Clarke v General Optical Council

This is an appeal by Mr Matthew Clarke against a decision made by the Fitness to Practise Committee of the General Optical Council (“the Council”) to erase him from the Register. That decision was made at the review stage of disciplinary proceedings by the Council. The Council is the statutory regulator for the optical professions in the United Kingdom. Its purpose is to protect the public by promoting high standards of education, performance and conduct amongst opticians. The decision to erase Mr Clarke was taken by the Fitness to Practise Committee of the Council (“the FTP Committee”) on 28 June 2016 in circumstances which are explained in the section of this judgment headed “The Facts”. The profession of optometrist is governed by the Opticians Act 1989 (“the Act”). This appeal is of considerable importance to Mr Clarke for obvious reasons, as erasure is the ultimate sanction available to the FTP Committee. However, it also raises an interesting issue of wider application, which is the approach taken by the FTP Committee when a registrant of the Council becomes the subject of disciplinary proceedings at a time when retirement is contemplated, or when during a period of suspension retirement becomes the option chosen by the registrant.

Section 23G of the Act specifies that a decision to erase is an “appealable decision”, and the appeal is to be made to the relevant court under section 23G(3) of the Act. In this case, under section 23G(4) of the Act the relevant court is the High Court of Justice in England and Wales, and therefore the Administrative Court is the appellate tribunal for appeals made against decisions to erase taken by the FTP Committee.

This judgment is in the following parts:

Originally, the Council opposed this appeal both substantively, and also on the basis that it had not been commenced within the 28 day time limit necessary. The point advanced by the Council that the appeal was made out of time was, on the face of the papers, superficially unattractive as (putting it at its highest for the Council), the appeal was commenced when it could only been less than 24 hours late as a maximum. In order to succeed, that argument would have required an acceptance by the court that time for an appeal started to run the instant the decision was in fact made, regardless of when it was communicated to the appellant Mr Clarke. However, good sense prevailed and this point was abandoned the day before the hearing by Mr dos Santos, counsel for the Council. It was therefore not argued before me that the appeal was out of time, and no question of the need for any extension of time arises.

The facts

The facts are not in dispute but need to be recited in order properly to understand the approach taken by the Council, both by the original FTP Committee in 2015 which suspended Mr Clarke, and the one that undertook the review hearing in June 2016. I shall refer to the FTP Committee that imposed erasure as the Review FTP Committee. Mr Clarke was registered as an optometrist in 1982 and practised in a self-employed capacity from a practice that employed other staff (not optometrists), and also his wife in an administrative capacity. He was the sole optometrist at that practice. He had no previous findings against him by the Council and was therefore, prior to the circumstances which found the subject matter of these FTP proceedings, of professional good standing.

In 2013 there was a newspaper report concerning a particular patient of Mr Clarke, to whom I will refer as the Patient. This newspaper report concerned the Patient’s views, expressed to the press, that he (the Patient) considered his optometrist (Mr Clarke) to have been at fault in failing to refer him for further investigation into defects in his vision that had been observed. The Patient had visited Mr Clarke on four occasions between 2004 and 2009. Although there were signs that should have indicated the necessity for further investigation, these signs being indicative of a tumour, that further investigation did not occur and eventually the Patient lost his sight. The newspaper article was dated 29 October 2013 and in it the Patient expressed his view that his sight could have been saved if those earlier warning signs had been noticed by Mr Clarke and if further investigation had taken place at an earlier date. The Patient was a pensioner and he had attended Mr Clarke’s practice for the first time on 28 May 2004. This examination revealed a suspicious visual field in each eye. He was then further examined on 19 October 2006, 14 May 2008 and 27 March 2009. On each occasion, except the 19 October 2006 appointment, Mr Clarke undertook visual field examinations. Despite the visual field defect worsening, he did not refer the Patient for further investigation until 2009. This was a routine referral of the Patient to his GP solely for removal of cataracts, without reference to the visual field defects. In fact, the Patient had a tumour which remained undiagnosed until after October 2009. This was, according to the Patient in the article, far later than ought to have occurred. As a result, the Patient lost his sight when it could have been saved.

For completeness, I should state that the Patient was also aggrieved about a failure by the ophthalmologists, to whom he was referred by his GP, similarly to diagnose his actual condition early enough. He was referred to the ophthalmologists in March 2009, and the tumour remained undiagnosed until November of that year. He had instituted proceedings for negligence against both the Health Authority (in respect of the failure by the ophthalmologists) and Mr Clarke in 2011, well before the newspaper article. In those proceedings, liability had been admitted. The Patient made no complaint about Mr Clarke to the Council; however, the Council commenced professional disciplinary proceedings against Mr Clarke of its own motion, as it was fully entitled to do.

