An optometrist who failed to spot symptoms of a life-threatening brain condition during a routine eye test of an eight-year-old boy from Ipswich who later died, has won an appeal at the Court of Appeal.
The family of Vinnie Barker, who died in July 2012, said they were “devastated” after Honey Rose, 35, had her conviction for gross negligence manslaughter overturned by the Court of Appeal in London.
• More: Read family’s statement in full.
During her trial, a jury was told that mother-of-three Rose, of High Street North, East Ham, east London, failed to notice Vinnie, of Henley Road, Ipswich, had swollen optic discs when she carried out an examination at a branch of Boots, in Upper Brook Street, Ipswich.
The abnormality is a symptom of hydrocephalus - fluid on the brain - and Vinnie, who was a pupil at Dale Hall Primary School in Ipswich, died around five months after the eye test.
Judge Jeremy Stuart-Smith, sentencing after her trial at Ipswich Crown Court, said although it was a “single lapse”, the breach of duty was so serious 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 today that they had allowed her appeal and the conviction was quashed.
They ruled there had been a “serious breach of duty” by Rose, but it did not constitute the crime of gross negligence manslaughter.
In a statement responding to the decision, Vinnie’s family said they were “devastated” and felt the conviction should have been upheld.
“We remain in no doubt that if Honey Rose had not breached her duty of care to our son he would still be with us today,” the family said.
“Not only has Vinnie been let down by an individual optometrist, today he has also been failed by the legal system.”
“The ruling or even granting leave to appeal to us makes a mockery of the original verdict and what we believed the justice system to be.”
Sir Brian 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.”
Vinnie’s family said they felt the “gravity” of the original conviction helped protect patients.
“Instead this case now opens the gates for medical practitioners to operate outside of the standard at which they are required to perform, without full accountability or responsibility to uphold their duty of care,” they added.
“We will never accept, that Honey Rose is not guilty, nor understand the lack of accountability for her duty of care to Vinnie.
“We are unable to comprehend the ability of someone to be continuously dishonest in circumstances where a child has died. We are left simply to question the humanity of such a person.
We have endured five years of harrowing investigations and court proceedings. To be left now, putting our faith in the General Optical Council and their responsibility to uphold the standards of their profession to ensure that Honey Rose is unable to resume any practice in optometry.”
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