In preparing this response we have drawn on the assistance of FODO s defence lawyers, Berrymans Lace Mawer LLP, in formulating this response.

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1 The Federation of Ophthalmic and Dispensing Opticians (FODO) represents registered opticians in business. It accounts for over three quarters of market activity and over two thirds of eye examinations. The majority of FODO members are covered by FODO professional indemnity insurance. The Association of British Dispensing Opticians (ABDO) represents over 5,000 dispensing opticians in the UK; it also provides professional liability insurance for its members. Response to Consultation on the New GOC Fitness to Practise Rules We are responding on behalf of FODO and the ABDO to the GOC s consultation on the new Fitness to Practise Rules which, once approved, will replace the General Optical Council (Fitness to Practise) Rules 2005 ( the 2005 Rules ). In preparing this response we have drawn on the assistance of FODO s defence lawyers, Berrymans Lace Mawer LLP, in formulating this response. Overall, we consider that the proposals will significantly improve the management of GOC fitness to practise cases and we welcome the introduction of the new rules, subject to the points raised below. Question 1 Do you agree with our proposed approach to the single allegation of impairment of fitness to practise, in the light of the public and registrants interest issues described above? We agree that this is consistent with the approach of other regulators and also reflects the way in which GOC charges are currently framed, with a single allegation of impairment based on any one or more of the grounds set out in s13d(2) and 13D(3) of the Opticians Act 1989 ( The 1989 Act ). On a related note, we consider that the registrar should provide the registrant with draft allegations prior to the case examiners considering the matter. This will enable the registrant to focus their response to the allegations considered to be of concern to the GOC. We note that Rule 4 (1) (a) of the 2005 Rules requires that a registrant be provided with a notice of each allegation prior to the Investigation Committee considering the matter. In practice however, we note that registrants are instead provided with a copy of the complainant s letter of complaint which they then have to decipher and respond to. We regard the implementation of the new rules as a good opportunity for this to be remedied. Question 2 Do you agree that the introduction of the case examiner provisions will make the throughput of complaint cases faster and more efficient? We agree that the introduction of the case examiner provisions will be beneficial. We consider however that guidance should be given, setting out the role of the case examiners, their remit and the test that they must apply when deciding whether or not to refer a matter to an Investigation Committee 1

2 or Fitness to Practise Committee. Training will also need to be given to the case examiners to ensure that they are clear as to how to apply these tests. The case examiners will also need to be made aware of the importance of evidence of remediation and the legal significance that such evidence has. In relation to professional case examiners, we believe that it is important that clinical complaints should be considered by a case examiner with the same title as that of the registrant. For example, a complaint concerning an optometrist should be considered by a registered optometrist, a complaint concerning a dispensing optician or contact lens optician by a registered dispensing optician or contact lens optician and a complaint concerning an enrolled body corporate by a professional with relevant and senior-level experience in body corporate management. This would be the appropriate way to proceed both in terms of efficiency and fairness to the registrant. We also note that the case examiners will not be able to direct an assessment of the registrant s health or performance and that if they consider such an assessment appropriate, they must refer to the Investigation Committee, which will direct an assessment. Furthermore, case examiners who are not unanimous in their decision about disposal of an allegation must inform the registrar who will in turn refer the allegation for consideration by the Investigation Committee. In these circumstances, whilst we agree that the case examiner provisions will make the throughput of complaints faster and more efficient, there may remain a significant number of cases which are referred back to the Investigation Committee for consideration. We have dealt with this issue in more detail in response to Question 10 below. Question 3 Do you agree with the terms of guidance to the case examiners relating to complaints where more than five years has elapsed since the incident leading to the complaint? Whilst we agree with the factors listed to be taken into account by the case examiners when considering the allegation under Rule 12, we suggest that the case examiners should also consider the extent to which the passage of time is likely to have impacted upon the quality of the evidence. This is separate from the issue, already listed for consideration within the guidance, of whether evidence is no longer available due to the lapse of time. On a related note, the registrant should have full opportunity to address the case examiners on the issue of the five year period having elapsed and whether there are exceptional circumstances warranting the case being investigated. In our submission, one way of dealing with this is for the registrar to be required to inform the registrant in the letter to be sent under Rule 5 of the proposed new rules that the complaint is outside of the five year time limit (with specific reference to the date that the complaint was brought to the attention of the GOC and the date of the most recent complaint). The registrant should then to be invited to submit representations on the five year issue along with any substantive response to the complaint. Question 4: Do you agree with the terms of the guidance where the complainant wishes to remain anonymous? We recognise the difficulties created where a complainant is unwilling to disclose their identity, both in terms of evidential issues and fairness to the registrant and consider that the guidance is helpful in dealing with this issue. 2

