The relevance of retirement and future risk in fitness to practise proceedings

Clarke v General Optical Council [2017] EWHC 521 (Admin)

Facts

• The Registrant registered as an optometrist with the General Optical Council (“the Council”) in 1982. He practised in a self-employed capacity from a practice that employed other staff, but he was the sole optometrist. Prior to the circumstances which led to these fitness to practise (“FTP”) proceedings, he was of professional good standing.
• Between 2004 and 2009, a Patient of the Registrant visited him on four occasions. During the Patient’s first appointment with the Registrant on 28 May 2004, his examination revealed suspicious visual field in each eye. Despite the visual field defect worsening over the following three appointments in 2006, 2008, and 2009, the Registrant did not refer the Patient for further investigations until 2009. When the referral was made, it was a routine referral of the Patient to his GP for the removal of cataracts. It later transpired that the Patient had a tumour, and he subsequently lost his sight.
• The Council instigated FTP proceedings in 2014. On 21 July 2014, an interim suspension order for 18 months was made against the Registrant, which meant he was not permitted to practise as an optometrist from this date. The Registrant admitted that he should have referred the Patient to his GP on or around 28 May 2004 when he presented with his symptoms, and he admitted similar failures in relation to the subsequent appointments with the Patient. In a letter dated 21 April 2015 to the Council, the Registrant explained that he had sold his business and had retired from practising as an optometrist.

FTP Hearing

The FTP proceedings progressed to a final hearing in June 2015. The Committee imposed a 12 month suspension and concluded “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”. The Committee was mindful that the Registrant had stated that he had retired and no longer intended to practise. The Committee considered erasure to be disproportionate.

Review Hearing

The review hearing took place on 28 June 2016. The Registrant reiterated that the case related to one patient, he had taken full responsibility for his actions, and he had not practised as an optometrist since 21 July 2014 having sold his business. He stated that he did not intend to work again as an optometrist and proffered a signed undertaking to the Council not to practise again. He sought removal from the Register and undertook to remove himself within 14 days.

The Committee found that there was no evidence that the Registrant had undertaken any CET since the final hearing. The Committee rejected the argument that it should take no further action on the basis that the Registrant had retired. The Committee considered that erasure was the appropriate sanction.

Appeal

The Registrant appealed the decision of the Review FTP Committee on the following grounds:

• The finding of impairment was wrong;
• Erasure was unnecessary, disproportionate, and unfair;
• The decision was not sufficiently clear and inadequate.

The Registrant also raised that the failure of the Review FTP Committee to take account of his retirement, sale of the practice, and undertaking not to practise was a serious procedural error.

The Council argued that the decision to erase the Registrant was within the scope of decisions that could be taken and that retirement was not something that a Committee should take into account at all, even at the sanction stage.

Decision

Mr Justice Fraser noted a series of irregularities in the proceedings, he specifically noted the following:

The first FTP Committee had expressly stated the following in its decision:

"The Committee was mindful that the Registrant has stated that he had retired and no longer intended to practise......The 12-month period [of suspension] 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"

As such, the requirement for him to complete CET was only applicable if he wished to resume practise. Mr Justice Fraser commented that the Review FTP Committee had taken into account the fact that the Registrant had not completed the CET when reaching its decision, yet “the wording of the first decision, properly construed, stated that he was not so required if his decision to retire was one to which he was committed”.

Referring to Cohen v GMC, Mr Justice Fraser noted "It must be highly relevant in determining if a doctor's fitness to practice is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated". In the present case, Mr Justice Fraser commented that the likelihood of repetition was “very firmly in favour of the Registrant” and it had not been considered by the FTP Review Committee at all. There was no likelihood of repetition as the Registrant had sold his practice, had retired and wished to remove himself from the Register. These elements could also mean that the second factor in the passage, the need for the Registrant to remedy his actions, had been satisfied in that he had decided to no longer practice.

Mr Justice Fraser stated the Review FTP Committee should not have ignored the fact of the Registrant’s retirement in reaching its decision. He noted that nothing had happened between the two hearings other than the Registrant continuing to hold the view that he had retired and would no longer practise as an optometrist. He offered undertakings to this effect. In reaching his decision, Mr Justice Fraser stated “It is a substantial – and in my judgment wholly incorrect – leap in analysis to conclude that what was disproportionate in July 2014 had become proportionate by June 2015, simply because Mr Clarke had done what he had told the Council he wished to do, namely retire”.

Commentary

This case clearly points to retirement as a relevant factor when considering the issue of future risk at a review hearing, although it should not be interpreted as authority for the proposition that someone in the position of the Registrant can avoid disciplinary proceedings running their proper course by taking the decision to retire.