R v Rose [2017] EWCA Crim 1168; [2018] QB 328; [2018] 2 All ER 430

Gross negligence is a severe lapse in care that leads to significant harm or death. It involves a breach of duty that is far below the standard expected of a reasonable person.

An optometrist’s failure to properly examine a patient’s eyes can breach their statutory duty of care.

• If this leads to undiagnosed conditions like hydrocephalus, it questions the adequacy of their examination.

• If a patient dies months after an eye test due to hydrocephalus, the link between the missed diagnosis and death needs to be assessed, as hydrocephalus may show signs in an eye exam.

Foreseeability examines about the risk of death was predictable.

• It involves determining if a reasonable person in the defendant’s position would have anticipated the serious consequences of their actions.

• Evaluating a reasonable person would have recognized the risks, but for the breach, is crucial in determining criminal liability and assessing if the breach significantly contributed to the harm.

Reviewing a manslaughter conviction for gross negligence involves checking if the defendant’s actions were sufficiently negligent to justify the conviction and if the evidence supports it.

Under section 26(1) of the Opticians Act 1989 and regulation 3(1) of the Sight Test (Examination and Prescription) (No 2) Regulations 1989, Honey Maria Rose (“Defendant”) a registered optometrist, had a statutory duty to examine the internal structure of the eye during routine examinations to detect signs of abnormalities or life-threatening conditions.

• The Defendant conducted a sight test on a seven-year-old boy, recording no issues of concern. Five months later, the boy became ill and subsequently died.

• A post-mortem revealed that the boy died from acute hydrocephalus, a condition that could have been detected through a proper examination of the back of the eyes and treated surgically.

The Defendant was charged with manslaughter by gross negligence for failing to properly examine the boy's eyes and not referring him for urgent medical treatment despite indications of significant findings in the retinal images.

• The Defendant argued that she could not examine the boy's internal eye structure because he was uncooperative, and that she might have mistakenly viewed retinal images of another patient, thus missing signs of papilloedema, a serious condition.

The judge rejected the defense’s claim of no case to answer and instructed the jury to consider whether the breach of duty was reasonably foreseeable to pose a serious and obvious risk of death.

• The defendant was convicted.

The Defendant appealed the conviction, contending that the judge had applied the incorrect legal test for manslaughter by gross negligence.

• The appeal was allowed.

The court held that for manslaughter by gross negligence, it must be established that a breach of duty was foreseeable to present a serious and obvious risk of death, and that such a breach amounted to a criminal act or omission.

• The assessment of risk must be based on the knowledge available at the time of the breach, distinguishing between a general risk of harm and an obvious risk of death.

Allowing the appeal, the court held that the offense of manslaughter by gross negligence required a breach of an existing duty of care that reasonably foreseeable created a serious and obvious risk of death, which must, in fact, have caused death.

• The conduct of the defendant had to be so severe that it exceeded mere negligence and amounted to a criminal act or omission.

• The court emphasized that the assessment of whether a serious and obvious risk of death existed had to be based on the knowledge available at the time of the breach of duty.

• A recognizable risk of serious harm was not equivalent to a recognizable risk of death.

• An "obvious risk" referred to a present and clear risk, not one that might become evident upon further investigation.

In evaluating the foreseeability of the risk or the grossness of the defendant’s conduct, the court could not consider information that would, could, or should have been available after the breach.

• The assessment had to be made objectively and prospectively at the moment of the breach, not considering what would have been known but for the breach.

The court found that the mere fact that a reasonable optometrist would understand that failing to perform a proper examination could result in missing life-threatening conditions did not equate to actual knowledge of such conditions and an obvious risk of death.

• Therefore, the foreseeability of a serious and obvious risk of death should not include what the defendant would have known if they had not breached their duty.

Consequently, the judge had erred in rejecting the submission of no case to answer and in directing the jury. The conviction was quashed.

Gross negligence involves a severe lapse in care that leads to significant harm or death, requiring a breach of duty that is far below the standard expected of a reasonable person.

• For optometrists, this means failing to properly examine the internal eye structure can breach their statutory duty and result in serious consequences if conditions like hydrocephalus go undiagnosed.

In the case of Honey Maria Rose, the failure to examine a patient's eyes properly and refer them for urgent treatment led to the patient’s death from acute hydrocephalus.

• The legal issue was whether this breach of duty amounted to gross negligence.

The court held that for manslaughter by gross negligence, the breach must foreseeably create a serious and obvious risk of death based on the knowledge available at the time of the breach.

• It is not enough that a reasonable person might expect harm; the risk must be clear and present.

The court found that the judge had applied the wrong test, and the conviction was quashed as it did not meet the required standard for gross negligence manslaughter.