As well as rising demand and increasing expectations from the public, there are a number of other drivers that mean that ophthalmic practitioners are more likely to be involved in the criminal or civil courts and other tribunals, having to account for their actions or inactions – or that of staff, colleagues and employers.

Apart from increasing scrutiny of personal conduct as a citizen and as a practitioner, these drivers include austerity measures, media attention, patient and consumer interest groups, regulators, legislative changes, and new technologies to mention a few.1

There are a host of legal and regulatory aspects that impact on the ordinary citizen; however, there are additional obligations on registered optometric and optical practitioners who wish to have the privilege of practising their profession.

While this series concentrates on the accountability of the optometric or optical practitioner in England, many aspects have similarities, or indeed apply in other parts of the UK, and to business registrants of the General Optical Council (GOC). These articles are not a substitute for formal legal counsel.

This second article will briefly cover two of four key accountability areas; later articles will touch on two other key areas of accountability, followed by civil litigation – the fifth key area of accountability. One aspect that will not be covered, however, and arguably one of the most important, is the accountability to oneself (one’s morals).

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Criminal

The optical professions carry special trust or responsibility, in which the public interest in the disclosure of conviction and other information by the police generally outweighs the normal duty of confidentiality owed to the individual. From August 2015, the Notifiable Occupations Scheme (NOS)2 was superseded by the Common Law Police Disclosure (CLPD) scheme to ensure that where there is a public protection risk, the police pass information to the employer or regulatory body to allow them to act swiftly to put in measures to mitigate any danger.

Information is now passed on at charge or arrest rather than on conviction, which may be some time after.3 It is therefore imperative that registered practitioners declare to the GOC, NHS England and employer all criminal convictions, cautions and disciplinary proceedings on their registration, retention and/or restoration form. This includes minor misdemeanours, but not road traffic offences dealt with by way of a fixed penalty notice (FPN) (but see case of non-disclosure below). Failing to do so would put them in breach of their obligations to both the GOC 4, NHS England 5 and inevitably their employer.

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Burden of proof and standard of proof

In criminal law the burden of proof lies on the prosecution and the standard of proof is ‘beyond reasonable doubt’. That is to say that the defendant has to prove nothing while the prosecution has to prove its case so that the magistrates, judges or jury are ‘certain to be sure’ that the offence was committed.

A case of non-disclosure

The GOC uses a media intelligence business service, which searches online news sources for articles of interest to the GOC. On March 13, 2014 it picked up a story in the News and Star6 regarding an optometrist involved in a motor vehicle speeding offence, which led him to be liable to disqualification from driving because he was a ‘totter’ (ie, he had accumulated 12 penalty points, attracting a mandatory disqualification from driving).

The district judge in this case, having heard the registrants’ exceptional hardship plea, agreed not to impose a driving disqualification on the registrant, but made him pay a fine (£200), the victims’ surcharge (£20), court costs (£50), and endorsed his driving licence with three penalty points. This charge was not dealt with by way of an FPN, involved attendance in court, and thus became a declarable conviction.

However, the registrant failed to declare it. As a result of the information uncovered, he had to face the GOC’s Fitness to Practise (FtP) committee with allegations of a conviction of driving a motor vehicle at a speed exceeding the legal limit of 30mph, failing to declare that conviction, and dishonesty, in that he knew he was required to disclose convictions to the GOC and had failed to do so. At the conclusion of the FtP hearing the registrant’s fitness to practise was found not to be impaired and the FtP committee issued, in this case, neither a sanction nor a warning.7

Notwithstanding criminal offences as a citizen, there are many differing allegations that may require practitioners to answer to criminal courts. Two examples of allegations are given below:

Assault (and battery)

‘An assault is intentionally or recklessly causing another to apprehend immediate and unlawful violence, whereas battery is the intentional or reckless infliction of unlawful force or recklessly applying unlawful force to another’.8 In practice this means acting (eg. touching the patient) or conducting an ‘invasive’ procedure without consent or an incorrect procedure (eg, administering an eye-drop in the incorrect eye) with consent.

The issue of consent will be covered in more detail later in this series. A more serious example is an allegation of assault with impropriety (e.g. indecent touching). These acts can be viewed both as having a criminal and/or a civil liability and the practitioner is likely to find themselves answerable for their actions not only in criminal and/or civil courts but also in hearings with their employer, NHS England and the GOC.

Fraud

The Fraud Act 2006 came into effect on the January 15, 2007 and provides for a general offence of fraud and three ways of committing it, which are by:

  • False representation
  • Failing to disclose information
  • Abuse of position.

Examples (not exhaustive) of fraud by practitioners/contractors in Primary Care Optometry include:

  • Falsifying references and qualification certificates
  • Forging signatures of others (patients and/or practitioners)
  • Claims for domiciliary visits which were not made.
  • Claims for payment for treatment which was not provided or not appropriate

Allegations and convictions for fraud by practitioners can thus arise, among other things, out of claims made for GOS (sight test fees and optical vouchers). Should there be evidence of anomalies or fraud on investigation, a GOS practitioner may find that they are answerable to:

  • A civil claim for repayment of sight test fees or vouchers,
  • An NHS disciplinary proceeding,
  • The GOC’s FtP committee
  • Face a prosecution in criminal courts.

