The General Optical Council v Clarke

Under the Opticians Act 1989, impairment concerns a registrant’s present fitness to practise, not whether the registrant intends to practise. Retirement does not ordinarily show that fitness is unimpaired. A low risk of repetition is relevant where it arises from remediation and safe continuing practice, but not where it arises only because the registrant says that he or she will cease practising.

A disciplinary tribunal may take account of retirement and the absence of continuing education and training when assessing current fitness. Cessation of practice may instead indicate deterioration of professional skills. The statutory question must be kept separate from the distinct question of sanction.

The respondent optometrist admitted repeated failures between 2004 and 2009 to recognise and refer serious visual-field defects in a patient. The Fitness to Practise Committee found misconduct and impairment, initially imposed a 12-month suspension, and at review ordered erasure.

Fraser J, in [2017] EWHC 521 (Admin), quashed the review decision and substituted a finding of no impairment. He considered that retirement meant there was virtually no likelihood of repetition and that the committee had failed to take that into account.

The General Optical Council appealed. The parties agreed that the respondent could withdraw from the register and that no further sanction would be sought. The remaining issue was whether the judge was right to substitute a finding of no impairment.

1. Appeal allowed to the extent stated. The court reinstated the Fitness to Practise Committee’s finding of impairment. It did not restore the erasure order because the parties had agreed that the respondent could withdraw from the register and that no further action on sanction would be taken.

2. The statutory language was decisive. Under the Opticians Act 1989, the inquiry is whether the optometrist’s fitness to practise is impaired. It asks whether the person is professionally competent and fit to practise, rather than whether he or she currently intends to do so. A person could not establish fitness for registration merely by saying that he or she had no intention of practising.

3. The judge below had wrongly treated retirement as making repetition very unlikely in a way that favoured a finding of no impairment. The factors identified in Cohen v General Medical Council, [2008] EWHC 581 (Admin), may be relevant where a practitioner will continue to practise. They did not assist where repetition was improbable only because the optometrist proposed to cease practice. Indeed, prolonged cessation of practice and a failure to undertake continuing education and training could indicate diminished skills.

4. There was material on which the committee could find that the respondent remained impaired. It was entitled to regard retirement as of little or no favourable consequence at the impairment stage, and to treat the absence of continuing education and training as relevant. Fraser J therefore erred in substituting a finding of no impairment.

• Court of Appeal (Civil Division): Allowed the General Optical Council’s appeal as to impairment, reinstating the Fitness to Practise Committee’s impairment finding. By agreement, permitted withdrawal from the register and ordered no further action on sanction.

• High Court, Administrative Court: Fraser J, [2017] EWHC 521 (Admin), quashed the Fitness to Practise Committee’s review decision and substituted a finding of no impairment.

• Fitness to Practise Committee: At the 2016 review hearing, found continuing impairment and directed erasure following an earlier 12-month suspension.