Clarke v General Optical Council

In fitness-to-practise proceedings, a registrant’s retirement does not prevent the regulator from completing disciplinary proceedings. It is, however, a highly material factor when assessing present impairment, risk of repetition and the proportionality of sanction. The tribunal must assess risk prospectively and consider whether retirement, sale of the practice and comprehensive undertakings make repetition unlikely.

A review tribunal must also take account of the earlier tribunal’s findings and directions, including an earlier conclusion that erasure was disproportionate. It is procedurally unfair and plainly wrong to rely on a failure to undertake continuing education where the earlier decision indicated that such education was required only if the registrant intended to resume practice. Erasure is disproportionate where it is not necessary to protect the public or maintain confidence in the profession.

Mr Clarke appealed against a decision of the General Optical Council’s Review Fitness to Practise Committee. The Committee found that his fitness to practise remained impaired and erased him from the register.

The underlying proceedings concerned failures, between 2004 and 2009, to refer a patient for further investigation of visual-field defects. The first Fitness to Practise Committee found misconduct and impairment, but imposed a 12-month suspension and expressly considered erasure disproportionate. During and after that suspension Mr Clarke sold his practice, retired, and gave undertakings that he would not practise again.

The central issues were whether the Review Committee had lawfully assessed impairment and whether erasure was necessary and proportionate in light of his retirement, the sale of his practice and his undertakings.

1. Appeal allowed. The Review Fitness to Practise Committee’s findings of impairment and erasure were plainly wrong and arose from serious procedural irregularities.
2. The appeal was a rehearing under CPR Part 52.11(3), but the court had to respect the specialist tribunal’s expertise. The court could intervene where the decision was wrong or unjust because of serious procedural irregularity, while avoiding impermissible resentencing or substitution of its own merits judgment.
3. Fitness to practise is assessed prospectively. The purpose of proceedings is public protection and maintenance of professional standards, rather than punishment. Following Meadows v GMC [2007] QB 462, past conduct remains relevant because it assists assessment of present fitness. The likelihood of repetition was therefore critical.
4. The Review Committee failed to consider that Mr Clarke had sold his practice, retired, intended never to practise again and offered comprehensive undertakings. Those facts made the likelihood of repetition very close to zero. Retirement could not terminate disciplinary proceedings automatically, but it had to be taken into account when assessing risk and sanction. The approach in General Optical Council v X was a relevant illustration of considering future risk in those circumstances.
5. The Review Committee wrongly relied on the absence of continuing education. The first Committee had indicated that further education was relevant if Mr Clarke intended to resume practice. It also failed to give proper weight to the earlier conclusion that erasure was disproportionate on the same underlying facts.
6. The Committee further relied on behaviour said to be fundamentally incompatible with professional registration, although that was not part of the case advanced or the findings made. Applying that basis was unfair. Erasure was not the only means of protecting patients or maintaining public confidence and was wholly disproportionate.
7. The court allowed the appeal against both impairment and erasure. Further submissions were required on whether the decision should be quashed, remitted or replaced under section 23G(6) of the Opticians Act 1989.

The judgment concerned an appeal to the Administrative Court from the Review Fitness to Practise Committee of the General Optical Council. The Committee’s decision finding impairment and directing erasure was held plainly wrong. The court reserved the final form of disposal pending further submissions under section 23G(6) of the Opticians Act 1989.