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This article introduces some of the non-optical regulations by which we are governed, attempting to pick out issues that are most applicable to optical practice. These regulations are relevant when working in practice whether on employed, locum or as the owner occupier of the practice and helps us to meet the General Optical Council competencies for all registrants to have, ‘the ability to comply with legal, professional and ethical issues relating to practice’. We also need to comply with these regulations in order to keep both customers and colleagues safe, plus there may also be financial and reputational issues of non-compliance.
It is not the intention of this article to extensively cover each regulation, but more to give an overview of the regulation and illustrate where there is relevance to optical practice. The reader should remember also that this is not an exhaustive list of regulations, nor in the space available is it possible to go into detail, bearing in mind that often the regulations run to many hundreds of pages! More detail is available within Quality in Optometry,1 the College of Optometrists guidance 2 and through many external websites.
Health and Safety
The first article in this series gave an overview of Health and Safety, of which there are many areas to consider to ensure the well-being of all colleagues in practice. There are some issues within H&S to consider that will be directly relevant to optical practice.
It is preferable for colleagues not to work alone, however, from time to time this may be unavoidable, perhaps due to illness of a colleague. In addition there may be an area of the practice where a colleague is isolated from others. In either case there should be protocols put in place to protect the individual, who should not be more at risk than any other colleague.3,4
Whilst it is generally safe to work alone, it is sensible to consider any risks involved before the event. This may include whether the individual is at risk from violence, for instance they may be cashing up at night placing them in greater danger of attack. Is there a risk of injury due to manual handling or hazards in the work environment, and is the individual medically suitable to work alone? You should then consider whether training is required for those working alone and how best to monitor this, in order to mitigate any risk. You may consider installing an alarm or having a system in place to keep in touch with an individual in that situation.
Whilst any issues that occur due to lone working may be rare, we are reminded of the potential seriousness of this issue by guidance from the Suzy Lamplugh Trust, set up in memory of a young lady who was abducted and presumed murdered when working alone.
Looking at lone working from a different perspective, colleagues will also be alone with a patient and will need to guard against allegations of inappropriate behaviour. It would be important to consider each situation individually and whether there would be any cause for concern. Bear in mind a patient who is new to an eye examination may not expect the optometrist to be so close during parts of the examination and also a patient may be more anxious as they are in an unfamiliar environment. In most cases good communication will alleviate concerns, however it may be considered that other actions should be put in place. These could include having a parent, carer or colleague from the practice, sitting in or just outside the consulting room and leaving the door open.
Health and safety regulation also sets out how long people are allowed to work and their rest breaks. Generally colleagues over 18 years of age are entitled to 3 types of break. Colleagues have the right to one uninterrupted 20 minute rest break during their working day (this could be a tea or lunch break), if they work more than 6 hours a day. They then have the right to daily rest, 11 hours rest between working days, eg if they finish work at 8pm, they shouldn’t start work again until 7am the next day. Finally they have the right to weekly rest, either an uninterrupted 24 hours without any work each week or an uninterrupted 48 hours without any work each fortnight. A worker’s employment contract may say they’re entitled to more or different rights to breaks from work.
If the work is monotonous the employer should give enough breaks to make sure health and safety isn’t at risk. This covers work such as a production line but I would hope doing eye examinations does not fit into this category! As an employer you can say when employees take rest breaks during work time as long as the break is taken in one go somewhere in the middle of the day, not at the beginning or end, and workers are allowed to spend it away from their desk or workstation. It doesn’t count as a rest break if an employer says an employee should go back to work before their break is finished. Unless it is stated in an employment contract the employee does not have the right to take smoking breaks or get paid for rest breaks.
Colleagues may be entitled to ‘compensatory rest’ if they don’t have the right to specific rest breaks. These compensatory rest breaks are the same length of time as the break, or part of it, that they’ve missed. Examples in an optical context are; a shift worker due to long retail hours and can’t take daily or weekly rest breaks between ending one shift and starting another or where they’re a cleaner and work for part of the working day – morning and the evening. The total rest entitlement for a week is 90 hours a week on average - this doesn’t include breaks at work, which are additional.
Young workers, aged 16-18, are another exception and they are usually entitled to a 30 minute rest break if they work more than 4.5 hours. If possible this should be one continuous break, daily rest of 12 hours and weekly rest of 48 hours.
