Consensual Disposal: Osteopaths

Consensual Disposal: Osteopaths

Published:

Author: Charlotte Ellis

All osteopaths must be registered with the General Osteopathic Council (GOsC) and fit to practise. This means they must have the requisite skills, knowledge, good character and health to carry out their professional responsibilities safely and competently

The GOsC will investigate concerns about an osteopath's fitness to practise and, if well founded, the osteopath may be subjected to a sanction. Sanctions range from admonishment to removal from the Statutory Register.

The GOsC is currently undertaking a two-month consultation process into the use of "consensual disposal" as an alternative means of disposing of certain types of fitness to practise investigations, instead of all cases being subject to the current process outlined below.

The consultation into the use of consensual disposal ends on 31 January 2013.

Current Process

The current process for dealing with concerns about an osteopath's fitness to practise begins when a complaint is made against a registered osteopath (Registrant).

The GOsC will consider the complaint in order to decide if they have the jurisdiction to deal with it. If it is decided that the complaint falls within the auspices of the GOsC it will be investigated by the Investigating Committee (IC).

If the IC finds there is a case to answer, a referral will be made to the Professional Conduct Committee (PCC). Allegations are drafted which will form the basis of the case against the Registrant. A subsequent hearing will be held at which the Registrant has the right to be present.

The PCC will hear the evidence presented on behalf of the GOsC and on behalf of the registrant and will come to a decision relating to the registrant's fitness to practise and the sanction to be imposed if impairment of the registrant's FTP is proved.

Proposed Change

The GOsC's disciplinary process is governed by the Professional Conduct Committee Rules 2000 (The Rules). At Rule 8 of the Rules, the PCC will review the evidence assembled by the IC and any material submitted by the Registrant. It is proposed that certain cases which have been referred to the PCC by the IC may be disposed of without a hearing, under the consensual disposal process.

Consensual disposal will be a possibility in the following circumstances:

  1. Where a registrant admits all the facts alleged against him/her
  2. Where the facts amount to unacceptable professional conduct, professional incompetence or where the registrant has been convicted of offences referred to in the complaint
  3. The PCC conclude that admonishment would be the appropriate sanction

It is proposed that consensual disposal of cases will be determined by the PCC after referral from the IC but without the case proceeding to a PCC hearing.

Where the PCC considers it appropriate, it may:

  • Invite the Registrant to admit the allegations
  • Tell him/her that if he/she admits the allegations, the PCC would be minded to conclude the case with an admonishment
  • Tell the registrant that he/she still has the right to have the allegations determined at a full PCC hearing

Consensual disposal under Rule 8 is a discretionary power, however it is not a new route to decision making. It was last used by the GOsC in March 2003. In early 2003, the Council decided that the onward use of consensual disposal should be withdrawn because its use cast doubt upon the right of a Registrant to a fair trial under the Human Rights Act 1998.

In 2011, the GOsC began to consider whether the use of the consensual disposal process at Rule 8 could be reintroduced.

Having received further legal advice, the GOsC has concluded that the use of consensual disposal is not in breach of Article 6 of the European Convention of Human Rights; the Registrant's right to a fair trial.

Consensual Disposal: An economic solution v the right to a fair hearing

It is arguable that consensual disposal may offer both the registrant and the GOsC the opportunity to dispose of allegations of impaired fitness to practise in a timely and cost effective manner.

However, challenges still exist in relation to its application in the decision making process.

Despite the GOsC now believe that "consensual disposal does not prejudice a registrant's right[s]", they do accept that "challenges" may arise in its use.

The GOsC states that potential challenges to the use of consensual disposal include:

  • Practical challenges in identifying suitable cases
  • Challenges in terms of safeguarding patient safety
  • Challenges in ensuring that osteopaths who fully admit allegations show insight and remorse

The GOsC believes that these challenges can be overcome and subject to the current consultation process, have formally approved the (re)use of the consensual disposal mechanism.

Osteopaths may be concerned about the use of consensual disposal as they may be tempted to accept an admonishment in order to avoid attendance at a PCC hearing when attendance at such a hearing may have achieved a better result.

In addition, Human Rights legislation in the UK has not changed since consensual disposal was last removed from use in 2003; therefore, the former arguments against its use (and the very reason for its withdrawal in 2003), remains the same. Namely, there is a serious risk that registrants accepting an admonishment, via the consensual disposal route, will not, by definition, receive a hearing and therefore it may be argued that they also lose their right to a fair hearing as set out in the Human Rights Act 1998.

It remains to be seen if the GOsC fully implements the use of the consensual disposal mechanism once the consultation process has been completed and further, if any future decisions relying upon its application are subject to onward appeals.

If consensual disposal is fully implemented, it is likely there will be an increase in the number of cases being appealed as a result of the aforementioned issues.

If you are a registered Osteopath in need of legal assistance including investigations into your fitness to practise, contact:

[email protected]
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