The following case of forgery and deception is illustrative. Having pleaded guilty in March 2007, to nine counts of obtaining money transfers from NHS Primary Care Trusts by carrying out NHS eye tests on patients resident in homes for the elderly and infirm, the optician registrant, had falsely misrepresented that a medical practitioner whom the registrant had worked with, had signed the relevant sight test forms. The GOC’s FtP committee on April 14, 2011 found that the fitness to practise of the registrant was impaired by reason of the convictions and other misconduct. The FtP committee removed the registrant’s name from the Opticians Register. An appeal followed to the Queens Bench (one of the three divisions of the High Court together with the Chancery Division and Family Division) and was dismissed.9

Regulator

The Opticians Act (1989)10 provides for the GOC as the regulator for optometrists and opticians. Its purpose is to promote high standards of professional education, conduct and performance among its registrants in order to protect, promote and maintain the health and safety of the public. It does this by:

  • Setting standards for optical education and training, performance and conduct
  • Approving qualifications leading to registration
  • Maintaining a register of individuals who are qualified and fit to practise, train or carry on business as optometrists and dispensing opticians
  • Investigating and acting where registrants’ fitness to practise, train or carry on business is impaired 11

The registrant will, in-return for registration with the GOC, be afforded the privileges of:

  • Testing of sight
  • Fitting of contact lenses
  • Selling optical appliances (e.g. spectacles or contact lenses)
  • Use of protected titles: optometrist; dispensing optician; ophthalmic optician; and optician.

With these privileges come obligations of:

  • Duties to perform on sight testing
  • High standards of professional conduct
  • Compliance with statutory rules ,regulations and orders of Council 12 **

**Registration Rules 2005, Registration appeals rules 2005,Fitness to Practise Rules 2013, Continuing Education and Training rules 2005, Continuing Education and Training (CET) amendment rules 2012, Committee constitution rules 2005, Rules relating to injury or disease of the eye 1999, Testing of sight by persons training as an optometrist rules 1993, Sight testing (examination and prescription) no.2 regulations 1989, Contact lens specification rules 1989, Contact lens qualifications rules 1988, Rules on the fitting of contact lenses 1985, Sale of optical appliances order of Council 1984.

To help registrants better understand their obligations with respect to standards of conduct, the GOC have released 19 detailed Standards of Practice for Optometrists and Dispensing Opticians, 18 detailed Standards of Practice for student optometrists and student opticians, and a Code of Conduct for Business Registrants (11 items) which came into effect on the April 1, 2016 and supersede the Codes of Conduct for registrants.13 In addition to this, the GOC introduced on the February 11, 2016, a whistle-blowing policy and have a system in place for any individual working in the optical sector, registrant or otherwise, to be able to contact the GOC to raise concerns. 14

Any registrant falling short of compliance with their professional obligations is ultimately accountable to the GOC. In practice this means that where a regsitrant discloses a conviction (eg. declaration within the retention period) for an offence which is included in Schedule 4 of the Criminal Justice and Court Services Act 2000*** on the registration, restoration, or retention form, the registrar will generally presume against registration, restoration or retention on the GOC register. Appeals against any decisions regarding registration are heard by the Registration Appeals Committee of the GOC.15

*** (a) an offence against a child (b) murder (c) manslaughter (d) kidnapping (e) false imprisonment (f) wounding and causing grievous bodily harm (g) assault, including actual bodily harm (h) rape (i) procurement of women (j) an offence under section 128 of the Mental Health Act 1959 (k) an offence under the Sexual Offences Act 2003 (l) an offence under section 4(3) of the Misuse of Drugs Act 1971.

However, when any allegation or complaint is made against a registrant or a declaration outside the retention period, it will initially be considered by the registrar to decide whether or not to refer the matter to the FtP committee for consideration as to whether an order for interim suspension or interim conditional registration should be made (Rule 4).

Where the registrar considers that the allegation does not fall within any of the grounds described in section 13D**** of the Opticians Act 1989 10, the registrar will notify the maker of the allegation accordingly. Where the registrar considers that the allegation falls within one or more grounds described in section 13D, the registrar will refer the allegation to the case examiners for their consideration. The registrar will always refer an allegation falling within section 13D relating to a conviction which has resulted in the imposition of a custodial sentence, whether immediate or suspended, to the FtP 15.

****(a) misconduct; (b) except in the case of a student registrant, deficient professional performance; (c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence; (d) the registrant having accepted a conditional offer under section 302 of the Criminal Procedure (Scotland) Act 1995 (fixed penalty: conditional offer by procurator fiscal) or agreed to pay a penalty under section 115A of the Social Security Administration Act 1992 (penalty as alternative to prosecution); (e) the registrant, in proceedings in Scotland for an offence, having been the subject of an order under section 246(2) or (3) of the Criminal Procedure (Scotland) Act 1995 discharging him absolutely; (f) adverse physical or mental health; or (g) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect.

