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Cite as: [2017] 3 WLR 1461, [2017] WLR(D) 537, [2018] QB 328, [2017] EWCA Crim 1168

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		Neutral Citation Number: [2017] EWCA Crim 1168
		Case No: 201603740 C4

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM IPSWICH CROWN COURT
MR JUSTICE STUART-SMITH
T20157159

Royal Courts of Justice
Strand, London, WC2A 2LL

31/07/2017

B e f o r e :

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE HADDON-CAVE
and
HIS HONOUR JUDGE INMAN QC
(Sitting as a judge of the Court of Appeal Criminal Division)
____________________

Between:

	HONEY MARIA ROSE	Appellant
	- and -
	REGINA	Respondent

____________________

Ian Stern QC and Sandesh Singh (instructed by Stokoe Partnership, London)
for the Appellant
Jonathan Rees QC and Karen Robinson (instructed by Crown Prosecution Service)
for the Respondent
Hearing date: 13th June 2017
____________________

HTML VERSION OF JUDGMENT
____________________

Sir Brian Leveson P :

The question raised by this case can be simply stated. In assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, is it appropriate to take into account what a reasonable person in the position of the defendant would have known but for his or her breach of duty?

On 15th July 2016, Honey Maria Rose (now aged 35) was convicted in the Crown Court at Ipswich before Stuart-Smith J and a jury of manslaughter by gross negligence. She was sentenced, on 26th August 2016, by the same judge to a term of 2 years' imprisonment, suspended for 2 years, with a supervision order and unpaid work requirement of 200 hours, to be completed by 25th August 2017.

Ms Rose now appeals against conviction with leave of the single judge. On her behalf, it is submitted by her trial counsel, Ian Stern Q.C. and Sandesh Singh that the Judge was wrong to reject the defence application that there was no case to answer and, for the same reasons, erred in his directions to the Jury as to the elements of gross negligence manslaughter. The Crown (represented by Jonathan Rees Q.C. and Karen Robinson who also appeared below) support the approach taken in the Crown Court. We are grateful to counsel for their able assistance in this appeal.

The Facts

Ms Rose is a registered optometrist. She was first registered with the College of Optometrists in the UK on 13th February 2008. She trained abroad and passed her Non-EEA test for optometrists set by the General Optical Council in June 2010. In 2012, she worked part time at Boots Opticians in Upper Brook Street in Ipswich (previously operated by Dolland & Aitchison) as a locum optometrist.

On 15th February 2012, Joanne Barker took her two children, Vincent and Amber, to Boots Opticians in Ipswich for routine eye tests and examinations. Vincent (known to his family as "Vinnie") was aged 7 years 9 months and Amber was aged 4 years 11 months.

On that date, Ms Rose was on duty. She carried out the sight test on Vincent after retinal images had first been taken by an optical consultant/assistant. Following Vincent's examination, Ms Rose recorded no issues of concern and said that Vincent did not need glasses. The clinical record card which she filled out recorded: "Reasons for visit: routine check / had few H/ache over Xmas 2011, but now all gone". She specified the next appointment for Vincent should be in 12 months. Vincent's mother and sister also had sight tests and eye examinations carried out by Ms Rose. The three appointments lasted from 10:25 a.m. to 12:05 p.m.

Five months later, on 13th July 2012 whilst at school, Vincent was taken ill and vomited. The school rang his mother at about 2:50 p.m. and she collected him and took him home. His condition deteriorated during the afternoon. Around 8 p.m. he was discovered to be cold to the touch and plainly very ill indeed. The emergency services were called and paramedics attended. Efforts were made to resuscitate Vincent and he was rushed to Ipswich Hospital. By the time he arrived at Ipswich Hospital, however, Vincent was unfortunately in cardiac arrest. Every effort was made by the ambulance staff, doctors and nurses to resuscitate him, but after 40 minutes there was still no cardiac output. Following consultation with his parents, it was decided that resuscitation would be stopped and Vincent was formally pronounced dead at 9:27 p.m. by the on-call paediatrician, Mr Desai. Vincent had previously been a healthy, thriving and active boy, who had never before attended hospital.

When a child dies suddenly and unexpectedly, the SUDIC (Sudden Unexplained Death in Infancy & Child) protocol is implemented.

Medical investigation

Vincent's sudden and unexplained death was investigated by a consultant paediatric pathologist, Dr Marian Malone. On 20th July 2012, Dr Malone carried out a post mortem examination on Vincent at Great Ormond Street Hospital. On 9th August 2012, an examination of the brain was carried out by an honorary consultant in neuropathology, Dr Thomas Jacques, in the presence of Dr Malone. Dr Malone's findings were reviewed by another a consultant paediatric pathologist at Great Ormond Street Hospital. All three experts agreed that the cause of Vincent's sudden and premature death was acute hydrocephalus (i.e. acute build-up of cerebrospinal fluid within the normal ventricles of the brain because its normal outlet had been blocked); this was secondary to gliosis (a process leading to scarring of the nervous system) which caused gliotic obstruction of the rostral part of the fourth ventricle of the brain. It was agreed that the obstruction in Vincent's brain had been a longstanding chronic problem; but the case was unusual in that Vincent had not presented with many associated symptoms of hydrocephalus, such as headaches and vomiting.

Hydrocephalus requires early surgical intervention to drain the fluid and to prevent the fluid from accumulating, either by creating a bypass or inserting a shunt. Dr Helen Fernandes, a specialist neurosurgeon based in Cambridge and medical advisor to the Association of Spina Bifida and Hydrocephalus, prepared a report on the case. She explained that hydrocephalus was a treatable condition but required surgical intervention. In her opinion, Vincent's condition was treatable up until the point of his acute deterioration and demise on 13th July 2012. Thus, following his eye examination on 15th February 2016, there was no reason why Vincent's condition could not have been successfully treated at any time up until the fatal build-up of fluid on 13th July 2012. Her report was not disputed.

It was common ground that an optometrist has a statutory duty of care to examine the internal eye structure as part of a routine eye examination (see further below). The purpose of the examination is to detect signs of abnormality or disease, including life threatening problems evident from the optic nerve. An examination of the internal eye structure and back of the eye (i.e. bio-microscopy) is normally carried out either with the use of an ophthalmoscope or a 'slit lamp'. An ophthalmoscope creates a 2D image. A 'slit lamp' is used in conjunction with a microscope which allows the optometrist to view the internal eye structure in 3D. Both instruments allow the optometrist to obtain a very good view of the optic disc, which is circular in a healthy person. Another means by which the condition of the eye can be checked is to review 'fundus' photographs which are in 2D, i.e. images taken by a retinal (fundus) camera.

It was agreed between the experts that a competent optometrist would know the significance of papilloedema (swelling of the optic nerve) and would immediately refer the case on to others. If an optometrist was unable to view the back of the eye, it would always be noted. It was the responsibility of the optometrist to view the correct retinal images and, in the absence of a full examination, the patient should also have been asked to return for a further eye examination within a much shorter period.

