Optometrist who failed to spot boy's brain condition wins conviction appeal

An optometrist who failed to spot symptoms of a life-threatening brain condition during a routine eye test of an eight-year-old boy who later died has won an appeal against her conviction for gross negligence manslaughter.

Honey Rose, 35, who was sentenced to a two-year suspended prison term last year, had her conviction overturned by the Court of Appeal in London.

During her trial, a jury was told that mother-of-three Rose, of High Street North, East Ham, east London, failed to notice that Vincent Barker had swollen optic discs when she examined him at a branch of Boots in Ipswich.

The abnormality is a symptom of hydrocephalus - fluid on the brain - and Vincent died in July 2012, about five months after the eye test.

Judge Jeremy Stuart-Smith, sentencing following her trial at Ipswich Crown Court, said although it was a ''single lapse'', the breach of duty was so serious that it was criminal.

The case was thought to be the first conviction of an optometrist for gross negligence manslaughter.

Sir Brian Leveson, sitting with two other judges, announced on Monday that they had allowed her appeal and that the conviction was quashed.

The Court of Appeal 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."