R v Rose [2017] EWCA Crim 1168

An optometrist failed to properly examine a 7-year-old boy's eyes, missing signs of a fatal brain condition. She was convicted of gross negligence manslaughter, but the Court of Appeal quashed the conviction, holding that foreseeability of death must be assessed on knowledge available at the time of breach, not what would have been known but for the breach.

Facts

Honey Rose, a registered locum optometrist working at Boots Opticians in Ipswich, conducted a routine eye examination on 15 February 2012 of Vincent Barker, aged 7. She recorded no issues of concern. Retinal fundus images had been taken before the examination but, on Ms Rose’s account, she was either shown the wrong images or was unable to complete a proper intra-ocular examination because Vincent was photophobic and uncooperative. Five months later, on 13 July 2012, Vincent died of acute hydrocephalus caused by a longstanding gliotic obstruction of the fourth ventricle. Expert evidence established that the retinal images taken in February 2012 showed clear signs of papilloedema (swelling of the optic nerve), which any competent optometrist would have recognised and referred urgently. Had referral occurred, Vincent’s condition was treatable and he would have survived.

Ms Rose was convicted at Ipswich Crown Court before Stuart-Smith J and a jury of gross negligence manslaughter and sentenced to two years’ imprisonment suspended for two years, with unpaid work.

Issues

The central question, as framed by Sir Brian Leveson P, was:

In assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, is it appropriate to take into account what a reasonable person in the position of the defendant would have known but for his or her breach of duty?

Consequential issues were whether the trial judge was right to reject the submission of no case to answer and whether his direction to the jury on foreseeability was correct.

Arguments

Appellant (Ms Rose)

Mr Stern QC submitted that foreseeability must be assessed by reference to the professional’s knowledge at the time the duty was allegedly breached. Because Ms Rose had not examined the back of the eye, she could not have known of the papilloedema; and without symptoms, it was not reasonably foreseeable to a competent optometrist that the failure to examine carried a serious and obvious risk of death. The judge’s direction wrongly imputed to Ms Rose knowledge she would have had if she had not been in breach.

Respondent (Crown)

Mr Rees QC submitted that the reasonably prudent optometrist must be taken to know what would have been discovered had the statutory duty been performed. A defendant should not be able to rely on her own breach to escape liability. The case was distinguishable from R v Rudling because Ms Rose’s breach was of a statutory duty.

Judgment

The Court of Appeal (Sir Brian Leveson P, Haddon-Cave J and HHJ Inman QC) allowed the appeal and quashed the conviction.

The Court reviewed the leading authorities on gross negligence manslaughter, including R v Adomako [1995] 1 AC 171, R v Bateman, R v Singh (Gurphal), Attorney-General’s Reference (No. 2 of 1999), R v Misra and Srivastava, R v Rudling [2016] EWCA Crim 741 and R v Sellu. From these, the Court distilled five elements of the offence: (a) an existing duty of care; (b) negligent breach; (c) a reasonably foreseeable serious and obvious risk of death arising from that breach; (d) causation of death; and (e) conduct so exceptionally bad as to amount to a criminal act or omission.

Crucially, the Court held that the risk of death must be assessed at, and by reference to knowledge at, the time of the breach. The test is objective and prospective, not retrospective. A recognisable risk of something serious is not the same as a recognisable risk of death, and a mere possibility that an assessment might reveal something life-threatening is not an obvious risk of death.

Applying these principles, the Court held that Stuart-Smith J had erred by directing that the jury could take into account what Ms Rose would have known had she carried out a proper examination. This conflated the subjective knowledge of the defendant with the objective knowledge attributable to a reasonably prudent optometrist standing in her shoes at the moment of breach. At that moment, all that could reasonably be foreseen was the possibility that a proper examination might reveal a life-threatening condition; the presence of papilloedema was not itself known or obvious. Vincent presented for a routine examination with no material pre-existing history pointing to a life-threatening condition.

The Court considered its analysis consistent with Rudling, where the seriousness of Ryan Morse’s condition would only have been apparent after a face-to-face examination that had not occurred, and where this Court held that the risk had to be judged at the time of the telephone call, not on the basis of what would have been discovered had the doctor visited.

The Court rejected the argument that a defendant should not be able to rely on her own breach to negate foreseeability, observing that if the test were premised on what would have been known but for the breach, the requirement of a serious and obvious risk of death would add nothing, since death has by definition resulted. The Court also rejected the submission that the statutory nature of the optometrist’s duty altered the analysis.

The submission of no case to answer should therefore have been accepted and the case withdrawn from the jury.

Implications

The decision confirms and clarifies the objective and prospective nature of the foreseeability test in gross negligence manslaughter. In assessing whether there was a serious and obvious risk of death at the time of the breach, the court cannot impute to the defendant knowledge that would only have been obtained had the breach not occurred.

The Court emphasised the practical importance of this limit for professionals:

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.

The judgment is significant for doctors, optometrists and other regulated professionals who owe statutory or common law duties involving diagnostic examinations. Negligent omission to perform routine investigations, without more, will not ordinarily found gross negligence manslaughter, even if the omission causes death, unless at the time of the breach a serious and obvious risk of death is present, clear and unambiguous. Presenting symptoms or ‘red flags’ pointing to a potentially life-threatening condition may make such a risk foreseeable; a purely routine consultation typically will not.

The Court was careful to note that its decision did not condone Ms Rose’s conduct, which remained a serious breach of professional duty properly dealt with by her regulator. The judgment therefore preserves regulatory accountability while confining the reach of the criminal law of manslaughter to cases where the risk of death is genuinely foreseeable at the time of breach.

Verdict: Appeal allowed and conviction for gross negligence manslaughter quashed.

Source: R v Rose [2017] EWCA Crim 1168