Clarke v General Optical Council [2017] EWHC 521 (Admin)

Posted by Christopher Pataky on
The Appellant (an optometrist) successfully appealed against a decision of the Fitness to Practise Committee (FTPC) to (1) find him currently impaired and (2) to erase him from the register of optometrists.

The decision by the FTPC had been made at a review hearing of a 12 month suspension that had been made previously by a different FTPC.

The Court concluded that the review FTPC had not taken into account the Appellant's retirement, the sale of his practice and the proffering of undertakings as material factors when assessing future risk to the public. Further it had not taken these factors into account in determining the appropriate sanction. The Court determined that each decision was therefore wrong.

Facts

The Appellant had practised as a self-employed optometrist since 1982 at a practice where he was the sole optometrist. During the period of 2004 to 2009, the Appellant had held appointments with Patient A. Although during this period there had been clinical signs that had warranted further investigation, the required steps were not taken by the Appellant. In 2009, the Appellant referred Patient A to his GP solely for the removal of cataracts and without any reference to any visual field defects which had been apparent previously. It materialised that Patient A had in fact had an optical tumour but this was not diagnosed until after October 2009. Patient A eventually lost his sight.

Patient A commenced civil proceedings for negligence against the Appellant and the Health Authority and in those proceedings, the Appellant accepted liability for his failings.

The Respondent initiated professional disciplinary proceedings against the Appellant and in July 2014, an interim order for suspension was imposed which prevented the Appellant from practising as an optometrist.

In July 2014, the Appellant submitted a statement to the Respondent in which he accepted that he could have "better managed the patient's symptoms" and accepted that he had failed to make the necessary referral on each of the four occasions that he had seen Patient A. The Appellant set out in detail the extent of the remedial action he had since taken.

In April 2015, the Appellant submitted that as a result of the proceedings he had sold his optometric business and had retired from practising as an optometrist. He asked that his name be removed from the Register. The Respondent declined the request as it was entitled to and decided to proceed with the disciplinary process.

Throughout the subsequent proceedings, the Appellant's position remained consistent whereby he fully accepted that he had been at fault in respect of the clinical care he had provided to Patient A. At the substantive hearing (which the Appellant had notified the Respondent he would not be attending), the FTPC found each of the allegations against the Appellant proved. The FTPC concluded that the Appellant was a risk to the public and as such that his fitness to practise was impaired.

On 23 June 2015 the FTPC determined that a 12 month suspension was proportionate to protect the public and to maintain public confidence. It determined that this period of time would provide the Registrant with the opportunity to reflect and consider whether he still wished to cease to practise and if not to complete the necessary Continuing Education and Training (CET). The FTPC also concluded that erasure would be disproportionate.

At the review hearing of 28 June 2016, the Appellant was not in attendance but was represented by counsel. He provided a further written statement in which he (1) again stated that he took full responsibility for his "grave errors" (2) confirmed that he had not practised since his interim suspension in July 2014 and (3) maintained that the "best option" had been for him to sell his business and that he had made the decision to retire early. He asked that he be allowed to avoid erasure and proffered signed undertakings to the Respondent not to practise again. He asked that he be removed from the register and he undertook to remove himself within 14 days.

The Review FTPC concluded that the Appellant was still impaired. A key factor that the FTPC took into account in concluding this was that no CET had been undertaken by the Appellant since July 2014. The Review FTPC concluded that to take no action (as the Appellants representative had sought to persuade it) on the basis that the Appellant had retired and was therefore not a risk to patient safety was not a 'logical approach'. It stated that the acceptance of undertakings was not provided for within the statutory framework.  The Review FTPC decided to erase the Appellant.

The Appellant sought to appeal against the decision made by the FTPC on the following grounds: (1) the decision on impairment was wrong (2) the sanction of erasure was disproportionate (3) the reasons provided by the FTPC were inadequate and (4) that the FTPC's failure to take into account the Appellant's sale of his practice was a serious procedural error.

During the course of the appeal hearing the Respondent submitted that the decision to erase was correct and within the scope of proper decision making. It was submitted that retirement should not be a factor to be taken into account at all.

The Court considered the decision in the case of Cohen v GMC [2008] EWHC 581 Admin and in particular the 'relevant' factors for consideration when determining whether an individual's fitness to practise is currently impaired namely whether the conduct underling the charge was remediable, whether it had been remedied and whether or not it was highly unlikely to be repeated. The Court determined that the Review FTP Committee had ignored entirely the third factor in assessing current impairment as the Appellant had sold his practice, retired and requested that he be removed from the Register. The Court concluded that because the Respondent did not have rules in which a formal process for voluntary erasure was set out, the Review FTPC had wrongly interpreted this as meaning that undertakings and the retirement of the Appellant should not have been considered when in fact the likelihood of repetition and thereby factors underling this ought to have been a specific consideration (paragraph 38).

The Court concluded that had the appropriate principles been considered, the Review FTPC 'would have concluded that the likelihood of repetition was very close to zero'.

In relation to the decision to erase, the Court observed that 'nothing had happened' between the first FTPC hearing and the Review FTPC and that it was a 'leap in analysis' by the Review FTPC to conclude that what was disproportionate in July 2014 had become proportionate in June 2015. The Court concluded that the Review FTPC had also failed to consider the decision to retire, the sale of the practice and the proffering of undertakings at the sanction stage.

In determining that the Appellant's appeal had succeeded in respect of the decision to find current impairment as well as in relation to the decision to erase, the Court stated as follows: "This judgment should not be interpreted as authority for the proposition that someone in the position of Mr Clarke can avoid disciplinary proceedings running their proper course by taking a decision to retire. The central point on this appeal is that, in assessing risk to the public, the FTP Committee must take account of all material and relevant factors" (paragraph 43).

The Court determined that it would hear submissions from the parties on the relevant order to be made and the future disposal of the matter.

Commentary

This judgment reinforces the importance of considering all factors relevant to the assessment of risk when determining current impairment on public protection grounds and in particular the importance of considering a registrant's wider circumstances and future intentions. However, the wider impact of the judgment beyond this established principle could be limited taking into account the fact specific nature of this case i.e. in the current case the public interest element of impairment had arguably already been satisfied previously by the imposition of a substantive suspension order for 12 months. Additionally, the Registrant was in this case also able to consistently demonstrate over a sustained period that he had not practised as an optometrist and also no longer intended to practise as an optometrist. 

About the Author

A Barrister within the Professional Regulatory team in London. Christopher provides advice and advocacy and undertakes investigative work for a range of regulators.

Christopher Pataky
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