Fitness to Practise Complaints Strategy:

Policy for Acceptance Criteria

14 December 2017

Contents

Introduction……………………………………………………………………..………… 2-4

Draft acceptance criteria ……………………………………………………….……………………….……………4-17

Consultation response…………………………………………………………………………….…..18-21

Equality and diversity form………………………………………………………………………………….…..24-25

Introduction

This document seeks the views of stakeholders on our proposed introduction of an Acceptance Criteria. We welcome all responses to the consultation and we will consider the proposed introduction of the criteria in light of the responses received.

This consultation will be of particular interest to registrants, professional bodies and patient representative groups. We have included a number of questions that we would like those responding to the consultation to answer.

The consultation will run for 12 weeks from14 December 2017 to 9 March 2018 and applies to the whole of the UK.

About the General Optical Council

We are the regulator for the optical professions in the UK. Our purpose is to protect the public by promoting high standards of education, performance and conduct amongst opticians. We currently register around 29,000 optometrists, dispensing opticians, student opticians and optical businesses.

Our Mission

In line with our statutory function, our mission is to protect and promote the health and safety of members of the public.

Our Values

We are responsible, forward thinking and principled:

Responsible

We inspire confidence because:

•We make clear, well-reasoned, evidence based decisions

•We account for our actions and are open to scrutiny

•We apply our resources in a targeted and proportionate manner

Forward thinking

We make a difference because:

•We pursue defined goals and measure our results

•We are progressive, innovative and agile in our ways of working

•We achieve and deliver more by working collaboratively

•We are a learning organisation committed to continuous improvement

Principled

We build trust because:

•We gain respect through our credibility, integrity and high standards

•We listen openly, act responsively and communicate honestly

•We behave consistently and fairly to everyone

•We foster a positive and productive culture

How we will use your feedback

We will use the information and feedback that we gather from this consultation to determine the next steps in respect of the Acceptance Criteria. Should no significant issues arise from the responses, we will implement the Criteria initially for a 12 month period before assessing whether further refinements are necessary. If significant concerns are raised as part of the consultation, we will assess next steps with our Council as to the way forward. We will publish a report to summarise the findings of this consultation and explain how we have used the feedback. We reserve the right to not publish responses which contravene our Acceptable Behaviour policy.

If you have any queries about the consultation then please contact Kayleigh Allen at:

How to respond

We welcome all responses to this consultation in any format, although we prefer written responses where possible. Please contact us to request a copy of this document in an alternative format via: or 020 7307 9473.

Please send your response to Kayleigh Allen, Senior Lawyer, no later than 9 March2018.

Responses should be sent via:

Email:

Post: General Optical Council

Fitness to Practise

10 Old Bailey

London

EC4M 7NG

How we process personal information

Please include your contact details so that we can follow up any relevant aspect of your response. We will not publish nor share with any third parties any personal information that you provide. We will not publish your name, your position or any other personal information you provide unless you specifically request this, nor will we attribute your responses to your organisation, unless you agree.

Our commitment to consultation

Our Consultation Framework outlines our approach to consultation. Feedback on the consultation process itself would also be welcome, please contact .

Policy for Acceptance Criteria of Fitness to Practise Cases

  1. Introduction

1.1.The General Optical Council’s (“GOC”) statutory functions include:

1.1.1Setting standards for optical education and training, performance and conduct.

1.1.2Approving qualifications leading to registration.

1.1.3Maintaining a register of individuals who are qualified and fit to practise, train or carry on business as optometrists and dispensing opticians.

1.1.4Investigating and acting where registrants’ fitness to practise, train or carry on business is impaired.

1.2.With regards to point 1.1.4, we therefore need to determine whether a complaint amounts to an allegation that a registrant’s fitness to practiseor fitness to train (collectively known as “FTP”) is impaired.

1.3.We have developed Acceptance Criteria as a case management tool to identify whether to accept a complaint against an individual as an allegation of impaired fitness to practise. We will develop separate Acceptance Criteria for business registrants.

1.4.Not all complaints amount to an allegation of impaired fitness to practise, and we need to ensure that we identity FTP allegations so that they can be properly investigated and referred to our Investigation Committee or Case Examiners. If a complaint does not amount to an FTP allegation, it can be closed without action or referred to another organisation for them to consider.

Statutory Framework

1.5.Our governing legislation is the GOC’s Opticians Act 1989. This sets out, under section 1(2A), ‘the overarching objective of the Council in exercising their functions is the protection of the public.’ We always have this objective at the forefront of any decision making.

1.6.S.13D of the Opticians Act 1989 defines an allegation of impaired fitness to practise:

1.6.1.S.13D(2) – the only grounds upon which the fitness to practise of a registered optometrist or registered dispensing optician, or for the fitness to undertake training of a student registrant, is ‘impaired’ for the purposes of this Act are –

(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.