Thus disciplinary proceedings were initiated against Mr Clarke by the Council and he was notified of this in February 2014. On 21 July 2014 an interim suspension order for 18 months was made against Mr Clarke. The effect of that was that he was not, from that date, permitted to practise as an optometrist.

His position is best summarised in his witness statement served for the FTP Committee proceedings. This was dated 17 July 2014, just prior to the imposition of the interim suspension order, and stated the following, after a lengthy account of each occasion when he had seen of the Patient and of the treatment at the time:

“I believe I could have better managed the patient’s symptoms….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 when he presented with bitemporal hemianopia…..”

“I also accept that there were similar failures on 19 October 2006, 14 May 2008 and 27 March 2009 which unfortunately resulted in a delay in diagnosis.”

“I have since made a full admission in the civil matter that I should have referred [the Patient] to his GP on or around 28 May 2004 when he presented with [his symptoms]. I also admit that I made similar failures on 19 October 2006, 14 May 2008 and 27 March 2009. I admit that the delay in the referral resulted in a delay in the diagnosis of [the Patient’s] pituitary tumour.”

“If I was presented with similar circumstances in a patient today, I would act completely differently and I would refer a patient presenting with such urgently.”

He also set out at some length the remedial action he had taken since the matter came to length. This included further analysis of what had happened and why, further purchases of specialist equipment used for analysis within the practice, further training he had undertaken and the upgrading of software used. He provided considerable detail about these steps but it is not necessary to go through that detail in this judgment. He explained that he was the sole optometrist at his practice, and employing a locum would effectively reduce his income to zero. As he also put it “Optometry is a specific training that I have focussed my whole working life on and have no other qualifications outside this field. I am not qualified and can think of no other occupation that would provide a reasonable income and the great job satisfaction that optometry gives”.

In a letter dated 21 April 2015 sent on Mr Clarke’s behalf by the Association of Optometrists to the Council, it was made yet further clear that he admitted the allegations and entirely understood the gravity of his failings. At that stage he was subject to the interim suspension order, and so could not practise at the time. The letter made clear that as a result of the proceedings against him, he had sold his optometric business and had retired from practising as an optometrist. Whilst suspended he had no ability to earn any meaningful income, and there is also no doubt the strain of the process was taking its toll upon him. He requested that his name be removed from the Register. The Council, as it was entitled to do, declined to permit this, and decided that it should proceed with the disciplinary process. It therefore continued with that process which at that stage had still not reached the stage of a hearing or the making of any substantive findings.

Mr Clarke’s position throughout the proceedings that followed – both the initial hearing by the FTP Committee in 2015, the Review FTP Committee that carried out the Review in 2016, and before me upon this appeal in 2017 – has always been entirely consistent. He has always fully accepted that he was at fault for failing to refer the Patient to his GP much earlier. He has never contested the substance of the allegations against him. He explained that he would not be attending the hearing by the FTP Committee in June 2015, and did not do so. That Committee heard expert evidence from Professor Evans for the Council, and determined that the proven facts amounted to misconduct by Mr Clarke. The FTP Committee considered the failure in 2009 to be grave. The evidence of Professor Evans in relation to the different specific instances over the period 2004 to 2009 had been that some fell “below”, and others “far below”, the standard of a reasonably competent optometrist. The FTP Committee concluded that he was a risk to the public and as such his fitness to practice was impaired.

Important passages of the decision are as follows, on the final substantive page. The FTP Committee concluded that a sanction against Mr Clarke was necessary. It referred to Mr Clarke as the Registrant. The decision is dated 23 June 2015.

“The Committee considered that a 12 month suspension was proportionate and the minimum necessary in the circumstances. The Committee was mindful that the Registrant has stated that he had retired and no longer intended to practise. However, the Committee decided to impose this sanction in order to protect the public and maintain public confidence. The 12-month period 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”. (Emphasis added)

CET is Compulsory Education and Training. In what I consider to be an important finding, the decision also stated that the FTP Committee “considered Erasure to be disproportionate to the impairment identified, which, although serious, related to a narrow area of practise”. Although not specifically stated, the 12 month suspension period must have been intended to run from the date of the decision, rather than the date of interim suspension. This is because the Review was organised towards the end of the 12 month period of suspension, and in June 2016. The effective period of suspension was therefore 21 months, as he had become suspended as of the interim suspension order of 21 July 2014, and had already served a fairly lengthy period of suspension under that interim order until the first hearing. The FTP Committee do not address expressly in the June 2015 decision how, if at all, that period of interim suspension was taken into account, but for the purposes of this appeal that period is not central to the factors raised on behalf of Mr Clarke.

