QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| NICOLE THRELFALL
|- and -
|GENERAL OPTICAL COUNCIL
Alison Foster QC (instructed by Blake Lapthorn Linnell) for the Respondent
Hearing dates: 8th and 22nd October 2004
Crown Copyright ©
Mr Justice Stanley Burnton:
"The charge is that you have been guilty of serious professional misconduct. The particulars of the charge are that:
1. On 12th July 2002, you failed to examine the right eye of Patient A adequately in that you:
(a) did not dilate the pupil;
(b) did not examine the fundus adequately;
(c) did not carry out a visual field test.
2. On 12th July 2002, you failed to record your examination of Patient A adequately."
(a) decide whether the respondent did or did not carry out the test;
(b) if so, decide whether the failure to carry out the test made the eye examination inadequate;
(c) if so, decide whether this amounted to serious professional misconduct.
(a) On Saturday 6 July the right eye of Patient A suddenly rushed back and forwards involuntarily and he was left with a large translucent object in his central field of vision. He had experienced flashing lights in the eye for about 3 weeks prior to this. Black dots appeared during this weekend.
(b) On Monday 8 July, he went to see his GP. His "primary focus" was a throat problem (acid reflux) which had begun a few weeks previously, and he consulted him about his eye. The doctor advised him that cells do break off in the eye and can take about 6 months to disappear, but that it might be worth seeing an optician. He claimed that the first optician's appointment he could get with Mrs Threlfall was on Saturday 13 July; she stated there were appointments available earlier in the week.
(c) During the week the dots in the eye increased. He tried unsuccessfully to get an earlier appointment with Mrs Threlfall, but did not go to hospital or to another optician. By Friday 12 July, there was a blind patch in his eye blocking 20% of his vision, like an "eclipse". He thought it was a retinal detachment. Initially he was in 'denial'. He was able to go to work, and drive. He rang the eye centre on Friday 12 July and saw Mrs Threlfall at about 2.00 pm that day.
(d) Patient A says he told Mrs Threlfall about all the symptoms listed above. She examined his eye and told him she could see the floater but she could not see anything wrong. He suggested that he night have a retinal detachment, but she could not see any evidence of one. He became anxious. She said she could dilate his eye but was reluctant to do so because she did not want to cause more damage. He said "I want to be referred. I want to be seen by someone else." She told him she had got an appointment for him at Wigan Hospital eye unit at 11.00am the next day; no one could see him the same day.
(a) She said the only symptom he described was the sudden appearance of a large floater in his right eye, at the beginning of the week, and that vision was coming and going in his left eye. She checked his visual acuity, his pupils and carried out an ophthalmoscopy. As she looked in his right eye, she could see the central area, the disc, macula and the surrounding area but the floater was getting in the way of her view of the far periphery. Her main concern was the retina because the sudden appearance of a large floater indicates a risk of retinal detachment. She decided to refer him because the floater was large and the far periphery was hard to examine. When she told him she was going to dilate his pupils, and implied that there was something 'more sinister' there, he became "worked up" and "agitated" so she decided not to proceed since she was going to refer him anyway and his pupils would be dilated at the hospital. She did not carry out a visual field test because he was "so worked up", the field examination is a very subjective test and she did not think the results would have been reliable.
(b) She telephoned the Christopher Home Eye Unit at Wigan Hospital, explained his symptoms to the doctor and referred him. The doctor gave him an appointment for 11.00 a.m. the next day. It was local practice to refer urgent cases direct to the Eye Unit. She made an immediate referral; it was for the ophthalmologist at the Eye Unit to decide how quickly he could be seen. A next day appointment was consistent with her previous experience of a retinal detachment case. She advised Patient A that if his vision changed in any way, he should go to casualty.
(c) Mrs Threlfall said it was an oversight that her record card did not refer to retinal detachment, but any practitioner reading that there was a sudden onset of a large floater and he had been referred to hospital would realise that the concern was retinal detachment.
Findings of fact in relation to the charge:
"Ms Wilcox (chairman): The Committee found the facts in particulars 1(a) and 1(c) of the charge admitted and proven. The Committee found the facts in particulars 1(b) and 2 of the charge proven.
Mr Albuery ...the solicitor for the GOC): Madam … can I ask you to confirm that you have found that those particulars in (a), (b) and (c) amount to a failure to examine the eye adequately?
