What effect should retirement have on disciplinary process?

Patricia Hitchcock QC

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

The thorny issue of retirement during regulatory proceedings came before Fraser J in March by way of appeal under the Opticians Act 1989, s23. The reasoning of his careful judgment has wide application and will be of interest to other regulatory bodies, as well as those unfortunate enough to be appearing before them.

Facts

Mr Clarke was an optometrist, a sole practitioner with an unblemished career of over 30 years in good standing, when he made a very serious error: he failed to refer a patient with suspicious bilateral visual field defects to his GP, despite the defects worsening over 4 visits in 5 years (2004-2009). A coincidental, routine referral for cataracts led (eventually) to a diagnosis of pituitary tumour - but too late to save the patient’s eyesight.

The patient sued Mr Clarke, the GP and the hospital for the delay in diagnosis. The action was compromised, liability having been admitted; Mr Clarke made a full admission at that time. No complaint was made against him to the General Optical Council (“GOC”). Some four years later, however, a newspaper report of the patient’s concerns brought the matter to the GOC’s attention, and disciplinary proceedings were commenced of its own motion.

The Fitness to Practise Proceedings

Mr Clarke was notified of the proceedings in February 2014 and on 17th July 2014 he swore a witness statement, accepting that he could have treated the patient better and that “whilst my clinical judgment seemed appropriate at the time, with the advantage of hindsight, I would have referred the patient to his GP on or around 28 May 2004”. He accepted that there were similar failures at the three subsequent consultations in 2006, 2008 and 2009; that the delay had been causative; and stated that he fully understood the gravity of his failings and that a patient presenting with the same symptoms would now be promptly referred on. He also set out the various remedial steps that he had taken since the matter came to light - reflection and analysis, training, equipment, software - and explained that it would not be financially possible for the business to continue if he were to be suspended and had to employ a locum.

Four days later, on 21st July 2014, an 18-month interim suspension order was made against him. As a result, he sold his business and retired from practice as an optometrist. In April 2015 he wrote to the GOC, explaining this and asking that his name be removed from the register; the GOC declined, as they were entitled to do, and continued with the proceedings.

In June 2015 the Fitness to Practise Committee (“FTPC”) made a finding of misconduct and suspended him from practice in his absence (he had sent his apologies and declined to attend). They concluded that the failure in 2009 was grave, that his fitness to practise was impaired and that he was a danger to the public. They also concluded, however, that erasure from the register would be disproportionate; they imposed a further 12-month suspension. Significantly, the FTPC noted his intention to retire and indicated that the 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 [compulsory education and training]”. [My emphasis.]

Mr Clarke had not practised as an optometrist since July 2014; he had sold his business and let his staff go. He had no intention of returning to practice and accordingly did not complete any CET between the FTPC hearing and the review hearing a year later, at which he was represented by counsel and offered written undertakings to confirm that he would never again work as an optometrist and asked to be removed from the register on a voluntary basis. It was the finding of the Review Panel that was the subject of the appeal: they held that in failing to complete any CET he was in breach of the rules and that erasure was now the appropriate sanction.

The Appeal

Fraser J noted the unfairness of this Kafkaesque outcome and allowed the appeal. In so doing, he took full cognizance of the GOC’s wish to prevent its registrants from evading disciplinary process by retiring, and of the limiting principles upon which he was entitled to overturn the Review Panel’s decision. He held that the decision was plainly wrong because the Panel had ignored both the FTPC’s finding that erasure would be disproportionate and the undoubted fact that Mr Clarke, having fully retired, would have no opportunity to repeat the misconduct and so no longer presented any risk to the public.

The ratio of the decision is that, whilst disciplinary bodies are entitled to impose sanctions to maintain public trust in the profession, regulatory proceedings are intended not to be punitive but to protect the public: In considering sanction, the Panel must consider all relevant and material factors. In this case the sale of the practice, offer of signed undertakings not to practise and request to be removed voluntarily from the register were strong evidence that Mr Clarke posed no prospective risk to the public.

There will undoubtedly be cases in which the evidence that retirement is permanent will be less compelling and an FTPC will be entitled to find that there is a continuing risk to the public. Nonetheless, this judgment provides an important re-focusing on the true purpose of such proceedings and the evidential relevance of genuine retirement.