AND MICHELLE BEACH ( ) DETERMINATION OF A SUBSTANTIVE HEARING 21 NOVEMBER-29 NOVEMBER 2016

Transcription

1 BEFORE THE FITNESS TO PRACTISE COMMITTEE OF THE GENERAL OPTICAL COUNCIL GENERAL OPTICAL COUNCIL F(16)13 AND MICHELLE BEACH ( ) DETERMINATION OF A SUBSTANTIVE HEARING 21 NOVEMBER-29 NOVEMBER 2016 Application to amend the allegation Ms Barnfather, on behalf of the Council, made an application to amend particular 2(b) of the allegation due to a grammatical error. This was not opposed by Mr Stern, on behalf of the Registrant. The Committee subsequently accepted the application. Original Allegation 2. Your actions in submitting those invoices were: b. Dishonest - in that you intended to make it appear that you had worked days that in you had in fact not worked in order to receive additional payments; Amended Allegation 2. Your actions in submitting those invoices were: b. Dishonest - in that you intended to make it appear that you had worked days that you had in fact not worked in order to receive additional payments; ALLEGATION (as amended) In relation to you, Michelle Beach (a registered optometrist), the Council alleges that: 1. Between 1 January 2008 and 31 December 2011, you submitted the invoices set out in the attached Schedule to redacted for work done at redacted, which included claims for payment for days worked by you as a locum optometrist when you had not worked as a locum optometrist on those days; 2. Your actions in submitting those invoices were:

2 a. Misleading - in that the invoices you submitted at 1 above falsely represented that you had worked on days that in fact you had not worked; and/or b. Dishonest - in that you intended to make it appear that you had worked days that you had in fact not worked in order to receive additional payments; And by virtue of the matters set out above your fitness to practise is impaired by reason of your misconduct. Application to replace the schedule Ms Barnfather, for the Council made an application to submit an updated schedule which replaced the original which contained errors. Mr Stern, for the Registrant did not oppose the application. The Committee heard the advice of the Legal Adviser and subsequently granted the application. DETERMINATION Admissions in relation to the particulars of the allegation The Registrant did not admit any of the particulars of the allegation. Background to the allegation The Registrant qualified as an optometrist in She was a long-term self-employed locum for redacted, which was a franchise owned and run by Witness A. It was alleged by Witness A that in 2011\early 2012 he had discovered that the Registrant had submitted an invoice charging for a day on which she had not worked and that further investigation had revealed that she had done this multiple times between 2007 and December On 25 January 2012, the Registrant was interviewed by redacted Head Office personnel, namely, Witness D and redacted. Store Manager, Witness E, was also there. Witness A was not present. No notes were taken of that interview. At this meeting, the Registrant admitted submitting invoices for days on which she had not worked but stated that she was entitled to do so pursuant to an oral agreement she had with Witness A. Following this meeting, the Registrant was informed that an investigation into her claims had been initiated and she owed approximately 32,000 or 35,000. In a letter dated 1 June 2012, from the Registrant to Witness A, the Registrant set out her position in relation to her invoicing for days upon which she had not worked. She alleged that Witness A had asked her to submit claims for money to which she was entitled by utilising standard invoices for days worked. She set out examples of such matters in a number of bullet points, as follows: I was on a different bonus scheme due to the fact that so much of my clinic time was spent seeing rechecks, appeasing disgruntled patients, floor walking etc etc. This had been agreed with you as I struggled sometimes to hit bonus as I was prevented from doing normal eye examinations due to my being constantly asked to sort out problems.

3 I had double glazed jobs for you on sports wrap glasses that you couldn t do in the lab on the premises so rather than invoicing you separately you asked me to put it down as extra days. Likewise I had brought designer glasses in for you at your request to show patients. These were often rimless as we didn t have a really good range. You had a pair of D&G limited edition sunglasses off me as a present for a friend. You told me to put 5 extra days down when I was extremely worried about money and had just had a superbug in You said that I had helped you build the practice over the years and wanted to help you signed this off and faxed it to head office yourself. PCT money for improved education. PAC Conference, redacted conference day. Training to use new computer systems or equipment, audits and the move to the new site (you asked me to come in and set up the equipment) there were all put through at your request as extra days. Informal meetings eg when you were looking for a new pre-registered optometrist. Extra activities like adverts for the local paper and TV footage for the redacted. On 14 January 2013, the police interviewed the Registrant in respect of a suspected fraud based on the same facts. The police also took written statements from several other witnesses. In her police interview, the Registrant essentially repeated the above explanation and added that: She and Witness A had been friends for many years; He had instructed her to charge certain monies as accrued days; All invoices had been double signed to prevent fraud and an authorisation number added; In January 2012, Witness A had accused her of stealing patients from his store for the benefit of her separate and additional practice at redacted, after which, the Registrant decided to resign from his store (but continued to work her notice); Witness A had sought to buy into her practice under his wife s name but the Registrant had refused; About 2 weeks later she was dragged into the meeting of 25 January The criminal investigation was discontinued on the basis that the allegation was a civil matter. A complaint was then made to the GOC. The Council s case It was the Council s case that the Registrant had been a locum in Witness A s practice for many years and a friend of his for nearly 20 years. She was completely trusted by