Mr Atkinson (the legal assessor): … the Committee did find that."
Finding of serious professional misconduct:
[Following submissions on behalf of the GOC and Mrs Threlfall on the question of whether the facts found proved amounted to serious professional misconduct and the advice on that question of the legal assessor]
"Mrs Wilcox: …we have found the charge proven."
"Mrs Wilcox: As you know, the Committee had found the charge proven. This Committee is concerned not only with the maintenance of proper standards of behaviour by practitioners but also to maintain public confidence in the profession. We have had regard to your previous good character, the earlier satisfactory relationship with the patient and the fact that a referral was made. Nevertheless, we have determined that a sanction is appropriate and to impose a penalty order of £500 to be paid within 28 days."
The statutory framework
"If any registered optician –
(a) is convicted by any court in the United Kingdom of any criminal offence; or
(b) is judged by the Disciplinary Committee to have been guilty of serious professional misconduct,
the Committee may make a disciplinary order against him."
"On an appeal against this section, the court ... may –
(a) dismiss the appeal,
(b) allow the appeal and quash the order or direction appealed against,
(c) substitute for the order or direction appealed against any other order or direction which could have been made by the Disciplinary Committee, or
(d) remit the case to the Disciplinary Committee to dispose of the case in accordance with the directions of the court... and make such order as to costs…as it…thinks fit."
"3(1) …when a doctor or optician tests 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 …"
"2. 'injury of disease' means any abnormality of the eye of an anatomical, pathological or physiological nature,
3. Where it appears to a registered optician that a person consulting him is suffering from an injury or disease of the eye the registered optician shall, subject to rules 5 to 8 below, refer that person to a registered medical practitioner…in testing the sight of such a person…but in such case the optician shall forthwith report to that practitioner any findings of injury or disease of the eye of which the practitioner may be unaware."
The issues in this appeal
"As a result of the hearing, we found all the particulars of the charge proven. We consider that Mrs Threlfall had been guilty of serious professional misconduct.
In reaching that decision, we had regard to:
1. There was no evidence that Mrs Threlfall had taken an adequate history. We considered that she failed to identify (or alternatively, failed to eliminate) a number of symptoms that were, in our view, either described by the patient or which would have emerged on the careful questioning which we would have expected in the circumstances.
2. The examination was inadequate in that although a large floater was identified, Mrs Threlfall did not undertake the additional investigations that we would have expected to have been carried out. For that reason, although Patient A was referred to a hospital eye department, we did not consider that the doctor who received the phone call was provided with the necessary information to allow an informed decision to be made about the urgency with which Patient A should be seen. In our opinion, had an adequate history been taken and an adequate examination been carried out, a more precise and informed referral would have been made. The emerging situation placed a duty on Mrs Threlfall to deploy her professional skills. This she failed to do.
3. We considered the record keeping to be inadequate in that in our view, the records maintained would not have provided a subsequent practitioner with sufficient information to establish Patient A's history and condition. Furthermore, there is no evidence of the correspondence regarding the consultation that we would have expected to have seen.
For all those reasons, we determined that Mrs Threlfall was guilty of serious professional misconduct as charged. In many cases, such a determination would justify erasure from the register but we drew back from that because:
1. We had no evidence of any previous complaints against Mrs Threlfall.
2. Mrs Threlfall's demeanour was such that we were satisfied that she would in future take due care when examining patients.
3. She had made a referral to a hospital, even if the circumstances and underlying records and examination were unsatisfactory."
The scope of this appeal
"Every appeal will be limited to a review of the decision of the lower court unless –
(a) a practice direction makes different provision for a particular category of appeal; …"
It would appear from paragraph 52.11(1)(b) that a re-hearing is generally something different from a "review of the decision of the lower court". The Practice Direction to Part 52 does make apparently different provision: paragraph 22.3 (2) provides that appeals under section 23 of the Opticians Act 1989 "will be by way of re-hearing". It is nonetheless clear that a re-hearing in this context is in general a review of the decision of the lower court; c.f. Assicurazioni Generali SpA v Arab Insurance Group  EWCA Civ 1642,  1 WLR 577. In other words, the appeal court does not normally hear evidence afresh, but considers the appeal on the basis of the record of the evidence given in the court below.