  1. Applying the Acceptance Criteria

2.1 We will apply the Acceptance Criteria at the point we receive a complaint and the Acceptance Criteria will be used to determine whether a complaint should be investigated as an FTP allegation.

2.2 We will:

a)Consider whether a complaint falls within one or more of the grounds described in section 13D.

b)Focus on details of the complaint rather than the evidence and any potential mitigating or aggravating factors without examining impairment.

c)Take account of relevant case law and other authorities, including as set out in the Acceptance Criteria.

  1. The Acceptance Criteria documents

3.1 We havedrafted two documents: ‘Guidance to assist the GOC Registrar and delegates’ (staff guidance), which sets out the criteria in full, and ‘Guidance to assist members of the public’ (public guidance), which explains how the criteria will be used.

3.2The public guidanceprovides a brief overview of the Acceptance Criteria, and guidance on a ‘right to review’ the Registrar’s decision not to investigate a complaint.

3.3The staff guidance provides more detail about the criteria to be applied with the aim of ensuring consistent decision making.

3.4Both documents will be published on the GOC website for transparency.

3.5The staff guidance and the public guidance are included, in full, within this paper:

STAFF GUIDANCE - ACCEPTANCE CRITERIA

  1. Acceptance Criteria

With effect from [date to be confirmed], the General Optical Council (“GOC”) will be introducing acceptance criteria to ensure that Case Examiners only consider complaints which the GOC registrar considers amount to an allegation of impaired fitness to practise, in line with the Opticians Act 1989 and the GOC’s Fitness to Practise Rules 2013.

These acceptance criteria apply to registered optometrists, dispensing opticians, student optometrists and student dispensing opticians.

Complaintsthat are received by the GOC will be assessed against criteria before they are accepted for referral to the Case Examiners. If one or more of the criteria cannot be met, the case will be closed by the GOC. This means the GOC will not investigate the matter further and the case will be closed with no further action being taken.

The GOC will take action against a registrantif it decides it is necessary to:

-Protect the public

-Maintain public trust in the profession and/or

-Declare and uphold professional standards.

In performing this task, the GOC is always mindful of:

-Its overarching objective under s.1(2A) Opticians Act 1989: the protection of the public.

-The GOC Standards of Practice

  1. Cases closed at an early stage

The GOC will not be able to open a case if there is not sufficient evidence to substantiate an allegation made and/or the complaint is about matters that are not capable of raising an issue of impaired fitness to practise.

If the GOC is unable to make a decision about whether or not to close a case on receipt of the initial information, it will ask for further information from the complainant to assist with the decision making.

The types of cases that will usually be closed without any further action include:

  • a one off incident of poor record keeping, if there is no suggestion of deliberate or dishonest conduct;
  • a low level motoring offence that is not capable of giving rise to concerns about fitness to practise; and
  • a low level incident that has only occurred once of poor customer service, if there is no suggestion of deliberate or dishonest conduct.

The GOC will apply the public interest test by ensuring that public protection is always the overarching consideration.

  1. GOC Allegations under section 13D Opticians Act 1989

Misconduct:

An allegation of misconduct can be brought against a registrant by virtue of s.13D(2)(a).

The following will be considered in turn:

  1. Is there a complaint about a registrant’s conduct? If so,
  2. The misconduct complained of must be serious (R (on the application of Calhaem) v General Medical Council [2007] and Meadow v General Medical Council [2006])
  3. ‘Serious’ is not capable of a precise definition. However, the case of Calhaem went some way to defining what may constitute ‘serious’:

i.Serious misconduct may be ‘conduct which would be regarded as deplorable by fellow practitioners.’

ii.a single negligent act or omission is less likely to meet the threshold for a finding of misconduct unless particularly grave.

Deficient Professional Performance

An allegation of deficient professional performance can be brought against a registrant (except in the case of a student registrant) by virtue of s.13D(2)(b).

The following will be considered in turn:

  1. Is there a complaint about the registrant’s professional performance?
  2. R (on the application of Calhaem) v General Medical Council [2007] – “deficient professional performance… is conceptually separate from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor’s work”.

A Conviction or Caution

By virtue of s.13D(2)(c), an allegation can be brought against a registrant if they have accepted a caution and/or been convicted of an offence.

Rule 40(3) Fitness to Practise Rules 2013 provides that a certified copy of a conviction shall be ‘conclusive evidence’ of the offence.

There are categories of conviction/ caution that are unlikely to give rise to fitness to practise being impaired and might therefore not be investigated further. These will be considered carefully on a case by case basis having regard to all the circumstances, and could include:

-Penalty Notices

-Reprimands

-Youth Cautions

-Conditional Cautions

-Warnings

-Community Protection Warnings

Acceptance of a conditional offer or agreed to pay a penalty

By virtue of s.13D(2)(d), an allegation can be brought against a registrant if:

‘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).’

