Newsflash Professional Discipline 28th Jun 2018

The Relevance of Retirement? General Optical Council v Clarke [2018] EWCA Civ 1463

The Court of Appeal handed down its judgment in Mr Clarke’s case this week. Due to Mr Clarke failure to refer Patient A in a timely and appropriate manner she lost her sight and he was referred to the GOC. Prior to his substantive hearing Mr Clarke wrote to the GOC to explain he had since retired and did not want to renew his registration.  Nonetheless, the case proceeded and the panel imposed a suspension order for 12 months. At the subsequent review hearing he repeated in correspondence that he had retired and offered an undertaking he would leave the register if sanction was lifted. The panel considered he was still impaired, declined his offer of an undertaking and erased him from the register.

On appeal to the High Court, Fraser J criticised the panel’s approach in a number of respects, including the fact it ignored the relevance of Mr Clarke’s retirement at the impairment stage. Fraser J considered this an important factor in gauging the risk of repetition. He noted that the risk to the public could be said to have to have been “remedied by his deciding no longer to practise”.

The Court of Appeal took a different view. The fact of his retirement could not assist Mr Clarke. Looking at the statutory language used, the focus must be on impairment of fitness to practise. This denotes the person is appropriate, competent and qualified to fulfil the role. Fitness to practise must rest on these factors, rather than whether or not the person intends to practise. As the court observed, “a person could hardly claim to be a “fit person to practise” as an optometrist… because he had no intention of doing so”.

At impairment, the risk of repetition may be highly relevant where a practitioner wishes to continue to work. However, where this risk is minimal only because he wishes to retire, it can be of no assistance to him. Indeed, evidence of retirement may point in the opposite direction since clinical skills may deteriorate. The court reinstated the finding of impairment. However, on agreement between the parties, it did not reinstate the finding of erasure, finally allowing Mr Clarke to leave the register.

Categories: Newsflash