proposals before they became law) to professional jealousy at the hands of other unnamed osteopaths, and to racial prejudice because he is black. I have examined the evidence and documentary productions as carefully as I can, and in particular I have paid particular attention to the evidence of Ms Craggs, Mrs Soames (the current Head of Regulation at the General Osteopathic Council) and Mr Piper, and I have been unable to detect the slightest hint of vindictiveness, jealousy or racial prejudice in the reception and treatment of the appellant's application for registration. In particular, in respect of the respondent's allegations of racial prejudice, there was no description, definition or specification of the nature or quality of the prejudice said to be suffered by the respondent; it appeared to consist entirely of an inference which he himself was prepared to draw from his misunderstanding of the reasons why he was only offered conditional registration. At one point in his testimony he complained that he had been photographed during his clinical assessment in such a way that he feared for his life. At another point, he claimed that he had been assessed over a period of five and a half hours without being given an opportunity for refreshment, something which Mr Piper denied as being if nothing else simply inconsistent with the assessment procedure which he carried out. At another point he claimed that he had been offered a banana, accompanied by offensive noises, but this allegation was not repeated to Mr Piper and it was particularly unclear where and when this happened and who had been involved. I found it impossible to give any credence to any of these suggestions. They were inherently improbable, they were convincingly denied insofar as they were directed at Miss Craggs or Mr Piper, and the presentation of these allegations was, on closer enquiry, uncertain, vague and confused. There was no suggestion of other claims of this sort made against the petitioners by anyone else, although there was evidence from Miss Craggs that other black osteopaths had also been refused full registration.

[7] A partial explanation of why the respondent should so strongly react to the registration process carried out by the petitioners could perhaps be gathered from the evidence. There was testimony from a retired policeman, and a retired architect and his wife, to the effect that, after trying many other professional health carers, they had finally found significant relief at the hands of the appellant. Their evidence was clear, articulate and convincing. There was a number of other similar written testimonials lodged with the respondent's productions. The petitioners did not dispute that the respondent had used his osteopathic skills to bring real relief to a number of patients. Their point was rather that Parliament had required certain steps to be taken and certain conditions to be met before they could register the appellant or anyone else as a registered osteopath and that so far the respondent had failed to provide what was necessary to allow them so to register him. Until he did so, no registration was possible. The respondent on the other hand denied that the petitioners had the right to judge or assess his competence; that he was fully able to engage in osteopathic work as his many patients would confirm; and that as the petitioners' refusal to register him could only be explained by indiscriminate jealousy and racial prejudice, the court should simply register him now. It appears that the respondent was wholly unable to appreciate that it was for Parliament and the General Osteopathic Council to determine the conditions and requirements for osteopathic practice and not for him or the court. It is this failure to understand the correct position which perhaps also explains why the respondent failed to take the opportunity of lodging an appeal against the petitioners' decision, in terms of section 29 of the Act, although he was advised at the relevant time that such a course was open to him. His explanation, that he thought he had taken an appeal by writing to the Chief Executive Officer of the Council was in my view wholly unconvincing, and appeared to come as an afterthought.

[8] The net effect of all this is that the respondent is not registered as an osteopath, and is therefore not entitled to describe himself as such. If he does so, he commits an offence under section 32 of the Act. The respondent fully admits that he so describes himself, on the plaque outside his surgery, on notepaper, and in advertisements in the Yellow Pages. He equally made it clear in his evidence that he intends to carry on describing himself as an osteopath. In these circumstances the petitioners seek interdict against the respondent from describing himself as an osteopath.

[9] In these circumstances, senior counsel for the petitioners made submissions in support of the legal remedy now sought, in the light of the issues raised in the circumstances and by the respondent. In the first instance the respondent raised issues of vindictiveness, professional jealousy and racial prejudice, which amounted to a claim that the petitioners' refusal to register him as an osteopath was perverse. However, I am wholly satisfied that the allegations on which this argument proceeds have no basis in fact and are simply not made out. As I have indicated earlier, there was absolutely no credible evidence to support these allegations and indeed no definition or specification of anything that might serve to support the allegations. Nor am I satisfied that the petitioners' claim is frustrated by mora or delay, taciturnity and acquiescence. The respondent's original conditional registration was offered in 2001. Since that time the petitioners have made numerous efforts to persuade the respondent to stop using the term "osteopath", without success. Taciturnity and acquiescence therefore do not apply; the petitioners have repeatedly made direct requests on this matter to the respondent and have clearly not agreed to the respondent's refusal to register. Senior counsel for the petitioners also argued that mora did not apply to a continuing breach (Earl of Kintore v Pirie & Son Ltd (1903) 5 F. 818 per Lord Kyllachy at pp. 838-9; LP Kinross at p. 849). I agree; on the basis of the evidence and the authorities cited I am satisfied that the respondent's plea based on mora, taciturnity and acquiescence have simply not been made out.