Should the registrar, after initial consideration, refer allegations against a registrant to GOC appointed case examiners (one lay and one registrant), they will decide if:

  • The allegation ought to be considered by the FtP committee, or that the allegation ought not to be referred to the FtP committee
  • Or no further action should be taken
  • Or a warning should be given to the registrant regarding the registrant’s future conduct or performance, or that they consider that the allegation should be adjourned pending further investigations.

If the case examiners do not agree, then the case will be referred to the Investigation Committee (IC) regardless. Where the case is one in which the registrant’s health or the standard or quality of the registrant’s work are called into question and an assessment is deemed necessary, then the allegation may be referred to the IC requesting that the IC appoint an assessor, or assessors, and direct an assessment.15

The IC in turn will investigate (after due process of any request of an assessment by the case examiners and completed where appropriate) any referred allegation with regard to impairment of fitness to practise and decide if:

  • The allegation against a registrant ought to be considered by the FtP committee
  • The allegation against a registrant ought not to be considered by the FtP committee and, if so it merits a warning.

There is provision in the FtP rules (2013)15 to review any decision made not to refer the allegation to the FtP committee.

The FtP rules also allow the registrar of the GOC to refer cases involving a custodial sentence directly for an FtP hearing; and directly to an interim order hearing.

Burden of proof and standard of proof

In FtP committee hearings the burden of proof lies on the GOC and the standard of proof, introduced in 2008, is ‘on the balance of probabilities’. That is to say that the council that has to satisfy the FtP committee that the assertion, based on the evidence, is more likely than not, to be true.

The sanctions available to the FtP committee include:

  • Erasure of the registrant’s name from the GOC register
  • Suspension of the registrant from the GOC register
  • Conditional registration on the GOC register
  • Payment of a financial penalty

Should the FtP committee find that the registrant’s fitness to practice is not impaired, it has the discretion to issue a warning about the registrant’s future behaviour and/or performance.15

Any decision of the FtP committee may be appealed in the High Court by the registrant if they think the decision is too harsh, and by the Professional Standards Authority (PSA) if thought too lenient.

During 2014-15, case examiners and the IC considered 226 cases. Half of the cases resulted in no further actions.16 Only 22.5% of cases were referred to a full hearing.17

Source of concerns and allegations

In 2014-15 the GOC received 279 complaints16 the vast majority from individuals. Table 1 depicts the range of the sources of these complaints.

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Table 2 depicts the type of complaints received.

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It should be noted that a significant number of these are concerned with conduct. Table 3 details what happened to the registrants after 27 substantive hearings by the FtP committee in 2014-15. It is noteworthy that 10 registrants (37%) were erased from the register.

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There is no doubt that there is an increase in complaints about GOC registrants over the years and it is thus not surprising that increasing numbers of practitioners are having to answer to the GOC for their action or inactions.

The next article will consider the practitioners’ liability to employers

References:

1 NESTA, Grumbles, Gripes and Grievances. The role of complaints in transforming public service (April 2013) www.nesta.org.uk, accessed February 2016

2 NOS, HO 6/2006, HO 45/1986 and sections 4, 5, 18 and 19 of HO 47/2003 Home Office Circulars www.gov.uk/government/publications, accessed March 2016

3 Common Law Police Disclosure www.gov.uk/government/publications/common-law-police-disclosure, accessed March 2016

4 The General Optical Council (Registration)Rules 2005, www.optical.org/en/about_us/legislation/rules_and_regulations.cfm accessed March 2016

5 The National Health Service (Performers Lists) (England) Regulations 2013 SI No 335

6 The Star and News “Cumbrian optician escapes drive ban after speeding offence”, www.newsandstar.co.uk accessed March 2016

7 GOC v S.G. Sarang, Determination of a Substantive Hearing, 9-10 November 2015

8 Halsbury’s Laws of England, Criminal Law, V.25 (2010), Paras 1-426; V.26 (2010),Paras 427-792, 2.Offences against the person, 3 Non-Fatal offences against the person (x) Assault, A. Common assault and battery, 157. Assault and battery.

9 Preedy v General Optical Council - [2012] All ER (D) 110 (Jun)

10 The Opticians Act (1989), www.optical.org accessed March 2016

11 The GOC, www.optical.org, accessed Mar 2016

12 GOC Rules and Regulations, www.optical.org accessed March 2016

13 GOC Standards, www.optical.org/en/Standards/index.cfm, accessed March 2016

14 GOC Raising Concerns with the GOC (whistle blowing) policy, www.optical.org/en/Investigating_complaints/raising-concerns.cfm, accessed March 2016

15 GOC FtP Rules 2013 www.optical.org, accessed Mar 2016

16 GOC Annual Report 2014-15, www.optical.org accessed March 2016

17 Watts, K (2016) Personal Communication, March 2016