Fundus retinal camera

The Boots store in Ipswich had a fundus camera, which allowed retinal images to be captured of the eye. This image is limited to the central 45 degrees of the eye. The taking of retinal images was free for children and images were taken by an optical consultant/assistant prior to a sight test by an optometrist. On the day of his sight test, the records show that retinal images were taken of both Vincent's eyes using that camera. His right eye was photographed at 10:05:34 a.m. and his left eye at 10:06:01 a.m. The retinal images were stored in the Boots computer system. After the images were taken they are then viewed through software called "Topcon IMAGEnet". That software does not record when images are accessed.

Vincent's medical history

Vincent had had three eye examinations in his young life. The first examination was on 30th January 2010 when he was aged 5. The second was on 5th February 2011 when he was aged 6. The third was the examination on 15th February 2012 when he was nearly 8 years old carried out by Ms Rose. Both the second and third eye examination took place at Boots Opticians in Ipswich.

The records for the Boots examination were obtained and sent for review by Dr Vaileios Kostakis, a consultant paediatric ophthalmologist at Ipswich NHS Trust. Dr Kostakis reviewed a disc containing the fundus photographs and the handwritten notes made at the time of the examinations. He said that the 2011 examination of Vincent's eyes gave no cause for immediate concern and showed Vincent's eyes were healthy and all parameters were within normal limits. However, Dr Kostakis found that the retinal images taken of the back of Vincent's eyes in February 2012 were remarkably different from those taken in 2011 and showed significant congestion of the veins and swelling of the optic nerve. In his opinion, the second set of fundus photographs taken in February 2012 were abnormal and would cause concern and have given rise to urgent referral to hospital by any competent optometrist. Dr Kostakis observed that Vincent's case was very unusual due to the lack of symptoms displayed. In a patient suffering from hydrocephalus, he would expect them to present with many headaches and vomiting. This was not the case for Vincent.

Ms Rose's Interview

On 7th March 2013, Honey Rose told the police that most days were always busy at Boots. In relation to Vincent, after checking the records, she confirmed that she had initially used an ophthalmoscope but after Vincent showed signs of photophobia and poor fixation, she then relied on the fundus photograph. She commented that most of the time the retinal cameras were not working and the branch did not pay any attention to her complaints about that. Her findings were normal in relation to Vincent and showed no cause for concern. She said she would have checked Vincent's fundus photographs.

When shown the retinal images for Vincent, she said she had never seen that image before and that even an unqualified person could tell that the optical disc was not normal in Vincent's case and the optical consultant should have flagged the photographs. She concluded that when she had carried out the eye examination in 2012 she must have been looking at the retinal images from his 2011 examination.

The Trial

The prosecution case was that Ms Rose was guilty of gross negligence manslaughter by (i) failing, without good reason, properly to examine the back of Vincent's eyes during his sight test on 15th February 2012 as she was required to do by reason of her statutory duty of care, and (ii) failing to refer him for urgent medical treatment as a result of the significant findings shown on the retinal images which she should have viewed. Had she not breached her statutory duty of care to examine his eyes properly and had she referred him, Vincent could have been successfully treated in hospital and would not have died. She was guilty of gross negligence manslaughter by omission and it was reasonably foreseeable that her breach of duty at the time the eye examination was concluded would have resulted in a serious and obvious risk of death to the reasonably prudent optometrist. It was not alleged the headaches that it was noted that Vincent had previously complained of at Christmas had any bearing on the matter.

The defence case was that Ms Rose did not breach her duty of care. She had been unable to examine Vincent's internal eye structure because Vincent was uncooperative (photophobic) when she tried to use the ophthalmoscope to examine him and that examination required her to be extremely close to the child, which he may have found uncomfortable. She also gave evidence in her own defence that, with regard to the fundus photographs taken just before the examination and viewed by her, it was likely she was shown the fundus photographs of another patient by mistake. There had been problems with the computer system and retrieval of retinal images about which she had repeatedly complained to the store.

Anonymous patient records were obtained and showed that, as a matter of medical practice, Ms Rose always used the ophthalmoscope and so there was no reason not to accept that she was telling the truth about the problems with her examination of Vincent, although she recognised she had not formally recorded those problems.

Ms Rose relied on her good character, including evidence of her positive character. She also had no findings against her by the General Optical Council. She also relied on the delay in prosecuting the case as being prejudicial to her defence.

Factual evidence

Ms Cocker, an optical consultant, gave evidence at the trial that she worked at the Boots store and there were sometimes problems with the retinal camera, but that it was easy to use and images were stored under the patient's name or a unique identification number. They would be viewed by her after the image was taken and then viewed digitally by the optometrist during the eye examination. The written records showed that the witness might not herself have taken the retinal images for Vincent that day. She accepted that she was not an IT expert and she would not have known if the screen in the optometrist's room had a problem.

On the day in question, in Vincent's case, both the retinal camera and an ophthalmoscope were recorded to have been used for the purposes of his eye examination. No issues were recorded as to any problem with the retinal camera or the computer system at Boots which would have interfered with the retrieval of the images.

Vincent's mother, Mrs Barker, gave evidence that she had made an appointment for Vincent to have an eye test because he had experienced some headaches over the Christmas period and she thought he might need glasses. Amber had also reached the age where she could have an eye test. When they arrived at Boots, the fact that retinal images would be taken was clearly advertised. She was present when both children had the images taken. They had both behaved perfectly. As far as she was concerned, she had thought that Vincent had had a full eye examination and had set a good example to his younger sister Amber, which is why he was examined first. Ms Rose did not mention photophobia or any problem at all with light and Vincent had never reacted to flash photography before. Mrs Barker confirmed that the optometrist had used an ophthalmoscope to examine Vincent's eyes. Mrs Barker agreed that Vincent would have been uncomfortable with the very short distance, that she would have been away from him during the ophthalmoscopy and that she saw her very close to Vincent during the examination.

On her own behalf, Ms Rose gave evidence that she had some slight memory of what had happened during Vincent's eye examination on 15th February 2012. She could not recall who had put the retinal images on the screen or who she complained to about the equipment. She was not responsible for taking the retinal images and no one flagged up to her that there was a problem showing on Vincent's images. On the day in question, she could not view the images on her computer in the examination room and so went to the pre-screening room to look at the photographs.

In the case of Vincent and Amber, a colleague had put the images on the capture screen in the pre-screening room and they would each show the name of the patient underneath. She would take manual notes and then destroy these once they were written up on the system.

Although in police interview she stated that she thought she had been shown the images for Vincent taken in 2011, at trial she said she thought that could not be right and that she had been shown the images for the wrong patient entirely. She explained the stages of the eye examination she carried out on Vincent and the problems she encountered when trying to examine his optical discs. She said she had had to abandon the ophthalmoscopy because of Vincent's poor fixation and slight photophobia and she relied on the retinal images notes she had already created. She agreed that her notes were misleading, but there were no reported signs or symptoms, and she thought it likely that Vincent may not be photophobic in his next examination. She accepted that a failure to examine the back of the eye without a good reason was a breach of her duty of care to the patient.

