East Ham optometrist wins appeal against manslaughter conviction over eight-year-old boy’s death
- Credit: Archant
An optometrist who failed to spot symptoms of a life-threatening brain condition during an eye test of an eight-year-old boy has won an appeal against her conviction.
Honey Rose, 35, of High Street North, East Ham, was found guilty of the gross negligence manslaughter of Vincent Barker at Ipswich Crown Court in July last year.
The following month, she was given a two-year suspended sentence, ordered to complete 200 hours of unpaid work and given a 24-month supervision order.
But the Court of Appeal overturned the decusion this morning.
During the 10 day trial, a jury was told that mother-of-three Rose failed to notice that Vincent, known as Vinnie, had swollen optic discs when she examined him at a branch of Boots in Ipswich.
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The abnormality is a symptom of hydrocephalus - fluid on the brain - and the youngster died in July 2012, about five months after the eye test.
Judge Jeremy Stuart-Smith, speaking at the sentencing, said although it was a “single lapse”, the breach of duty was so serious that it was criminal.
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The case was thought to be the first conviction of an optometrist for gross negligence manslaughter.
But Sir Brian Leveson, sitting with two other judges, announced today that they had allowed her appeal and that the conviction was quashed.
The judges ruled that there had been a “serious breach of duty” by Rose, but that it did not constitute the crime of gross negligence manslaughter.
Sir Brian said: “The question raised by this case can be simply stated.
“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?”
He said the court had concluded that “in assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, it is not appropriate to take into account what the defendant would have known but for his or her breach of duty”.
Sir Brian added: “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 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.
“For these reasons, this appeal is allowed and the conviction is quashed.”
Sir Brian continued: “We add that 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.”