GOC intends to consult on the future regulation of students and businesses

Case 1) Threlfall v General Optical Council [2004] EWHC 2683 (Admin).

Whilst this case is somewhat old now it has been referred to for guidance in a number of professional disciplinary cases.

 The appellant was a registered ophthalmic optician. In July 2002 she examined a patient who had been complaining of problems in his right eye. He later went to hospital and was diagnosed with retinal detachment, which subsequently required surgery. The appellant was charged with serious professional misconduct in relation to her consultation with the patient, in that she (i) failed to examine the right eye correctly, because she (a) did not dilate the pupil, (b) did not examine the fundus adequately and (c) did not carry out a visual field test, and (ii) that she failed to record her examination correctly. According to the GOC, she had conducted a cursory examination of the patient, gave an untrue excuse for omitting to dilate his eye and that the patient, not the appellant, had mentioned the possibility of retinal detachment. Her recording of the examination was wholly inadequate.

The optician maintained that her examination was sufficient for her to appreciate the risk of retinal detachment, and that she had acted correctly by refering him to the hospital. Following a hearing in May 2004, the respondent’s disciplinary committee found particulars (i)(a) and (c) admitted and proven, and (i)(b) and (ii) proven. The appellant appealed. The committee drafted reasons for its decision in July 2004, and provided them to the appellant in the next month. It was assumed by both parties that the relevant duty was set out in r 3(1) of the Sight Testing (Examination and Prescription) (No 2) Regulations 1989 (SI 1989/1230) and para 3 of Sch 1 to the General Optical Council (Rules relating to Injury or Disease of the Eye) Order of Council 1999 (SI 1999/3267). It was also not suggested by either parties that the procedure differed since the instant case was the first to be heard by the Administrative Court rather than the Privy Council.

the optician argued that the committee had failed to give reasons within a reasonable time; that on the facts she had not failed to fulfil her duty to the patient; and that she had never been charged with a failure to take an adequate history, rendering the finding to that effect unfair.
The appeal would be allowed.

(1) Regulation 3 of the 1989 regulations was not a comprehensive statement of the professional duty of an optician.

The effect of r 3 was to require an optician to perform examinations for the purpose of detecting injury and so forth even when a patient did not complain of any such condition. If on the other hand a patient was seen by an optician complaining of an eye infection, r 3 was inapplicable and para 3 of Sch 1 to the 1999 rules alone applied.

(2) The committee was required to give adequate reasons under both common law and art 6 of the European Convention on Human Rights. In the instant case, the findings of misconduct by the committee could not stand with its findings of fact.
The reasons in the instant case were of a disappointing standard, as they left undetermined important issues of fact. It was crucial to the gravity of the appellant’s misconduct whether she had referred the patient at her own instigation, rather than at the patient’s insistence, and whether she informed the doctor that the patient might have had a retinal detachment. It was unfortunate that neither of those issues was addressed in the particulars of the charge, as they should have been. The committee’s reasons had to be interpreted most favourably to the appellant. So doing, the facts found constituted an isolated incident and did not justify the finding of serious professional misconduct.

There is much to be said for legal assessors to disciplinary committees being provided with a standard direction on professional misconduct, in the same way that standard directions, formulated by the judicial studies board, are available for judges and juries in criminal cases.