Marketing
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We have all seen marketing that appears to make exaggerated claims for a particular product, however what is the regulation that governs what we are able to do and say?
This is very relevant to all optical businesses as they are freely available to advertise and market their services and products. Bear in mind that it is not that long ago that advertising was restricted under the Opticians Act to the point that there was no media advertising allowed and even no prices visible in practice windows. Hard to believe when we know what we see today.
Regulation around advertising is a detailed area of expertise with a number of codes of practices covering different product categories, consumer types, and marketing channels. However in general terms all marketing and advertising must be; an accurate description of the product or service, legal, decent, truthful, honest and socially responsible, that is not encouraging illegal, unsafe or anti-social behavior. There are also specific requirements that apply to certain sectors, such as food, alcohol and medicine.
The Consumer Protection from Unfair Trading Regulations 5 means that in advertising to consumers you can’t mislead or harass consumers by, for example by including false or deceptive messages, leaving out important information or using aggressive sales techniques. Advertising to other businesses is covered by the Business Protection from Misleading Marketing Regulations.6 As well as being accurate and honest, you must not make misleading comparisons with competitors, that includes using a competitor’s logo or trademark, or something very similar and comparing your product with a competitor’s product that’s not equivalent.
The Committee of Advertising Practice writes The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the Code), which is the rule book for non-broadcast advertisements, sales promotions and direct marketing communications. The code specifies standards for accuracy and honesty that businesses must adhere to, including specific conditions relating to areas such as advertising to children, causing offence and political advertising. There are also rules for the broadcast media, (TV, radio), written by the Broadcast Committee of Advertising Practice, that covers issues including taste, decency and product placement. As well as setting standards about accuracy and honesty, they also have rules about things like scheduling. You also need to follow rules about issues such as taste and decency that apply to all broadcasting and are contained within the broadcast codes, (see www.ofcom.org.uk)
You must describe your product accurately. This means if you make a claim about your product, you must be able to prove what you say. Adverts must describe the actual cost accurately, including any ongoing or associated costs (eg subscription fees) and taxes (eg VAT).
If you undertake direct marketing you must check if customers want to be contacted by fax, phone, post or email, and give them the chance to object. When you collect customer details, you must obtain permission if you want to send them other offers or promotions. You must also ask for their permission if you want to share their information with another organisation. Customers have the right to stop their information being used for direct marketing and you must make it easy to opt out, something we are all familiar with when we send a ‘STOP’ text or use an ‘unsubscribe’ link. If involved in telesales you must say who you are when you make a call, and give your address or phone number, which should be free phone, if you’re asked for it.
If you want to make automated calls – with pre-recorded phone messages – you must get the permission of the individual or business first. You’re only allowed to send marketing emails to individual customers if they’ve given you permission. Emails or text messages must clearly indicate who you are, that you’re selling something and what the promotions are, and any associated conditions.
The rules are enforced by the Advertising Standards Authority (ASA), the UK’s independent regulator of advertising across all media. The ASA apply the Advertising Codes, act on complaints and proactively check the media to take action against misleading, harmful or offensive advertisements, sales promotions and direct marketing. The ASA begins an investigation by contacting the advertiser for its views on the advertisement and, where appropriate, substantiation of claims made in it. The ASA may on occasion seek advice from industry experts on more complex issues. Once the investigation is complete and any recommendation of action to be taken is agreed, it is posted on the ASA’s website. The primary sanction is to have advertisements that are judged to be in breach of the Codes withdrawn and prevent them from appearing again, however the ASA is a non-statutory body and does not have the power to fine or take advertisers to court. In exceptional circumstances where an advertiser has so seriously or repeatedly breached the Codes for misleading advertising or a broadcaster continues to run problem advertisements then the ASA can refer to its legal backstop, The Trading Standards, who can initiate statutory interventions against advertisers that fail to co-operate with the self-regulatory system.
Sale of goods
We have all had cause to return a faulty product at some time, but what are the laws governing this?
Under the Sale of Goods Act 1979,7 goods must be as described, of satisfactory quality and fit for purpose. Fit for purpose means both their everyday purpose, and also any specific purpose that you agreed with the seller, such as a contact lens solution being compatible with certain contact lenses. Goods sold must also match any sample the customer was shown in the shop, or any description in a brochure, which may be relevant when a customer orders a frame that is then supplied from the manufacturer. If the goods fail to meet any of the above criteria then a customer may have a claim under the Sale of Goods Act. Their rights are against the retailer – the company that sold them the product – not the manufacturer, and so they must make any claim against the retailer.
