GOC decision quashed

A retired Coventry optometrist has successfully appealed against a decision by the optical regulator erasing him from the register

24 Mar 2017 by Selina Powell

An optometrist has successfully appealed against a decision by the General Optical Council (GOC) to remove him from its register.

Retired Coventry optometrist Mathew Clarke challenged the findings of a GOC fitness to practise committee (FTP) in the High Court.

Mr Clarke was suspended for 18-months by a FTP committee in 2015 after a delayed diagnosis of a patient’s pituitary tumour.

At a review hearing in June 2016, a second FTP committee made the decision to erase Mr Clarke from the register after finding his fitness to practise was impaired.

But Mr Clarke appealed the decision, arguing that the finding of impairment was wrong and the sanction of erasure was unnecessary, disproportionate and unfair.

He also contended that the reasoning of the second FTP decision was inadequate.

A High Court judgment found in favour of Mr Clarke, determining that the second FTP committee failed to take into account all relevant factors in its decision.

Mr Clarke’s retirement, the sale of his business, and undertaking to no longer practise following his suspension were not taken into account in the second FTP decision. However, the High Court considered these circumstances to be relevant to the decision.

“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 making a decision to retire,” the decision emphasised.

“The central point on this appeal is that in assessing risk to the public, the FTP committee must take into account all of the 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,” the decision stated.

The High Court also found that the order for erasure was made despite the earlier FTP decision stating that this sanction would be disproportionate.

The fact that Mr Clarke had not completed CET following his suspension was taken into account in the decision to erase him from the register, despite the suspension decision only requiring him to complete CET if he decided to continue in practice.

“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,” the High Court decision said.

The High Court quashed the decision of the second FTP committee to erase Mr Clarke from the register, and substituted a finding of no impairment.

The Association of Optometrists’ legal and regulatory services director, Gerda Goldinger, told OT that erasure from the register was the most serious of sanctions.

“We welcome this High Court ruling which we believe to be the right one. Our member Mathew Clarke admitted errors and was very clear that if the same case was presented to him again, he would have acted very differently,” she emphasised.

The decision highlighted the “urgent need” for the GOC to review its procedures, particularly in relation to accepting registrant undertakings not to practise in certain cases, Ms Goldinger added.

“Other healthcare regulators have such mechanisms in place which work effectively in similar circumstances,” she concluded.

The GOC was approached for comment on the case, but did not wish to make a statement.

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