Mathew Clarke v General Optical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 16 March 2017 |
| Neutral Citation | [2017] EWHC 521 (Admin) |
| Docket Number | Case No: CO/3744/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 March 2017 |
[2017] EWHC 521 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF THE OPTICIANS ACT 1989
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Fraser
Case No: CO/3744/2016
Ian Stern QC (instructed by Gerda Goldinger of Association of Optometrists) for the Appellant
Alexander dos Santos (instructed by Clyde & Co LLP) for the Respondent
Hearing date: 28 February 2017
Draft judgment distributed: 8 March 2017
This is an appeal by Mr Matthew Clarke against a decision made by the Fitness to Practise Committee of the General Optical Council ("the Council") to erase him from the Register. That decision was made at the review stage of disciplinary proceedings by the Council. The Council is the statutory regulator for the optical professions in the United Kingdom. Its purpose is to protect the public by promoting high standards of education, performance and conduct amongst opticians. The decision to erase Mr Clarke was taken by the Fitness to Practise Committee of the Council ("the FTP Committee") on 28 June 2016 in circumstances which are explained in the section of this judgment headed "The Facts". The profession of optometrist is governed by the Opticians Act 1989 ("the Act"). This appeal is of considerable importance to Mr Clarke for obvious reasons, as erasure is the ultimate sanction available to the FTP Committee. However, it also raises an interesting issue of wider application, which is the approach taken by the FTP Committee when a registrant of the Council becomes the subject of disciplinary proceedings at a time when retirement is contemplated, or when during a period of suspension retirement becomes the option chosen by the registrant.
Section 23G of the Act specifies that a decision to erase is an "appealable decision", and the appeal is to be made to the relevant court under section 23G(3) of the Act. In this case, under section 23G(4) of the Act the relevant court is the High Court of Justice in England and Wales, and therefore the Administrative Court is the appellate tribunal for appeals made against decisions to erase taken by the FTP Committee.
This judgment is in the following parts:
A. The facts
B. The appeal
C. The law and applicable principles
D. Discussion and analysis
E. Conclusion
Originally, the Council opposed this appeal both substantively, and also on the basis that it had not been commenced within the 28 day time limit necessary. The point advanced by the Council that the appeal was made out of time was, on the face of the papers, superficially unattractive as (putting it at its highest for the Council), the appeal was commenced when it could only been less than 24 hours late as a maximum. In order to succeed, that argument would have required an acceptance by the court that time for an appeal started to run the instant the decision was in fact made, regardless of when it was communicated to the appellant Mr Clarke. However, good sense prevailed and this point was abandoned the day before the hearing by Mr dos Santos, counsel for the Council. It was therefore not argued before me that the appeal was out of time, and no question of the need for any extension of time arises.
A. The facts
The facts are not in dispute but need to be recited in order properly to understand the approach taken by the Council, both by the original FTP Committee in 2015 which suspended Mr Clarke, and the one that undertook the review hearing in June 2016. I shall refer to the FTP Committee that imposed erasure as the Review FTP Committee. Mr Clarke was registered as an optometrist in 1982 and practised in a self-employed capacity from a practice that employed other staff (not optometrists), and also his wife in an administrative capacity. He was the sole optometrist at that practice. He had no previous findings against him by the Council and was therefore, prior to the circumstances which found the subject matter of these FTP proceedings, of professional good standing.