During the period June 2015 to June 2016 – indeed, even prior to June 2015, from 21 July 2014 when the interim suspension was imposed – Mr Clarke did not practise as an optometrist. After he had sold his practice during the period of interim suspension, he did not have the facility to do so in any event, but he was under a suspension order in any event. For the review hearing, which took place on 28 June 2016, Mr Clarke provided a further witness statement dated 21 June 2016. He also attended that hearing by his counsel, although he did not attend in person. In his second witness statement he drew attention to his earlier witness statement, and provided a further copy for the Review FTP Committee. He explained in the following terms in his second witness statement that “The case was in relation to one patient. I have always admitted my errors in relation to this patient which were grave errors and for which I have taken full responsibility.” In my judgment, that is an entirely accurate statement by him.

He stated that he had not practised since the interim suspension order against him was made on 21 July 2014 and stated “It was with a heavy heart and after much consideration that I decided, together with my wife, that the best option for us going forward was to sell the business and for me to retire from the profession.” He explained in careful terms how employing a locum had not been cost effective, and also that it was “unbearable” to attend the practice but not to be able to treat his loyal patients. He stated “I do not intend to work again as an optometrist or indeed in the healthcare sector”. He had made the decision to retire early, and to do some paid part-time gardening. The explanation for this is at least, fully or partly, explained by his statement “The stress has taken its toll on my mental and physical fitness”. He did however ask that he be allowed to escape erasure as the ultimate sanction, and proffered signed undertakings to the Council not to practise again. He sought removal from the Register and undertook to remove himself within 14 days. These undertakings were comprehensive and also dated 21 June 2016.

The Review hearing then took place before the Review FTP Committee on 28 June 2016. That Committee decided that the fitness to practise of Mr Clarke was still impaired, and a factor taken into account by them in this respect was that “there is no evidence before the Committee to show that he had undertaken any CET since [July 2014]”. In considering sanction, although accepting that its powers gave it “a great deal of discretion, taking account of all the circumstances of the individual case, on whether to allow the current order to lapse or to take further action”, and although the Committee correctly understood Mr Clarke’s counsel who “sought to persuade the Committee to take no further action, on the basis that the Registrant has retired and is therefore no longer a risk to patient safety”, the Committee stated that it did “not think that this would be a logical approach in relation to its finding of impairment.” It is difficult to understand why no further action, on the basis that there was no risk to the public from Mr Clarke, was considered by the Review FTP Committee not to be logical. The Committee also stated that “the public would expect this statutory Committee to act according to its statutory framework, rather than to take the more informal approach of accepting the Registrant’s undertaking. The acceptance of undertakings is not provided for in the GOC statutory framework”.

The Review FTP Committee decided that Mr Clarke’s registration should be erased. He was therefore made subject to the ultimate sanction available to the Review FTP Committee, one which 12 months earlier a different FTP Committee had expressly decided on the same facts, and with Mr Clarke having fallen short to the same extent in respect of his treatment of the Patient, would be disproportionate. In the period between those two hearings, all Mr Clarke had done (so far as optometry is concerned) was to remain retired.

The appeal

Mr Clarke, who was represented by Mr Stern QC, appeals against the decision of the Review FTP Committee. This was in summary on the basis that the finding of impairment was wrong; the sanction imposed of erasure was unnecessary, disproportionate and unfair; and the reasons in the Review decision were not sufficiently clear and were inadequate. It was also said that the failure by the Review FTP Committee to take account of the retirement, sale of the practice and undertakings by Mr Clarke was a serious procedural error.

Mr dos Santos for the Council argued valiantly that the appeal should be dismissed, and that the Review FTP Committee’s decision that this individual be subject to erasure from the Register was both correct, proportionate, and essentially within the scope of proper decisions that could be taken. Mr dos Santos recognised that the consequence of some of his submissions, was that any optometrist who became subject to disciplinary proceedings, and who sought or intended to retire during the subsequent period (which here has already been about 3 years) would always (if not inevitably) find themselves subject to erasure at the end of any period of suspension. This is because, he submitted, retirement was not something that an FTP Committee could or should take into account at all, even at the sanction stage. Effectively, a retirement, whether actual or intended, was of no legal relevance to the consideration by the Committee.