3 We further suggest that the guidance be amended to require the case examiners to consider the extent to which the allegation in question is capable of being supported without reliance on the evidence of the anonymous complainant. The guidance should, in our view, also state that where there are no cogent reasons given for the anonymity of the complaint and no evidence in support of the complaint beyond that of the anonymous complainant, the case should normally be closed with no further action. Question 5 Do you agree with the terms of the guidance relating to vexatious complaints? We agree with the terms of the guidance on this issue and, in particular, the helpful examples of complaints which may be considered vexatious. Question 6 Do you agree that the provision for the registrar to refer a matter directly to the Fitness to Practise Committee for consideration of an interim order is appropriate in the public interest? For this provision to work effectively, it will be vital that the registrar has appropriate guidance and training on when referral for consideration of an interim order is necessary, especially given that a decision previously taken by a committee is now to be taken by one person alone. We consider that the guidance should be open and transparent and would therefore suggest that the guidance is made available on the GOC s website. If the introduction of this provision leads to an increase in cases being referred for consideration of an interim order, we strongly recommend that the issue of guidance and training be revisited as, although interim orders may be imposed at an earlier stage, the overall number of interim order cases should not be expected to rise. Question 7 Do you support the provision for the registrar to refer serious criminal convictions directly to the Fitness to Practise Committee? Whilst we agree in general terms that there should be provision for serious criminal convictions to be referred directly to the Fitness to Practise Committee, we would suggest that there should remain a mechanism for those exceptional circumstances in which the registrant wishes to challenge direct referral. As has been noted within the consultation paper itself, it might, for example, be argued that the registrant is not the person who was convicted. We envisage that it would be possible to deal with this situation by way of written representation to request termination of the referral under Rule 16. However, this would require that the new Rules be amended to include referrals made under Rule 4(5) of the rules as well as those made under s13d(6)(b) of the 1989 Act. Question 8 Do you support the express provision for a process for the submission of observations by the registrant and the maker of the allegation? No, we do not agree with the proposed process for submission of observations by the registrant and the maker of the allegations. It is, we believe, wholly unfair that the complainant should have the final 3

4 word in the exchanging of comments as, whilst the GOC s stated mission is to protect the public, it is the registrant s livelihood and professional reputation at stake. The registrant should therefore be entitled to respond to any further comments made by the complainant (although registrants representatives are likely to advise that no further comments be made where the complainant merely restates previously expressed concerns). If the complainant is given the final opportunity for comment on the allegation there is a greater risk of prejudice to the registrant as the complainant may well seek to put forward new issues not previously raised and in relation to which the registrant has not been given 28 days to respond (Rule 5 of the 2005 Rules). If the registrant is permitted the final opportunity to respond, any new issues raised by the complainant can be dealt with within representations made on the registrant s behalf including, where appropriate, making clear to the case examiners that such new issues should be disregarded as they do not form part of the allegation to be considered. This process causes no prejudice to the complainant, ensures fairness to the registrant, provides helpful guidance to the decision makers and ensures that the basis of any subsequent referral to the Fitness to Practise Committee is clear, thereby avoiding unnecessary legal argument at a later stage. We note the reference within the consultation paper to the recommendations of the Council for Healthcare Regulatory Excellence (CHRE) on this subject in its December 2009 report, Handling Complaints. It is our view, having considered that report, that our approach is entirely consistent with the CHRE recommendations, as we make no objection to disclosure of the registrant s responses to the complainant. We wholly support the comment at paragraph 4.8 of that report to the effect that: sharing the registrant s response can facilitate an exchange of information between the registrant and complainant, which is particularly valuable when the source of the complaint is a misunderstanding or a breakdown of communication. However, the CHRE report does not make any recommendations regarding who should have the last opportunity for comment and in fact touches upon the risk of the complainant changing the nature of their complaint on receipt of the registrant s response. Question 9 Do you agree that the new Rules should allow the Investigation Committee (IC) and Fitness to Practise Committee to draw such inferences as seem appropriate to them in relation to a registrant who does not co-operate with an assessment that has been directed by the IC? We agree with this proposal and that there should be parity between the Investigation Committee and the Fitness to Practise Committee in this regard. We consider however that guidance should be given to the Investigation Committee as to the factors to be taken into account and the threshold that needs to be overcome when the Committee are considering drawing an adverse inference. This guidance should be open and transparent and we would therefore suggest that the guidance be made available on the GOC s website. Question 10 Do you agree with the provisions relating to the decisions which the case examiners may take? We note that under Rule 12 of the proposed new rules, where the case examiners decide that an allegation ought not to be referred to a Fitness to Practise Committee, the options open to them are to conclude the case with no further action or to impose a warning. We would suggest that a further option should be added in that the case examiners (or Investigation Committee where the case 4

