The Court of Appeal has now given judgment in the case of the General Optical Council v Matthew Clarke [2018] EWCA Civ 1463, in which Clyde & Co (Rosie Jewers) acted for the Appellants.
Background
The background to the case was that Mr Clarke, a registered optometrist, had examined a patient on several occasions between 2004 and 2009 but had failed to refer him for further treatment despite findings which ought to have caused serious concern. The patient sadly lost his sight as a result.
Fitness to practise?
The case was brought before the Fitness to Practise Committee of the General Optical Council, and on 23 July 2015 they made a decision to impose a 12-month suspension order, to be reviewed prior to its expiry. Mr Clarke had by this time retired, and had stated that he had no intention of returning to practice as an optometrist. At the review hearing, the Committee determined that his fitness to practise remained impaired, partly because he had not undertaken any remediation due to his retirement, and that he should be erased from the GOC register.
Mr Clarke appealed successfully to the High Court, and on 16 March 2017 Fraser J directed that the Review Committee's decision should be quashed and a finding of no impairment should be substituted. He considered that Mr Clarke's retirement had effectively removed any future risk, as he was no longer practising, and that he had shown insight by making full admissions, so his fitness to practise could not therefore said to be impaired. The GOC appealed against this decision because there was a concern that it may lead to a blurring of the distinction between matters to be taken into account for the purposes of impairment and sanction, which must be determined separately.
Court of Appeal
The Court, comprising Newey LJ and Arden LJ, allowed the appeal to the extent that it was pursued by the GOC (a degree of agreement between the parties had been reached prior to the hearing), quashing Fraser J's decision on impairment of fitness to practise and providing some helpful analysis in relation to how this should be approached in the context of a Registrant who no longer wishes to practise. In a clear and succinct leading judgment given by Newey LJ, the question of whether a Registrant's intention to practise in the future should be taken into account when deciding whether their fitness to practise is impaired was definitively answered in the negative.
It is frequently argued on behalf of Registrants in such circumstances that the fact that they are not intending to return to practise in their profession, for whatever reason, should weigh in favour of the risk of repetition of their misconduct being reduced or eliminated; indeed, that was the approach adopted by Fraser J.
For practical purposes this may be the case for any given individual, but for regulators is generally seen as inadequate to satisfy their public protection role, because if the Registrant is found not to be impaired on this basis, they are technically free to return to unrestricted practice at a later date if they change their mind.
The application of Cohen to this situation was considered, and a distinction drawn between conduct being 'highly unlikely to be repeated' in ongoing or future practice and the risk of repetition simply being obviated because the clinician does not intend to return to practice. However, more fundamentally than this, the Court in Clarke emphasised that the statutory language under which all healthcare regulatory tribunals operate refers only to fitness to practise, not intention, which is a separate consideration. Newey LJ's admirably pithy phrase "[a] person could hardly claim to be a 'fit person to practise' ... because he had no intention of doing so" really sums up the position. Because fitness, not intention, is the language employed by the statute, that and that alone is the appropriate focus for the decision on impairment. Intention may, of course, still play a part in the decision on sanction, but that only comes into play once the decision on impairment has been made.
Impact
This decision has universal application in the healthcare regulatory context, and will provide helpful clarification for Tribunals and Panels considering the issue of impairment where faced with a Registrant who is no longer practising. It will also reduce the potential avenues of appeal, as it will assist panels to ensure that they are applying the appropriate considerations at each stage of their determination when this issue arises.
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