Threlfall v General Optical Council

An optician owes a duty to exercise the reasonable care and skill of a reasonably competent optician. A referral to hospital does not excuse a failure to make clinically necessary investigations where those investigations are needed to provide the receiving clinician with sufficient information to assess urgency.

Serious professional misconduct requires more than negligence giving rise to civil liability. In an isolated incident, the tribunal must identify facts showing misconduct of the requisite seriousness. If its reasons leave crucial factual issues unresolved, an appellate court must not assume adverse findings that were not made.

A professional disciplinary committee must give adequate reasons in time to permit an effective appeal, although late reasons may exceptionally be accepted with caution.

A registered ophthalmic optician appealed under Opticians Act 1989, section 23, against the General Optical Council Disciplinary Committee’s finding of serious professional misconduct and its £500 penalty order.

The allegation concerned an examination of a patient who presented with symptoms potentially indicating retinal detachment. The Committee found that the optician had not dilated the pupil, had inadequately examined the fundus, had not performed a visual-field test, and had kept inadequate records.

The appeal raised the optician’s professional duty when referring a patient to hospital, the adequacy and timing of the Committee’s reasons, the reception of fresh evidence, and whether the established defaults amounted to serious professional misconduct.

1. Appeal allowed. The finding of serious professional misconduct and the £500 penalty order were quashed.

2. The appeal was a rehearing in the sense of a review on the record. The court should respect the Disciplinary Committee’s advantages in assessing live evidence and professional standards, but must itself identify an error of fact, law or judgment. The court properly refused the optician’s proposed witness statement. It was not fresh evidence, would improve evidence already given below, and could not be tested by cross-examination.

3. A Disciplinary Committee has a common-law duty to give adequate reasons for a finding of serious professional misconduct, in time for an effective appeal under the Opticians Act 1989. Article 6 also required timely adequate reasons where proceedings could result in suspension or disqualification. The Committee’s late reasons were accepted in this case because no prejudice or inadequacy challenge was pursued, but the court warned that post-appeal reasons would not routinely be accepted.

4. Regulation 3 of the Sight Testing (Examination and Prescription) (No. 2) Regulations 1989 was not a complete statement of an optician’s duty. Whether or not it applied to this consultation, the optician had to use reasonable care and skill. The referral duty did not require a diagnosis, but the optician had to obtain sufficient information to make a referral that enabled the hospital to assess urgency.

5. The established omissions in examination and record-keeping were capable of amounting to negligence. However, serious professional misconduct required more than ordinary negligence, particularly in an isolated incident. The Committee’s reasons did not disclose whether it had found the more serious factual scenario: that the referral was made only at the patient’s insistence and without disclosure of the risk of retinal detachment. The court construed the unclear reasons in the optician’s favour. On the facts properly treated as found, the omissions did not justify the disciplinary finding.

6. The Committee had also relied on an uncharged failure to take an adequate history. That flaw reinforced the conclusion that its finding of serious professional misconduct could not stand.

• High Court (Administrative Court): The appeal was allowed and the Disciplinary Committee’s finding of serious professional misconduct and penalty order were quashed: [2004] EWHC 2683 (Admin).
• General Optical Council Disciplinary Committee: On 21 May 2004, it found the appellant guilty of serious professional misconduct and imposed a £500 penalty order.