The word “sympathy” was deployed by both counsel during the hearing on multiple occasions. I was urged by Mr Stern QC to allow Mr Clarke to “retire with dignity”. I was urged by Mr dos Santos not to be swayed by sympathy towards Mr Clarke. The role of the court on an appeal of this nature – indeed, on all occasions – is not to be swayed by emotion in its decision taking, sympathetically or otherwise. Mr Clarke had a long and otherwise unblemished career as an optometrist for many years, and the subject matter of this appeal concerned his treatment of only one patient. On the other hand, that patient lost his sight. Mr Clarke (regardless of his success on this appeal) has ended his professional life in these regrettable circumstances. Regardless of the outcome on this appeal, he will no longer be on the Register, either because he has been erased, or because his appeal has succeeded and his name has been removed (whether consequent upon his undertakings or not). The issue before the court is whether his appeal should succeed on the grounds set down in law, in accordance with the principles which apply in appeals of this type.

These are as follows. They are set out in CPR Part 52.11(3) which states that an appeal will be allowed by the High Court where the original decision was either wrong, or was unjust because of serious procedural irregularity or other irregularity in the proceedings below. Paragraph 22.3 of the Practice Direction to Part 52 states that an appeal under s.23 of the Opticians Act 1989 will be by way of rehearing and that evidence must be filed in support of the appeal. The court has the power to order oral evidence, but that was not used in this case, and was not necessary to dispose of the issues on the appeal. The witnesses were not called but I had written evidence before me and I am entitled to consider the evidence for obvious reasons.

The law and applicable principles

Kerr J most usefully set out the applicable principles recently in Dr Magdi Selim v General Medical Council [2016] EWHC 1865 (Admin) as follows:

“26

Those then are in brief the facts. Dr Selim appeals against the erasure decision. The correct approach of the court in an appeal such as this is found in many different cases…

27

I do not propose to embark upon an examination of the case law. It seems to me convenient and sufficient to refer to what was said by Mostyn J in Khan v General Medical Council [2015] EWHC 301 (Admin) and I quote from paragraph 6 onwards:

“10.

This appeal is governed by CPR 52.11(3) which provides:

‘The appeal court will allow an appeal where the decision of the lower court was –

(a)

wrong; or

(b)

unjust because of a serious procedural or other irregularity in the proceedings in the lower court.’.

11.

The principles in play on such an appeal have all been succinctly expressed by Laws LJ in the decision of Raschid v GMC [2007] 1 WLR 1460. Taking the reasoning of Laws LJ in combination with CPR 52.11(3), the governing principles are:

(i)

I can only overturn the decision of the FTPP if I am satisfied that it was either wrong or unjust because of a serious procedural or other irregularity in its proceedings.

(ii)

In determining whether the decision was wrong, I must pay close regard to the special expertise of the FTPP to make the required judgment.

(iii)

Equally, I must have in mind that the exercise is centrally concerned with the reputation and standards of the profession and the protection of the public rather than the punishment of the doctor.

(iv)

The High Court will correct material errors of fact and of law and it will exercise a judgment, although distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.

(v)

Where the appeal is against a sanction, my decision must not constitute an exercise in resentencing or the substitution of one view of the merits for another.”

Although it is put in different ways and at different stages of the process – whether when considering impairment, or considering sanction, or as a serious procedural irregularity, the same point is relied upon by Mr Clarke. Essentially, the crux of this case is the way the second FTP Committee approached (or failed to consider, properly or at all) the retirement of Mr Clarke, the sale of his practice, the fact that he had voluntarily left the profession, his intentions never to return (underpinned by his undertakings) and how that impacted upon what the Review FTP Committee could or should lawfully do. It is argued that these factors were relevant both to the issue of impairment, and also what sanctions were necessary or available for that Review FTP Committee to perform its function.

As to the meaning of a decision being “wrong,” in Abdul-Razzak v General Pharmaceutical Council [2016] EWHC 1204 (Admin), Sir Stephen Silber held:

“22 In an appeal based on CPR 52.11(3)(a), the Court should only intervene if satisfied that a professional conduct committee's decision was “wrong”, which means in reality, “plainly wrong”; see Shaw and Turnbull v. Logue [2014] EWHC 5 (Admin) at [62] per Jay J. He proceeded to state that:

“214.