Expert evidence

Mr Richard Booth, an advisor to the NHS on optometric matters and best practice gave expert evidence at the trial for the prosecution that if Ms Rose had chosen not to carry out ophthalmoscopy and if there was no justification for that choice then it would be a "fairly massive failure" of her duty of care. He said that if there was a good reason for Ms Rose not being able to carry out ophthalmoscopy but she then chose not to look at a retinal image for no good reason that would be a "fairly massive breach" of her duty of care. When asked how far below the standard of a reasonably competent optometrist those omissions would fall, he said that they would be "rock bottom".

Professor Bruce Evans gave expert evidence on behalf of the defence. He said that some patients found the ophthalmoscope uncomfortable because of the light intensity and this was particularly true of a child, although he agreed that using retinoscopy in the examination also involved shining a light at the front of the eye and that Ms Rose had experienced no problem doing that. However, a retinoscope had a smaller beam than an ophthalmoscope and many patients could tolerate a retinoscope and not an ophthalmoscope. He had no experience of patients the other way around. He said that he would always make a note though if he was unable to view the back of the eye. He agreed that Vincent's notes were potentially misleading, as they suggested that Ms Rose had viewed the periphery when she had not.

Professor Evans suggested that the Ms Rose's reliance on the retinal photographs may be acceptable in exceptional circumstances, provided there are no other symptoms. This is because the retinal camera has a limited peripheral field of 45 degrees. However, he said that a failure to examine with an ophthalmoscope should be recorded and the patient should be recalled for a re-test within a much shorter period, a maximum of six months.

The Submission

At the conclusion of the prosecution case, the defence made a submission that there was no case to answer. Its essence was summarised in writing as follows:

(i) In order for a reasonably competent optometrist to view the optic nerve head they would need to carry out opthalmoscopy and/or review the patient's fundus images.

(ii) In the absence of viewing the optic nerve head, a reasonably competent optometrist could not detect the swelling that was present.

(iii) The swollen optic nerve head is the only clinical sign that would indicate papilloedema.

(iv) Signs of papilloedema would cause a reasonably competent optometrist to urgently refer the patient to a medical practitioner on the basis that it is a life-threatening condition.

(v) It follows that in the absence of examining the optic nerve heads, a reasonably prudent person could not appreciate that there was a serious and obvious risk of death at the relevant time.""

The prosecution response, summarised in writing, was as follows:

The breach of the duty of care alleged in this case is the defendant's failure to examine Vincent Barker's optic discs and her consequent failure to make him the subject of an urgent referral to a registered medical practitioner at the conclusion of her examination when she came to decide whether he needed any treatment. These two aspects of the optometrist's duty of care to a patient go hand-in-hand, that; there is little point in having a duty to conduct an examination of the internal part of the eye for the purpose of detecting signs of injury, disease or abnormality, unless there is a corresponding duty to refer that person to a registered medical practitioner should such signs be detected.

The Judge decided that there was a case to answer, setting out his reasons in a clear and detailed ruling. He first observed that the statutory duty set out in the Sight Testing (Examination and Prescription) (No. 2) Regulations 1989 made it clear that the purpose of the internal examination was to detect signs of injury, disease or abnormality in the eye or elsewhere. Second, the evidence of Mr Booth confirmed that optometrists are all trained to recognise papilloedema and any significant sign should result in a competent optometrist immediately referring the patient for urgent medical treatment. Third, the evidence of the photographs taken of Vincent's eyes showed clear signs of papilloedema. Finally, it was agreed evidence that had Ms Rose referred him for medical attention, his life would have been saved.

The Judge found that the risk of death caused by the breach of duty was reasonably foreseeable. He followed R v Adomako [1995] 1 AC 171 and adopted the formulation of the full Court in R v Rudling [2016] EWCA Crim 741, that it was a necessary element of gross negligence manslaughter that it must be reasonably foreseeable that the breach of duty in question gives rise to "a serious and obvious risk of death". The Judge rejected the defence submission that the test was subjective in the sense that it depended on the exact knowledge of Ms Rose at the time of the breach. The defence contended that the negligent act was the failure to refer and Ms Rose's knowledge at the time of that act was based on her not having examined the internal eye. The Judge preferred the prosecution formulation that the breach of the duty of care was her failure to examine the internal eye at all and then her consequent failure to refer Vincent for medical attention.

The Judge held that the purpose of the duty was to detect signs of injury, disease or abnormality which should have informed the appreciation of risk. The optometrist that is so negligent that she does not even attempt an internal investigation cannot rely on that breach of duty to escape liability. The test is objective and relies on what is reasonably foreseeable by reference to the reasonably prudent optometrist who would have complied with their statutory duty to examine the internal eye. He held that Rudling was not inconsistent with the concept of reasonable foreseeability and the case should go to the jury.

Stuart-Smith J adopted the prosecution's formulation of the question before him for determination, expressed in these terms:

"When determining whether a reasonably prudent person would in all the circumstances conclude that the breach of the duty of care gave rise to a serious and obvious risk of death, is the reasonably prudent person to be imputed with the knowledge of what the Defendant ought to have known if she/he had not breached her duty and had carried out her duty and conducted an internal investigation."

He then observed:

"The significance of this point and formulation is that, if what would have been found on an internal investigation or on viewing the images from the retinal camera are left out of account, there was nothing else that should or would have suggested to the Defendant that there was a serious and obvious risk that Vinnie would die. The Crown conceded that the mere fact that there is always a remote possibility that a patient who appears healthy may yet have swollen optic discs does not of itself mean that a failure to conduct an internal investigation or look at retinal images carries an obvious and serious risk of death sufficient to satisfy the foreseeability requirement. For the case to progress past half time, therefore, the Crown needs to rely upon the knowledge of the clear signs of papilloedema that the Defendant would have had if she had conducted an internal investigation or looked at the retinal images."

The Judge then considered the submission made by Mr Stern that "a situation where [a serious and obvious risk of death] would only be apparent if the practitioner were to carry out further investigations is not sufficient to sustain an allegation of gross negligence manslaughter". The Judge rejected that submission for three reasons which he expressed as follows:

"First, recklessness is not a necessary constituent of the offence of gross negligence manslaughter…[and] the circumstances in which charges of gross negligence manslaughter may properly lie do not depend upon indifference by a defendant to known facts or risks. …

Second, …there is no principled distinction to be drawn between the case of the optometrist who conducts the internal investigation negligently and the optometrist who is so negligent that he or she does not even attempt an internal investigation. In each case the prudent observer would appreciate the risk of death because the prudent observer would or should have known that it would be shown on the basis of a competent internal investigation. I can see no reason why the criminal law should become irrelevant where the only reason why the serious and obvious risk is not obvious to the Defendant is the Defendant's breach of duty to the victim. That is to my mind most clear when, as here, the purpose of the duty is to detect signs of injury, disease or abnormality which should have informed the Defendant's thinking and appreciation of risk. ….

