The General Optical Council v Clarke [2018] EWCA Civ 1463

Case No C1/2017/0982

[2018] EWCA Civ 1463

IN THE COURT OF APPEAL (CIVIL DIVISION)

[2017] EWHC 521 (Admin)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

Mr Justice Fraser

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 25/06/2018

Before

LADY JUSTICE ARDEN

LORD JUSTICE NEWEY

Between

THE GENERAL OPTICAL COUNCILAppellant

MATTHEW CLARKERespondent

Miss Eleanor Grey QC (instructed by Clyde & Co) for Appellant

Hearing Hearing date: 12 June 2018

Judgment

[1]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

[2]Mr Clarke qualified as an optometrist in 1982. He set up his own business in 1992.

[3]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.

[4]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”.

[5]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.”

[6]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.”

[7]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.”

[8]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.”

[9]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. The Committee does not think that this would be a logical approach in relation to its finding of impairment. Also, the public would expect this statutory Committee to act according to its statutory framework, rather than to take the more informal approach of accepting the Registrant’s undertaking. The acceptance of undertakings is not provided for in the GOC statutory framework. … Erasure would appear to be the only means of protecting patients and/or maintaining public confidence in the profession…. Erasure is also ‘likely to be appropriate when the behaviour is fundamentally incompatible with being a registered professional and involves …• persistent lack of insight into seriousness of actions or consequence.’ The Committee orders the Registrant’s name to be erased from the register.”

• persistent lack of insight into seriousness of actions or consequence.’

[10]Mr Clarke appealed against this decision. The matter came before Fraser J, who, in a judgment dated 16 March 2017, held that the appeal “succeeds against the decision of the [FTPC] finding impairment and also erasing [Mr Clarke] from the Register” (paragraph 10 of the judgment). The resulting order provided for the FTPC decision of 28 June 2016 to be quashed (paragraph 1) and for a “decision of no impairment” to be substituted (paragraph 2).

[11]The GOC, in turn, appealed to this Court. Shortly before the hearing, however, the parties very substantially narrowed the scope of the dispute. The GOC agreed to accept Mr Clarke’s wish to withdraw from the register and not to ask the Court to make any further order as to sanction. On that basis, Mr Clarke indicated that he would not oppose (while not agreeing) the appeal in so far as it relates to impairment, the GOC wishing to pursue that aspect of the case. In the circumstances, the only issue that now falls for consideration is whether Fraser J was right to substitute a “decision of no impairment”.

The legal framework

[12]Under section 8 of the Opticians Act 1989, a person must, to be registered as an optometrist, be “a fit person to practise” as such.

[13]Section 13D of the 1989 Act allows the GOC’s Investigation Committee to refer to the FTPC an allegation that a registered optometrist’s “fitness to practise is or may be impaired” (see section 13D(1)(a) and (6)). By virtue of section 13D(2), the grounds on which an optometrist’s fitness to practise can be “impaired” for the purposes of the Act include “misconduct”.

[14]Section 13F of the 1989 Act is in point where there has been a referral to the FTPC. It provides that, if the FTPC finds that an optometrist’s fitness to practise is impaired, it may if it thinks fit give a direction for the optometrist’s name to be erased from the register (section 13F(3)(a)), the registration to be suspended for a period not exceeding 12 months (section 13F(3)(b)) or the registration to be conditional on compliance with specified requirements (section 13F(3)(c)). Under section 13F(6) and (7), where there has been a direction for suspension, the FTPC:

“may, if they think fit– (a) direct that the current period of suspension be extended for such further period from the time when it would otherwise expire as is specified in the direction; (b) except in a case to which subsection (8) below applies, direct that the name of the registrant be erased from the appropriate register; (c) direct that the registrant’s registration is, as from the expiry of the current period of suspension, to be conditional on his or its compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Committee think fit to impose for the protection of members of the public or in his or its interests, but, except as provided in subsection (8) below, the Committee shall not extend any period of suspension under this section for more than twelve months at a time.”

[15]Section 23G of the 1989 Act provides for appeals to the High Court. By virtue of CPR 52.21(3), such an appeal is to be allowed if the decision under appeal was “wrong” or “unjust because of a serious procedural or other irregularity in the proceedings in the lower court [i.e. here, the FTPC]”.

[16]When considering an appeal from a disciplinary body, it can be important to bear in mind the body’s special expertise. In Ghosh v General Medical Council

[2001] UKPC 29

[2001] 1 WLR 1915

, for instance, Lord Millett, giving the judgment of the Privy Council on an appeal from the Professional Conduct Committee of the General Medical Council, said (at paragraph 34):

“the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public”

. In Raschid v General Medical Council

[2007] EWCA Civ 46

[2007] 1 WLR 1460

, Laws LJ (with whom Chadwick LJ and Sir Peter Gibson agreed) noted (at paragraph 26) that the two principles which were especially important in the context of disciplinary appeals were “the preservation of public confidence in the profession and the need in consequence to give special place to the judgment of the specialist tribunal” and, restoring sanctions that had been ordered by the General Medical Council’s Fitness to Practise Panel and set aside by the judge, commented (at paragraph 22) that “the judge’s views in Raschid as to the period of suspension and the need or lack of it of a review hearing were in reality a substitution of one view of the merits for another”. The High Court, Laws LJ explained, will “correct material errors of fact and of course law” and “exercise a judgment … as to the application of the principles to the facts of the case”, but that judgment is “distinctly and firmly a secondary judgment” (paragraph 20).