The issue at this stage is whether the [Solicitors Disciplinary Tribunal's] key conclusions that Mr Shaw was dishonest in a number of respects and that Mr Turnbull was dishonest in one specific, albeit important, respect are “plainly wrong”. My function is to review the evidence and to apply to it a strict yardstick; it is not to second-guess the SDT's findings or to substitute my views for theirs even if, for example, I were of the opinion that the conclusions are probably wrong (for the avoidance of doubt I do not hold that opinion). “Plainly wrong” imports a higher onus of persuasion, and for good reason: the reviewing Court does not see and hear the witnesses.”

The High Court will give due deference to the expertise of a specialist tribunal. This can be expressed in different ways, whether as due deference, proper regard or some other phrase that connotes that it is the specialist tribunal of the appropriate profession that conducts the disciplinary proceedings and considers the matter, and is particularly well suited and qualified to do so. As Sir Stephen Silber continued in Abdul-Razzak:

“68 In conclusion, I reject the submission that the decision that the Appellant's fitness to practise was impaired, was wrong for any of the reasons put forward by Mr. Bartfeld on the basis of the crucial findings set out in paragraphs 57 and 59 above. A further reason why I would reject the Appellant’s submissions is that, as was explained in the Bhatt case, this Court “will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect”. The decision on whether there should be a finding of impairment to practice in respect of the Appellant falls in this category.”

However, on the issue of impairment, in Abdul-Razzak, Sir Stephen Silber addressed the correct approach to fitness to practise at [63] in the following terms:

“63 There are a number of relevant principles showing how such a finding should be approached, including that:

i)

Impairment is a matter of judgment rather than proof; see Council for the Regulation of Health Care Professionals v. General Medical Council and Biswas [2006] EWHC 464 (Admin) at [40] – [41];

ii)

“However, it is essential, when deciding whether fitness to practise is impaired, not to lose sight of the fundamental considerations emphasised [in Cohen] at paragraph 62, namely the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession” per Cox J in Council for Healthcare Regulatory Excellence v. Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin) [71];

iii)

Insight – the expectation that a doctor will be able to stand back and accept that, with hindsight, he should have behaved differently, and it is expected he will take steps to prevent reoccurrence – is an important factor in a hearing (per Collins J in R (Bevan) v. General Medical Council [2005] EWHC 174 (Admin) at [34] and [39]);

iv)

In relation to impairment, it was rightly a matter of concern that the facts were not admitted until the hearing (per Ouseley J in R (Sharma) v. General Dental Council [2010] EWHC 3184 (Admin); and that

v)

“It must be highly relevant in determining if a doctor's fitness to practice is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated” Cohen v GMC [2008] EWHC 581 Admin at [65] per Silber J.”

(Emphasis added in this judgment)

In Meadows v GMC [2007] QB 462, Sir Anthony Clarke MR (as he then was) stated:

“In short, the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FTP first looks forward not back. However in order to form a view as to the fitness of a person to practise today it is evidence that it will have to take into account of the way in which the person concerned has acted or failed to act in the past.”

This passage was followed by McCombe J (as he then was) in Azzam at [40]. If one looks forward and not back, the public would have been entirely protected as Mr Clarke’s sale of his practice, and retirement, meant he would not be treating anyone at all. One would also have to take into account that the person affected (Mr Clarke) had made a specific decision no longer to be an optometrist. So far as insight is concerned, Mr Clarke plainly accepted that with hindsight he should have acted differently and he had made full admissions from a very early stage. This was expressly stated in his first witness statement. So far as taking steps to prevent reoccurrence is concerned, he was prepared to take, and had in fact taken, concrete steps to ensure that reoccurrence by him simply could not occur at all, as he had retired.

Discussion and analysis

Here, in my judgment, there were the following notable characteristics present in the way that the Review FTP Committee conducted itself, both in considering impairment and also sanction.

It failed to have proper, or any, regard to the statement made by the first FTP Committee which expressly stated the following in its decision:

“The Committee was mindful that the Registrant has stated that he had retired and no longer intended to practise……The 12-month 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”.

(Emphasis added)

This statement was by Mr Clarke’s professional regulator. It invited him to use the period of suspension to consider his future in the profession, and whether he in fact wanted to retire – in other words, whether his intention to retire (or not to practise) was a settled and final decision. He plainly, on the words of the decision itself, was only required or expected to complete the necessary CET if his decision was to resume practice.

The failure by Mr Clarke to undertake any CET during the period of his suspension was a factor expressly taken into account by the Review FTP Committee against him in its decision. This was directly contrary both to the first decision, and the terms of the Council’s own other statements on CET, including the one below provided in Mr Stern QC’s skeleton argument and taken from the Council’s website:

“Introduction to CET

It is essential that eye care practitioners maintain the up to date skills and knowledge needed to practise safely and effectively throughout their career. To ensure this, we oversee a mandatory CET scheme.

