What risk retirement? Clarke v General Optical Council [2018] EWCA Civ 1463
There has been an important reversal of the decision in Clarke v General Optical Council which we discussed here. Originally the GOC had, at a review hearing after a 12 month suspension, determined that Mr Clarke's fitness to practise continued to be impaired and that erasure was the only means of protecting patients and/or maintaining public confidence in the profession.
At the High Court in March 2017 Mr Clarke successfully appealed this decision with the Court finding the Fitness to Practise decision had been "clearly wrong" and not only overturning the sanction but directing that a finding of no impairment should be substituted.
The reason for the divergence of views focussed on the weight to be given to Mr Clarke's sale of his business and stated intention of retiring. The original incidents had arisen between 2004 and 2009. By 2015 when his interim order was being reviewed and the substantive hearing took place Mr Clarke had sold his practice and retired. His representatives indicated that he had no intention to practise again or to renew his GOC registration. He was willing to give an undertaking to this effect.
However at the first substantive hearing the Committee commented that he could change his mind and resume practice and it considered that a 12 month suspension would, amongst other things, allow him to consider whether he still wanted to cease practise. A year on Mr Clarke confirmed his intention, but the reviewing Committee considered his limited insight, lack of remediation and absence of CET (Continuing Education and Training) meant his fitness to practise could only have diminished.
The High Court Judge last year found this wrong, not least because it was plain to him that the need to do CET was only if Mr Clarke decided he did wish to resume practice.
More controversial however was the judge's view that greater weight needed to be given to there being "simply no likelihood of repetition" given the sale of the business and retirement, and that the conduct had been "remedied" by the decision to no longer practice.
Had this decision been left unchallenged, and indeed in the intervening period, the impact of a registrant announcing their retirement would seem substantial. Fitness to Practise Committees and arguably Case Examiners or Investigating Committees would have to ask if it would be possible to make (or there be a real prospect of) a finding of impairment in such cases.
The Court of Appeal has resolved this issue. In doing so it had to consider the meaning of "fitness to practise" or "fit to practise". The Court wanted to focus on the assessment of fitness to practise rather than on risk of repetition. As it astutely observed "a person could hardly claim to be a fit person to practise…because he had no intention of doing so [i.e practice]". The references to Cohen[1] did not involve a doctor intending to retire and clearly in that context, of continuing practise, that "the misconduct is highly unlikely to be repeated" is of greater importance to the assessment of any current impairment.
Affording the deference usually given to specialist tribunals the Court of Appeal found that there was sufficient evidence, including the lack of CET, for the GOC to have reached the conclusions it did and it reinstated the impairment decision. The parties had agreed Mr Clarke could then withdraw his name from the register so the sanction was not re-imposed.
This interesting case again invites those of us involved in this work to make sure we rightly focus on a registrant's "fitness to practise" and whether this is impaired by reason of one of the statutory grounds. Whilst "remediable", "remediated" and "little or no risk of repetition" are familiar phrases from Cohen and a number of similar cases, evidence to support these assertions needs to be properly scrutinised and considered to ensure that any "impairment", including wider public interest reasons to find this, is properly weighed.
[1] [2008] EWHC 581