With last week’s £50,000 sanction (News 08.01.19), fines levied against Boots Opticians Professional Services by the General Optical Council over the past decade now total £120,000.
Fitness to practise financial penalties against the multiple date back to July 2009, when it was handed a £30,000 fine after it failed to take reasonable and proportionate steps to prevent a student from dispensing spectacles to a patient under the age of 16.
Fresher in the mind will be the £40,000 fine Boots received in 2017 after panel ruled an advertisement placed in The Times at the start of 2015 for Boots Protect Plus Blue ophthalmic lenses was ‘misleading’. The advert had already attracted the ire of the Advertising Standards Authority before the GOC’s hearing, so a subsequent undercover BBC Watchdog investigation that showed staff continuing to make misleading claims about the lenses, including through the use of in-store leaflets, would have been looked upon very dimly by the council’s fitness to practise committee.
Clinical concerns
The allegations made by the council in this latest case date back to late 2014. The fitness to practise committee alleged Boots failed to ensure protected disclosures relating to clinical concerns raised by a member of staff were managed appropriately. In the allegations, the multiple stood accused of failing to identify the concerns as protected disclosures and then disclosing the identity of the whistle-blower to the subject of the disclosures.
In a week-long hearing at the GOC’s Old Bailey head offices, the fitness to practise panel heard evidence from Mr A, an optometrist who worked at Boots Opticians in Truro and St Austell.
Mr A, who was visibly upset at points during his evidence, told the panel he raised concerns over sight tests performed by a colleague in October 2014. He claimed the records related to an elderly patient showing symptoms of flashing lights, visual field loss and cobweb patterns. According to Mr A, this was a ‘bread and butter’ case for an optometrist and the patient should have been referred for emergency checks.
After discovering the instance of alleged poor practice, Mr A then pulled more records relating to his colleague’s sight tests and said he found more inconsistencies. These were raised with another practice colleague then referred to Boots senior management.
Boots Opticians area manager Philippa Jones, who investigated Mr A’s complaints, was next to give evidence. She believed the concerns stemmed from frustration over an audit to be performed on Mr A.
‘Mr A didn’t think it was right that his records were being audited by someone who he considered not to be up to the task,’ she said. Jones told the panel she considered the matter to be a ‘low-level grievance’ and indicated she would see them both separately to work through the issue. It was at this point that Jones told Mr A that she would disclose his identity as part of an effort to resolve an issue between the two.
Mr A explained how he had raised the matter with former Boots Opticians professional services officer Gordon Carson, who gave evidence at the hearing. During this evidence, Carson said he considered Mr A’s concerns as ‘seeking an opinion’ rather than a formal whistleblowing matter as there was no formal language within the emails from Mr A. Carson also told the committee that he recommended that the Truro practice be placed in ‘special measures’ as a result of repeat failings in delegated functions. However, this was not formally put in place by the multiple. Carson later admitted that upon reflection, he would have approached the matter differently and treated the disclosures as protected. In its substantive decision, the committee noted senior management’s failure to recognise Mr A’s concerns as whistleblowing was one of several aggravating factors in the case.
Absence of a suitable policy
Lack of training and an inadequate protected disclosure policy were at the centre of these failings. The committee heard that Boots Opticians’ whistleblowing policy at the time was made up of notes on a single side of A4 paper, but this had only been superseded by a more robust eight-page policy the month before the start of the hearing some four years after the original incident, something committee chair Anne Johnstone noted in the sanction notes. ‘The committee would have expected a business registrant which was cognisant of the importance of whistleblowing as an important mechanism for monitoring patient safety to have addressed the deficiencies in its policy and delivered appropriate training to all of its employees much earlier, and with a much greater sense of urgency, than had in fact occurred here,’ she said.
The GOC’s Old Bailey headquarters was the venue for the week long hearing
Boots’ attitude to the seriousness of the allegation was also flagged by the committee. ‘The business registrant’s approach to the matter consistently downplayed the significance of the failures that had occurred,’ said Johnstone. ‘This approach had been maintained right up to and during the conduct of this hearing. The committee was not satisfied that the registrant had demonstrated full insight or remediation.
‘Significant public interest disclosures had not been recognised as such and a potential safeguard for patient safety had thereby not operated as it should have done. The committee regards this case as at the most serious end of the spectrum and has concluded that the maximum financial penalty order should be imposed.’
In considering available sanctions in this case, the committee noted that conditional registration was one of the options on the table but felt that any conditions imposed would only replicate existing legal obligations.
Maximum financial penalty
In 2018, Boots Opticians had an estimated annual turnover of £366m (Optician 25.05.18). The maximum financial penalty of £50,000 that the GOC is able to hand out is set out within section 13H of the Opticians Act and applies to both individual and corporate registrants. When deciding on sanctions, the committees also considers proportionality. In this particular hearing, the committee concluded the maximum level of fine was proportionate and necessary to maintain public confidence in both the profession and regulator.
It is by no means unreasonable to consider whether a member of the public would think that a £50,000 fine for a company with £366m annual turnover sends out a strong enough message that increasingly high-profile matters such as whistleblowing are taken seriously by the regulator. Indeed, from the public’s perspective, large retail groups could be seen to operate with only the realistic threat of sanction being a fine that is disproportionate to the company’s financial muscle.
Optician asked the GOC whether financial penalties based on percentages of turnover would send out a more robust message to the public in cases such as this. Director of strategy Alistair Bridge (pictured) said: ‘The legislation that governs how we regulate optical businesses is dated and we hope the government will reform it when it considers wider changes to professional regulation in the UK.
‘Currently, only businesses using a particular structure and title have to register with us – we believe that all businesses carrying out the functions of optometrists and/or dispensing opticians should have to register. In calling on the government to reform the system of business registration we have also raised the need to review the level of the maximum fine.’
Boots Opticians responds
A statement from Boots Opticians said it took its professional and ethical duties around whistleblowing very seriously, and it encouraged an honest, open learning culture. ‘This case relates to a concern that was raised in late 2014 and early 2015, but was not identified as whistleblowing. We have since reviewed and strengthened our whistleblowing policy to ensure that all colleagues are able to identify and handle whistleblowing concerns appropriately.
‘We are launching further e-learning to help build knowledge and awareness across our teams and will be encouraging conversations across Boots Opticians about the policy and how it should be applied, as well as making sure that all colleagues are aware of the various ways they can raise concerns about patient safety within the business and how all leaders investigate and manage such concerns,’ said Claire Slade, director of professional services.