CET is a statutory requirement for all fully-qualified optometrists and dispensing opticians. The CET scheme is a points-based scheme that runs over a three-year cycle from 1 January 2016 to 31 December 2018. All full registrants must earn a minimum number of CET points by the end of each cycle to stay on the registers”.

(Emphasis added)

Mr Clarke simply could not have known that he was required or expected to perform CET, as he neither wanted to continue his career, nor stay on the register, nor could he know that a failure to do so would be a factor relied upon at the review in concluding erasure was appropriate. Indeed, nobody reading the first decision could have known that. The wording of the first decision, properly construed, stated that he was not so required if his decision to retire was one to which he was committed. He was also entitled to place weight on the statement within that decision as permitting him to conclude, after that period of reflection, that he could retire without that bringing with it an inevitable, or highly likely, outcome of the ultimate sanction, namely erasure.

In the case of Cohen v GMC, Silber J stated at [65] that “It must be highly relevant in determining if a doctor's fitness to practice is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated”. The Review FTP Committee entirely ignored that the third factor in that passage, namely likelihood of repetition, was very firmly in favour of Mr Clarke as there was simply no likelihood of repetition as he had sold his practice, had retired and wished to remove himself from the Register. Indeed, likelihood of repetition was not considered by the Review FTP Committee at all.

The second factor in the passage was also potentially in his favour as it could be said that his conduct had been remedied by his deciding no longer to practice. The Review FTP Committee did not weigh this in their consideration either.

The Review FTP Committee constantly elided, and misunderstood, what it described as “informal” undertakings, both in their purpose and their relevance to the points under consideration. There were two stages at which the retirement and the undertakings not to practise again had to be considered. The first stage was whether, as originally intended, the intention no longer to practise and/or the undertakings could be relied upon by Mr Clarke to avoid the disciplinary process following its course towards the making of substantive findings. The second stage was whether, and how, the retirement/undertakings should be taken into account in reaching lawful conclusions in those proceedings. The decision had been taken by the Council not to permit Dr Clarke’s retirement to bring the disciplinary proceedings to an end without substantive findings. That decision was made prior to the first FTP Committee hearing. That does not mean that Mr Clarke’s retirement was not something that required consideration at all – indeed, in considering the position looking forward, and likelihood of repetition, the retirement had to be taken into account by the Review Committee as at least one of the factors, even if it were not determinative. I had before me in the appeal a witness statement from Mr Keith Watts dated 17 February 2017, who is the Head of Case Progression in the Fitness to Practise Directorate at the Council. He explained that a registrant will not be permitted to remove themselves from the Register whilst subject to FTP proceedings. He describes this as “the policy” of the Council, and states clearly that this will not be allowed “to bring an end to those practise proceedings without a decision to that effect by case examiners/the Investigation Committee or the Fitness to Practise Committee (FTPC).” However, he accepts that there are three cases where this has in fact been done and one decision is in the bundle before me, General Optical Council v X dated 8 December 2015. Also, here there was a decision made by the first FTP Committee that Mr Clarke should use his 12 month suspension expressly to consider whether he wished to continue in the profession. The undertakings were provided by him as part of his updating the FTP Committee on this precise point.

Given the existence of these other decisions by the Council, Mr dos Santos did not argue (nor could he sensibly have done) that a disposal by a FTP Committee taking account of no intention to continue to practise was unlawful or outwith the broad discretion available. The decision in General Optical Council v X dated 8 December 2015 found as follows, in a case where X could no longer practise:

“The Committee has considered whether a continued order is necessary for the protection of the public or is in the public interest, in the context of this individual case. The Committee finds that in all the circumstances no useful purpose would be served by continuing the order in its present or an amended form and that such would be disproportionate as any risk posed by the Registrant is extremely minimal.”

This consideration by that Committee in that case shows that, sensibly, the risk posed by a registrant going forward was something that was taken into account. Indeed, on my analysis of the authorities above, the risk posed to the public going forward is something that must be taken into account. In order to do so, this consideration of risk cannot ignore the fact of that person’s retirement.

