InsightsInsight - Healthcare - POSTED: May 25 2017
High Court throws out General Optical Council’s ‘strike-off’ decision
A recent High Court decision (Clarke v GOC  EWHC 521 (Admin)) has raised some particularly interesting issues in relation to the position where a clinician decides to retire during fitness to practice proceedings.
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The case involved an appeal to the High Court following a decision of the General Optical Council (GOC) that an Optometrist was to be removed from the register of practising optometrists (‘struck-off’) despite having opted to retire in advance of a hearing.
The facts of the case, in brief, were that the Optometrist was considered to have missed a patient’s pituitary tumor leading to a delay in diagnosis and as a result, the patient lost his sight. The matter was referred to the GOC. The Optometrist admitted failings in relation to the patient but notified the GOC that he had retired and sold his practice.
At the Final Hearing the Fitness to Practice Committee (‘the Committee’) decided to impose a 12-month suspension order during which time, if the Optometrist wished to continue to practice, he would need to complete compulsory education and training (CET). The following year a Review Hearing took place when it was confirmed that the Optometrist had retired and undertook not to practice further.
The Review Committee decided to erase the Optometrist from the register on the basis that his fitness to practice was impaired as no CET had been completed and did not accept that no further action should be taken on the basis that the Optometrist had retired. On appeal to the High Court, the Optometrist argued that the finding of impairment was wrong, that erasure was not proportionate and that the GOC’s decision was not sufficiently clear and was inadequate.
The Optometrist argued that the failure of the Review Committee to take account of the fact he had retired and undertook not to practice was a procedural error.
The GOC’s position was that retirement was not something that a Committee could or should take into account even when looking at sanctions. Fraser J in the High Court considered that the wording of the Committee at the Final Hearing was such that if the Optometrist decided to retire then CET was not required. Therefore, he was troubled by a decision to erase him from the register for retiring and not completing the CET.
It was considered that the Optometrist could not have realised that his actions in retiring could lead to a decision to erase him – arguably the highest sanction the GOC can impose. Fraser J reiterated the principle that when assessing risk to the public and the sanctions available, a Committee must take into account all relevant factors. It was highly relevant in this case that the Optometrist had ‘retired and sold his practice.’
In coming to this conclusion on relevance, Fraser J noted that as per the leading authority of Cohen, the Committee needed to consider the potential for repetition in deciding whether fitness to practice was currently impaired in order to allow erasure to be a possible sanction. Fraser J noted that in this case there was no likelihood of repetition since the Optometrist had already ‘retired and wished to remove himself from the Register.”
The High Court substituted the decision to erase the Optometrist from the register with a finding of no impairment. This is an important decision for all clinical regulatory bodies and those facing allegations before them. If a clinician is no longer practising and will not do so again, their regulator seemingly cannot decide that their fitness to practice is impaired and, accordingly, impose sanctions.
However, Fraser J made very clear that this judgement was not to be interpreted as authority for the act of retiring being a way to avoid ‘disciplinary proceedings running their proper course’. Therefore, a retired clinician will not avoid the hearings process or a public determination in relation to their actions – which may, of course, be considered relevant in any civil claim for negligence – yet simply cannot be sanctioned on the basis of being impaired to practice.
This judgement highlights the key tenet of any fitness to practice process – it is about protecting the public
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