If the customer buys a product that turns out to be faulty, they can choose to reject it, give it back and receive a refund. However, the law only gives you a reasonable time to do this – what’s reasonable depends on the product and how obvious the fault is. If it is too late to reject the goods, there is still the right to get the goods replaced or repaired. Under the Sale of Goods Act, the retailer must either repair or replace faulty goods ‘within a reasonable time but without causing significant inconvenience’. If the seller doesn’t comply, the customer is entitled to claim a reduction on the purchase price, or money back, minus an amount for the usage of the goods, (called recission). If the retailer refuses to repair the goods, and they won’t replace them either, the customer has the right to arrange for someone else to repair, and then claim compensation from the retailer for the cost of doing this.
Promotions
I am also sure we have all looked with suspicion at sale advertisements and seen examples of products that seem permanently ‘on offer’ or advertised at a previously highly inflated figure.
Consumer protection regulations prohibit traders from giving false or misleading information, or omitting material information, about price or how a price is calculated, where this causes the average consumer to take a decision to purchase which he would not otherwise have taken. So any price comparisons should be justifiable and any claims made must be accurate and valid – in particular, that any price advantage claimed is real.
In general like should be compared with like. This implies that the products compared should be the same, or very similar; and should have been on offer in the same outlet. The meaning of any price comparison should be clear to the consumer, not leaving the consumer to guess whether a price comparison is being made. If a price comparison is made, then the previous higher price, as well as the actual price are likely to be material information that the consumer needs. If you make statements like ‘sale price £5’ or ‘reduced to £39’ you should quote the previous higher price which has then been discounted.
A comparison with your own previous price should in general be with the immediate previous price for the product. If you have offered the product at a lower price for any significant period in the interval (lower, that is, than the price at which you now intend to sell it), this should be stated. What might constitute a significant period will depend on all the circumstances, but a single period not exceeding a week in a six-month interval, or two or three periods of a weekend each in a six month interval, would be unlikely to be significant.
A price used as a basis for comparison should have been your most recent price available for 28 consecutive days or more and the period of time for which the new (lower) price will be available should not be so long that the comparison becomes misleading. But as a general guideline it is suggested that the period of time for which the new (lower) price will be available should not be more than that for which the old (higher) price was available; and comparisons should not be made with prices last offered more than six months ago.
Environment
Every business that produces waste has a duty of care to understand which category of waste is appropriate to the substance and dispose of it accordingly. Most waste will be put into the main bin and collected by the local authority, which provides a waste transfer note annually.
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More specific to optical practice, drugs are classed as non-hazardous pharmaceutical waste and should be disposed of in a yellow medicine disposal box, to be collected separately, by a licensed waste pharmaceutical disposal contractor, and disposed of by incineration. Note that chloramphenicol is classed as hazardous and it is illegal to mix hazardous and non-hazardous waste. Contact lenses and tonometer heads and generally anything that comes into contact with the patient are classed as non-hazardous offensive waste and should be disposed of in yellow and black stripped bags. Where a practice uses sharps these should be disposed of in colour coded sharps boxes according to whether it is infectious waste or not.
Each practice should ensure it has a waste transfer note for all waste – general, pharmaceutical and hazardous. There is a requirement to keep records relating to pharmaceutical disposal – transfer notes (all waste) for two years and consignment notes (hazardous waste only) for three years.
References
1 www.qualityinoptometry.co.uk/
2 http://www.college-optometrists.org/en/professional-standards/Ethics_Guidance/index.cfm
3 Health and Safety at Work Act 1974. Go to; www.hse.gov.uk/legislation/hswa.htm
4 Management of Health and Safety at Work Regulations 1999. Go to; www.legislation.gov.uk/uksi/1999/3242/contents/made
5 Consumer Protection from Unfair Trading Regulations 2008. Go to; www.legislation.gov.uk/uksi/2008/1277/contents/made
6 Business Protection from Misleading Marketing Regulations 2008. Go to; www.legislation.gov.uk/uksi/2008/1276/contents/made
7 Sale of Goods Act 1979. Go to; www.legislation.gov.uk/ukpga/1979/54
David Cartwright is an optometrist and practises in the Nottingham area. He is Chair of Derby/Notts Local Eye Health Network and a member of the GOC Hearings Panel