5 examiners cannot reach a unanimous decision) should be able to give the registrant a letter of advice, setting out what the registrant should do or refrain from doing in the future. This is an option that is open to the Investigating Committee at the GDC and we would suggest that its use allows greater flexibility to the decision makers whilst ensuring that warnings are only used where they are warranted. We note that Rule 14 of the proposed new rules sets out the procedure that would be followed where the case examiners (or Investigation Committee) are considering imposing a warning. We note that this requires the registrar to write to the registrant informing them that a warning is being considered. The registrant will then be invited to make representations within 28 days, as currently allowed for under the 2005 Rules. We support this process and would only add that any representations made by the registrant should be taken into account by the case examiners when deciding on the wording of the warning. With regard to the process for referring consideration of an assessment report to the Investigation Committee, we wonder whether in reality it will be the case examiners taking the decision that an assessment report should be ordered, with the Investigation Committee endorsing their recommendation. We note that Rule 12(1)(b) of the proposed new rules states that the case examiners must refer cases requiring an assessment to the Investigation Committee to request that it direct such an assessment but that Rule 13 does not specifically require the Investigation Committee to comply with this request. However, the consultation paper creates the strong impression that this process is merely a formality and designed to circumvent the restrictions of the delegated power under the 1989 Act. We note that the consultation paper states that where the case examiners decide to refer a registrant for an assessment the Investigation Committee must direct an assessment of the registrant, even though this goes further than the position stated within the new Rules. In these circumstances and whilst fully acknowledging the limitations as a result of the 1989 Act, this does appear to be an artificial process which will result in unnecessary delay. In relation to the potential for delay, we would request that information be provided as to how often it is anticipated that the Investigation Committee will meet once the new rules are implemented and many of the Committee s powers are delegated to the case examiners. In relation to the case examiners power to refer cases to the Fitness to Practise Committee for consideration of the making of an interim order, the points made in relation to Question 6 above apply. Once again as the decision to refer will be capable of being made by one person alone in this instance an individual case examiner - appropriate training and guidance will be vital and the guidance should be made available on the GOC s website. Question 11 Do you agree with the provisions relating to the decisions which the Investigation Committee may take? Please see above response to question 10. 5

6 Question 12 Do you agree with the provision for the registrar, rather than the Investigation Committee, to be able to review a decision not to refer? We are concerned by the prospect of review of a decision not to refer being undertaken by a single individual and, in view of the potential consequences for a registrant if the original decision is overturned and the case referred to the Fitness to Practise Committee, or a warning given where one had not previously been given, we would recommend that that this remain the preserve of the Investigation Committee. If our submission in respect of the continued use of the Investigating Committee is not accepted, we would submit that, as a minimum, fairness to registrants requires that the registrar only be permitted to substitute the original decision for a less serious outcome, i.e. to decide that a warning given at the time of the original decision should not have been given and to remove the record of it. If a more serious outcome is proposed, the matter should be put before the Investigation Committee for consideration. We note that the new rules retain the opportunity provided under the 2005 Rules for the registrant to make representations regarding the review of the decision not to refer. In these circumstances, if it is decided that the registrar is to consider the decision not to refer in the first instance with an opportunity for this to be transferred to the Investigation Committee if a more serious outcome is being considered, the registrant should have full opportunity to make representations both to the registrar and to the Investigation Committee prior to each review of the decision to refer. Question 13 Do you agree that a time limit should be imposed upon the ability to review a decision not to refer? Question 14 If you agree under question 13, do you agree that five years is an appropriate time period? We consider that a shorter time period of 1 year would be fairer to registrants. We refer to the guidance to case examiners for cases where five years or more has elapsed since the events complained of. We are concerned that, if there is a further period of five years within which to challenge the decision not to refer, registrants could potentially be required to face allegations which are up to 10 years old. We note that the public will remain adequately protected by a 1 year requirement as there remains the facility under the new Rule 15(1) to review the decision not to refer within a longer period where there are exceptional reasons for doing so (subject to the view, expressed in response to Question 12 above, that review of the decision not to refer should be undertaken by the Investigation Committee and not the registrar). 6

