How should an FTP Committee assess risk to the public in the case of a registrant who is contemplating retirement, or who chooses to retire during a period of suspension?
This is the case to have to hand when representing professional people who have chosen, or are contemplating, retirement during disciplinary proceedings. The registrant’s retirement was a highly material and relevant factor when assessing risk to the public.
Matthew Clarke had been an optometrist for many years, and had treated many patients without complaint. However, one patient presented with symptoms on several occasions which should have prompted Mr Clarke to refer the patient to a GP. Mr Clarke failed to do so, which resulted in delayed diagnosis of a tumour. The patient instituted civil proceedings for negligence against Mr Clarke during which he admitted liability. After the GOC commenced professional disciplinary proceedings, Mr Clarke admitted the relevant allegations.
Mr Clark’s representatives requested that his name be removed from the Register: he had sold his optometry practice by this point. However, the Council (as it was entitled to do) declined to permit voluntary erasure.
In due course, the FTP Committee imposed a 12-month suspension order. Two points in its reasoning are of note:
- The 12-month period would give Mr Clarke a period of reflection and the opportunity to consider whether he wished to cease practice and if not to complete necessary Compulsory Education and Training (CET).
- Erasure would be disproportionate to the impairment identified, which, although serious, related to a narrow area of practice.
With Point 1 in mind, no doubt, Mr Clarke confirmed that he had opted to retire. He made this clear shortly before the matter was listed for review. He proffered signed undertakings not to practise again, and to remove himself from the register within 14 days.
However, at the review hearing, a Second FTP Committee decided to erase him from the register, rather than simply let the suspension lapse. It cited his failure to undertake CET. It was this decision that was the subject of the appeal.
On appeal to the High Court, common sense prevailed and the appeal was allowed. Francis J identified clear faults in the Second FTP’s reasoning:
- When the sanction was imposed, Mr Clarke was given the choice of retirement or to complete CET (see Point 1 above). He chose retirement, and so his failure to undertake CET was irrelevant and should not have been held against him.
- The Second FTP Committee had failed to realise that his conduct had been remedied by his decision no longer to practice.
- Erasure was deemed to be disproportionate when the sanction was imposed (see Point 2 above), and there had been no change in circumstances.
Francis J also referred to the undertakings proffered by Mr Clarke. The Second FTP Committee had stated that its statutory framework did not enable it to accept undertakings. However, the Second FTP Committee made the mistake of thinking that the undertakings were irrelevant, whereas they were, according to Francis J, relevant to the likelihood of risk of repetition.
One matter not tackled by the High Court was enforceability of undertakings. In a Court, a failure to abide by an undertaking would amount to contempt of court, and could lead to imprisonment. Before the GOC and other regulators, without a formal procedure for accepting undertakings of this type at the sanction stage, there is no prescribed way of ensuring compliance. Presumably, the regulator would have to go to the trouble of bringing fresh disciplinary proceedings for failing to abide by undertakings, and argue that such failure amounted to professional misconduct. Ensuring compliance may not be straightforward.
Aside from that, the High Court’s decision will come in handy when needing to persuade a FTP committee that a person’s retirement is a highly material factor when assessing risk to the public. It should help people in Mr Clarke’s position to retire with a degree of dignity intact, rather than bear the stigma of erasure.