General Optical Council v Church [2019] EWHC 924 (Admin)

General Optical Council v Church [2019] EWHC 924 (Admin) concerned an application by the General Optical Council to extend an interim suspension order against a dispensing optician. Ms Karon Monaghan QC, sitting as a Deputy Judge of the High Court, granted the application and extended the interim order for a further twelve months.

Mr Church had been registered as a dispensing optician since 10 February 1984. On 6 January 2017 he was convicted of theft from his employer to the value of £3,311 and sentenced to 26 weeks’ imprisonment suspended for 24 months, with orders to pay compensation, a victim surcharge and prosecution costs. The court treated the matter as a serious offence. On 21 June 2017 the Council received information from Mr Church himself indicating that he had been suffering from a health condition at the time of the criminal activity.

The Council’s Fitness to Practise Committee imposed an interim order of suspension on 23 June 2017 for nine months pursuant to section 13L of the Opticians Act 1989. The Committee reviewed the order on 28 July 2017 and again on 22 January 2018, determining on each occasion that it remained necessary. On 21 March 2018 the High Court extended the interim order for a further twelve months, so that it was due to expire on 22 March 2019. The Fitness to Practise Committee conducted a further review on 6 December 2018 and concluded that there had been no material change in circumstances and that the order should be continued. The Committee noted that whilst the health issue remained under investigation, the absence of further information itself indicated a risk justifying continuation of the order.

Following receipt of the information about Mr Church’s health, the Council opened a second matter to assess whether his fitness to practise was impaired by reason of an adverse health condition. The Council wrote to Mr Church more than once seeking his consent to obtaining a medical report in relation to the alleged adverse health condition, but he did not engage with those requests. On 10 April 2018 Mr Church emailed the Council indicating that he had no intention of returning to practice, was employed in an unrelated industry, and asking that communications cease. On 26 July 2018 the Council wrote informing him that the investigation committee had directed that he undergo an assessment of his health, but he did not do so. The Council was in the process of referring the concerns relating to Mr Church’s health and intended to apply to join these allegations with the initial allegation concerning the criminal conviction, given the nexus between the matters. There was also a further extant allegation concerning failure to cooperate which required pursuit in accordance with the statutory provisions governing notice.

The Council applied pursuant to section 13(11)(6) of the 1989 Act for a further twelve-month extension to 22 March 2020 on the grounds that it was necessary for the protection of the public, otherwise in the public interest, and in Mr Church’s own interest. Mr Church did not appear but had been notified of the application and served with the relevant papers, including the witness statement of Ms Nwakaeze dated 28 February 2019.

The Deputy Judge noted that section 13(11)(5) provided that the Council might apply to the court for an interim order to be extended and might apply again for further extensions, and that upon such an application the court might extend the interim order for up to twelve months. She applied the principles set out in General Medical Council v Hiew [2007] EWCA Civ 369. The Council contended that the order should be extended because it remained necessary for the protection of the public, was otherwise in the public interest and in Mr Church’s own interests.

The Deputy Judge accepted that the conviction for theft was a serious allegation going to Mr Church’s honesty and integrity. She further accepted that the self-reported health issues and Mr Church’s failure to engage with the Council in relation to those issues and more generally would create a risk to the public and to the public interest if there were not an interim order restricting his practice in place. The Council properly acknowledged that there had been delay in progressing the case. The Deputy Judge accepted that this had been attributable to the emerging evidence concerning Mr Church’s health and, thereafter, his lack of engagement and cooperation. She accepted that given the statutory scheme there had to be both a sufficient and indeed significant period of extension to permit compliance with the statutory requirements relating to notice. The Deputy Judge explored with counsel the reasons for the delay and expressed concern about the length of the extension sought given the history of the matter. However, she accepted that given the lack of cooperation by Mr Church, the Council had acted with reasonable expedition and the delays were justifiable and explicable.

In short, the Deputy Judge granted the order extending the interim suspension for a further twelve months on the basis that it remained necessary for the protection of the public and was in the public interest, notwithstanding the delays, which were attributable to the emerging health concerns and Mr Church’s failure to engage with the proceedings.

General Medical Council v Hiew [2007] EWCA Civ 369