The first FTP Committee had decided that erasure for the matter committed by Mr Clarke would have been a disproportionate sanction. It is difficult to argue with this; Mr Stern QC relies upon it, and the Council do not resile from that conclusion at the time it was made. Whether I agree with that or not does not matter, given the way the court approaches appeals of this type, and given there was no appeal from that decision. For what it is worth, I do agree. However, nothing happened between the two hearings other than Mr Clarke continuing to hold the view (or affirming his decision) that he had retired, would no longer practise as an optometrist, and wished entirely to remove himself from the profession. He also offered undertakings to this effect. It is a substantial – and in my judgment wholly incorrect - leap in analysis to conclude that what was disproportionate in July 2014 had become proportionate by June 2015, simply because Mr Clarke had done what he had told the Council he wished to do, namely retire; and having been asked to reflect upon this decision by the first FTP Committee, merely confirmed that he wished to stay retired. However, this led to a conclusion by the Review FTP Committee that the only way the public could be protected was by his erasure from the Register. Mr dos Santos valiantly attempted to argue that the passage of time during the suspension meant that Mr Clarke was a greater potential danger to the public in 2016 than he was in 2015. That is not only circular as an argument, but in my judgment is entirely wrong. He had no intention of ever practising again, nor did he have the means to do so, not because of the suspension but because of the other steps he had taken which need not be restated. Mr dos Santos also argued that Mr Clarke could have shown greater insight into his failures before the Review FTP Committee. I do not accept that either. It is difficult to see how it could be said that more insight was required before the Review FTP Committee than before the first FTP Committee. Further, Mr Clarke had shown a considerable degree of insight into this matter. It may be that what this really meant was Mr Clarke should have attended the hearing. However, given he had instructed counsel and been effectively invited by the first FTP Committee to reflect, and confirm whether he wanted to retire, his non-attendance should not have been held against him in the particular circumstances of this case.

These notable characteristics should not have been present. I consider that each of these factors I have identified above in paragraphs 30 to 36 are serious irregularities individually. They can be categorized both as serious procedural irregularities, and/or irregularities in the proceedings (failing to take into account directly relevant matters). Taken together, they constitute the foundation for the whole decision - and the decision itself – by the Review FTP Committee being, in my judgment, plainly and obviously wrong. In arriving at that conclusion, I do not consider that I am engaged in impermissible interference with the exercise of professional judgement by the Review FTP Committee. I find that the Review FTP Committee failed properly to consider all the principles, set down most conveniently in Abdul-Razzak, that they were duty bound to consider. Had they properly considered those principles, they would have concluded that the likelihood of repetition was very close to zero.

The statement in that part of the Review FTP Committee’s decision quoted in paragraph 17 of this judgment that the Council’s “statutory framework” did not enable the Committee to accept undertakings is a reference to the following matter. Some professional bodies, such as the General Medical Council (“the GMC”) which governs the medical profession, have within their rules a specific, articulated procedure whereby in some circumstances a registrant may agree to removal from the register. This is provided for in regulations, and those for the GMC are the General Medical Council (Voluntary Erasure and Restoration following Voluntary Erasure) Regulations 2004 and the General Medical Council (Voluntary Erasure and Restoration following Voluntary Erasure) (Amendment) Regulations 2009. The Council has no equivalent rules. However, the Review FTP Committee appear to have interpreted this difference in the different professions’ regulations as meaning that the undertakings, and the retirement of Mr Clarke, were of no relevance and therefore these factors should not be considered at all. In my judgment, this is incorrect as a matter of law as, in properly considering “risk to the public” the authorities make clear that the likelihood of repetition is a specific consideration.

The Review FTP Committee was constituted of three lay members, and two optometrists. They did however also have the benefit of a Legal Adviser, and I have the transcript of those proceedings before me. The Legal Adviser gave them careful and considered advice. He drew their attention to the four tenets set out in Dame Janet Smith’s Fifth Shipman Report. He drew their attention to the fact that there was no reference in the first FTP Committee’s findings to a breach of a fundamental tenet of the profession by Mr Clarke. He drew attention to the fact that the first FTP Committee had made an express finding that erasure would be disproportionate. He drew attention to the fact that the undertakings provided bolstered the witness statement of Mr Clarke. He described this as Mr Clarke “going the extra mile” in terms of his genuine intentions. He told them that they could do nothing at one end of the scale of the possible options, and he also reminded them that they must act proportionately.

Notwithstanding this careful and considered advice from the Legal Adviser, the Review FTP Committee issued the sanction of erasure and quoted the following, inter alia, immediately prior to the conclusion of their determination:

“Erasure is also ‘likely to be appropriate when the behaviour is fundamentally incompatible with being a registered professional and involves….persistent lack of insight into seriousness of actions or consequences”.”

