Optometrist cleared of gross negligence manslaughter by the Court of Appeal has now been suspended from practise by the General Optical Council 

United Kingdom

Honey Rose is an Optometrist who has been subject to criminal proceedings and fitness to practise proceedings through her regulator, the General Optical Council (“GOC”). Ms Rose was convicted of gross negligence manslaughter in 2016, following her inadequate examination of Patient A. The criminal conviction was subsequently quashed but Ms Rose has now been suspended by the GOC for nine months as she has been deemed unfit to practise.

On 15 February 2012, Ms Rose undertook examinations of both Patient A and Patient B, who were siblings, and recorded that there were no issues of concern. Both patients also had retinal images taken by an optical consultant, prior to the examination by Ms Rose. Five months later, Patient A became acutely unwell and passed away. A post-mortem examination revealed the cause of death to be hydrocephalus, a condition where excessive fluid builds up on the brain. Patient A had been asymptomatic which was unusual for this condition, however, it was found that the retinal images taken of Patient A on 15 February 2012 clearly showed papilloedema, a swelling of the optic nerve requiring urgent referral to hospital.

The criminal case was heard in July 2016, with Ms Rose being convicted of gross negligence manslaughter and later sentenced to a term of two years imprisonment, suspended for two years. An appeal was commenced by Ms Rose on the basis that the trial Judge had erred in his directions to the jury in relation to reasonable foreseeability, and for the same reasons had been wrong to dismiss the defence application of no case to answer. The case was heard by the Court of Appeal on 13 June 2017, with the judgment handed down on 21 July 2017. On analysing the relevant case law in this area, the Court of Appeal followed the decision in R v Rudling [2016] EWCA 741 emphasising that the test concerning reasonable foreseeability of serious and obvious risk of death is objective and prospective. The Court of Appeal ruled that the trial Judge erred in their application of this test, having outlined that reasonable foreseeability should be decided on the basis of the knowledge that Ms Rose would have had, but for the breach of duty. With the correct application of the test of reasonable foreseeability, the Court of Appeal noted that at its highest, Ms Rose did not carry out a proper examination of the back of Patient A’s eyes, and without doing so, there remained the possibility that signs of potentially life-threatening disease or abnormality might be missed. It was deemed that this was not sufficient in a case of gross negligence manslaughter as there must be a serious and obvious risk of death at the time of breach. Ms Rose’s conviction was subsequently quashed.

The potential serious implications of the original decision were noted by Sir Leveson, who provided the lead judgment in the case. Medical professionals and other professionals could have found themselves in a position where they would be guilty of gross negligence manslaughter following, for example, a negligent omission to conduct a routine eye or blood test which would have revealed fatal pathology. However, this would be fundamentally wrong as with the correct application of the legal test, an obvious and serious risk of death would not necessarily be reasonably foreseeable under such circumstances.

Sir Leveson added that the decision of the Court of Appeal was in no way condoning the negligence which the jury found in respect of Ms Rose’s examination of Patient A; however, the breach of duty is to be dealt with by the regulator. The GOC opened an investigation which focused on Ms Rose’s practise as a whole on 15 February 2012 and allegations were brought in respect of her examination and record keeping in relation to both Patient A and Patient B.

The GOC Committee initially considered the case at a hearing from 20 July to 21 August 2020 and resumed from 2 to 12 November 2020. In relation to misconduct, the Committee highlighted that Ms Rose’s failure to carry out an adequate eye examination of Patient A was the most serious and significant aspect and amounted to serious misconduct. The Committee also noted that there were aspects of Ms Rose’s record keeping which were substandard, inadequate and dishonest, and cumulatively were sufficiently serious to amount to misconduct.

When determining impairment, the Committee confirmed that Ms Rose had done all that could reasonably be asked of her to remediate the specific clinical failings concerning the inadequate eye examination and substandard record keeping. Despite noting that Ms Rose had only demonstrated some insight, the Committee concluded that they were unable to identify any basis upon which Ms Rose was currently unfit for practise from a personal perspective. However, when considering the wider public interest in the case, the Committee concluded that, as well as including dishonesty, Ms Rose’s behaviour brought the profession into disrepute and breached the fundamental tenet that the care of patients should be a registered practitioners first concern. It was determined that public trust and confidence in the profession and the need to promote proper professional standards and conduct for members of the profession would be seriously undermined if a finding of impairment was not made.

In the criminal matter, the Court of Appeal correctly outlined that it was not for the criminal courts to deal with the serious breach of duty, but this was a matter for the regulator. The decision by the GOC Committee highlights the important role of the regulators in upholding the public trust and confidence within the profession. Despite the Committee being satisfied that Ms Rose could do nothing further in terms of remediation and deeming her fit to practise from a personal perspective, the potential impact of her breach of duty upon the public trust and confidence in the profession could not be outweighed.