Professional Standards Authority for Health And Social Care v General Optical Council & Honey Rose

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.

A General Optical Council (GOC) fitness to practise committee found her professional misconduct proved, concluding that public trust and confidence, and the need to promote proper professional standards and conduct for members of the profession, required a finding that her fitness to practise was consequently impaired. It suspended her from practice for nine months (without requiring any further review).

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.  It asked the High Court for the decisions on impairment and sanction to be quashed and Ms Rose’s case remitted to a differently constituted fitness to practise committee for fresh determinations.

Mrs Justice Collins Rice criticised the GOC fitness to practise committee’s approach on a number of fronts.

1. The committee found her failures to be fundamental but, notwithstanding, finding them easily remediable [para 21]. Collins J concluded 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.”

2. The committee’s own findings on failure of insight are particularly significant when it comes to the question of dishonesty. It had labelled her dishonesty serious, acknowledged that dishonesty is not easily remediable yet it found it unlikely that Ms Rose would repeat her dishonesty, despite not even readily admitting it.

3. The committee found Ms Rose’s record keeping deficient, untrue, misleading and dishonest yet it concluded that a ‘well-informed members of the public would acknowledge and accept that the ambiguous record keeping failures occurred as a consequence of human error‘. This Collins J commented “is simply incomprehensible.”

4. The committee placed considerable weight on the ‘isolated’ nature of the events before it, and deduced from the absence of evidence of other complaints or problems in Ms Rose’s (short) career that her failings were one-off impulsive aberrations. Collins J commented that “whether they were or not was a matter it needed to probe and assess rather than assume.”

She continued by saying that committee:

“of course had to focus on the evidence before it. But there is a world of difference between a proper focus on the limited evidence of fault before a tribunal and an extrapolation by that tribunal that it is safe to assume that it occurred on no other occasion and can be relied on not to happen again. That is a matter for investigation, assessment and explanation, not assumption, and to the extent that the FTPC made a deduction of logic from the absence of other complaints to answer the question, the logic is defective.”

5. The committee also placed weight on the steps Ms Rose had taken to develop professional learning about ‘inadequate eye examination and ambiguous record keeping’ and, noting the effect of the pandemic, concluded that she had done all that could reasonably be asked of her in the circumstances. There is a gap between that finding and the conclusion that she was fully fit to practise. Collins questioned whether “all that could reasonably be asked of her” in constrained circumstances sufficient on an objective assessment – suggesting the answer is not yes.

Collins J ultimately concluded that:

“The gaps in this FTPC’s analysis, logic and reasoning are too many and too significant for the public to be able to understand why, although it had found that Ms Rose had breached the fundamental tenets of her profession in a number of respects, brought her profession into disrepute, acted dishonestly and put her young patient at unwarranted risk of harm – inevitably failing to make an obvious diagnosis of signs of a life-threatening condition demanding urgent medical referral – there was no basis for fearing future risk to the public in her impaired FtP. Its own adverse findings on her unexplained dishonesty, and her lack of insight (failure to recognise she had taken insufficient steps to complete the eye examination, and failure despite the history of the case readily to accept that her record-keeping fell below professional standards), and its attribution of that at least in part to attitudinal failings, called for a particularly clear explanation of how these findings could be reconciled with optimism about the future. The apparent reliance on a subjective rather than objective evaluation of the remedial steps taken, the unsupported inference that the conduct before it was an isolated aberration, and the inexplicable invocation of ‘human error’, do not come close to providing the necessary explanation. The observation that the tragedy itself could be relied on as making it likely that she could be depended on in future is the opposite of reassuring. 

 

“In these circumstances, I conclude that the challenge to the impairment decision of insufficiency from the point of view of public protection is made out, and the remedy must be to quash the determination and remit it to a differently constituted tribunal for fresh consideration and a fully explained decision.”