Third, as a matter of principle, determining what consequences of a breach of duty are reasonably foreseeable is not a subjective exercise, as Mr Stern QC accepted. …what is reasonably foreseeable for the reasonably prudent observer provides a clear indication that the subjective understanding of the person who has acted in breach of duty is not determinative."

Stuart-Smith J also distinguished Rudling on the basis that, in that case, further investigation was required for the risk to become apparent and it was not contended that, at the time of the relevant breach, the defendant should have carried out that investigation or obtained the information the further investigation would have revealed. Consequently, the Judge held that the question he had decided did not arise in Rudling.

The Judge nevertheless stated that the test he was applying was consistent with the test stated by Nicola Davies J in Rudling. He concluded that what was reasonably foreseeable to the reasonable optometrist was "…to be decided by reference to the knowledge that the Defendant either had or would have had but for the breaches of duty that are alleged against her".

Jury Directions

The Judge provided the jury with detailed written legal directions. He correctly and succinctly listed the five matters which the Prosecution must prove:

(1) Ms Rose owed a duty of care to Vincent Barker;

(2) Ms Rose breached that duty of care;

(3) It was reasonably foreseeable that her breach of her duty of care gave rise to a serious and obvious risk of death;

(4) Ms Rose's breach of her duty caused the death of Vincent Barker because it was a significant contributory factor; and

(5) Having regard to the risk of death, her conduct was so bad in all the circumstances as to amount to a criminal omission.

The jury were directed that issues (1) and (4) were not in dispute although it might have been helpful had he spelt out the nature of the duty of care more precisely.

As regards issue (2), breach of duty of care, the Judge directed the jury that there were two factual issues for them to decide. The first was whether there was no good reason for Ms Rose failing to conduct a full internal examination of Vincent's eyes; and the second was whether there was no good reason for her failing to view the correct retinal images taken before the examination. The Jury were reminded about Ms Rose's evidence regarding Vincent exhibiting signs of photophobia.

In relation to issue (3), foreseeability, the judge directed the Jury as follows:

"It was reasonably foreseeable that her breach of her duty of care gave rise to a serious and obvious risk of death.

The Jury should consider this question at the moment that Ms Rose concluded her examination of Vinnie and the facts that were known or should have been known to her at that time. If and when the Jury come to consider this question, they can take into account what Mrs Rose would have known if she had conducted the examination properly or had looked at the images. If she had conducted a full eye examination or had viewed Vinnie's 2012 images then it is common ground that either of those steps would have revealed the swollen discs at the back of the eye and that any competent optometrist would have realised that the swollen discs meant there was an obvious and serious risk to Vinnie's life if he was not urgently referred to a medical practitioner for diagnosis and, if necessary, treatment. So, although Ms Rose did not appreciate the risk, that is not the question. The Jury have to consider whether the risk would have been obvious to a reasonably competent optometrist with the knowledge that Honey Rose would have had if she had not acted in breach of her duty to investigate the true position in the respects that they have found that she did."

Finally, as to issue (5), the judge directed the jury as follows:

"The Courts have used a number of phrases over the years to give juries help in deciding whether a breach of duty is so serious as to be considered criminal. The word "gross" negligence may seem a bit old-fashioned now; but one approach the Jury may find helpful is to ask whether the prosecution has made them sure that the conduct they find to be a breach, in all the circumstances they have heard about and as they find them to be, fell so far below the standard to be expected of a reasonably competent and careful optometrist that it was something, in their assessment, truly exceptionally bad (taking into account the nature of the risk to Vinnie's life that it involved), and such a departure from the standard to be expected of a competent optometrist, as to amount, in their judgment, to a criminal act or omission, and so to be the very serious crime of manslaughter."

The Appeal

Mr Stern submitted on behalf of Ms Rose that the submission of no case to answer was wrongly rejected because the Judge applied the wrong test:

(1) The test should be based on the professional's knowledge at the time the duty of care was said to be breached, i.e. had Ms Rose properly examined the back of the deceased's eye and failed to act, she could be guilty of gross negligence manslaughter, as she would have seen the signs of papilloedema (a life threatening condition) and would have had the requisite knowledge that there was an obvious and serious risk of death.

(2) It was accepted that failing to examine the back of the eye was negligent, since this was an essential part of an eye examination. However, this was not to the criminal standard, since (given the lack of any symptoms) it was not reasonably foreseeable to a reasonably competent optometrist, that that negligent act of not examining the back of the eyes, would carry an obvious and serious risk of death in this case.

Mr Stern also argued that the Judge's legal direction (3) to the jury regarding foreseeability was wrong in law because he directed that the jury should consider whether the risk would have been obvious to a reasonably competent optometrist "…with the knowledge that Honey Rose would have had if she had not acted in breach of her duty to investigate the true position in the respects that they had found that she did".

For the Crown, Mr Rees submitted that the Judge's ruling was correct and his directions to the Jury were unimpeachable. The negligent acts relied upon by the Prosecution were: (i) Ms Rose's failure, without reasonable excuse, to examine the deceased's optical discs with an ophthalmoscope or slit lamp and lens and/or (ii) her failure to examine the correct central retinal images she knew had been taken by the optical consultant. As a result of breaching her statutory duty to carry out the eye examination properly, she failed to identify that the child had swollen optic discs and she failed to refer him to a registered medical practitioner.

The legal test relied on by the prosecution was as follows:

"Is there evidence upon which a properly directed jury could be sure that at the time of the alleged breach of duty, a reasonably prudent person (optometrist) would have foreseen (concluded) in all the circumstances that the breach of duty by the defendant created an obvious and serious risk of death?"

Mr Rees submitted that the knowledge of the professional (i.e. Ms Rose) should be based on what they would have known at the time of the breach had they not breached their duty of care. The professional should not be able to rely on their own negligent act to avoid criminal liability and this case can be distinguished from Rudling, as Ms Rose's negligent act was a breach of a statutory duty of care, which is the compelling factor.

The Law

It is common ground that optometrists owe a statutory duty of care to patients. Section 26(1) of the Opticians Act 1989 provides that the Secretary of State may by regulations provide that when registered optometrists test the sight of another person, it shall be their duty to perform an external and internal examinations of the eye "for the purpose of detecting injury, disease or abnormality in the eye or elsewhere". The extent of this duty is identified by The Sight Test (Examination and Prescription) (No.2) Regulations 1989, the relevant part of which, at para. 3(1), makes it clear that:

"…..when a doctor or optician tests the the sight of another person, it shall be his duty–

(a) to perform, for the purpose of detecting signs of injury, disease or abnormality in the eye or elsewhere–

(i) an examination of the external surface of the eye and its immediate vicinity,

(ii) an intra-ocular examination, either by means of an ophthalmoscope or by such other means as the doctor or optician considers appropriate,

(iii) such additional examinations as appear to the doctor or optician to be clinically necessary; and

(b) immediately following the test to give to the patient a written statement–

(i) that he has carried out the examinations required by sub-paragraph (a) of this paragraph, and

(ii) that he is or (as the case may be) is not referring the patient to a doctor."

