Honey Rose v Regina  EWCA Crim 1168
This decision has no doubt been eagerly awaited by regulators and anyone involved in regulatory proceedings. Whilst being a positive outcome for Honey Rose in terms of her not being guilty criminally for manslaughter by gross negligence, does it have any general or wider implications for regulatory proceedings or registered professionals who fail in their duty of care to patients or clients?
The appellant, an optometrist, appealed her conviction of manslaughter by gross negligence in relation to the death of an eight year old child, Vincent. She had carried out a sight test some five months before his death at which abnormalities in the optic nerve should have been apparent to her from a correct analysis of the relevant retinal images of the back of the eye, which in turn should have triggered a referral for urgent medical attention, which might have therefore avoided Vincent's death. Instead she had recorded no issues of concern and when interviewed by the police and shown the retinal images, which clearly showed an abnormality in the optical disc, she said that she must have been looking at images from the previous year's examination or later during the trial that she had been shown photographs of another patient, which showed nothing of concern.
The focus of the appeal was the question of reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter and whether it was appropriate to take into account what a reasonable person in the position of the professional in question would have known but for his or her breach of duty.
The answer to this question was a resounding 'No'; that, in assessing reasonable foreseeability of serious and obvious risk of death in such cases, it is not appropriate to take into account what the defendant would have known but for his or her breach of duty. It was held that to do so would undermine the established legal test of foreseeability which requires proof of a "serious and obvious risk of death" at the time of the breach.
This does not undermine the objective nature of the test; rather it takes into account that whilst being inherently objective, the test should not be altered from what is a prospective test of foresight into a retrospective test which judges with hindsight. The question of available knowledge and risk should always be judged objectively and prospectively as at the moment of the breach, not on what could have or should have been known but for the breach of the duty of care. Furthermore, for Honey Rose, what a reasonably prudent optometrist would or should have known at the time of the breach, was that if she did not carry out a proper examination of the back of Vincent's eyes there remained a possibility that signs of potentially life-threatening disease or abnormality might be missed – but this was not the same as there being a serious and obvious risk of death.
The appeal court considered that were the answer to the foreseeability question different, the implications for medical and other professions would be serious because people would be guilty of gross negligence manslaughter by reason of negligent omissions to carry out routine tests which in fact would have revealed fatal conditions, notwithstanding that the circumstances were such that it was not reasonably foreseeable that failure to carry out such test would carry an obvious and serious risk of death.
What was also key to the appeal judgement was perhaps also the reinforcing of the distinction between a recognisable risk of death and not just a recognisable risk of something serious or just the possibility that an assessment might have revealed something life-threatening.
The fact in this case, that an internal examination of the eye might reveal a serious abnormality, or even a life-threatening problem, did not mean that there was a serious and obvious risk of death if such an examination was not carried out. So in this instance, put at its highest, what a reasonably prudent optometrist would or should have known at the time of the breach was that, if he or she did not carry out a proper examination there remained the possibility that signs of potentially life-threatening disease or abnormality might be missed. This is not enough to meet the test for gross negligence manslaughter.
If one is critical of the appeal decision it could be said that this decision enables negligent professionals to escape criminal liability by relying on a breach of duty which meant they were unaware of the potentially serious consequences for those within their care. Should it not be the case that the test should take into account what is reasonably foreseeable by someone who is acting according to their duty? This is what the judge at first instance ruled and directed the jury on. But is it not the crux of the matter that this confuses, or tries to conflate, criminal and civil liability?
The appeal judgment, therefore protects medical and other professionals from criminal liability where breaches in their duty of care might lead to the death of patients or clients if at the time of their breach they could not have foreseen a serious and obvious risk of death.
What the appeal judgment does not however, which Sir Brian Leveson was equally keen to point out, is protect professionals from being liable to answer for their breaches of duty to their regulator, or indeed from being liable in a civil negligence claim;
"We add that this decision does not, in any sense, condone the negligence that the jury must have found to have been established at a high level in relation to the way that Ms Rose examined Vincent and failed to identify the defect which ultimately led to his death. That serious breach of duty is a matter for her regulator; in the context of this case, however, it does not constitute the crime of gross negligence manslaughter."
Hopefully this provides some comfort to Vincent's family and the public in general that professionals will – in this respect – be held to account by their regulatory body and that in such a forum expert evidence of what should have been done by the registrant in question at the time of breach will of course be highly relevant.
This appeal judgment does not lead to anything ground-breaking in terms of dealing with regulatory proceedings, or suggest that a registrant is protected from not doing something that they should have because of a prior breach of duty which would have caused them to be unaware of a certain condition, or that certain action was required. The focus is on the objective, but still prospective, nature of the test of foreseeability and the requirement of a risk of death, and not something less, for criminal liability.
Regulatory bodies and the public will have to take comfort in the fact that such a breach can, and should, still lead to serious consequences for the registrant in their professional capacity.