In 2013 there was a newspaper report concerning a particular patient of Mr Clarke, to whom I will refer as the Patient. This newspaper report concerned the Patient's views, expressed to the press, that he (the Patient) considered his optometrist (Mr Clarke) to have been at fault in failing to refer him for further investigation into defects in his vision that had been observed. The Patient had visited Mr Clarke on four occasions between 2004 and 2009. Although there were signs that should have indicated the necessity for further investigation, these signs being indicative of a tumour, that further investigation did not occur and eventually the Patient lost his sight. The newspaper article was dated 29 October 2013 and in it the Patient expressed his view that his sight could have been saved if those earlier warning signs had been noticed by Mr Clarke and if further investigation had taken place at an earlier date. The Patient was a pensioner and he had attended Mr Clarke's practice for the first time on 28 May 2004. This examination revealed a suspicious visual field in each eye. He was then further examined on 19 October 2006, 14 May 2008 and 27 March 2009. On each occasion, except the 19 October 2006 appointment, Mr Clarke undertook visual field examinations. Despite the visual field defect worsening, he did not refer the Patient for further investigation until 2009. This was a routine referral of the Patient to his GP solely for removal of cataracts, without reference to the visual field defects. In fact, the Patient had a tumour which remained undiagnosed until after October 2009. This was, according to the Patient in the article, far later than ought to have occurred. As a result, the Patient lost his sight when it could have been saved.
For completeness, I should state that the Patient was also aggrieved about a failure by the ophthalmologists, to whom he was referred by his GP, similarly to diagnose his actual condition early enough. He was referred to the ophthalmologists in March 2009, and the tumour remained undiagnosed until November of that year. He had instituted proceedings for negligence against both the Health Authority (in respect of the failure by the ophthalmologists) and Mr Clarke in 2011, well before the newspaper article. In those proceedings, liability had been admitted. The Patient made no complaint about Mr Clarke to the Council; however, the Council commenced professional disciplinary proceedings against Mr Clarke of its own motion, as it was fully entitled to do.
Thus disciplinary proceedings were initiated against Mr Clarke by the Council and he was notified of this in February 2014. On 21 July 2014 an interim suspension order for 18 months was made against Mr Clarke. The effect of that was that he was not, from that date, permitted to practise as an optometrist.
His position is best summarised in his witness statement served for the FTP Committee proceedings. This was dated 17 July 2014, just prior to the imposition of the interim suspension order, and stated the following, after a lengthy account of each occasion when he had seen of the Patient and of the treatment at the time:
"I believe I could have better managed the patient's symptoms….whilst my clinical judgment seemed appropriate at the time, with the advantage of hindsight, I would have referred the patient to his GP on or around 28 May 2004 when he presented with bitemporal hemianopia….."
"I also accept that there were similar failures on 19 October 2006, 14 May 2008 and 27 March 2009 which unfortunately resulted in a delay in diagnosis."
"I have since made a full admission in the civil matter that I should have referred [the Patient] to his GP on or around 28 May 2004 when he presented with [his symptoms]. I also admit that I made similar failures on 19 October 2006, 14 May 2008 and 27 March 2009. I admit that the delay in the referral resulted in a delay in the diagnosis of [the Patient's] pituitary tumour."
"If I was presented with similar circumstances in a patient today, I would act completely differently and I would refer a patient presenting with such urgently."
He also set out at some length the remedial action he had taken since the matter came to length. This included further analysis of what had happened and why, further purchases of specialist equipment used for analysis within the practice, further training he had undertaken and the upgrading of software used. He provided considerable detail about these steps but it is not necessary to go through that detail in this judgment. He explained that he was the sole optometrist at his practice, and employing a locum would effectively reduce his income to zero. As he also put it "Optometry is a specific training that I have focussed my whole working life on and have no other qualifications outside this field. I am not qualified and can think of no other occupation that would provide a reasonable income and the great job satisfaction that optometry gives".
In a letter dated 21 April 2015 sent on Mr Clarke's behalf by the Association of Optometrists to the Council, it was made yet further clear that he admitted the allegations and entirely understood the gravity of his failings. At that stage he was subject to the interim suspension order, and so could not practise at the time. The letter made clear that as a result of the proceedings against him, he had sold his optometric business and had retired from practising as an optometrist. Whilst suspended he had no ability to earn any meaningful income, and there is also no doubt the strain of the process was taking its toll upon him. He requested that his name be removed from the Register. The Council, as it was entitled to do, declined to permit this, and decided that...
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