These legislative provisions are supplemented by professional guidance in the form of the code of Ethics and Guidelines for Professional Conduct issued by the College of Obstetricians in July 2011 in these terms:

"B2 The routine eye examination

Guideline

B2.01 The optometrist has a duty to carry out whatever tests are necessary to determine the patient's needs for vision care as to both sight and health. The exact format and content will be determined by both the practitioner's professional judgement and the minimum legal requirements.

B2.02 The optometrist has a duty to examine patients at the most appropriate intervals in accordance with clinical needs.

Advice

General …

B2.04 A full examination should include: …

(f) An internal and external examination of the eye (note the requirements of a statutory sight test – see s.B2.19 below). As a minimum this will include direct ophthalmoscopy on the undilated eye. Pupil dilation and/or the use of indirect methods will be appropriate in certain circumstances where an inadequate view of the fundus would otherwise be obtained. Slit-lamp biomicroscopy will be appropriate where a detailed view of the anterior eye and adnexa is required."

Against that background, it is necessary to examine the key authorities in relation to gross negligence manslaughter, starting with R v. Adomako [1995] 1 AC 171 and the well-known passage where Lord Mackay of Clashfern LC sets out the essential ingredients of the offence (at p. 187A-E):

"In my opinion the law as stated in these two authorities [Bateman (1925) 19 Cr. App. R. 8 and Andrews v DPP [1937] AC 576] is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter. Since the decision in Andrews was a decision of your Lordship's House, it remains the most authoritative statement of the present law which I have been able to find and… it has not been departed from. On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.

It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that it is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission." (emphasis added)

Lord Mackay went on to state that it was appropriate to use the word "reckless" in cases of involuntary manslaughter but, as Lord Atkin put it, "in the ordinary connotation of the word". He added that it was quite unnecessary in the context of gross negligence to give detailed directions as to the meaning of the word "reckless" (pp. 117H-188A).

Lord Mackay cited the following passage from Lord Hewart CJ's judgment in R v. Bateman [1925] 19 Cr. App. R. 8:

"[T]he facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such a disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment."

The facts in Adomako were striking. The appellant was convicted of gross negligence in respect of his conduct as anaesthetist during an eye operation as a result of which the patient died on the operating table. The prosecution alleged that the appellant had failed to notice, or respond appropriately, to the disconnection of an endotracheal tube inserted to enable the patient to breathe. In particular, it was alleged that the appellant had failed to notice at various stages after the disconnection that (i) the patient's chest was not moving, (ii) the dials on the mechanical ventilating machine were not operating, (iii) the endotracheal tube had in fact disconnected, (iv) the alarm on the ventilator was not switched on, (v) the patient was becoming progressively blue, (vi) the patient's pulse had dropped and (vii) the patient's blood pressure had dropped (see pp. 181H-182A). A period of 4½ minutes would have elapsed between the disconnection and the sounding of the alarm and a total period of 9 minutes until cardiac arrest occurred. One expert witnesses for the prosecution described the standard of care as "abysmal"; and another said that a competent anaesthetist should have noticed the disconnection within 15 seconds and described the appellant's conduct as "a gross dereliction of care" (see p. 182B).

It is important to note that the essential or in effect sole function of the anaesthetist at the time was to monitor the patient to ensure that he was breathing during the operation. This is clear from the judgment of Lord Taylor CJ in the Court of Appeal below (R v. Prentice, Sullman, Holloway and Adomako (1994) 98 Cr. App. R. 262):

"The anaesthetist sits at the side of the patient. It is his duty to ensure the safety of the patient. He does this by observing him throughout the operation and by paying careful attention to the different monitoring devices…" (p. 275)

"It was in our view open to the jury to conclude that the appellant's failure to perform his essential and in effect sole duty to see that his was patient was breathing satisfactorily and to cope with the breathing emergency which should have been obvious to him, justified a verdict of guilty. They were entitled to conclude that his failure was more than mere inadvertence and constituted gross negligence of the degree necessary for manslaughter" (p. 279) (emphasis added)

This decision was followed by R v. Singh (Gurphal) [1999] Crim L.R. 582 in which the appellant was convicted of failing to ensure that a gas fire in one of the rooms he rented out was properly maintained. The facts again were striking. He had been told (i) by a previous occupant of the room that "she could smell gas and was getting ill", and (ii) by the tenant of the room next door that the gas fire "was faulty and needed looking at" and caused headaches. The Court of Appeal described the following direction by Judge Hyam as a model of its kind (at p. 4):

"The circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death. If you find such circumstances in the case of the defendant whom you are considering, you must decide whether what he did or failed to do was so bad that it was criminal. That of course means that the degree of negligence was very high."

In A-G's Reference (No. 2 of 1999) [2000] 2 Cr App R 207, the Court of Appeal held that a defendant can be properly convicted of manslaughter by gross negligence in the absence of evidence as to the defendant's state of mind. Although there may be cases where the defendant's state of mind is relevant to the jury's consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind is not a pre-requisite to a conviction for manslaughter by gross negligence.

The court emphasised (at page 211) that the Adomako test is objective but a defendant who is reckless (as defined in Stone and Dobinson [1977] 1 QB 354) may well be the more readily found to be grossly negligent to a criminal degree. As Lane LJ said in Stone and Dobinson at page 353, the test is a high one:

"Mere advertence is not enough. The defendant must have proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk, but to have determined, to run it."

Lewin v. Crown Prosecution Service [2002] EWHC 1049 concerned an application for judicial review against the CPS for failing to prosecute for gross negligence manslaughter. Courtney Kayne had driven a drunk friend back to holiday accommodation in Spain and left him comatose in the car and the friend had subsequently died in the car of a combination of postural asphyxia and heat stroke. The Divisional Court dismissed the claim. As regards the driver's continuing responsibility for the welfare of the passenger once the vehicle was parked in a safe place, Kennedy LJ put the matter in this way (at [24]):

"It could only persist in a way which would be relevant to the offence of manslaughter if a reasonable person would have foreseen that by leaving the deceased in the vehicle parked in that position he was being exposed to risk "not merely of injury or even of serious injury but of death" (R v. Singh (Gurphal) [1999] Crim L.R. 582). In this case at any time when it was decided to prosecute there was, as it seems to me, no realistic possibility of demonstrating beyond reasonable doubt that a reasonable person in the position of Courtney Kayne would have foreseen the risk of death."

Moving to another defective work case, in R v Alan James Mark Nationwide Heating Services Ltd [2004] EWCA Crim 2490, the Court of Appeal approved a summing-up which contained the following direction on foreseeability :

"First there must have been an obvious and serious risk of death. This again must be assessed objectively, regardless of what risk was perceived by the defendants…But was it obvious to a reasonably competent employer professing any skills claimed by the defendants?"