7 Question 15 Do you support the new provisions in rule 15(4) relating to warnings where a decision not to refer has been reviewed? We do not agree with the provisions relating to warnings where a decision not to refer has been reviewed in so far as it is currently suggested that the registrar will be able to exercise this discretion. We refer to our answer in respect of Question 12 for full details in this regard. Question 16 Do you agree that it is appropriate for the case examiners rather than the Investigation Committee to be able to terminate a referral to the Fitness to Practise Committee? We agree with this proposal, subject to the amendment to Rule 16 proposed in response to Question 7 above. Question 17 Do you support the new provisions in rule 16 permitting the maker of the allegation to be notified of the possible termination of the referral and to be given the opportunity to make comments which the case examiners will take into account? We agree with this proposal, subject to the amendment to Rule 16 proposed in response to Question 7 above. Question 18 Do you agree that it is appropriate that Interim Order hearings should be held in private? Question 19 Do you agree with the provisions in rule 20 that in most cases, oral evidence will not be given at interim order hearings? Question 20 Do you support the new procedure set out in the Rules for Interim Order hearings? Question 21 Do you agree with the proposal that standard directions should apply in all cases unless varied and that a procedural hearing is not then necessary in every case? We note that the parties can agree to vary the directions and this is welcomed. It is agreed that a procedural hearing is not necessary in every case and should be reserved for cases where they are specifically requested. We also recommend that consideration be 7

8 given to having procedural hearings take place by telephone where appropriate, in order to reduce unnecessary costs. Question 22 If you answered yes to question 21, do you agree with the form of the standard directions, including the timescales, set out in the table at rule 29? We agree with the form of the proposed standard directions. Question 23 Do you agree that it is now appropriate for the reference point in the Rules in relation to admissibility of evidence should be the civil rather than criminal rules? Question 24 Do you agree that the provisions relating to evidence now included at Rules 40(3) to (8) are appropriate for the GOC s Fitness to Practise hearing process? Question 25 Do you agree that the detailed hearing process now set out at rule 46 will facilitate and provide certainty in the procedure to be followed at substantive hearings of the Fitness to Practise Committee? We recommend that in respect of Rule 46(11), the Fitness to Practise Committee should be required to give detailed reasons for its findings of fact. We consider that the detailed hearing process set out at Rule 46 is likely to be very useful. Question 26 Do you support the provision in rule 46(20) for the Fitness to Practise Committee to amend an allegation at a hearing, bearing in mind the safeguards and the public interest? We agree with this proposal, subject to the in-built safeguards. Question 27 Do you agree that the power for the Fitness to Practise Committee to make costs orders should be available for substantive and review hearings, but not for either initial or review hearings relating to interim orders? We would be grateful for clarity with regard to the circumstances in which the Fitness to Practise Committee will consider summarily assessing a party s costs. It would be helpful if guidance on this issue could be given and published on the GOC s website and details of the considerations which will be taken into account provided. For example, will cost awards only be considered where a party s behaviour has been unreasonable? 8

9 We would also like clarification that the extent to which it is anticipated that the Fitness to Practise Committee will order costs against the GOC or whether this is unlikely to happen in reality. It would be helpful to have confirmation of the extent to which Rule 56 of the 2005 Rules has been used against the GOC in the past in this regard. We agree that costs orders should not be available for either initial or review hearings relating to interim orders. As Rule 52 of the new rules refers to costs of a hearing, we note that this provision will not be applicable in respect of Investigation Committee meetings. Question 28 Do you agree that the new procedure for the costs process will make the process clearer for the parties and the Fitness to Practise Committee? We are not in a position to comment on whether the new procedure for the costs process will make the process clearer for the parties and the Fitness to Practise Committee until we have received further guidance on the basis on which summary assessment of costs will be carried out, as referred to in answer to Question 27 above. Question 29 Do you support the change to the Rules to make express the ability for the GOC to notify a registrant s current employer of key outcomes of the fitness to practise process under Rules 15, 16 and 51? Yours faithfully David Hewlett Chief Executive FODO Sir Anthony Garrett Secretary General ABDO 9 May,