GOC v Clarke [2018] EWCA Civ 1463

This case provides guidance on whether and in what respect a registrant having retired can be taken into account when considering whether fitness to practise is impaired.

1. The facts

Mr Clarke was an optometrist who admitted to failing to refer Patient A for further investigations.  The effect of this was a delay in diagnosis and the patient losing her sight.  In 2015 the General Optical Council’s Fitness to Practise Committee found that Mr Clarke’s fitness to practise was currently impaired and a 12 month suspension order was imposed.  When this order was reviewed approximately a year later, Mr Clarke indicated, as he had done previously, that he was retired and he offered an undertaking not to practise.  The Review Committee held that his fitness to practise remained impaired, that the undertaking could not be accepted and that he should be erased from the register.

On appeal at the High Court Fraser J was critical of the Committee’s decision which he described as ‘plainly and obviously wrong’.  He held that the Committee had failed to give proper consideration to the likelihood of the allegations being repeated in the context of Mr Clarke’s retirement.  Moreover, Fraser J said that had the Committee given proper consideration to the issue of the risk of repetition ‘they would have concluded that the likelihood of repetition was very close to zero‘… ‘The risk posed to the public going forward is something that must be taken into account, in order to do so, this consideration of risk cannot ignore the fact of that person’s retirement‘.  The Committee’s decision was quashed and replaced with a decision of no impairment.

The General Optical Council appealed arguing that a finding of impairment had to be made by reference to whether, if permitted to practise, the optometrist would be fit to do so without restriction, not on the basis of whether the optometrist in fact proposed to continue to practise.  In advance of the appeal being heard the issues were narrowed in that the General Optical Council agreed to accept Mr Clarke’s wish to withdraw from the register and so the issue of sanction required no consideration.

2. The decision

The Court of Appeal allowed the appeal.  In the judgment at 27 Newey LJ states that the language used in the statute, namely ‘fitness to practise’ in Sections 13D and 13F and Section 8 which requires someone who wishes to be included on the register to be ‘a fit person to practise’, is crucial.

At 28 Newey LJ referred to the Oxford English Dictionary definition of fitness as including ‘the quality of being fitted, qualified, or competent” and “[t]he state of being morally fit; worthiness‘.  In this context he concluded that fitness to practise must depend on matters such as these rather than whether the individual in question intends to practise as an optometrist.

At 29 the judgment sets out that “Where misconduct is “highly unlikely to be repeated” in the course of continuing practice, that points towards fitness to practise. Where, on the other hand, repetition is improbable merely because the optometrist will no longer be practising, that would not seem to be indicative of fitness to practise. If anything, cessation of practice may point in the opposite direction, since the optometrist’s skills could deteriorate with lack of use.”

At 31 Newey stated that, “the fact that Mr Clarke was not intending to resume practice could be of little or no consequence. Moreover, the fact that Mr Clarke had not undertaken CET was, as I have said, something that could properly be taken into account.”

The finding of impairment of Mr Clarke’s fitness to practise was reinstated.

3. Commentary

This succinct and pithy judgment makes plain that in the consideration of current impairment the concept of fitness to practise is exactly that, whether a practitioner is fit to practise unrestricted rather than a deliberation of whether there is any likelihood of a return to practise and, thereby any risk occasioned by that.  Moreover, it is clear that a failure to complete CET (or CPD) can be taken into account.  This may be seen as a victory for common sense.