The UK Court of Appeal recently gave judgment in a decision that provides an interesting interpretation of the law in relation to impairment of fitness to practise, retirement from the register and suitable sanction, bearing in mind the statutory framework.
In particular, the case raises issues as to what (if any) significance should be attached to the fact that a person has retired, or intends to do so, when considering whether his fitness to practise is impaired. While Irish professional regulators operate a fitness to practise scheme without a test of impairment, the issues considered by the High Court and the Court of Appeal in this case are also likely to be of interest to Irish regulators.
Background
The case centred on a General Optical Council ("GOC") hearing in relation to Mr Matthew Clarke. In short, Mr Clarke had failed to notice deterioration of the visual field of a patient over a five year period. A complaints process was commenced by the GOC in July 2014 in which Mr Clarke was notified of the GOC's intention to apply for an interim suspension order against him. Mr Clarke made certain admissions in relation to the allegations against him, but noted that this was an isolated incident and that he had taken remedial action to address the issues.
An interim suspension order was imposed on Mr Clarke and the matter came before the Fitness to Practice Committee ("FTPC") in June 2015. Prior to the hearing, the Legal Services Department of the Association of Optometrists wrote to the GOC on Mr Clarke's behalf confirming that he had sold his practice and that he no longer intended to practise. In those circumstances, Mr Clarke offered to provide undertakings not to register with GOC again. He also confirmed that he would not take part in the hearing, although no offence was intended by his absence.
At the hearing, the FTPC found that Mr Clarke was guilty of misconduct as he failed to appreciate the extent of the deterioration of the patient's vision on no less than four occasions to the point that the patient lost their sight. As regards impairment, the FTPC gave credit for the early admissions and certain insight shown, but found that this insight was limited and fell short of the level expected of a professional registered optometrist. The FTPC found Mr Clarke's practise to be impaired and that, on the balance of the evidence, his continuing practise presented an immediate risk to the public. The FTPC was not put at ease by the assertion that Mr Clarke had retired or that he had sold his practice and found that he did present a risk to the public in circumstances where he could change his mind and resume practice in the future. The Committee has also determined that the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment was not made. The FTPC imposed a 12 month suspension and indicated that this was a period of reflection for Mr Clarke also, in which he could consider whether he still wanted to cease to practise and if not, to complete the necessary training courses in the area. The FTPC considered that erasure was disproportionate in the circumstances.
Following the passage of just under one year, the FTPC met again to review the suspension. Again Mr Clarke made submissions stating that he had sold his practise and that he did not intend to work again as an optometrist. He asked the FTPC to remove his name from the register with an agreed form of undertaking that he would not practise again as an optometrist. The GOC sought his erasure from the register. The FTPC found that his practise was impaired and ordered that his name be erased from the register as he had not engaged with training and his cumulative behaviour was fundamentally incompatible with being a registered professional. Further, it is important to note that unlike some other professional regulators in the UK, the GOC did not have the power to accept his voluntary removal from the register. This formed part of the GOC’s reasoning for its decision and it stated that the public would expect the FTPC to act according to its statutory framework, rather than to take the more informal approach of accepting the Registrant's voluntary removal and undertaking, which is not provided for in its statutory framework.
High Court Decision
Mr Clarke appealed the decision to the High Court. The Court found in his favour and found that the FTPC's order to erase his name from the register be overturned and, importantly, found that his practise was not impaired and therefore a decision of "no impairment" should be substituted.
The GOC appealed the decision of the High Court, appealing both findings. However, prior to the Court of Appeal hearing the parties agreed that the only point to be decided by the Court of Appeal was the High Court's finding of no impairment. This is because the GOC agreed to accept Mr Clarke’s wish to withdraw from the Register and not to ask the Court to make any further Order as to sanction. Mr Clarke, while not agreeing to the appeal of the GOC in relation to impairment, decided not to actively oppose it.
Court of Appeal Decision
The Court of Appeal found that the High Court had erred in its approach to impairment. The Court referred to the earlier decisions of Ghosh v General Medical Council [2001] UKPC 29, Raschid v General Medical Council [2007] EWCA Civ 46, Cohen v General Medical Council [2008] EWHC 581, and Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 in relation to the specialist expertise of fitness to practise panels and the previous findings of the Court in relation to the impairment of a registrant's fitness to practise.
In respect of "impairment", the Court of Appeal in this case held that it referred to "impairment of fitness to practise" and not "impairment" simpliciter. Therefore, in respect of the statutory scheme, the High Court had erred in its application of the definition of "impairment". In essence, the High Court had not adequately distinguished the finding of "impairment" from the sanction imposed. The danger in allowing the two to be so closely tied could result in the GOC being in a position of not being able to make a finding of impairment against a practitioner in circumstances where the practitioner simply voluntarily retired. This would permit the practitioner to seek admission to the register again or indeed seek to practise in another jurisdiction.
In addition, the High Court erred in finding that Mr Clarke's failure to undertake additional training, and therefore address the impairment, should not be a factor in relation to the finding of "impairment". However, the Court of Appeal did not address whether the same could be said in respect of the High Court’s consideration of the issue of the sanction due to this aspect of the appeal having been agreed between the parties prior to the hearing.
The Court of Appeal held that merely because a practitioner had decided not to practise any longer should not have an impact on whether or not their fitness to practise is impaired. The Court held that, even where a practitioner intended to retire or remove their name from the register, their fitness to practise may well be impaired. This is even more relevant in circumstances where the practitioner's skills could deteriorate due to lack of use.
Therefore, the Court allowed the appeal to the extent of reinstating the FTPC's finding of impairment and also made an order, as agreed between the parties, allowing Mr Clarke to withdraw his name from
the GOC's register and providing for no further action to be taken with regard to sanction.
Commentary
This decision is not binding on this jurisdiction, but raises interesting issues as to what (if any) significance should be attached to the fact that a person has retired when considering fitness to practise decisions. The Irish professional regulators do not operate a statutory test of impairment when making decisions as regards a registrant’s fitness to practise. However, the issue of retirement may be adduced by a registrant during the fitness to practise process as a reason as to why an inquiry should not go ahead or as mitigation during sanctions proceedings.
Therefore, from an Irish perspective it is an interesting examination of the statutory scheme of the fitness to practise process. Irish professional regulators, like the GOC in the UK, have very limited powers in relation to voluntary removal from the register once fitness to practise proceedings have commenced.
Although the issue of sanction was not considered by the Court of Appeal, it is interesting in the Irish context to consider the issue of retirement and sanction more generally. As can be seen from this judgment, a decision to retire by a registrant should not be used as mechanism to avoid the outcomes of fitness to practise proceedings. However, professional regulators, when imposing sanction, need to be cognisant of their powers and consider all relevant factors to its decision. This could include the fact that a registrant intends to retire. However, the weight to be given to such a factor will depend on the allegations of which the registrant has been found guilty, the public interest and in particular, the risk to the public. Each decision will very much depend on the facts and particular circumstances of the case before the professional regulators, leaving each case to be decided on its merits
