The General Optical Council v Matthew Clarke
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Newey |
| Judgment Date | 25 June 2018 |
| Neutral Citation | [2018] EWCA Civ 1463 |
| Docket Number | Case No: C1/2017/0982 |
| Date | 25 June 2018 |
| Court | Court of Appeal (Civil Division) |
[2018] EWCA Civ 1463
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Fraser
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
and
Lord Justice Newey
Case No: C1/2017/0982
Miss Eleanor Grey QC (instructed by Clyde & Co) for the Appellant
Hearing date: 12 June 2018
This is an appeal by the General Optical Council (“the GOC”) against an order of Fraser J quashing a decision of the GOC's Fitness to Practise Committee (“the FTPC”) that the name of the respondent, Mr Matthew Clarke, should be erased from its register. The case raises issues as to what (if any) significance should be attached to the fact that a person has retired, or intends to do so, when considering whether his fitness to practise is impaired.
Narrative
Mr Clarke qualified as an optometrist in 1982. He set up his own business in 1992.
Between 2004 and 2009, Mr Clarke performed a number of eye examinations on an individual referred to as Patient A. The first examination, on 28 May 2004, indicated a suspicious visual field in Patient A's right eye, but Mr Clarke did not refer him for treatment. When Mr Clarke saw Patient A again, on 19 October 2006, he failed to assess or record Patient A's visual field even though he had previously found a visual field that required monitoring. Mr Clarke next saw Patient A on 14 May 2008, by which time his visual field had deteriorated further, but Mr Clarke failed to recognise the significance of the visual field results or, once again, to refer Patient A for treatment. By 27 March 2009, when the final consultation took place, Patient A's visual field was still worse, but Mr Clarke did not recognise the significance of this and referred him solely for removal of cataracts, without reference to the visual field defects. In the event, I gather, Patient A very sadly lost his sight.
On 11 July 2014, Mr Clarke was notified that the GOC would be applying for an interim suspension order against him. On 17 July, Mr Clarke made a witness statement in relation to the treatment that he had provided to Patient A. After discussing the various eye examinations, Mr Clarke said this:
“13. I have since made a full admission in the civil matter [i.e. civil proceedings which Patient A had brought against, among others, Mr Clarke] that I should have referred [Patient A] to his GP on or around 28 May 2004 when he presented with amblyopia in his right eye and a bitemporal visual field defect. I also admit that I made similar failures on 19 October 2006, 14 May 2008, 27 March 2009. I admit that the delay in the referral resulted in a delay in the diagnosis of [Patient A's] pituitary tumour.
14. I now acknowledge that the field plots taken on the above dates were signs of bitemporal hemianopia and thus a sign of a pituitary tumour although typically they give a superior bitemporal defect. 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.
15. This was very much an isolated incident, prior to this, I have not had a complaint regarding my clinical judgment/competency or my conduct.”
Mr Clarke went on to detail “remedial action” that he had taken, notably by way of “various purchases in the practice that will better enable us to provide a high level of care for patients and should ensure that such a failure never happens again”.
On 21 July 2014, an interim suspension order was imposed on Mr Clarke. On 2 February of the following year, Mr Clarke was notified that an inquiry would be conducted by the FTPC. On 21 April 2015, the Legal Services Department of the Association of Optometrists wrote on Mr Clarke's behalf reiterating his admissions. The opening paragraphs of the letter explained:
“Mr Clarke has sold his optometrist practice and retired. He does not intend to practise again, nor to renew his GOC registration. In these circumstances and as indicated already it is Mr Clarke's request that he provide an undertaking in an agreed form of words to avoid the necessity of a full hearing and the time and cost inevitably expended.
If the GOC's position continues to be that a hearing will take place, although Mr Clarke will not attend and no disrespect is intended, he would be grateful if you could take into account the following comments on the Allegations.”
The matter proceeded to a substantive hearing in June 2015. As foreshadowed in the April letter, Mr Clarke neither attended nor was represented. On 23 June, the FTPC concluded that the facts amounted to misconduct, making, among others, these observations:
“In total, the registrant missed 4 opportunities to appreciate the significance of the visual fields defects. As such each respective missed opportunity was a serious breach of expected standards.
The pattern of defective performance was sufficient for the Committee to find misconduct. However, the failure by the Registrant to appreciate the significance of the visual field defects in 2009, when it was most pronounced, was grave and of itself constituted misconduct.