4 Witness A, so her invoices were not scrutinised. The Registrant would frequently invoice for 4 days per week, when she worked 3. A review was conducted by redacted at Witness A s request, to as far back as the paperwork went, namely They concluded that the Registrant had claimed in such manner in the region of 32,000 and 35,000. The Registrant worked 3 days per week (Monday, Wednesday and Friday) and sometimes on Sundays at redacted and from 2008, also at her own practice, redacted. The Registrant alleged, amongst other things, that she benefitted from a different bonus scheme than others. In broad terms, this scheme provided that she would receive the difference between the average sales figure of 119 per item and her average price per item. This was refuted by Witness A. It was common ground that the Registrant s invoices would be countersigned by one authorised person until February 2010, after which 2 signatories were required. Authorised signatories were, Witness A, Witness E, Witness F, redacted, Witness C and redacted. Invoices were then checked against the redacted computerised record system, which recorded practice activity. The Council alleged that the Registrant was trusted by Witness A and that it was the Registrant s custom to fold her invoices to conceal their contents, the dates and number of days claimed. The Council said that each employee was given a unique password. If redacted did not list an optometrist for a certain day, this meant that that optometrist did not attend redacted on that day. The Council provided copies of the Registrant s invoices and print-outs from redacted, which were analysed by Witness G, an ICAEW authorised forensic accountant. Witness G produced an expert report on the assumption that redacted was accurate and on certain assumptions regarding the Registrant s claimed alternative bonus scheme. He identified additional information which was required to undertake a full analysis but such information was not available to him. The Council interviewed several witnesses. Submission of no case to answer At the conclusion of the Council s evidence, Mr Stern, on behalf of the Registrant made a submission of no case to answer. The Committee heard submissions from Mr Stern, on behalf of the Registrant and from Ms Barnfather, on behalf of the Council. The Committee accepted the advice of the Legal Adviser. The Committee took account the allegation against the Registrant, as drafted, and applied Fitness to Practise Rule 46 (8) (a) and (b), namely: (a) whether sufficient evidence had been adduced upon which the disputed facts could be found proved; and (b) whether the facts, whether they are disputed or proved, could support a finding of impairment. The Committee considered the test in R v Galbraith [1981] as it applies to regulatory proceedings in R(Tutin) v GMC [2009] EWHC 553 (admin) and R(Sharaf) v GMC [2013] EWHC 3332 (Admin). The Committee also considered the test in R v Barking

5 and Dagenham Justices Ex parte Director of Public Prosecutions [1995] Crim LR 953, which was referred to by the Council s representative as presenting an analogous position between the role of justices and that of the Committee, both being tribunals of fact and law. The Council s evidence It was common ground that the Registrant did submit invoices in respect of days for which she had not worked. The Committee s determination focused on whether the Council had discharge its burden of proving that the submission of the invoices was misleading and/or dishonest. It was clear from the evidence submitted by the GOC that the Registrant s (untested) case was that she had been requested by Witness A to submit invoices on the standard form. This was an arrangement orally agreed between her and Witness A. Witness A denied this. Although the evidence of all witnesses and the business records produced were relevant, the Council s case depended primarily upon the reliability of Witness A s evidence. Witness A The Committee found that Witness A was an astute and successful businessman, whose focus was the management of a financially successful franchise. He received monthly management accounts, from which he could analyse the performance of his locums, on an on-going basis. Witness E described the green forms from which, he said, locums earnings were clearly apparent in the management accounts. In his oral evidence, Witness A stated of his business, I knew what was going on but he changed this to, I had a fair idea of what was going on. Existence of the alternative bonus scheme Witness A stated that there was only one bonus scheme, which related to sales in excess of 1,000 per day for each optometrist. It was evident that, although a written agreement for locum services existed, Witness A conducted some of his business by word of mouth. It is notable that the written locum agreement provided to the Committee did not mention a bonus scheme at all. The evidence before the Committee was that Witness A made different arrangements with different optometrists. For example, Witness C, who was a salaried employee, said that he was required to invoice his overtime as a day worked as a self-employed locum. The Committee also heard evidence from Witness E that Witness C also received an additional payment of 250 per month in this way. The Committee concluded that there was evidence that different bonus schemes were in operation. The Committee noted that Witness D, in his letter dated 3 February 2012, described two possible bonus schemes, which information he could only have obtained from Witness A. Witness A s argument that the Registrant s alleged alternative bonus scheme did not make commercial sense does not carry weight in the light of Witness A s admission that he agreed that the Registrant could claim for a full day when she worked a part day or on occasions, not at all.