In R v. Misra and Srivastava [2005] 1 Cr App R 21, Judge LJ (as he then was) conducted a detailed review of the authorities on gross negligence manslaughter and said (at [48]):

"The decision of the House of Lords in Adomako clearly identified the ingredients of manslaughter by gross negligence, confirming Andrews v. Director of Public Prosecutions (1938) 26 Cr. App. R. 34, [1937] AC 576, the offence requires, first, death resulting from a negligent breach of the duty of care owed by the defendant to the deceased; second, that in negligent breach of that duty, the victim was exposed to the risk of death; and third, that the circumstances were so reprehensible as to amount to gross negligence."

Judge LJ highlighted the fact that the Court of Appeal in R v. Singh (Gurphal) (supra) had strongly approved the trial judge's following direction in a case of manslaughter by gross negligence (and the Divisional Court in Lewin v. Crown Prosecution Service [2002] EWHC 1049 Admin had applied the same direction), namely that "… the circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death" (see ibid at [49]).

Judge LJ emphasised that the law of gross negligence manslaughter was clear:

"The ingredients of the offence have been clearly defined, and the principles decided in the House of Lords in Adomako. They involve no uncertainty. The hypothetical citizen, seeking to know his position, would be advised that, assuming he owed a duty of care to the deceased which he had negligently broken, and that death resulted, he would be liable to conviction for manslaughter if, on the available evidence, the jury was satisfied that his negligence was gross. A doctor would be told that grossly negligent treatment of a patient which exposed him or her to the risk of death, and caused it, would constitute manslaughter."

The facts of Misra and Srivastava were also striking. A patient became infected with staphylococcus aureus following routine surgery to repair his patella tendon and died of toxic shock four days later. The post-operative condition went untreated by the defendants who were Senior House Officers in charge of his post-operative care, despite the fact that: (i) the patient was showing classic signs of infection, i.e. raised temperature and pulse rate and lowered blood pressure; (ii) these conditions were severe and persistent and "were or should have been obvious, if only from a glance at the relevant charts"; (iii) despite suggestions by other members of the medical team on more than one occasion that further treatment was needed, none was provided; (iv) blood tests were available but never obtained or acted upon; (v) they did not seek help from senior colleagues; and (vi) the mistakes were "elementary" (see generally paragraph 4).

Against that background, we now turn to the recent decision in R v. Rudling [2016] EWCA 741 where this court upheld a terminating ruling by the trial judge, Nicola Davies J, in relation to a doctor who had been charged with gross negligence manslaughter of a young patient.

The facts in Rudling are important and bear detailed repetition. In the early hours of Saturday 8th December 2012, Ryan Morse, aged 13 years old, died of Addison's disease, an auto-immune disease which is rare, particularly in children. In its early stages, symptoms of Addison's disease are non-specific, i.e. fatigue, malaise, weakness, abdominal pain, vomiting and weight loss, all of insidious onset. Its eventual diagnosis is often established only at the time of acute symptoms, or near a terminal status known as adrenal crisis. However, even at a late stage when the patient would be gravely ill, the condition can be stabilised.

In the summer of 2012, Ryan began to suffer from tiredness, aching of legs and sickness. He was taken to his GP's surgery by his mother on 20th July 2012 and diagnosed as having a viral infection. The symptoms persisted and his skin also showed signs of darkening pigmentation. He was seen by Dr Rudling on 7th November 2012, who ordered blood tests. He was seen again by Dr Rudling on 21st November 2012, who concluded that the blood tests suggested a virus and marginally low sodium but were otherwise unremarkable; and she ordered further blood tests and a review in three weeks.

On 6th December 2012, Ryan's mother was called to collect him from school as he complained of feeling ill, shaking and being sick. He had a disturbed night and suffered from dizziness, diarrhoea and headaches. Mrs Morse thought he had a sickness bug that was going round the school. She phoned the GP's surgery and the receptionist made a note for the doctor to contact here: "please can you ring/advise re vomiting bug and temperature". The prosecution case was based on two subsequent telephone conversations with Ryan's mother on Friday 7th December 2012. The first conversation was with Dr Thomas who, having studied Ryan's notes and being told that the receptionist had asked Mrs Morse to bring the boy in but she was reluctant to bring him out, rang Mrs Morse at 8:45 a.m. After discussing his recent symptoms, Dr Thomas said that it was necessary to get Ryan's temperature down, recommended soluble paracetamol and said that if Ryan didn't improve within two hours he should be seen. Ryan's mother rang the surgery again at 5:45 p.m. and spoke to spoke to Dr Rudling. There was a dispute as to what precisely took place during this conversation but Dr Rudling was told about Ryan's symptoms of diarrhoea and vomiting and the darkening of the colour of his genitalia. However, the result of the conversation was that Dr Rudling recommended Ryan was brought into the surgery on Monday morning to be examined. Unfortunately, he died in the early hours of the Saturday morning.

At the trial, the prosecution had called an expert witness, Dr Leonard Peter, who gave evidence to the effect that, faced with the alarming picture she was being given in that conversation, Dr Rudling ought to have arranged to see Ryan at home that evening. If she had seen him, his condition would have made it apparent that he should go to hospital immediately where he would have received life-saving treatment. The prosecution contended that Dr Rudling's failure to respond to the concerns expressed by Ryan's mother was grossly negligent and Dr Rudling should have recognised that Ryan's mother was describing what could possibly be a very sick child indeed, i.e. a child so sick as to be at risk of death if he did not receive prompt medical treatment. The prosecution alleged that Dr Rudling ought to have arranged for immediate medical intervention, either by visiting the child herself to conduct an examination, or by summoning an ambulance.

Submissions of no case to answer were made at the trial on behalf of both Dr Thomas and Dr Rudling. Nicola Davies J acceded to both applications. In relation to Dr Rudling, she regarded as critical the evidence of Dr Peter of the need for a face-to-face assessment of the child in order to fully assess the risk. The Court of Appeal quoted the following answer given by Dr Peter in evidence "I would have to go and assess the child to see whether or not there was a life threatening potential" and commented (at [22]):

"It was this answer which, in the Judge's opinion, illustrated the difficulty at the core of the prosecution case on this aspect of the element of gross negligence. Thus, the thrust of Dr Peter's evidence was the need for a face to face assessment of Ryan in order fully to assess the risk, as opposed to the obvious nature of the risk, which was present at the time of the telephone call."

It was for this reason that Nicola Davies J held that, at the time of the telephone conversation at 5:45 p.m., there was not an obvious and serious risk of death.

In the course of the appeal against the ruling in relation to Dr Rudling, this court provided the following guidance as to the legal test of gross negligence manslaughter (at [18]):

"We can summarise the law shortly. The critical ingredients of gross negligence manslaughter can be taken from R v. Prentice, Adomako and Holloway [1994] QB 302 in this court and Adomako [1995] 1 AC 171, [1994] 99 Crim App R 362 in the House of Lords as well as R v. Misra [2005] 1 Cr App R 21. They can be summarised as being the breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the "conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission" (see Adamoko [2005] 1 Cr App Rep at 369). The articulation of the last ingredient is expressed in R v. Bateman (1925) 19 Cr App R 8 at 13 as satisfying the jury that:

"… the negligence or incompetence went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.""