[10] The final legal issue concerned the petitioners' title to sue. Mr Dunlop conceded that the existence of a criminal sanction under the 1993 Act meant that the petitioners had no title to seek interdict unless they could demonstrate either that a professional body such as the petitioners had a common law right to prevent non-members from passing themselves off as members, or, if no such right exists at common law, then the 1993 Act is one which admits of enforcement by interdict.

[11] Counsel submitted in the first place that there could be no doubt that in the present case the statute did not provide the sole remedy; the fact that there was a statutory remedy did not preclude a common law remedy. If assault was made a statutory offence, a wife could still nonetheless have a common law right of relief in the form of interdict against an abusive husband; simply because health and safety at work is governed by regulations does not stop an injured employee from seeking damages at common law (Morrison Sports Ltd v Scottish Power Plc [2010] 1 WLR 1934 at 5; 28-29). The petitioners have a right to prevent non-members from passing themselves off as members (Society of Accountants in Edinburgh v Corporation of Accountants (1843) 20 R 750; Corporation of Accountants v Society of Accountants in Edinburgh (1903) 11 SLT 425). That a common law right to prevent persons passing themselves off as somebody else may exist beside statutory regulations is clear (Warnink v Townend [1979] AC 731 at 742-3; Law Society of England v Society of Lawyers [1996] FSR 329). Accordingly the petitioners maintained that the respondent is not entitled to pass himself off as enjoying the privileges, meeting the same professional standards, or possessing the same indemnity insurance as those who were registered with the General Osteopathic Council. I agree. At relevant points in his evidence, the respondent made it particularly clear that he considered that he had all the necessary qualifications and skills and experience that he needed to practice osteopathy, and for that reason he intended to continue to call himself an osteopath and to carry on business as such. He wholly refused to recognise that, while he may be an excellent osteopath, Parliament had required that all osteopaths should subject themselves to an assessment for the purposes of registration, in order to provide a uniform standard of skill and practice, and all other aspects of professional provision for the protection of both the public and the profession. He appeared to take the view that the petitioners had no right whatsoever to decide the conditions under which he should be allowed to practice; he was presumably prepared to ignore the consequence that if all osteopaths were allowed to decide for themselves the conditions under which they should practice, the public would be exposed to all kinds of bad practice and unqualified treatment. Finally, in this context, the respondent alleged that his human rights had been violated. Again this claim wholly lacked any definition, specification or justification, and I was unable to give any effect to it.

[12] The default position for the petitioners in this respect is that even if they did not have the right to stop the respondent passing himself off as an osteopath, the 1993 Act allows enforcement by interdict. Senior counsel for the petitioners made reference to Groves v Winbourne [1898] QB 402; and Black v Fife Coal Company 1912 SC [HL] 33 per Lord Kinnear at p. 45. Although I do not consider the resolution of this issue to be necessary for the present opinion, again I find myself in agreement with counsel for the petitioners, although it is correct to say that in this respect, and in respect of all other legal submissions, there was, understandably, no contradiction by the respondent.

[13] In all the circumstances, I can see no alternative but to conclude that the petitioners' can competently seek the remedy of interdict in the present case, and further that their right to that remedy is irrefutable. It is, I think, most unfortunate that the respondent has completely misapprehended the position, and fails to realise that he, and not Parliament, has the right to decide who will or will not practice as an osteopath, is completely unstateable. As Mr Dunlop has pointed out, he still has other remedies. He can re-apply for registration and accept, as does every other osteopath, that the General Osteopathic Council has been given the responsibility by Parliament to determine the outcome of his application. If he fails to achieve full and unconditional registration, he can appeal in terms of the statutory scheme. Alternatively, he can continue to practice under such other trading description which does not contravene section 32 of the Act. What he cannot continue to do is to ignore the provision of the statute and continue to call himself an osteopath. In these circumstances the interdict sought by the petitioners is granted.