A Lancashire optometrist won her battle against the GOC, after its finding of serious professional misconduct against her was quashed by a High Court judge.
Nicole Threlfall had been found guilty of allegations against her and fined 500 by the Council's disciplinary committee in May this year.
She told optician that she was delighted with the result, and wanted to thank all those who had supported her.
Announcing his judgement on November 26, Justice Stanley Burnton said: 'The facts found by [the committee] concerning as they do an isolated incident against the background of an otherwise unblemished professional career, do not justify the finding of serious professional misconduct.'
The optometrist was accused in relation to a 34-year-old male patient from Wigan who consulted her on July 12 2002 suffering from a blind spot in his eye and black dots in his field of vision.
The GOC's case was that Threlfall conducted a cursory examination of the man, an IT manager with the Environment Agency, only referred him to hospital at his insistence and failed to inform the doctor there was a risk of retinal detachment.
However, Threlfall had claimed that her examination, although brief, was sufficient to appreciate that there was a risk of retinal detachment and accordingly she referred him to Wigan Hospital, securing an appointment for the following day.
However after leaving Threlfall's surgery at the Makerfield Eye Centre, Gerard Street, Ashton-in-Makerfield, Lancashire, the patient's vision deteriorated and after contacting NHS Direct he was advised to go to his local Accident and Emergency Department. He underwent emergency surgery for the detached retina the following day at Liverpool Hospital.
Beverley Lang QC for Threlfall, said the committee's decision 'increased the scope of the professional duty - she was not under a duty to diagnose'.
Lang's appeal on behalf of the optician had involved questions of principle; namely the extent of the duty of an optician who refers her patient to a registered medical practitioner or to a hospital.
Judge Burnton said: 'In my judgement it was crucial to the gravity of her misconduct whether she made the referral at her own instigation, rather than at her patient's insistence and whether she informed the doctor that the patient might have a retinal detachment.
'It is unfortunate that neither of these issues was addressed in the particulars of the charge. They should have been. Although not expressly charged they were extensively canvassed at the hearing. Had they addressed in the particulars of the charge, the disciplinary committee would have had to make express findings on them.
'In my judgement I must interpret the disciplinary committee's reasons most favourably to Threlfall. I should not assume that it made findings against her which it did not record.'
In his judgement Justice Burnton also commented that Lang had complained 'with justification' that one of the disciplinary committee's reasons was a failure to take an adequate history.
'No such failure was charged,' he said. 'The failure to take an adequate history clearly weighed with the committee in reaching its decision that Threlfall's conduct amounted to serious professional misconduct. To that extent, its findings were flawed.'
AOP response
A spokesman from the AOP legal team which represented Threlfall said: 'We are delighted that the court quashed the findings against our member. It found that the factual basis upon which the disciplinary committee had proceeded to make its finding of serious professional misconduct could not be ascertained from its reasons.
The court held that in one of the two possible scenarios that the committee might have found proven it was open to the committee to make a finding of serious professional misconduct. However, as it was not possible to determine which, if either, of these scenarios the committee had found proven, the court interpreted the committee's reasons favourably to Mrs Threlfall. In doing so, the court held that the facts found by the committee did not justify the finding of serious professional misconduct.
As to the Legal Assessor, the court did not hold that his approach had been "correct", as the GOC claims in its press statement. It concluded that his direction to the committee had been "adequate" but that a reference in it to the profession's reputation had been "unfortunate". The judgement said it would have been better if he had drawn a clearer distinction between negligence and serious professional misconduct and
suggested that a standard form of direction should be developed for future use.
The judgement also contained criticisms of GOC procedures on framing charges and giving reasons for findings.'
The AOP sincerely hopes that the GOC will take full account of these and amend its procedures in future cases to facilitate fair hearings."
GOC response
In its 456-word response to the outcome of the case, the GOC listed that six of the seven grounds for the appeal were rejected by the court. It said Threlfall won as a result of the disciplinary committee's failure to back up its decision with adequate reasons.
GOC registrar Peter Coe said any implications of the case lie with the AOP in light of such a narrow win and the fact that the judge did not award full costs to Threlfall. He also forecast a revision of the referral system by the DoH.