The relevance of retirement and future risk in fitness to practise proceedings revisited

Inclusion on a professional register without a finding of current impairment implies current fitness to practise. The High Court decision had done violence to that fundamental concept.

The question is not simply ‘what risk does the registrant pose’ but rather ‘what risk do they pose if they practise?’ The likelihood of the registrant practising is not a pertinent issue when inclusion on the register carries an imprimatur of that registrant’s ‘fitness to practise’. The decision of the Court of Appeal has allowed Mr Clarke to avoid the reputational harm of a sanction of erasure whilst also restoring the integrity of the concept of impairment.

General Optical Council v Clarke [2018] EWCA Civ 1463

Background

The Registrant’s fitness to practise had been found to be impaired by a fitness to practise committee. Although the committee gave credit to the registrant’s admissions they ordered a 12 month suspension to allow him an opportunity to reflect and remedy his practise through education and training before review. The Registrant had made known that he had permanently retired from practice and had sold his business.

At the review hearing, the Registrant sought a finding of no impairment and offered an undertaking not to practise again which he submitted established a low risk of repetition. He advanced no evidence of remediation. Not surprisingly, he had not undertaken additional training. Having made a finding of current impairment the committee moved to the sanction stage and ordered that he should be erased from the register.

High Court                                   

On appeal by the optometrist, the Administrative Court quashed the Committee’s decision and replaced it with a finding of no impairment. It considered the risk to the public to be next to nothing in circumstances where the optometrist was retired and stated greater emphasis should have been given to this when determining that risk. The GOC appealed.

Court of Appeal

The Court of Appeal held that the judge’s approach to impairment in the High Court had been erroneous. The fact the optometrist did not intend to practise could have little or no consequence to the decision on impairment. It was open to the committee to find that his retirement did not count in his favour and the failure to complete education and the likely deterioration of his skills through lack of use, reasonably justified the reinstatement of the committee’s finding on impairment. By agreement between the parties the decision to erase the Registrant was not re-instated.

Comment

As an optometrist who had resolved never to practise again but was subject to an ongoing fitness to practise process, Mr Clarke’s only route out of an ongoing cycle of review hearings was to obtain a finding of no impairment, thereby bringing the FTP process to an end, or to be made subject to a sanction decision to erase his name from the register. The latter route carrying with it an adverse imputation which was not proportionate to the underlying impairment.

Unlike the GMC’s system, GOC registered professionals do not hold a license to practise in addition to registration and so relinquishing his license was not an option for Mr Clarke. The GOC does not have a voluntary erasure mechanism for registrants involved in ongoing fitness to practise proceedings. In equivalent systems such as those operated by the GMC or GDC a registrant in Mr Clarke’s position would almost certainly have been granted voluntary removal.  The original allegations had been tried and determined and the initial sanction had been imposed and served.

It may be that the real lesson from this case is that a mechanism for voluntary erasure can be a useful part of the regulator’s toolkit.

For more information or guidance please contact:

Ian Craig
Solicitor
T. 0113 341 1856
E. ian.craig@rlb-law.com

Stewart Duffy
Partner
T. 
020 7227 7418
E. 
stewart.duffy@rlb-law.com


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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