Judges’ decision reverses earlier manslaughter ruling that would have had “serious implications” for medical and other professions

Three appeal court judges have overturned the decision to convict optometrist Honey Rose of gross negligence manslaughter.

Ms Rose was convicted in July 2016 in the case of Vincent Barker, who died following a build up of fluid in his brain.

The court of appeal judges said that there had been a "serious breach of duty" by Ms Rose, but that it did not constitute gross negligence manslaughter.

In the ruling, the court concluded that the judge, Justice Stuart-Smith, misdirected the case to the jury when applying the legal test of “foreseeability” of the outcome of Vincent Barker’s death.

The court of appeal judges commented that the earlier decision by the jury would have had serious implications for all medical professionals.

Legal test

In the judgement, the court of appeal set out the relevant test by which Honey Rose should have been judged by the jury during the trial.

One of the three judges hearing the case, 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.”

Reflecting on the facts of the case, Sir Brian stated: “In some cases, there might be ‘wilful blindness’ to a serious and obvious risk of death, but that is not the present case.”

In their conclusion, Sir Brian stated: “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.”

The judges also noted the importance of the decision for medical professionals who could potentially face manslaughter claims in the future, stating that the earlier decision by the jury to find Honey Rose guilty would have had “serious implications.”

Sir Brian 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.”

First of its kind case for optometry

Optometrist Honey Rose received a two-year suspended sentence in August 2016 after the death of her patient Vincent Barker from a build up of fluid on the brain.

The criminal case, which was heard at the Court of Appeal Criminal Division in London on Tuesday (13 May) is thought to be the first prosecution of an optometrist for gross negligence manslaughter.

Five months before Vincent’s death, Ms Rose performed an eye examination on the eight-year-old.

During the trial, it was the prosecution’s case that the defendant breached her duty of care to Vincent by failing to examine his optic discs in the course of the examination. Ms Rose said in evidence that she had a reasonable excuse for not looking at Vincent’s eyes which included the assertion that he was slightly photophobic.

However, the jury rejected her evidence and concluded that her conduct fell so far below what could be expected of a reasonably competent optometrist that it was criminal.

In the appeal court decision, Sir Brian said: “This decision does not, in any sense, condone the negligence that the jury must have found to have been established at a high level in relation to the way that Ms Rose examined Vincent and failed to identify the defect which ultimately led to his death. That serious breach of duty is a matter for her regulator; in the context of this case, however, it does not constitute the crime of gross negligence manslaughter.”

Responding to the decision, the AOP said: “This outcome will be a relief to our member, Ms Rose, who has fought the charges of gross negligence manslaughter. Nonetheless, the case has had devastating consequences and our sympathies go out to the Barker family for their tragic loss.”

The AOP added: “There are millions of sight tests undertaken in the UK each year and this type of case is extremely rare. Optometrists adhere to strict standards of practice set out by the regulatory body, the General Optical Council (GOC). All practising optometrists in the UK must be registered with the GOC and undergo at least four years of extensive training before they qualify.”

Ms Rose currently faces an ongoing Fitness to Practise hearing before the GOC. The AOP told OT that it is unable to provide information that relates specifically to the case.

The AOP also confirmed to OT that Honey Rose’s eligibility to work as an optometrist will be dependent on the outcome of the Fitness to Practise hearing that she faces before the GOC.

In a statement from Vincent Barker’s parents, they said: “We are understandably devastated; we feel that the conviction of manslaughter by gross negligence should have been upheld. We remain in no doubt that if Honey Rose had not breached her duty of care to our son he would still be with us today. Not only has Vinnie been let down by an individual optometrist, today he has also been failed by the legal system.”

They added: “We are hugely aware of the controversy and concern that the case generated. We felt that the gravity of such a conviction helped to protect patients and safeguard the reputation of medical practices and professionals adhering to good practice against those few who breach 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.

“We have endured five years of harrowing investigations and court proceedings, to be left now putting our faith in the General Optical Council and their responsibility to uphold the standards of their profession to ensure that Honey Rose is unable to resume any practice in optometry.”

A GOC spokesperson told OT: “We have been made aware of the court of appeal’s decision to overturn the conviction of Ms Honey Rose. We are now giving the matter due consideration.”

A Criminal Prosecution Service spokesperson told OT: “We are considering the judgment.”

Image credit: David R Badger