Authors: Daniel Hardiman-McCartney MCOptom, Clinical Adviser, and Jo Mullin, Director of Policy and Strategy
Date: 4 July 2018
The case of Honey Rose, who was convicted of gross negligence manslaughter in relation to a child’s death, has been on the minds of optometrists since it was first reported a number of years ago. The Court of Appeal has now over-turned the conviction of optometrist Honey Rose for gross negligence manslaughter, the only case of this kind involving an optometrist, and the General Optical Council is still yet to conclude its findings.
In June last year, the Court of Appeal heard Honey Rose’s appeal against her conviction. The appeal concerned the question of whether the judge at the original trial had applied the correct tests in ascertaining whether Honey Rose was guilty of gross negligence manslaughter. In essence, the appeal argued that, although failure to examine the back of the eye was negligent, given the patient’s lack of symptoms it was not foreseeable to a reasonably competent optometrist that failure to examine the back of the child’s eyes would carry an obvious and serious risk of death, and therefore it was not criminally negligent.
In its judgment, the Court of Appeal accepted Honey Rose’s appeal and overturned her conviction:
“…[W]e conclude that, in assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, it is not appropriate to take into account what the defendant would have known but for his or her breach of duty. Were the answer otherwise, this would fundamentally undermine the established legal test of foreseeability in gross negligence manslaughter, which requires proof of a "serious and obvious risk of death" at the time of breach. The implications for medical and other professions would be serious because people would be guilty of gross negligence manslaughter by reason of negligent omissions to carry out routine eye, blood and other tests which in fact would have revealed fatal conditions notwithstanding that the circumstances were such that it was not reasonably foreseeable that failure to carry out such tests would carry an obvious and serious risk of death. For these reasons, this appeal is allowed and the conviction is quashed.” [para 94]
In other words, the Court of Appeal agreed that, in ascertaining whether a practitioner is guilty of gross negligence manslaughter, it is not appropriate to take into account what the practitioner would have known but for their breach of duty of care.
Earlier this year, the Secretary of State for Health asked Professor Sir Norman Williams to carry out a rapid policy review of gross negligence manslaughter in healthcare settings. This was prompted by concerns among healthcare professionals, following the Bawa-Garba case, that errors could result in prosecution for gross negligence manslaughter, even in the face of broader organisation and system failings.
The report was published last month and showed that prosecutions and convictions of healthcare professionals for gross negligence manslaughter are rare; since 2013, 15 healthcare professionals have been prosecuted for gross negligence manslaughter. These prosecutions resulted in six convictions, two of which were subsequently overturned on appeal. It also found that the legal test for the offence was set at an appropriately high level. However, there was anxiety that the test was not applied consistently.
The report made a number of recommendations, including:
- developing an agreed understanding of gross negligence manslaughter that reflects the most recent case law
- improving assurance and consistency in the use of expert witnesses and
- improvements to local investigations into unexpected deaths in healthcare.
The report also looked at the impact of criminal and regulatory investigations on the willingness of healthcare professionals to reflect on their practice. It found that both prosecuting authorities and professional regulators would be unlikely to use a healthcare professional’s reflective material either for a criminal investigation or in considering a registrant’s fitness to practise. The report recommends that those regulators that have a power to require information from registrants when investigating their fitness to practise should have this power removed in respect of reflective material.
Finally, the report looked at the regulation of healthcare professionals and made a number of recommendations for further work to understand inconsistencies in the way that different regulators carry out their fitness to practise functions.
The recommendations in the Williams Report support a learning culture in healthcare, where professionals can raise concerns and reflect on their mistakes. However, patients have a right to trust those taking care of them, and those who are responsible for providing unacceptable standards of healthcare will be held to account. What remains to be seen is whether all the recommendations are indeed implemented, for both the benefit of our patients and optometrists navigating good clinical practice and the law.
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