4 Osteopaths cleared of lacking integrity and UPC for not holding Professional Indemnity Insurance.

Jonathan Goldring, instructed by Paul Grant of BSG Solicitors represented three of four osteopaths who appeared before the General Osteopathic Council (GOsC) in connection with a failure to hold the correct professional indemnity insurance. This was a joint hearing with all the cases being heard at the same time. The joinder was due to a similarity in the cases. Each osteopath had unwittingly obtained what they thought was professional indemnity insurance through a reputable insurance company. It was not until they renewed their annual registration with GOsC that they discovered their insurance was actually for public liability and not professional indemnity.

Whilst the two types of insurance may sound similar and in this case had the same limit of cover (£5 million) they are completely different products. Professional indemnity insurance covers a practitioner against negligence or harm caused to a patient during treatment in their day to day practice. Public liability insurance usually only covers members of the public for accidents that happen in the premises rather than during treatment, like tripping over a door step or slipping on a floor.

Professional indemnity insurance is a mandatory requirement for most health professionals in order to protect the public should a claim arise. Section 37 of The Osteopaths Act 1993 makes it a statutory requirement for osteopaths to hold professional indemnity insurance and a failure to have it is normally regarded as fairly serious breach of the standards of practice. In the current case, GoSC were sufficiently concerned about the failure to initially allege that the Registrants had acted dishonestly. This was later changed to a lack of integrity which is still a very serious allegation.

All of the registrants accepted as a matter of fact that they had not had the relevant insurance in place for varying degrees of time but they did not accept that meant they lacked integrity. As a result they all found themselves in a fitness to practise hearing. Each of them argued that they had made a genuine mistake and corrected the insurance as soon as they became aware of the error. They also argued that the marketing material and the policy documentation from this particular insurer was confusing and ambiguous. An example of this was the “key facts” documents which included a section on “professional indemnity insurance” despite the fact the company said they didn’t offer that option. Another example was the marketing material that suggested the company offered a “tailored” insurance solution for osteopaths. Under cross-examination however the insurance company representative agreed that this was a generic package that could apply to almost any trade and was not therefore “tailored” to osteopaths.

GOsC maintained that a failure to check the policy documentation either sufficiently or at all (which they said would have alerted them to the mistake) was in itself a lack of integrity by virtue of the high standards expected of an osteopath. This case took just over two years to conclude!

Wingate v SRA [2018] – Meaning of Integrity

Having heard all of the evidence and applying the principles from the case of Wingate v SRA [2018] EWCA Civ 366 , which deals specifically with the meaning of integrity, the professional conduct committee were not persuaded that the registrants had acted with a lack of integrity.

Some of the key passages from the case of Wingate are set out below to illustrate how the Courts now approach the question of integrity:

“Let me now turn to integrity. As a matter of common parlance and as a matter of law, integrity is a broader concept than honesty.”

“Integrity is a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members.”

“Integrity connotes adherence to the ethical standards of one’s own profession. That involves more than mere honesty. To take one example, a solicitor conducting negotiations or a barrister making submissions to a judge or arbitrator will take particular care not to mislead. Such a professional person is expected to be even more scrupulous about accuracy than a member of the general public in daily discourse.”

“Obviously, neither courts nor professional tribunals must set unrealistically high standards, as was observed during argument. The duty of integrity does not require professional people to be paragons of virtue. In every instance, professional integrity is linked to the manner in which that particular profession professes to serve the public.”

“A professional disciplinary tribunal has specialist knowledge
of the profession to which the respondent belongs and of the ethical standards of that profession. Accordingly such a body is well placed to identify want of integrity. The decisions of such a body must be respected, unless it has erred in law.”

“In applying Principle 6 it is important not to characterise run of the mill professional negligence as manifest incompetence. All professional people are human and will from time to time make slips which a court would characterise as negligent. Fortunately, no loss results from most such slips. But acts of manifest incompetence engaging the principles of professional conduct are of a different order.”

It can be seen from this analysis that integrity is both fact specific and profession specific. What amounts to a lack of integrity in one profession may not be the same in another.

Unacceptable Professional Conduct

In the current case the Committee were not satisfied that a failure to have the correct insurance in place amounted to a lack of integrity. Once the Committee had decided this, they still had to consider whether the failure amounted to unacceptable professional conduct.

Each of the Registrants had candidly accepted that a failure to hold the correct policy would by its very nature have put the public at risk (if for example a claim had been made and not covered) and that it was misleading not to have the correct policy in place due to public expectations.

Again GOsC maintained that the breach of this statutory duty was a serious failure at the very heart of regulation and that accordingly a finding of unacceptable professional conduct must follow. The osteopaths argued that this was an isolated incident, quickly remedied and with no ethical or moral opprobrium attached. It was also pointed out that as a direct result of these cases, GosC had issued guidance to the profession in what appeared to be an acknowledgment that mistakes were being made between these two types of insurance.

Applying the case of Spencer v GOsC [2012] eWHC 3147 (Admin) the Committee concluded that none of the registrants were guilty of UPC. Whilst they did consider the conduct to be a negligent oversight and both noteworthy and serious, they did not conclude that it was so grave, serious or disgraceful so as to be considered deplorable and generate the weight of moral opprobrium to justify a finding of UPC.

This case is not only a salutary lesson to check your professional indemnity insurance policy properly, it is a reminder that even genuine administrative mistakes, that are quickly remedied and made with no bad intention can still find their way under the regulatory spotlight.

Whether it is right for regulators to initially bring serious allegations of dishonesty in these types of cases is a different debate all together.