10/9/24, 11:21 R v Rose Case
AM Note
R v Rose [2017] EWCA Crim 1168 Case Note
Material Facts:
The appellant optometrist appealed against her conviction of gross negligence manslaughter.
In February 2012, she conducted a routine eye test and examination on a boy (V) aged seven.
She recorded no issues of concern. Pursuant to the Opticians Act 1989 s.26(1), an optometrist
had a statutory duty of care to examine the internal eye structure as part of a routine eye
examination, to detect signs of abnormality or disease including life threatening problems
evident from the optic nerve. Five months after the examination, while at school, V was taken
ill. He died in hospital later the same day. Expert opinion was that the cause of V's death was
acute hydrocephalus, and that the obstruction in his brain had been a longstanding chronic
problem, although he had not presented with many associated symptoms. His condition was
said to have been treatable up to the point of acute deterioration and death. The appellant
maintained that she had had problems with her examination of V as he had had poor fixation
and slight photophobia. She accepted that her failure to examine the back of the eye without
a good reason was a breach of her duty of care. Retinal images taken of V's eyes during the
sight test showed swelling of the optic nerve. The experts agreed that a competent optometrist
would have known the significance of that swelling and would immediately have referred the
case on to others. The judge rejected a submission of no case to answer, determining that the
appellant had failed to conduct a full internal examination of V's eyes, there was no good
reason for that failure, and thus she had breached her duty of care. He further found that the
risk of death caused by the breach of duty was reasonably foreseeable. He directed the jury to
consider whether that risk would have been obvious to a reasonably competent optometrist
with the knowledge that the appellant would have had "if she had not acted in breach of her
duty to investigate the true position"; and in addition, whether her conduct was so bad as to
amount to a criminal omission.
The appellant submitted that the submission of no case to answer was wrongly rejected
because the judge had applied the wrong test, and in addition that the judge had erred in his
directions to the jury as to the elements of gross negligence manslaughter.
Legal Issues:
Opticians Act 1989 s.26(1),
(1) The Secretary of State may by regulations provide that, subject to any exceptions specified
in the regulations, when a registered medical practitioner or registered [optometrist]1 tests the
sight of another person, it shall be his duty—
(a) to perform such examinations of the eye for the purpose of detecting injury, disease or
abnormality in the eye or elsewhere as the regulations may require, and
(b) immediately following the test to give the person whose sight he has tested a written
statement—
(i) that he has carried out the examinations that the regulations require, and
(ii) that he is or (as the case may be) is not referring him to a registered medical practitioner
[ and if he is referring him, the reason for the referral]
about:blan 1/
k 4
AM Note
R v Rose [2017] EWCA Crim 1168 Case Note
Material Facts:
The appellant optometrist appealed against her conviction of gross negligence manslaughter.
In February 2012, she conducted a routine eye test and examination on a boy (V) aged seven.
She recorded no issues of concern. Pursuant to the Opticians Act 1989 s.26(1), an optometrist
had a statutory duty of care to examine the internal eye structure as part of a routine eye
examination, to detect signs of abnormality or disease including life threatening problems
evident from the optic nerve. Five months after the examination, while at school, V was taken
ill. He died in hospital later the same day. Expert opinion was that the cause of V's death was
acute hydrocephalus, and that the obstruction in his brain had been a longstanding chronic
problem, although he had not presented with many associated symptoms. His condition was
said to have been treatable up to the point of acute deterioration and death. The appellant
maintained that she had had problems with her examination of V as he had had poor fixation
and slight photophobia. She accepted that her failure to examine the back of the eye without
a good reason was a breach of her duty of care. Retinal images taken of V's eyes during the
sight test showed swelling of the optic nerve. The experts agreed that a competent optometrist
would have known the significance of that swelling and would immediately have referred the
case on to others. The judge rejected a submission of no case to answer, determining that the
appellant had failed to conduct a full internal examination of V's eyes, there was no good
reason for that failure, and thus she had breached her duty of care. He further found that the
risk of death caused by the breach of duty was reasonably foreseeable. He directed the jury to
consider whether that risk would have been obvious to a reasonably competent optometrist
with the knowledge that the appellant would have had "if she had not acted in breach of her
duty to investigate the true position"; and in addition, whether her conduct was so bad as to
amount to a criminal omission.
The appellant submitted that the submission of no case to answer was wrongly rejected
because the judge had applied the wrong test, and in addition that the judge had erred in his
directions to the jury as to the elements of gross negligence manslaughter.
Legal Issues:
Opticians Act 1989 s.26(1),
(1) The Secretary of State may by regulations provide that, subject to any exceptions specified
in the regulations, when a registered medical practitioner or registered [optometrist]1 tests the
sight of another person, it shall be his duty—
(a) to perform such examinations of the eye for the purpose of detecting injury, disease or
abnormality in the eye or elsewhere as the regulations may require, and
(b) immediately following the test to give the person whose sight he has tested a written
statement—
(i) that he has carried out the examinations that the regulations require, and
(ii) that he is or (as the case may be) is not referring him to a registered medical practitioner
[ and if he is referring him, the reason for the referral]
about:blan 1/
k 4
