Professional Standards Authority for Health And Social Care v General Optical Council & Anor [2021] EWHC 2888 (Admin) (01 November 2021)

Ms Rose was handed a nine-month suspension without review in December 2020. A GOC committee found her fitness to practise was impaired by virtue of misconduct following a failure to spot papilloedema caused by a build-up of fluid on the brain of eight-year-old Vinnie Barker in 2012. Barker died of hydrocephalus five months after his sight test with Rose.

The PSA appealed to the high court on the grounds that the assessment of the registrant’s fitness to practise wasn’t carried out properly and that the sanction wasn’t in the best interests of the protection of the public.

The PSA challenged the fitness to practise committee’s (FTPC) decision on the following grounds: 

  1. the FTPC wrongly decided that Ms Rose’s fitness to practise was only impaired on the grounds of the public interest in maintaining confidence in the profession and professional standards, and not on the grounds that she posed an ongoing risk to the public;
  2. the FTPC took the wrong approach to the issue of what sanction to impose on Ms Rose, particularly bearing in mind the terms of the relevant guidance;
  3. the FTPC wrongly decided not to require a review of Ms Rose before the conclusion of the period of suspension, and failed to give sufficient reasons for its decision.

Mrs Justice Collins Rice said in her ruling:

There are problems with the logic and reasoning of the FTPC’s approach. The first is the gap between the fundamental nature of the failures and finding them easily remediable. Ms Rose was held to have failed in the basics of doing an eye examination, engaging with and informing her patients and making proper records. These failures were, on the FTPC’s own analysis, multi-faceted, interconnected and radical. She had behaved overall as no professional optometrist could properly think of behaving. So the conclusion that the gap between what she should have done and what she did, however wide, could be easily bridged simply by meaningful reflection and resolve, is unexpected. It needs a clear explanation to be comprehensible.

The FTPC’s own findings on failure of insight are particularly significant when it comes to the question of dishonesty. It had found Ms Rose had not ‘readily admitted’ dishonesty in the proceedings before it. It had labelled her dishonesty serious. It had acknowledged the importance of dishonesty as a species of professional misconduct, not least where patient records are concerned. It acknowledged that dishonesty is not easily remediable. And yet it found it unlikely that Ms Rose would repeat her dishonesty, despite not even readily admitting it. It does not explain why.

It then went on to conclude that ‘well-informed members of the public would acknowledge and accept that the ambiguous record keeping failures occurred as a consequence of human error‘. That is simply incomprehensible. The FTPC had not found the record-keeping ‘ambiguous’. It had found it deficient, untrue, misleading and dishonest. It had itself also thereby eliminated human error as a possible explanation. The record Ms Rose made had, on the FTPC’s own findings, falsely and knowingly set out a version of events which was consistent with her having performed her professional duties when she had entirely failed to do so.

She concluded that:

The appeal is allowed. The FTPC’s determinations on impairment of FtP and on sanction are quashed and remitted to a differently constituted FTPC for fresh determinations.

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