High Court allows appeal against decision of Fitness to Practise Panel of General Optical Council to erase name of student optometrist from register. 

Judgment date: 16 May 2013

The appellant (H), was a student optometrist who had received a caution for fraud by misrepresentation when he was 18 years old. The facts of the offence were that he had been persuaded to board a bus driven by his friend, who would then crash the bus allowing H to make a false personal injury claim against the bus company.

H had twice failed to disclose this caution when completing his renewal form to remain on the register for student optometrists in the belief that only convictions need be declared. Upon realising his error, H made the necessary declaration. Consequently, H faced a hearing before a Fitness to Practise Panel (the Panel) of the General Optical Council (the Council) at which it was alleged that his fitness to practise was impaired by reason of his caution and by his misconduct in dishonestly failing to declare said caution.

The Council’s, ‘Fitness to Practise Panels Hearings Guidance and Indicative Sanctions’ (the guidance) states that erasure from the register is the most severe sanction, only to be imposed if necessary for public protection or required by the seriousness of the conduct. The guidance also states that a failure to disclose a caution might be considered to be dishonest conduct that might undermine trust in the profession.

The Panel’s Legal Adviser, in his advice, referred to the case of Solicitors Regulation Authority v Sharma [2010] EWCH 2022 (Admin) which says that, save in exceptional circumstances, dishonesty would lead to a striking off from the register. As part of his advice, the Legal Adviser explained to the Panel that the case of Sharma set out the range of sanctions available and the circumstances in which they could be imposed.

Having concluded that the offence demonstrated very serious dishonesty and the misconduct had involved complex preparation on behalf of H, the Panel directed that H’s name be erased from the student register.

H appealed this decision on the following grounds:

  1. The Panel has been misdirected on the law by the legal adviser;
  2. The Panel had formed an unsustainable view of the caution, normally imposed for low-level offences;
  3. The Panel had been mistaken in forming their view that he was involved in planning the fraud.

In allowing the appeal, Legatt, J stated the following:

  1. The Panel had been misdirected on the law. Reference to the case of Sharma placed an improper qualification on the guidance offered by the Council; it was not appropriate to assume that the same legal principles that applied for one profession in respect of another.
  2. The Panel was entitled and obliged to form its own view of the evidence and that although the CPS had found a caution to be appropriate, the Committee’s decision need not be determined by this.
  3. The Committee’s reasoning suggested that they considered H to hold more responsibility for the offence than was fair to apportion him, given there was no evidence before them to support such a finding.

The full transcript of this judgement is eagerly awaited.  It appears to be inviting caution when applying the principles in Sharma, i.e. a presumption in favour of striking off those found to be dishonest unless there are exceptional circumstances, to other, non-legal professionals.