His failure to make a timely referral of Patient A and his failure to mention the visual field defects in the referral he made was also grave.”
Moving on to impairment, the FTPC said this:
“The Committee gave the Registrant credit for his admissions and accepted that by making such admissions, he had some insight. However, the insight shown by the Registrant was limited to the acceptance that his conduct had fallen short of that which is expected of a professional registered optometrist.
The Committee has already stated that it preferred the evidence of Professor Evans to the submissions on behalf of the Registrant. Professor Evans had expressed the opinion in the conclusion of his report that the Registrant presents ‘an immediate and serious threat to public safety.’ He also gave testimony to the effect that the reasons given by the Registrant for his failures (contained in his written submissions) missed the point. This demonstrates a lack of insight on the part of the registrant as to the causes of his failings.
The Committee must base its decisions on evidence. The evidence before it was strongly indicative of impairment: the registrant remains a risk to the public. There was no evidence before the Committee to enable it to find that the Registrant's position has changed since 2009. There was no evidence before the Committee of Continuing Education and Training (CET), a proper expression of regret, adequate insight or proposal for remediation. There was no significant evidence before the Committee to counter Professor Evans' evidence that the Registrant presents an immediate risk to the public.
The Registrant stated that he has sold his practice and retired, does not intend to practise again nor renew his GOC registration. Presumably, the Committee was intended to infer from this that the Registrant did not present a risk to the public. However, the Registrant could change his mind and resume practise in the future.
The Committee has determined that the Registrant remains a risk to the public and as such his fitness to practise is impaired. The Committee has also determined that in the circumstances of this particular case, the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment to practise were not made.
The Committee found that the fitness of Matthew Ian Clarke to practise as an optometrist is impaired.”
Turning to sanction, the FTPC decided to impose a 12-month suspension order, which became effective on 24 July 2015, on the basis that a review hearing would be held shortly before its expiry. The FTPC said:
“The Committee considered that a 12-month suspension was proportionate and the minimum necessary [in] the circumstances. The Committee was mindful that the Registrant has stated that he had retired and no longer intended to practise. However, the Committee decided to impose this sanction in order to protect the public and maintain public confidence. The 12-month period would give the Registrant a period of reflection and the opportunity to consider whether he still wished to cease practise and if not to complete necessary CET.
They considered Erasure to be disproportionate to the impairment identified, which, although serious, related to a narrow area of practice.”
The review hearing was held on 28 June 2016. In advance of that hearing, Mr Clarke made a witness statement in which he restated that his business had been sold and that he did not intend to work again as an optometrist. He asked to be allowed to come off the register with an agreed form of undertaking that he would never practise as an optometrist in the future. The GOC, however, sought Mr Clarke's erasure, and the FTPC so ordered, notwithstanding submissions made on his behalf by Mr Jamas Hodivala of counsel. The FTPC's determination included these passages:
“The Committee is not reassured that the Registrant is fit to resume practise unrestricted or with conditions. He has not practised since 21 July 2014 and there is no evidence before the Committee to show that he has undertaken any CET since then. Further, he has shown limited insight into his deficiencies and no evidence of remediation since July 2014. His fitness to practise must, therefore, have diminished further since the hearing on 23 June 2015.
The Committee found that the fitness of Mathew Ian Clarke to practise as an optometrist is impaired.
… Mr Hodivala sought to persuade the Committee to take no further action, on the basis that the Registrant has retired and is therefore no longer a risk to patient safety.
...
To continue reading
Request your trial
-
Abraham Johannes Henning v The General Dental Council
...development which he had undertaken despite having retired from clinical practice. 15 Applying Clarke v General Optical Council [2018] EWCA Civ 1463, the Committee decided that it had to assess the Appellant's current fitness to practise, irrespective of his retirement. He remained on the ......
-
Mr Dino Pistacchio v National House Building Council: 3328166/2017
...See further Cavendish Munro Professional Risks Management Ltd v. Geduld [2010] ICR at para 24, and Kilraine v. LB Wandsworth [2018] EWCA Civ 1463. e. The burden passes to an employer to refute causation only once the claimant has proven on the balance of probabilities that he made a protect......
-
Fitness To Practise: Does Retirement Have An Impact?
...Court of Appeal has now given judgment in the case of the General Optical Council v Matthew Clarke [2018] EWCA Civ 1463, in which Clyde & Co (Rosie Jewers) acted for the Appellants. Background The background to the case was that Mr Clarke, a registered optometrist, had examined a patien......