Behaviour by Mr Clarke alleged to be fundamentally incompatible with being a registered professional was simply no part of the case advanced against him by the Council, and certainly no part of the findings made by the first FTP Committee. Given it was no part of the case against him, he could not be said to have been given any opportunity of meeting such a case against him. This constitutes a free-standing ground upon which this appeal should succeed alone, regardless of my findings on the other factors above. Application of the test of his behaviour being incompatible with being a registered professional was unfair and of itself leads to the conclusion that the decision by the Review FTP Committee was plainly wrong.

Turning to proportionality of the sanction that was imposed, the Council’s Indicative Sanctions Guidance states (in the section headed “Available Sanctions”) the following.

“Proportionality.

The sanction should be proportionate. This means that the sanction must be appropriate bearing in mind the interests of the public and the interests of the Registrant and the seriousness of the allegations found proven against the Registrant. Whatever sanction you decide on should be reached after considering all of the facts of the particular case.”

It is made clear in this guidance that erasure is appropriate where “this is the only means of protecting patients and/or maintaining public confidence in the optical profession.”

In my judgment, it was wholly disproportionate to order erasure in the case of Mr Clarke. It was not the only means of protecting patients and/or maintaining public confidence in the profession. However, given my findings above, it is not necessary to go further. Suffice it to say, that even if my conclusions were otherwise concerning the decision on impairment, the Review FTP Committee plainly failed to consider properly (or at all) “all of the facts of the particular case” at the sanction stage, in particular the decision to retire, the sale of the practice and the proffering of undertakings.

Conclusion

This judgment should not be interpreted as authority for the proposition that someone in the position of Mr Clarke can avoid disciplinary proceedings running their proper course by taking a decision to retire. The central point on this appeal is that, in assessing risk to the public, the FTP Committee must take account of all material and relevant factors. It was a highly material and relevant factor in undertaking this exercise in this case that the registrant, Mr Clarke, had in fact retired and sold his practice. When his retirement was accompanied, as it was here, by signed undertakings in the comprehensive form adopted in this case, this does not lessen the materiality of retirement as a factor.

After distributing the draft judgment to the parties, both counsel submitted lists of corrections in the usual way. Mr dos Santos also submitted a Note to the court, which amongst other things stated that the effect of the judgment “may lead to more than one conclusion as to findings as to impairment”. That submission was a surprising one, given that the sentence relied upon by Mr dos Santos in the draft judgment was sandwiched between two passages that stated the following (in what is now paragraph 37):

“Taken together, they constitute the foundation for the whole decision - and the decision itself – by the Review FTP Committee being, in my judgment, plainly and obviously wrong……. I find that the Review FTP Committee failed properly to consider all the principles, set down most conveniently in Abdul-Razzak, that they were duty bound to consider. Had they properly considered those principles, they would have concluded that the likelihood of repetition was very close to zero.”

Any ambiguity or suggestion that there could be more than one conclusion as to the findings in the draft judgment on impairment should not have arisen in any event given the sentence in the final paragraph (what is now paragraph 48) which stated in the draft judgment (as now) “For present purposes, it is sufficient to state that the appeal of Mr Clarke succeeds against the decision of the Review FTP Committee finding impairment and also erasing him from the Register.”

However, I have now amended the relevant sentence in paragraph 37 (namely the one that appears to have led to some surprising confusion on the part of the Council) in this judgment so that there can be no possible ambiguity about the validity – or rather more accurately, the invalidity – of the Review FTP Committee’s findings as to impairment. In my judgment, those findings were clearly wrong and this appeal succeeds. That point was made crystal clear in the draft judgment in any event.

The issue still arises as to the correct order to make on the appeal. Section 23G(6) of the Act gives the court the following powers:

I indicated to counsel for the parties at the conclusion of the hearing that I would reserve judgment and would not deal in the draft judgment with the correct method of disposal of the appeal, if any part of it were to succeed. Without knowing the conclusion of the arguments upon appeal, and the extent to which they were to succeed or fail and at which stage (impairment or sanction) it was not possible for the parties to make meaningful submissions on the correct disposal in terms of quashing, remission or an order by the court. For present purposes, it is sufficient to state that the appeal of Mr Clarke succeeds against the decision of the Review FTP Committee finding impairment and also erasing him from the Register. I will hear further submissions on the relevant order and future disposal of the matter. Given Mr Clarke’s intentions – namely to remove himself from the Register and never practise as an optometrist again – it may be that the point is somewhat academic, but any conclusion on that can only properly be made after submissions both by him and the Council.