The prosecution's appeal against the terminating ruling was dismissed in the following terms:

"34. …[W]e are satisfied that the transcript fully supports the judge's conclusion in relation to what is the first ground of appeal. Dr Peter did not at any stage of his evidence state that, at the time of the phone call with Dr Rudling, there was an obvious and serious risk to Ryan's life…

37. …Dr Peter declined to say, in response to the direct question, that the situation was obviously life threatening, but rather offered the opinion that an assessment was necessary because "it could be something serious".

38. The nub of Mr Price's argument was that if it is necessary to have a face to face assessment in order to manage a patient and assess what might potentially be a life threatening condition, it is necessarily implicit that there is an obvious and serious risk of death at that time. …

39. In our judgment, that proposition simply does not follow, as is apparent when one focuses on each of the three aspects of this ingredient of the offence of gross negligent manslaughter. At the time of the breach of duty, there must be a risk of death, not merely serious illness; the risk must be serious and the risk must be obvious. A GP faced with an unusual presentation which is worrying and undiagnosed may need to ensure a face to face assessment urgently in order to investigate further. That may be in order to assess whether it is something serious…which may or may not be so serious as to be life threatening. A recognisable risk of something serious is not the same as a recognisable risk of death.

40. What does not follow is that if a reasonably competent GP requires an urgent assessment of a worrying and undiagnosed condition, it is necessarily reasonably foreseeable that there is a risk of death. Still less does it demonstrate a serious risk of death, which is not to be equated with an 'inability to eliminate a possibility'. There may be numerous remote possibilities of very rare conditions which cannot be eliminated but which do not present a serious risk of death. Further, and perhaps most importantly, a mere possibility that an assessment might reveal something life threatening is not the same as an obvious risk of death. An obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation." (emphasis added)

The breach of duty alleged in this case was Dr Rudling's failure to go to see Ryan herself: had she done so, she would have realised the gravity of his condition and taken steps to ensure that he was sent to hospital where that condition could have been diagnosed and treated. It was not suggested (and is implicitly if not explicitly rejected in the reasoning of the judgment) that serious and obvious risk of death had to be determined based on what the doctor would have discovered had she visited Ryan's home and examined him (which was gravamen of the allegation of negligence that she faced).

For the sake of completeness, it is appropriate also to mention the recent decision in R v. Sellu [2016] EWCA Crim 1716. In that case, a consultant specialising in colorectal medicine and surgery was convicted of gross negligence manslaughter of a patient who suffered post-operative complications following elective total knee replacement and died following subsequent emergency surgery. The prosecution alleged that the defendant had missed opportunities and made serious errors of judgement in his treatment of the patient. The Court of Appeal allowed the appeal on the basis that the trial judge, Nicol J, had failed to direct the jury correctly in two respects. First, the judge failed to direct the jury sufficiently as to the line that separates serious or very serious mistakes or lapses from conduct which was "…truly exceptionally bad and was such a departure from that standard [of a reasonably competent doctor] that it consequently amounted to being criminal" (ibid, [152]). Second, the judge failed to emphasise to the jury that the question of gross negligence was a matter for them not the expert (ibid, [155]).

In the circumstances, the relevant principles in relation to cases of gross negligence manslaughter can be summarised as follows:

(1) The offence of gross negligence manslaughter requires breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to go beyond the requirement of compensation but to amount to a criminal act or omission.

(2) There are, therefore, five elements which the prosecution must prove in order for a person to be guilty of an offence of manslaughter by gross negligence:

(a) the defendant owed an existing duty of care to the victim;

(b) the defendant negligently breached that duty of care;

(c) it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death;

(d) the breach of that duty caused the death of the victim;

(e) the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.

(3) The question of whether there is a serious and obvious risk of death must exist at, and is to be assessed with respect to, knowledge at the time of the breach of duty.

(4) A recognisable risk of something serious is not the same as a recognisable risk of death.

(5) A mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death: an obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation.

A further point emerges from the above analysis of the authorities which is particularly germane to the present case: none of the authorities suggests that, in assessing either the foreseeability of risk or the grossness of the conduct in question, the court is entitled to take into account information which would, could or should have been available to the defendant following the breach of duty in question. The test is objective and prospective.

Analysis

Turning to the ruling, the Judge correctly adopted the formulation of the legal test in Rudling that it must be reasonably foreseeable that the breach of duty in question gives rise to a serious and obvious risk of death. Stuart-Smith J, however, went on to summarise his conclusions in this way:

"I can see no reason in principle or authority why the question of reasonable foreseeability of a serious risk of death in gross negligence manslaughter should be decided by reference only to the actual knowledge of the Defendant at the time of the breach which is alleged to have given rise to the risk and to have caused the death. On the contrary, the inherently objective nature of reasonable foreseeability supports the conclusion that what was reasonably foreseeable to the reasonable person (or, in this case, the reasonable optometrist) is to be decided by reference to the knowledge that the Defendant either had or would have had but for the breaches of duty that are alleged against her. On the facts of this case, that means that the question of reasonable foreseeability is to be decided by reference to the knowledge that the Defendant would have had if she had looked at the back of Vinnie's eyes as the Prosecution allege she should have done."

With respect, however, these propositions do not follow. The inherently objective nature of the test of reasonable foreseeability does not turn it from a prospective into a retrospective test. The question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of breach, not but for the breach. The question of reasonable foreseeability is evident from the words used, i.e. what is reasonably fore-seeable at the time of the breach (a prospective view). It is not what would, could or should have been known but for the breach of the identified duty of care, i.e. if the breach had not been committed (a retrospective view).

Although the judge considered that the question he had to decide did not arise in Rudling, in fact, the reasoning in that case is equally applicable to the present and, furthermore, had the approach which he adopted been applied in Rudling, that decision would have been different. Thus, the prosecution contended that Dr Rudling was in breach of her duty of care at the time of the telephone call from Ryan's mother at 5:45 p.m. in failing then to make immediate arrangements to examine Ryan face-to-face. However, the evidence was that the life-threatening seriousness of Ryan's condition would not have been apparent to Dr Rudling unless and until she had carried out that face-to-face examination. This was clear from the prosecution's own expert, Dr Peter, who said that:

"…faced with the alarming picture she was being given [on the telephone], Dr Rudling should have arranged to see Ryan within an hour on her way home; and that, if she had, his condition would have made it apparent that he should go to hospital immediately…".

This court approved the approach of Nicola Davies J who accepted that had a doctor seen Ryan by the early evening of Friday 7th December 2012, he or she would have seen a very sick child but that it was not the assessment which would have been made at the visit which goes to the risk envisaged in the legal test but the risk at the time of the telephone call. In other words, the court could not impute to the doctor the knowledge that would have been obtained had there not been a breach of duty (which, in that case, was to see the child at home) although that is precisely what Stuart-Smith J concluded in this case.

