When does a professional blunder become a homicide?
An optometrist who missed ‘obvious signs’ of a lethal build-up of fluid on a boy’s brain has been convicted of manslaughter at Ipswich Crown Court and sentenced to a two year term of imprisonment, suspended for two years pending 200 hours of unpaid work under a Supervision Order.
Vincent Barker, 8, died five months after being inspected by Honey Rose, a locum optometrist working at a branch of Boots Opticians in Ipswich.
Ms Rose was prosecuted for gross negligence manslaughter after negligently failing to refer Vincent for emergency treatment. In her defence, Ms Rose explained that when she tried to examine Vincent with an opthalmascope, he had either shut his eyes or looked in the wrong direction due to his extreme sensitivity to light. Fatefully, this lead to Ms Rose giving up her examination of his eyes after a couple of minutes saying she had done the best she could. That decision meant that she failed to notice that the optic disc at the back of each eye was swollen as a result of raised pressure in the skull, which should have alerted her to refer him to hospital for urgent treatment. Instead, Vincent tragically died five months later of hydrocephalus, essentially a build-up of fluid which accumulates in the brain and can enlarge the head.
It took the Ipswich jury two hours to find Mr Rose guilty on the basis that she had been grossly negligent and that her failure to detect his symptoms was a significant contributory factor to Vincent’s death.
It is understood that Ms Rose intends to appeal against conviction, although the grounds for the appeal are not clear.
Certainly, the Prosecution are likely to maintain that the abnormalities within Vincent’s eyes were visibly obvious during the examination.
Whatever the merits of a criminal appeal, Ms Rose also awaits a Fitness to Practice Hearing before the general Optical Council.
This case brings the potential criminal liability of medical professionals into sharp focus, particularly where it is clear that the practitioner might be working under challenging conditions, and the thought that a mistake made in a Boots opticians might prove fatal sends shudders down the spine. Even if one is spared prosecution in the criminal courts, mistakes can also mean career-ending disciplinary proceedings and/or public exposure.
Following the Rose verdict last month, a petition was launched by neurologist Dr David Nicholl with the first sentence:
“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”
The petition goes on to suggest that the current prosecutorial approach has discouraged the medical duty of candour and increased the risk of defensive medicine and over-investigation. In other words, it is making those responsible for healthcare too ponderous and too cautious. The petition currently has over 4,000 signatures including of course many healthcare professionals.
These concerns are hardly surprising. When faced with life and death judgements, it cannot be ideal for practitioners to be concerned about the risk of their own prosecution, public disgrace and potential for imprisonment should they make a serious error. Of course that must always be balanced against the public expectation that serious blunders will not occur and that practitioners will work diligently and thoroughly to protect their patients.
At Brett Wilson LLP we defend professionals encountering criminal investigations and also disciplinary proceedings with a view to protecting our clients from claims of negligence and malpractice, whether in the realm of misconduct or criminality.
Articles are intended as an introduction to the topic and do not constitute legal advice.