In Suleman v General Optical Council [2023] EWHC 2110 (Admin), the High Court re-visited the issue of bias and the appearance of bias. Chamberlain J reiterated the well-known principles from Porter v Magill and In re Medicaments (would a fair-minded and informed observer conclude that there was a real possibility of bias), before going on to apply those principles to a General Optical Council (GOC) case relating to Specsavers.

One of the panel members at the substantive hearing at the GOC had previously been a director and co-owner of a Specsavers practice, and was continuing to work at a number of Specsavers practices as a locum dispensing optician. Ms Suleman’s appeal succeeded on the basis that the panel member in question should have recused themselves, with the High Court remitting the case to be re-heard before a fresh panel.  

This case does not break new ground in terms of the test for bias or appearance of bias. However, it does shine a spotlight on the need for regulators to ensure that their panel members are aware of both the legal test and also the amount of information that they may be required to disclose regarding their professional or financial interests.

Background facts 

Ms Suleman was a registered student dispensing optician, who worked for two separate branches of Specsavers. She faced allegations that she had carried out restricted activities as a dispensing optician whilst unregistered, as well as an allegation that she had dishonestly given her employers a false registration number to conceal the fact that she was not yet fully qualified. Part of her defence was an assertion that she told one of her employers at Specsavers that she was simply registered as a student. The judgment records that Ms Suleman was absent for most of the hearing at the GOC. 

On day three of the substantive hearing, one of the registrant panel members disclosed that he had formerly been a director of a Specsavers branch for 25 years, but that he resigned when he retired three years ago. The judgment records that the Legal Assessor referred to this as a “tenuous connection” and the hearing simply proceeded. Interestingly, Chamberlain J comments: 

“There was no attempt to draw this connection to the attention of the appellant, who was not present or represented.” 

Whilst Chamberlain J does not develop this point, it should probably be considered good practice in future, if a similar situation arises in a case where the registrant/respondent is absent, to pause the hearing and take the time to try and communicate the disclosure to them. Nothing further was said about the panel member’s connections with Specsavers, and the hearing continued resulting in Ms Suleman being erased from the register. 

In preparing her appeal, Ms Suleman’s then-representative spotted the disclosure from the panel member in the transcripts and further disclosure was sought in relation to their connection with Specsavers. Those enquiries revealed that since resigning from his position as director of a branch in 2019, he worked as a locum dispensing optician for various Specsavers’ branches (not the ones involved in Ms Suleman’s case) for 229 days in the three tax years since 2019. 

Significantly, Chamberlain J said of the panel member’s relationship with Specsavers that whilst he had not stated whether he hoped to obtain further work that, “…the only proper inference from what he had said, and what he had not said, was that he did entertain that hope.” It was this hope of obtaining further work from Specsavers that led Chamberlain J to the conclusion that there was an “ongoing” relationship with the company, and that this would lead the fair-minded and informed observer to conclude that there was a real possibility of bias. 

As a result, the findings of the first GOC panel were quashed and the matter was remitted for a re-hearing before a differently constituted panel of the GOC. 

Key takeaways

• A number of lessons can be drawn from this decision: 
• It is important that panel members know and understand the legal test for bias. 
• Panel members must be mindful of the need to disclose the existence of personal, professional and commercial ties to any of the parties involved in a case as soon as they become aware of a potential connection. 
• Panel members need to be aware that a failure to disclose material information about these relationships could become the subject matter of a successful appeal. 
• If an issue emerges during the course of a hearing with an absent registrant/respondent, the regulator should consider the need to pause the hearing, to allow that issue to be communicated to the absent registrant/respondent and for them to be invited to communicate their position on the issue.

How Capsticks can help 

Capsticks regularly provide training to regulators and/or their panel members on a variety of legal issues. For further information on how we can assist, please contact Michael Collis or any of your regular contacts at Capsticks.