In a statement following the trial,
Vinnie’s family (father and mother Ian
and Joanne and his four siblings) said:
“The outcome of this case does not
change our life sentence; we will never
be able to fully accept that our special
little boy is never coming home. The
void left in our lives will never heal and
the ripple effect to those around us is
immense. The decision of a jury or judge
cannot bring Vinnie back or undo the
devastation of his death. A guilty verdict
would never make us winners; our loss
is simply too great. They went on to
say, “Our main concern has always been
the accountability of those we entrust
with our own health and the health of
those we love. It is the responsibility of
individuals and the organisation they
work for to perform their duties to the
expected levels of good practice without
exception. The actions of professionals
or their failure to act to a standard at
which they are required to perform
should not go without consequence.”
So Vinnie’s family, understandably,
hope that the conviction of Rose will
serve as a salutary lesson to other
optometrists and will help avoid similar
mistakes being made in future. The Rose
case is unfortunate in that it involved
the untimely death of a patient. The
fact that the patient was a child makes
it even more emotive. But doctors’
mistakes can sometimes involve the
death of children and yet they are rarely
subject to criminal cases.
So was this case fair to Rose and to
Optometry in general? What exactly is
the lesson we should take away? And
what does this case, the first of its kind
against an optometrist mean for the
profession of optometry and the wider
medical profession?
Simon Kelly, a consultant
ophthalmologist at Royal Bolton
Hospitals NHS Foundation Trust,
Beaumont Hospital, Bolton, is concerned
that the verdict will have an adverse
impact on optometry and ophthalmology.
“This conviction is
not in my opinion
the way forward
to improve the
diagnosis of
papilloedema in the
community or indeed
patient safety,”
he said.“In the short to medium term
it’s likely that more optometrists are
going to refer patients to eye hospitals,
which are already overstretched,
because of a fear of missing pathology.” 1
Ross Clark, writing in The Spectator 2
echoed this sentiment saying “Doctors,
terrified of failing to spot lurking
conditions, are never going to let a
case go without referring the patient
for further examination. Hospitals
and consulting rooms will fill up with
patients called in to have further
examinations on what are almost
certainly benign conditions but which
no doctor or nurse will dare to dismiss
as such.”
And following news of the conviction,
Dr David Nicholl, a consultant
neurologist at City Hospital Birmingham,
created a petition which has since
received more than 4000 signatures. 3
The petition reads “The successful
conviction of optometrist, Honey Rose,
for gross negligence manslaughter has
added to the increasing concern that
the Crown Prosecution Service is taking
a much harder line against health-care
professionals. For the avoidance of
doubt, none of us would support neglect
of our patients, however we remain very
concerned that the CPS’ approach will
set back years of effort to encourage
transparency when things go wrong
in healthcare.”
It goes without saying that
optometrists, like all medical and health
care professionals, must discharge
their duties with care and have the
patient’s best interests at heart at all
times. Putting patients’ safety first and
being open and honest when things go
wrong are central tenets of the GOC’s
Standards of Practice. 4 The requirement
for an eye examination to include an
intra-ocular examination is enshrined
in the GOCs rules that form part of the
Opticians Act. 5
But optometrists are not infallible
and are bound, from time to time, to
have a ‘bad day’ and make mistakes.
Surely it can’t be right to become so risk
averse that we refer every abnormality
no matter how insignificant. The
GOC’s own rules relating to injury or
disease of the eye allow optometrists to
exercise their professional judgement 6 .
And hospitals are already at saturation
point, with emergency visits to hospital
eye departments rising. 7 Referring
defensively cannot be good for patients;
who would have to wait for unnecessary
examinations, and it will only serve
to make the situation in our hospitals
even worse. So, should we carry on
regardless, spending time worrying that
simple mistakes could land us in court
or does a criminal jury need more than
a mistake to show gross negligence?
In his closing speech in the Rose
case, judge Stuart-Smith reminded the
jury that they must be sure that the
conduct of Ms Rose was “something
so truly, exceptionally bad and in the
circumstances gave rise to a serious and
obvious risk of death.” He went on to say
“mistakes, even very serious mistakes,
and errors of judgment, even very
serious errors of judgment, are nowhere
near enough to find a charge of gross
negligence manslaughter. Even if you
have found there is a breach of duty, you
still have to go on to consider if it is so
bad it amounts to a criminal offence”. 8
This position is echoed in recent fitness
to practise cases heard by the GOC.
In July 2016 The Fitness to Practise
committee considered a case brought
against optometrist Jeremiah Kelly. He
had carried out an eye examination on a
four-year-old and had failed to prescribe
glasses or identify possible amblyopia.
The committee determined that this
single event
“was, in itself, not
sufficiently grave, to
cross the threshold
of seriousness to
support a finding of
misconduct” 9 .
Three more substantive cases heard
between July and October 2016 by the
Fitness to practise committee concerned
missed pathology. 10,11,12 They found one,
a case of missed retinal detachment,
not proved and issued warnings to two
other optometrists in the cases of missed
glaucoma and missed retinal detachment.
Of course, none of these cases resulted
in the death of a patient, and the Fitness
to Practise process is not a criminal one.
But patients’ vision was either put at
risk or deteriorated as a consequence,
yet all these optometrists have been
allowed to continue to practise and no-
one is suggesting any of them should be
investigated for criminal negligence.
So does the Rose case hinge on
more than a mistake? Did the jury find
systematic failures? Or is it just that
the mistake was so profound it could
constitute criminal negligence after all?
The Rose case is unusual in that
retinal images taken by an optical
assistant immediately before the eye
examination in February 2012 show,
unequivocally, that Vinne Barker had
papilloedema at the time of his visit.
The jury was told, on the first day of the
hearing that “the parties agreed that
Vinnie had swollen optic discs at the
back of both of his eyes”. 13 So, unlike
many cases of missed pathology, the
existence, or not, of the condition on the
day of the examination is not in doubt.
Continued overleaf
November 2016 | etCETera
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