[17]As to when fitness to practise will be impaired, in Cohen v General Medical Council

[2008] EWHC 581 (Admin)

Silber J said (at paragraph 65):

“It must be highly relevant in determining if a doctor’s fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has in fact been remedied and third that it is highly unlikely to be repeated.”

[18]Silber J did not, however, suggest that these three factors were the only ones relevant to impairment. As Cox J pointed out in Council for Healthcare Regulatory Excellence v(1) Nursing and Midwifery Council,

(2) Grant

[2011] EWHC 927 (Admin)

, [2011] ACD 72 (at paragraph 71), it is also “essential, when deciding whether fitness to practise is impaired, not to lose sight of the fundamental considerations emphasised at the outset of this section of [Silber J’s] judgment at paragraph 62, namely the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession”.

[19]The GOC’s “Fitness to Practise Panels Hearings Guidance and Indicative Sanctions” says this on the subject of review hearings:

“The [FTPC] should … normally direct that there be a review of a conditional order or a suspension order before they expire. This is because before a suspension or conditions are lifted, the [FTPC] will need to be reassured that the Registrant is fit to resume practice either unrestricted or with conditions or further conditions.”

Fraser J’s judgment

[20]Fraser J considered the FTPC’s decision of 28 June 2016 to be “plainly and obviously wrong” (paragraph 37 of the judgment). In the first place, he criticised the FTPC for taking into account the fact that Mr Clarke had not undertaken any Continuing Education and Training (“CET”) in the period since the earlier hearing. Mr Clarke, the judge said, “plainly, on the words of the decision itself, was only required or expected to complete the necessary CET if his decision was to resume practice”, which it was not. Secondly, the FTPC failed, in the judge’s view, to give proper (or any) consideration to the likelihood of the conduct giving rise to the allegations against Mr Clarke being repeated. Likelihood of repetition, the judge said, “was not considered by the [FTPC] at all”, even though it was “very firmly in favour of Mr Clarke as there was simply no likelihood of repetition as he had sold his practice, had retired and wished to remove himself from the Register” (paragraph 32). Thirdly, the FTPC “did not weigh … in their consideration” the fact that “it could be said that [Mr Clarke’s] conduct had been remedied by his deciding no longer to practice” (paragraph 33).

[21]The judge took the view that, “in considering the position looking forward, and likelihood of repetition, the retirement had to be taken into account by the [FTPC] as at least one of the factors, even if it were not determinative” (paragraph 34 of the judgment). “[I]n properly considering ‘risk to the public’ the authorities make clear that the likelihood of repetition is a specific consideration” (paragraph 38) and, had the FTPC properly considered the principles, “they would have concluded that the likelihood of repetition was very close to zero” (paragraph 37). “[T]he risk posed to the public going forward is”, the judge observed, “something that must be taken into account” and, “[i]n order to do so, this consideration of risk cannot ignore the fact of that person’s retirement”. These matters could, the judge said, “be categorized both as serious procedural irregularities, and/or irregularities in the proceedings (failing to take into account directly relevant matters)” (paragraph 35).

[22]The judge also criticised the FTPC’s reference to erasure potentially being appropriate when the behaviour is “fundamentally incompatible with being a registered professional”. He said (in paragraph 41 of the judgment):

“Behaviour by Mr Clarke alleged to be fundamentally incompatible with being a registered professional was simply no part of the case advanced against him by the Council, and certainly no part of the findings made by the first [FTPC]. Given it was no part of the case against him, he could not be said to have been given any opportunity of meeting such a case against him. This constitutes a free-standing ground upon which this appeal should succeed alone, regardless of my findings on the other factors above. Application of the test of his behaviour being incompatible with being a registered professional was unfair and of itself leads to the conclusion that the decision by the Review [FTPC] was plainly wrong.”

[23]In the closing paragraphs of his judgment, the judge stressed that Mr Clarke’s appeal succeeded as regards both sanction and impairment. The judge explained that, in response to comments on a draft of the judgment, he had amended it “so that there can be no possible ambiguity about the validity – or rather more accurately, the invalidity – of the [FTPC’s] findings as to impairment”, which, in the judge’s judgment, were “clearly wrong” (paragraph 46 of the judgment). In the circumstances, Mr Clarke’s appeal succeeded “against the decision of the [FTPC] finding impairment and also erasing him from the Register” (paragraph 48).