6 Checking of the Registrant s invoices Witness A was questioned as to why he countersigned invoices which he did not check and why he instructed others not to check. Invoices had to be signed by one authorised signatory prior to February 2010 and two signatories thereafter. They then had to be endorsed with an authorisation number and faxed to head office. Witness A asserted that he had instructed others not to check the Registrant s invoices because he trusted her. Witness A stated that he was not aware of the contents of the Registrant s invoices, as the Registrant used to fold the invoice over before submitting them for signature. However, as many of them bear his signature, some with his signature upon the figures claimed, it is not credible that he was not aware of their contents. Even a cursory glance would have detected non-standard fee amounts and shown days claimed which were not worked. Witness A is an astute and successful businessman, it would be incredible if he were not to check what he signed. However, even if he did not, a second signatory would. Knowledge of arrangement It is implausible that he did not know that the Registrant was invoicing as she did. He was at the practice, a close friend, and signed the Registrant s invoices. The Registrant made a lot of claims for Tuesdays, when he was at the shop and she was absent. He would have known whether or not she was there. He said that the Registrant regularly gave multiple invoices but then changed this to occasionally. He also received management accounts and would have been aware of the Registrant s earnings. Discovery of false invoicing There were serious inconsistencies between Witness A s written and oral statements, in particular, as to his alleged discovery of the Registrant s invoicing practice. He gave three completely different versions of how he became aware of the false claims, namely: In his police statement, he said that the investigation took months to do prior to the meeting on 25 January 2012; In his GOC statement, he said that the investigation started in early 2012 after he had seen in the accounts for December 2011 that the costs for optometrists, higher than I would have expected even during a normal month and that he randomly picked an invoice by the Registrant for the week commencing 4 December 2011; In oral evidence, he said that he was alerted to the fact that the Registrant had wrongly claimed for Christmas Eve but when challenged said he was mistaken and reverted to 4 December As above, one version was that the issue came to Witness A s attention because optometrists had been paid so much in December but the alleged over-payment was limited to 250. Given the stated level of trust with his personal friend, the Committee would expect that his natural inclination would have been to raise the matter with the

7 Registrant directly rather than to go straight to Witness D. For all he knew at the time, this was a possible mistaken one-off over-payment by the Registrant. Contradicting all three of Witness A s versions was the evidence of Witness D, which was that it was Witness D who had identified the Registrant s invoicing custom, on 25 January 2012, when investigating why redacted had made the expected profit in December This was a routine visit and Witness D had not anticipated any issues relating to false claims being made. Demeanour Witness A s demeanour was a secondary consideration but important, as it underpinned other matters. He attempted to laugh-off difficult questions. At one point, when confronted with a difficult question, he stated that English was his second language. This was disingenuous, as his use and understanding of the English language was of a very high standard. He gave a lot of detailed evidence about December 2011 but his memory of that time was selective when it suited him and on many occasions stated, I can t remember. Witness A s credibility Witness A, in the opinion of the Committee, was entirely unreliable as a witness. His approach to business practice was such that he agreed an arrangement with Witness C, which involved a way of invoicing which disguised the true situation but complied with redacted administrative requirements. Witness E s evidence was that Witness A s wife and son were on the pay-roll; his wife did not work in redacted, although his son, who was a university student worked there in the holidays. It was clear that Witness A s personal friendship with the Registrant, which dictated his actions had become strained. The Committee considered that he had adapted his evidence as he was questioned. He said that there was no more than one bonus arrangement but the Committee has found that this was not so. With the exception of Witness C, he did not tell the counter signatories not to check the Registrant s invoices. He said that the Registrant was on no occasion on the floor but Witness F said that she showed patients frames and glasses and would often come out with the patient, she had a loyal following and would complete the journey with them (showing frames). Witness E said that the Registrant was very good at selling spectacles. The Committee were also concerned that Witness A s financial and business connection with Witness C and Witness B may well have influenced these witnesses in both the giving and contents of their statements. Witness B, under cross examination, refused to expand on an an initial answer about Witness A s character. Witness A appears to have had a hand in influencing witnesses evidence in these proceedings and the Committee refer to this further. The Committee concluded that Witness A attempted to fit his version of events to the documentation. His evidence was manifestly unreliable to such an extent for the Committee could not accept any part of it.