The prosecution case was that Ms Rose was in breach of her duty of care in failing to carry out a proper examination of the back of Vincent's eyes during his appointment. However, as in Rudling, the potentially life-threatening seriousness of Vincent's condition as manifested by visible swelling of the optic nerve (papilloedema) would not have been apparent to Ms Rose unless and until she had carried out a proper examination of the back of Vincent's eyes with an ophthalmoscope or a 'slit lamp' or, at least, carefully checked the right fundus photographs.

The Judge appears to have led himself into error by his earlier emphasis on the fact that the question of reasonable foreseeability was an objective, not a subjective, exercise and was not to be decided by reference to "the actual knowledge of the Defendant at the time of the breach". In so doing, the Judge appears to have confused or elided two separate matters: (a) the actual knowledge of Ms Rose at the time of the breach and (b) the putative knowledge of the reasonably prudent optometrist in the position of Ms Rose at the time. The two are quite different concepts: the former is subjective; the latter is objective. The test of reasonable foreseeability is, of course, resolutely objective and there is no question of it being decided by reference to the subjective knowledge of the person whose conduct is under scrutiny. The test of reasonable foreseeability simply requires the notional objective exercise of putting a reasonably prudent professional in the shoes of the person whose conduct is under scrutiny and asking whether, at the moment of breach of the duty on which the prosecution rely, that person ought reasonably (i.e. objectively) to have foreseen an obvious and serious risk of death.

In that regard, the factual matrix is critical. In this case, the purpose of an examination of the back of a person's eyes with an ophthalmoscope or a 'slit lamp' is to fulfil an optometrist's statutory duty under s.26(1) of the 1989 Act to detect "…signs of injury, disease or abnormality in the eye or elsewhere". The fact that an intra-ocular examination might reveal a serious abnormality, or even in some cases serious life-threatening problems, does not mean that there is a "serious and obvious risk of death" if such an examination is not carried out. It might be different if the patient presented with symptoms which themselves either pointed to the risk of a potentially life threatening condition or provided a flag that alerted a competent optometrist to that risk but that was not this case (this being an entirely routine examination with no material pre-existing history).

Put at its highest, what a reasonably prudent optometrist would or should have known at the time of the breach was that, if he or she did not carry out a proper examination of the back of Vincent's eyes, there remained the possibility that signs of potentially life-threatening disease or abnormality might be missed. This is not enough to found a case of gross negligence manslaughter since there must be a "serious and obvious risk of death" at the time of breach. This was conceded by the prosecution at the trial, who recognised that for the matter to proceed beyond half time, the Crown need to rely upon the knowledge of the clear signs of papilloedema which Ms Rose "…would have had if she had conducted an internal investigation or looked at the retinal images".

Consistently with this approach, the factual matrix of the other cases mentioned above reveals the existence of such circumstances. By way of example, in Adomako, the court was concerned with an anaesthetist who, as would have been clear at the time, was required to monitor breathing during the course of an operation: failure to do so created an obvious risk of death. In Singh (Gurpal), the landlord did not merely fail to maintain or service the gas fire (aware that such failure could create a risk) but failed to do so notwithstanding complaints by the tenants of the smell of gas and resulting illnesses. In Misra, there were obvious post-operative symptoms and information which generated the obvious risk of death. These cases contrast with Rudling, discussed above, in which the court made clear (at [40]):

"[A] mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death. An obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation."

One other aspect of the approach of Stuart-Smith J also requires analysis. He expressed the view that a defendant should not be able to rely on his own breach to excuse his own lack of knowledge. He said:

"I can see no reason why the criminal law should become irrelevant where the only reason why the serious and obvious risk of death is not obvious to the Defendant is the Defendant's breach of duty to the victim. That is to my mind most clear when, as here, the purpose of the duty is to detect signs of injury, disease or abnormality which should have informed the Defendant's thinking and appreciation of risk." (emphasis added)

In that regard, he may have placed reliance on a submission advanced by Mr Rees for the prosecution to the effect that Rudling supported the proposition that matters which ought to have been known to Ms Rose but for the breach could be taken into account because of the observation (at [23]):

"There was little dispute that, with the benefit of hindsight, had a doctor see Ryan by the early evening of Friday 7 December, he or she would have seen and assessed a very sick boy. The judge then applied that test to the facts as they were or ought to have been known to Dr Rudling at the time of the phone call, together with the evidence of Dr Peter as to when the assessment that Ryan's illness was obviously life threatening is likely to have been made, coupled with Professor Hughes' evidence that hyper-pigmentation was not, in itself, indicative of the adrenal crisis phase of Addison's disease." (emphasis added)

That submission, however, misunderstands what the court was then dealing with. The reference to "…facts as they were or ought to have been known to Dr Rudling at the time of the phone call" was merely a reference to the fact that it was open to a reasonably prudent general practitioner in Dr Rudling's position to have checked the notes and other background materials regarding Ryan's medical history at the time of taking Mrs Morse's telephone call (e.g. the notes made by Dr Thomas that morning). There is no warrant for the suggestion that knowledge of facts or events subsequent to the telephone call were in any way relevant: indeed, the opposite is the case. Rudling emphasised that the test is objective and prospective and had it been appropriate to take account of what the doctor would have learned had she visited Ryan, the analysis of the case and the result would have been different.

So that the matter is not in doubt, the fact that the cause of the defendant's lack of knowledge of a serious and obvious risk of death to the victim was the defendant's own breach of duty to carry out a requisite examination or inspection is not to point. This fact may often be the case and, indeed, given that death will always have resulted in cases of gross negligence manslaughter, it is difficult to visualise how a serious risk of death would not have been obvious if the test is premised on what would have been known had there been no breach of duty. In that event, the requirement of serious and obvious risk of death adds nothing. There is no legitimate basis for altering what is a prospective test of foresight into one which judges with hindsight.

Further, the fact also that the purpose of the duty in the present case is to detect signs of injury, disease or abnormality is also not to point. As explained above, all a reasonably prudent optometrist would have known is that, if he or she did not carry out a proper examination, signs of potentially life-threatening conditions might be missed. But this is a very different matter from knowledge that such signs in fact existed and that there was a "serious and obvious risk of death". In some cases, there might be 'wilful blindness' to a serious and obvious risk of death, but that is not the present case.

The Direction

For the same reasons, in our judgment, the Judge's direction regarding foreseeability suffered from the same error as his ruling on the submission that there was no case to answer. He should not have directed the Jury that, when considering whether there was a "serious and obvious risk of death" they had to consider "whether the risk would have been obvious to a reasonably competent optometrist with the knowledge that [Ms Rose] would have had if she had not acted in breach of her duty". However, for the reasons which we have explained, the case should have been withdrawn from the jury at the close of the prosecution case.

Conclusion

Reverting to the question posed at the commencement of this judgment, we 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.

We add that this decision does not, in any sense, condone the negligence that the jury must have found to have been established at a high level in relation to the way that Ms Rose examined Vincent and failed to identify the defect which ultimately led to his death. That serious breach of duty is a matter for her regulator; in the context of this case, however, it does not constitute the crime of gross negligence manslaughter.