Aug 08

Honey Rose Acquitted Of Manslaughter In Death Of Optometry Patient

Honey Maria Rose has been acquitted by an appeals court of gross negligence manslaughter in the death of eight-year-old Vincent Barker. In July 2016 Honey Rose became the first optometrist in English history convicted of manslaughter for failing to detect a patient’s medical condition that later caused the person’s death.

Honey Maria Rose outside the courthouse after her sentencing on August 26, 2016 (The Sun, London)

Honey Maria Rose outside the courthouse after her sentencing on August 26, 2016 (The Sun, London)

Honey Rose became a licensed optometrist in the United Kingdom in June 2010. In 2012 she worked at Boots Opticians in Ipswich, England. Ipswich is about 80 miles northeast of London.

On February 15, 2012 Rose conducted an eye examination of 7-year-old Vincent Barker. Retinal images were taken of both of Vincent’s eyes by a technician. Rose determined he didn’t need glasses, and she did not record any issues of concern about his health. Vincent had a previous eye exam at Boots Opticians in February 2011, when retinal images were also taken.

Five months later, on July 13, 2012, Vincent suddenly became sick at school. His mom picked him up, and when his condition deteriorated he was taken to the hospital where he died that night. His autopsy identified he died from acute hydrocephalus, also known as fluid on the brain. Prior to becoming sick at school Vincent hadn’t exhibited any symptoms such as headaches and vomiting that are associated with hydrocephalus.

An investigation into Vincent’s death resulted in the review of the retinal images taken on February 15, 2012. Dr. Vaileios Kostakis, a consultant paediatric ophthalmologist, determined the images showed significant congestion of the veins and swelling of the optic nerve in Vincent’s eyes, and that he should have been given an urgent referral to hospital for treatment. Dr. Kostakis also reviewed Vincent’s retinal images from Feb. 2011. He determined his eyes had been normal at that time.

Vincent’s case was reviewed by Dr Helen Fernandes, a specialist neurosurgeon based in Cambridge and medical advisor to the Association of Spina Bifida and Hydrocephalus. Dr. Fernandes prepared a report in which she opined that “Vincent’s condition was treatable up until the point of his acute deterioration and demise on 13th July 2012.”

When the police interviewed Rose on March 7, 2013 she was shown Vincent’s retinal images from 2012. She told them she had never seen the images before, “and that even an unqualified person could tell that the optical disc was not normal in Vincent’s case and the optical consultant should have flagged the photographs.” She suggested to the police that when she examined Vincent in 2012 she must have looked at his retinal images from 2011 when his eyes were normal. She also said that Vincent was uncooperative when she tried to use the ophthalmoscope to examine the retina of his eyes, so she relied on the retinal images.

Rose was charged with gross negligence manslaughter by:

“(i) failing, without good reason, properly to examine the back of Vincent’s eyes during his sight test on 15th February 2012 as she was required to do by reason of her statutory duty of care, and
(ii) 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.”

Rose’s trial began in July 2016. The prosecution relied on the evidence that Vincent’s treatable condition only resulted in his death because of Rose’s gross negligence by omission, for failing to perform her job as expected of a “reasonably prudent optometrist.”

Vincent Barker (Barker family photo)

Vincent Barker (Barker family photo)

When the prosecution closed its case, trial Judge Jeremy Stuart-Smith denied the defense’s argument that the prosecution’s evidence was insufficient to give her a case to answer, and it should be withdrawn from the jury.

Rose then presented her defense that she had conducted all the required tests during Vincent’s eye examination. She testified in her defense. She said she performed her required duty of care by examining the retinal images when Vincent’s uncooperativeness prevented her from using an ophthalmoscope to directly examine his retinas. She also said she believed she hadn’t been shown his retinal images from 2011 as she had told the police when interviewed in March 2013, but she was likely shown images of another patient by mistake. She said there “had been problems with computer system and retrieval of retinal images, about which she had repeatedly complained to” Boots Opticians. However, she acknowledged she had not formally documented the problems she had in examining Vincent. Her defense also relied on her good character, and that she had no findings against her by the General Optical Council.

After a ten-day trial the jury found her guilty on July 15, 2016.

On August 26, 2016 Judge Stuart-Smith sentenced the 35-year-old Rose to two years in prison. However, he acceded to the wishes of Vincent’s parents that they didn’t want Rose’s three children to suffer, and he suspended her prison sentence for two years with supervision. He also ordered her to perform 200 hours of unpaid community work. In sentencing Rose the judge stated, “The question remains, why did you commit such a basic and serious error?”

Rose appealed.

The Court of Appeals for England and Wales unanimously quashed Rose’s manslaughter conviction on July 31, 2017. The appeals court’s ruling was based on the prosecution’s failure to introduce sufficient evidence to prove her conduct was criminal and grossly negligent. The Court ruled the judge erred in not withdrawing the case from the jury at the close of the prosecution’s case. There ruling also pointed out that affirming her conviction would undermine the legal test for gross negligence manslaughter that requires proof beyond a reasonable doubt that the accused could foresee from their personal knowledge that a person has a “serious and obvious risk of death.” Rose had no knowledge that Vincent had a risk of death. The Court stated in Honey Maria Rose v. Regina, [2017] EWCA Crim 1168:

94. … “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.

95. 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.”

Click here to read the appeals court’s ruling in Honey Maria Rose v. Regina, [2017] EWCA Crim 1168 (Ct. of Appeals, 7-31-2017).

August 8, 2017
By Hans Sherrer
Justice Denied

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