8 Witness B Witness B was in business with Witness A and needed Witness A s approval to set up his own store, as it was in Witness A s area. He refused to answer questions when his answers could be critical of Witness A. He stated, I am not saying anything. He was not at the practice at material times, having left in In his witness statement he intimated that the Registrant was in the habit of folding her invoices but in oral evidence he said that he had seen her do this only once. He was potentially influenced by his relationship with Witness A. Witness C Witness C is also in business with Witness A. Witness C had an unusual arrangement. If he worked overtime, he would claim as a locum. Witness E said that Witness C also received a bonus of 250 per month. Witness C was told not to check the Registrant s invoices when he specifically asked Witness A about it. Witness A did not issue a general instruction that the Registrant s invoices were not to be checked. Witness C was aware of Witness A s accusation that the Registrant had been stealing his patients. His memory was selective. Witness D Witness D was straight forward and honest. He made appropriate concessions and was open about when he was unsure. His letter at R10 was different to his evidence before the Committee. In the letter, he had said that the Registrant had asked for a face to face meeting, when she actually did not know about the meeting until summonsed to it on the day. He seemed surprised that he had said that and was unable to explain why However, Witness D was consistent in his account about the events of 25 January 2012, which directly contradicted Witness A s account. Witness E Witness E was a reluctant witness, having had to be summonsed. Witness E was at the meeting on 25 January He was genuine, balanced and factual. He retracted an earlier statement made in July 2016 because he had made it under duress from Witness A. There was a tacit threat of redundancy. He had not been told not to check the Registrant s invoices. He stated that individuals made individual arrangements with Witness A about bonuses. Witness F Witness F was a reluctant witness and had to be summonsed. She expressed opinion, which the Committee has not taken into account. She retracted a paragraph in her police statement in which she stated that the Registrant folded her invoices prior to presenting them for signature. Her oral evidence was that she would only have said that under duress from Witness A. She carried out what was effectively an audit of the Registrant s payment record. She was not qualified to do so. She described paperwork relating to the investigation which she was happy for the police to have but it had been locked in a safe and not produced. She stated that it was generally known in store that Witness A made individual arrangements with staff.

9 IT Systems and supporting data The allegation included a schedule of days not worked but claimed for. It is for the Council to prove its case but there were still serious mistakes in the schedule, which was replaced at the start of these proceedings. During the course of the proceedings mistakes in the new schedule came to light. There were clearly multiple problems with the information provided to the Committee: Expert The calculation of false payments was initially incorrect; The schedule of payments made was not complete; The details of days worked were not comprehensive; The method of calculating and paying bonuses was not clear. The expert witness, Witness G, had realised that the calculation had erroneously included the year in the annual total figures. He also identified the additional information which would have been required in order to undertake a comprehensive and professional assessment of the payments made to the Registrant in order to assess the level of any alleged overpayment. The lack of this information was such that the Committee had serious reservations about the integrity of these figures and the data about attendances and sales, which was demonstratively inaccurate. Conclusion On the Council s evidence, the Registrant had openly presented her invoices for signature and verification and these were signed by Witness A and others over four years. She did have an entitlement to a bonus and to CET training. She claimed for days which she did not work. On the face of it, this might appear to be misleading. However, the Committee concluded that within the context of the various arrangements for making claims, this practise was not shown to be misleading or dishonest. The Registrant has not given evidence and her version of events appears to be incomplete but she was denied the opportunity to provide a full account at the relevant times. Her incomplete case does not make up for the deficiencies in the Council s case. It is credible that an alternative bonus scheme would exist for the Registrant as she would often not be able to meet the criteria for payment of the bonus based upon 10% of sales over 1,000 per day. The expert identified that the sum she was alleged to have received was roughly equivalent pro-rata to the bonuses received by other optometrists in the practice. Finally, the inadequacy of the investigation and the inaccuracies and deficiencies identified did mean that the Committee could place little confidence on the documentary evidence. The Committee could not place any weight to the witness evidence of Witness A, and could place very little weight to the evidence of Witness B and Witness C. The Council s evidence was insufficient, contradictory and manifestly unreliable. Taking at its highest, no reasonable committee could find the allegation proved. The Committee finds that there was no case to answer.

10 Chair of the Committee: Ian Crookall Signature. Date: Registrant: Michelle Beach Signature. Date: