Reasonable foreseeability was a key issue in a recent case[1] where an optometrist was convicted of gross negligence manslaughter.
What’s the background?
A young boy, aged 7, had a routine eye test. Retinal images were taken and the optometrist who saw him had no concerns about him, though the notes mentioned headaches that he had previously had – but were “now all gone”.
Five months later the boy was taken ill at school. Once his mother had taken him home, he deteriorated quickly, and died in hospital later the same day. He was a healthy, thriving and active boy who had never been to hospital before. Following a post mortem, it was found that his death was caused by acute hydrocephalus because of a gliotic obstruction in the brain. However, this was an unusual case as the boy had not shown the normal symptoms of hydrocephalus, such as headaches and vomiting.
A report then prepared by a consultant neurosurgeon said that following the eye examination, there was no reason why his condition could not have been successfully treated at any time up until the fatal build-up of fluid. During the examination, the optometrist had not done an ophthalmoscopy but relied on her retinal images notes. She had not viewed the actual images as there had been problems with the computer system and retrieval of retinal images (something she had repeatedly complained about).
At trial, the prosecution argued that she was guilty of gross negligence manslaughter by failing in her statutory duty to properly examine the back of the boy’s eyes during his sight test; and failing to refer him for urgent medical treatment as a result of the significant findings shown on the retinal images (which she should have viewed).
What did the appeal court say about reasonable foreseeability?
The issue for the Court of Appeal was: 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?
What was the outcome?
The optometrist was convicted of gross negligent manslaughter by omission. It was found at trial that the risk of death caused by her breach of duty to properly examine the back of the boy’s eyes was reasonably foreseeable.
However, the Court of Appeal ruled that in assessing reasonable foreseeability of serious and obvious risk of death in gross negligence manslaughter, it was not appropriate to take into account what a reasonable person in her position would have known but for the breach of duty.
What a reasonably prudent optometrist would or should have known at the time of the breach of duty was that, if they did not undertake a proper examination of the back of the boy’s eyes, it was possible that signs of potentially life-threatening disease or abnormality might be missed. But this was not enough to found a case of gross negligence manslaughter - there must be a "serious and obvious risk of death" at the time of breach.
Sir Brian Leveson (who gave the ruling) cited an earlier decision that made clear that a mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death. An obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation.
The optometrist’s conviction was therefore quashed. What the court made clear is that all a reasonably prudent optometrist would have known is that had they not carried out a proper examination, signs of potentially life-threatening conditions might be missed. This is very different from knowledge that such signs in fact existed and that there was a "serious and obvious risk of death".
[1]R v Rose [2017] EWCA Crim 1168