A little over 12 months ago, the optometric and wider medical professions were rocked when Boots Opticians locum optometrist Honey Rose was convicted of gross negligence manslaughter following the death of an eight-year-old boy she performed an eye test on.
Now, a year later, the professions were left reeling once more following the Court of Appeal’s decision to overturn the verdict, leaving a family to deal with further anguish and a profession questioning whether criminal proceedings should ever have taken place.
Rose was given a two-year suspended sentence in August 2016. During her trial, a jury was told she failed to notice that Vinnie Barker had swollen optic discs when she carried out an examination at a branch of Boots, in Ipswich in February 2012. Barker died five months later on July 13 from undiagnosed bilateral papilloedema.
During the trial, the court heard that Barker had retinal photographs taken by an optical consultant before the eye examination with Rose, who told police that she believed her consultant colleague had accidentally presented the retinal images from Barker’s previous eye test in 2011 which showed no signs of ill health. When presented with the images in court, Rose admitted that even a non-qualified practitioner would have spotted the swollen discs.
The appeal
A panel of three judges said there had been a ‘serious breach of duty’ by Rose, but it did not constitute gross negligence manslaughter. In the judgement, the judges set out the relevant legal framework by which she should have been judged by the jury.
One of the judges, Sir Brian Leveson, said: ‘All a reasonably prudent optometrist would have known is that, if he or she did not carry out a proper examination, signs of potentially life-threatening conditions might be missed. But this is a very different matter from knowledge that such signs in fact existed and that there was a “serious and obvious risk of death.”’
Addressing the facts of the case, Sir Leveson said: ‘In some cases, there might be ‘wilful blindness’ to a serious and obvious risk of death, but that is not the present case.
‘It is not appropriate to take into account what the defendant would have known but for his or her breach of duty. Were the answer otherwise, this would fundamentally undermine the established legal test of foreseeability in gross negligence manslaughter, which requires proof of a “serious and obvious risk of death” at the time of breach.’
Serious implications
The importance of the decision for medical professionals who could potentially face manslaughter claims in the future was noted by the panel, which said the original decision by the jury to find Rose guilty would have had serious implications, lowering the threshold for which similar cases could be judged.
Sir Leveson said: ‘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.’
Andrea James, a solicitor and partner at Knights 1759 who specialises in representing healthcare professionals, underlined the importance of the ruling for healthcare professionals. ‘If the judgment had stood, it would have represented a lowering of the bar for a finding of gross negligence manslaughter to be made,’ she said.
James also agreed with the decision of the judges: ‘I believe the judgement is the correct decision and makes clear that an allegation of gross negligence manslaughter such as this must be considered by reference to what the healthcare professional actually knew at the time they breached their duty of care to the patient – in this case, at the time Ms Rose undertook Vincent Barker’s eye examination – and not what the healthcare professional would, could or should have known if their breach of duty had not occurred. In this case, as Ms Rose did not see Vincent’s optic nerve heads, she could not appreciate the presence of papilloedema or that this posed an obvious risk of death,’ she said.
The decision has left Vincent’s parents, Ian and Jo Barker, ‘devastated.’ They felt the conviction should have been upheld and remained in no doubt that if Rose had not breached her duty of care that day, Vincent would still be with them.
‘Not only has Vinnie been let down by an individual optometrist, today he has also been failed by the legal system,’ they said in a statement released by Suffolk Police.
‘The ruling or even granting leave to appeal, to us makes a mockery of the original verdict and what we believed the justice system to be. The appeal process has not been about whether Honey Rose is guilty. It has been based on the rulings of prior, and what we feel are non-comparable, cases and the loopholes they provide to allow a fair conviction to be overturned.’
They added that they were highly aware of the controversy and concern that the case generated and had felt that the gravity of such a conviction would help protect patients and safeguard the reputation of medical professionals who adhere to good practice against the few who breached their duty of care.
‘Instead this case now opens the gates for medical practitioners to operate outside of the standard at which they are required to perform, without full accountability or responsibility to uphold their duty of care.'
Setting the record straight
The verdict handed down by the Court of Appeal prompted Vinnie’s parents to clarify a number of points about the case involving their son.
‘Vinnie’s visit to the opticians on 15 February 2012 was one of annual routine,’ they said. He was, and remained, asymptomatic of his underlying condition, appearing to be a normal healthy child up until hours before his death.
They continued: ‘Our son’s case was never focusing on a devastating but explainable medical mistake or an incorrect diagnosis of disease. The charge and subsequent verdict was on the fundamental basis that the optometrist failed to perform the core competencies of her job, for no apparent reason.
‘Finally, not only did Honey Rose fail to carry out an examination of the back of Vinnie’s eyes, she chose to falsify our son’s notes, indicating that all findings including those that can only be viewed during an examination of the back of the eye were “normal.”
‘While we appreciate our son had no outward symptoms, that is in fact precisely the reason that Honey Rose’s core duties to examine his eyes needed be complied with. It would have detected the obvious abnormalities and triggered the referral for the lifesaving surgery he urgently needed.
‘It has been heart wrenching to listen to a portrayal of lies that our son was photophobic and failed to co-operate, preventing a full examination. The knowledge that we entrusted our son’s care to an optometrist who failed him so badly has impacted hugely on our grief.’
What now?
Vinnie’s parents said that after five harrowing years of investigations and court proceedings, they had now put their faith in the General Optical Council to uphold the standards of the profession by ensuring Rose was unable to resume practice in optometry. They added that discussions were now taking place with the CPS as to their next steps
In his summing up, Sir Leveson also said Rose’s breach of care should have been a matter for the optical regulator, which brings the question of whether the case should have been brought to trial. ‘Before deciding whether to prosecute in any case, the Crown Prosecution Service (CPS) must consider The Code for Crown Prosecutors, which involves a two-stage consideration– the evidential stage and the public interest stage. Clearly, in this case the CPS believed the test was made out. They don’t always get it right,’ said James.
The criminal proceedings and subsequent appeal have drawn the attention of a variety of medical professions and practitioners. Dr Jenny Vaughn, a consultant neurologist and chair of Friends of David Sellu, an organisation established in support of surgeon David Sellu, who served 15 months in prison after being found guilty and later acquitted of the same charge as Rose in 2013, said:
‘There are no winners in this tragic case and I feel desperately sad for Vincent Barker’s parents,’ said Vaughan. ‘What we do know is that there is no evidence that criminalisation of individual healthcare professionals improves patient safety. This can only be facilitated by whole system improvements.
‘I would like to see optometry introduce the system of double reading scans as used in fields such as radiology because it reduces the number of errors makes both patients and practitioners safer.’
The GOC said it had been made aware of the case and was now giving it due consideration. Rose, who remains suspended until June 2018, was scheduled to be the subject of a 12th review hearing later this month. The GOC would not say if this latest news would accelerate an appropriate sanction being passed down.
The regulator’s indicative sanctions for failings related to patient care said a particularly important consideration when dealing with fitness to practise cases was whether the patient had shown insight into their actions. If not, the regulator said it was likely that conditions for suspension would not be sufficient.
Whenever Rose’s fate is decided, questions will be asked of the GOC should she be allowed to return to practice.
