This is a very tragic case in which there are no real ‘winners’. It is the stuff of nightmares for parents, carers and healthcare professionals.

But Rose [2017] EWCA Crim 1168 has led to urgently needed clarification for a large number of frontline healthcare staff carrying out basic tests that have the potential to reveal life-threatening conditions.

The facts

On 15 February 2012, Vincent Barker (then aged 7) attended Boots Opticians with his mother and sister for routine eye tests carried out by Ms Rose, an optometrist. The tests, including internal eye examination, are carried out under a specific statutory duty [1] in order to detect abnormalities.

Ms Rose recorded no major issues and Vincent had been healthy child.

Five months later, on 13 July 2012, Vincent became sick while at school. By the evening his condition had deteriorated severely to the extent of cardiac arrest. Despite efforts to save him at Ipswich Hospital, at 9.27pm he was pronounced dead.

Investigations ascertained that the cause of death was acute hydrocephalus (a severe build up of fluid within the brain). His untimely death could have been avoided through surgery prior to 13 July 2012.

Vincent’s case was unusual in that he did not suffer symptoms of headaches and vomiting normally associated with the condition.

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Image: Alamy

Expert opinion was that the images from Vincent’s eye tests in February 2012 showed serious abnormalities and swelling of the optic nerve and that a competent optometrist would have urgently referred Vincent to hospital.

The trial

Ms Rose was prosecuted for manslaughter by gross negligence on the basis that she had breached her duty of care by failing to conduct a proper internal eye examination and should have made an urgent referral upon viewing Vincent’s retinal images.

The offence of gross negligence manslaughter requires, among other things, that the defendant breaches a duty of care to the victim and that the defendant reasonably foresees that there is a “serious and obvious risk of death” at the time of the breach. Reasonable foresight requires an objective test – in other words, the jury has to look at what a reasonably prudent professional in the shoes of the defendant would have foreseen.

The trial Judge took the view that:

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.

He directed the jury to consider whether the serious and obvious risk of death 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 of care.

The jury at Ipswich Crown Court convicted Ms Rose of manslaughter by gross negligence.

The appeal

The Court of Appeal concluded that the Judge’s direction to the jury was wrong:

94. … 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.

The Court clarified:

84. … 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 the circumstances of the case, what a reasonably prudent optometrist would have known at the time was that if they did not conduct a proper check of the back of the eye, there was a risk that a potentially life-threatening condition might be missed. This did not meet the high threshold test for gross negligence manslaughter, which required there to be a “serious and obvious risk of death” at the time.

Previous cases support this principle – the risk can only be “obvious” if it is clear and unambiguous – not a mere possibility or something that may become clear upon investigation.

The test requires examination of foresight, not hindsight:

94… 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.

Conclusion

The case brings welcome clarity to a challenging area of criminal law, with implications for a wide range of regulated professionals within the healthcare sector.

However, it does not affect the potential for action by regulators (in this instance the General Optical Council) and civil liability in negligence which apply different and (in general terms) less demanding test than the criminal law.

[1] The Sight Testing (Examination and Prescription) (No. 2) Regulations 1989.

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a business and public law barrister with the 36 Group. He gives expert legal advice on employment, immigration and commercial disputes to a wide range of clients.

One Comment

  1. Benjaminwilliams 4 August 2017 at 5:31 pm

    Great post, thanks Ben. Extremely tragic circumstances and unforgivable mistake, but I am sure a lot of health professionals will be relieved by this judgement.

    Reply

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