Impairment

[24]We are conscious that, in considering the GOC’s challenge to Fraser J’s rejection of the FTPC’s finding of impairment, we have not heard any oral argument on behalf of Mr Clarke. We have, however, had the benefit, not only of submissions from Miss Eleanor Grey QC, who appeared for the GOC, but of a full skeleton argument prepared on Mr Clarke’s behalf by Mr Ian Stern QC and Mr Sandesh Singh. This addressed the impairment issues as well as those relating to sanction.

[25]Miss Grey argued that Fraser J did not adequately distinguish between impairment and sanction. Whatever, she maintained, the merits of the judge’s criticisms of the FTPC’s conclusion that erasure was the appropriate sanction, he should not have interfered with its finding of impairment. Miss Grey stressed that the Opticians Act 1989 refers to an optometrist’s “fitness to practise” being impaired. That means, she said, that a judgment on impairment must be made by reference to whether, if permitted to practise, the optometrist would be fit to do so without restriction, not on the basis of whether the optometrist in fact proposes to continue to practise.

[26]Miss Grey emphasised that, in the absence of a finding of impairment, the most that the GOC can do is give a warning regarding the optometrist’s future conduct or performance under section 13F(5) of the 1989 Act; it has no power either to suspend or to impose conditions, let alone to order erasure. That, Miss Grey said, is of particular concern since an optometrist voicing an intention to retire (and so, on the approach espoused by the judge, avoiding a finding of impairment) could potentially(a) change his mind and resume practice or

(b) seek to work as an optometrist abroad. Miss Grey said that the GOC also feared that, were the judge’s understanding of impairment correct, an optometrist could try to escape any finding of impairment by insisting that he had abandoned the particular area of work that had given rise to the allegation(s) against him.

[27]In my view, the statutory language is, as Miss Grey submitted, crucial. It is clear from it that the focus must be on impairment of fitness to practise. While “impairment” is not the subject of a specific definition in the 1989 Act, there are references to “fitness to practise” in both section 13D (under which an allegation that an optometrist’s “fitness to practise is or may be impaired” can be referred to the FTPC) and section 13F (empowering the FTPC to do certain things if it finds that an optometrist’s “fitness to practise is impaired”). Those provisions are consistent with section 8, requiring someone wishing to be registered as an optometrist to be a “fit person to practise” as one.

[28]Definitions of “fitness” given in the Oxford English Dictionary include “the quality of being fitted, qualified, or competent” and “[t]he state of being morally fit; worthiness”. “Fitness to practise”, in the context of the 1989 Act, must depend on matters such as these rather than whether the individual in question intends to practise as an optometrist. A person could hardly claim to be a “fit person to practise” as an optometrist for the purposes of section 8 because he had no intention of doing so. Likewise, it is hard to see how the fact that an optometrist no longer intends to practise as such can have any bearing on whether his “fitness to practise” is impaired within the meaning of the 1989 Act.

[29]Where an optometrist is intending to continue to work as such, likelihood of repetition may well be very relevant to his fitness to practise. The passage from Silber J’s judgment in Cohen v General Medical Council quoted in paragraph 17 above will (together, potentially, with other matters) be in point in a case of that kind. There is no suggestion, however, that the doctor with whom Silber J was concerned had (as Mr Clarke has) retired. The distinction is significant. Where misconduct is “highly unlikely to be repeated” in the course of continuing practice, that points towards fitness to practise. Where, on the other hand, repetition is improbable merely because the optometrist will no longer be practising, that would not seem to be indicative of fitness to practise. If anything, cessation of practice may point in the opposite direction, since the optometrist’s skills could deteriorate with lack of use.

[30]In the circumstances, the FTPC was, in my view, entitled to make a finding of impairment at the 2016 review hearing, as its predecessor had at the original hearing in the previous year. There was clearly, as I see it, material before the FTPC on which it could properly arrive at that conclusion. Further, it was open to the FTPC at the impairment stage to take the view that Mr Clarke’s retirement did not count in his favour and that the fact that he had not undertaken CET was of relevance. The cessation of practice and absence of CET could each be thought to suggest that Mr Clarke’s skills as an optometrist would have reduced since the 2015 hearing.

[31]I agree with Miss Grey that the judge’s approach to impairment was, with respect, erroneous. When considering impairment (as opposed to sanction), the judge needed to focus on whether Mr Clarke’s fitness to practise was impaired, as the statutory language required. In that context, the fact that Mr Clarke was not intending to resume practice could be of little or no consequence. Moreover, the fact that Mr Clarke had not undertaken CET was, as I have said, something that could properly be taken into account.

Conclusion

[32]I would allow the appeal to the extent of reinstating the FTPC’s finding of impairment. I would also, however, make an order, as agreed between the parties, allowing Mr Clarke to withdraw his name from the GOC’s register and providing for no further action to be taken with regard to sanction. The order for erasure that the FTPC made, and Fraser J quashed, will not, therefore, be restored.

[33]I agree.