The Appellant's application to put her witness statement in evidence
Reasons for the decision of a Disciplinary Committee
"What remains in dispute, however, is whether the disciplinary proceedings initiated against the petitioner could lead to a 'determination of her civil rights and obligations' within the meaning of Article 6(1). I use the word 'could' advisedly. In my opinion, for the purposes of the present proceedings it is not necessary for the petitioner to establish that, whatever their outcome, the disciplinary proceedings will result in a determination of her civil rights and obligations. In my opinion, if the petitioner can establish that the disciplinary proceedings could result in a finding that would constitute a determination of her civil rights and obligations, the decision to initiate those disciplinary proceedings is open to challenge as being incompatible with the petitioner's Convention rights."
That passage was cited with approval by the Court of Appeal in R (Wayne Thompson) v the Law Society  EWCA Civ 167, at .
The duty of Mrs Threlfall
"References in this Act to testing sight are references to testing sight with the object of determining whether there is any and, if so what defect of sight and of correcting, remedying or relieving any such defect of an anatomical or physiological nature by means of an optical appliance prescribed on the basis of the determination."
References in the Regulations to testing sight must have the same meaning. The effect of regulation 3 is to require an optician to perform examinations for the purpose of detecting any injury, disease or abnormality even when the patient does not complain of any such condition, and the purpose of his seeing the optician is only for his sight to be tested. On the other hand, if, for example, a patient is seen by an optician complaining of an eye infection, it seems to me that regulation 3 is inapplicable, and rule 3 of the 1999 Rules alone is applicable. In the present case, the patient came to Mrs Threlfall not asking for an eye test, but concerned with his abnormal vision. I do not think that at that stage regulation 3 of the 1989 applied. During the course of her examination of the patient, his sight was tested. I have some doubt whether that brought regulation 3 into effect, since the test may not have had the object of correcting any defect of sight by means of an optical appliance. However, since both sides argued this case on the basis that regulation 3 applied, I shall assume that it did.
Breach of duty
Mrs Threlfall's failure to keep adequate records
Unfairness: the allegation that Mrs Threlfall had failed to secure an immediate referral
Serious professional misconduct
The direction to the Committee
"On the basis of the facts that you have found proved, and by way of admission and on the evidence you have heard, you now go on to consider the question of whether this amounts to serious professional misconduct and perhaps the most significant word of those three is the word 'serious'. You have heard from both the representative of the General Optical Council and also the representative of this respondent a little bit about what is meant by serious professional misconduct. At this stage, my advice to you is not to pay regard to the character references – we know already that this lady has never been in any sort of professional difficulties before – but you have to determine whether what you have now found as facts in the particulars amount to this particular offence of serious professional misconduct, which means exactly what it says. It is conduct on the part of a practitioner in connection with their profession which you find to be serious.
Now, misconduct may, but it does not have to, involve behaviour worthy of moral disapprobation or turpitude, but it may also consist of a falling short of the acceptable standards of the profession, as judged by the standards at the time of the events in question and whether this Committee takes the view that that falling short is considered to be serious. You must take into account in respect of this conduct that you find proved what effect it has on the reputation of the profession generally, but only to the extent that you consider that such effect would be serious. While you are the judges of what is or is not serious professional misconduct, you should only find the practitioner guilty of that if you are satisfied so that you are sure that she is guilty on the facts that have been proved, of serious professional misconduct."
It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence …
In Rao v GMC (PC Appeal no. 21 of 2002), it was held that the legal assessor should have:
"included a reference to the observations…in the case of Preiss … this was a borderline case of serious professional misconduct. It was based on a single incident. There was undoubted negligence but something more was required to constitute serious professional misconduct and to attach the stigma of such a finding to a doctor of some 25 years standing with a hitherto unblemished career. Their lordships are…far from satisfied that if properly advised the PCC would inevitably have arrived at the same conclusion."
"In the instant case there can be little doubt that there was negligence and that it was open to the Committee to find that this constituted professional misconduct. However the Committee should have gone on to consider as a separate issue whether this amounted to serious professional misconduct. It is by no means self-evident that if this question had been posed it would have been answered in the affirmative. It was relevant to consider that this was an isolated incident relating to one patient (albeit over a number of days) as compared with a number of patients over a longer period of time."
The outcome for the patient
The misconduct found by the Committee