Scottish proceedings

By virtue of s.13D(2)(e), an allegation can be brought against a registrant if:

‘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.’

Adverse Physical or Mental Health

An allegation of adverse physical or mental health can be brought against a registrant by virtue of s.13D(2)(f).

The following will be considered in turn:

  1. Is the registrant alleged to be suffering from a physical or mental health complaint?
  2. Does the initial health complaint warrant further investigation for the safety of the public/ patients and /or the registrant?

Determination of another body

By virtue of s.13D(2)(g), an allegation can be brought against a registrant if:

‘a determination by a body in the United Kingdom responsible under any enactment for the regulation of 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.’

4.Acceptance Criteria

The GOC must consider whether complaints received fall into these categories or raise these issues.

1. Harm

There is an initial complaint that the registrant’s conduct or performance caused moderate or severe harm.

Harm can take the following forms:

  • physical
  • psychological
  • sexual
  • neglect
  • emotional
  • financial[1]

Harm can be reckless or it can be deliberate.

  1. Failure to act in the patient’s best interests using professional judgment

There is a complaint that the registrant placed his/her own interests, or those of a third party, before those of his/her patients. Alternatively, the registrant may have failed to act when necessary to protect the safety and interests of the patient.

This may include situations where there is a complaint that a registrant put one or more of the following ahead of the best interests of his/her patient(s):

  • financial interests;
  • personal interests; or
  • those of a third party (this may include a friend, partner, business partner); or
  • registrant has departed from standards of practice.
  1. Appropriate personal and professional conduct

3.1 There is a complaint that the registrant allowed his personal conduct to damage public confidence in the profession.

This may include:

  • criminal conviction/ caution
  • This applies where an optometrist, dispensing optician or student has received a caution for, or been convicted of, a criminal offence. This may include cautions and/or convictions that do not relate to the optical professional’s professional practice.
  • Low level cautions and convictions do not necessarily impair a registrant’s fitness to practise and the following will be considered before referring the matter to the case examiners:
  • Is there information received to indicate that the registrant’s fitness to practise is impaired; and/or
  • Would a failure to refer the allegation to case examiners undermine public confidence in the profession.
  • Unprofessional or illegal conduct in the online environment
  • Low level unprofessional or illegal conduct may not necessarily impair a registrant’s fitness to practise and the following will be considered before referring the matter to the case examiners:
  • Is there information received to indicate that the registrant’s fitness to practise is impaired; and/or
  • Would a failure to refer the allegation to case examiners undermine public confidence in the profession.
  • Unprofessional or illegal conduct unrelated to the professional environment.
  • Low level conduct that is unrelated to the professional environment may not necessarily impair a registrant’s fitness to practise and the following will be considered before referring the matter to the case examiners:
  • Is there evidence to indicate that the registrant’s fitness to practise is impaired; and/or
  • Would a failure to refer the allegation to case examiners undermine public confidence in the profession.

3.2 There is a complaint that the registrant’s professional conduct was not appropriate.

This may include but is not limited to situations where there is evidence:

  • that the registrant seriously departed from and/or intentionally disregarded standard operating procedures;
  • of poor practice in record keeping or other administrative tasks essential to patient safety and the poor practice is:
  • serious and/or
  • repeated.

4. Show respect for others

A complaint that falls under this category should be considered objectively having regard to all the circumstances of the case.

The registrant failed to demonstrate behaviour that is compatible with an optical professional.

This may include but is not limited to:

  • Subjecting patients to serious and/or repeated attitudes or behaviours from which they could reasonably expect to be protected;
  • Failure to obtain necessary consent;
  • A serious and/or repeated failure to respect patient confidentiality;
  • Acting in a discriminatory manner towards patients and/or members of the public;
  • Pursuing an inappropriate and/or unwanted emotional or sexual behaviour/ relationship with a patient, fellow professional, member of the public and/or colleague; or
  • Subjecting patients, colleagues and/or members of the public to bullying and/or harassment.

5. Work collaboratively with colleagues and patients and communicate effectively

There is a complaint that the registrant damaged or put at significant risk the best interests of patients by failing to communicate appropriately with patients or with others.

This may include situations where there is a complaint of:

  • A serious failure to communicate adequately which may have resulted in:
  • A misinformed decision being made about care; and/or
  • Harm to a patient.
  • Persistent failures to listen to or explain matters to patients;
  • A repeated failure to make reasonable efforts to resolve the complaint;
  • Failure to work with colleagues/ other professionals in a patient’s best interests including:
  • Failure to refer patients when clinically indicated;
  • Inappropriate referral where not clinically indicated;
  • Failure to seek advice from colleagues when necessary in order to provide the appropriate standard of care; or

Failure to liaise with other medical professionals/ colleagues when required.