BEFORE THE FITNESS TO PRACTISE COMMITTEE OF THE GENERAL OPTICAL COUNCIL GENERAL OPTICAL COUNCIL F(17)01 AND ALPESH BHUNDIA (01-17901) ___________________________________________________________________ DETERMINATION OF A SUBSTANTIVE HEARING 5-7 FEBRUARY 2018 ___________________________________________________________________ Application to Adjourn Introduction At short notice the Legal Adviser originally instructed to advise in this case was unable to attend. The Council made alternative arrangements but was unable to secure an alternative Legal Adviser that could attend for the full four day listing of this case. In these circumstances, arrangements were made for a Legal Adviser to attend on Day 1 of the hearing and for another Legal Adviser to attend on Days 2-4. GOC Submissions In anticipation that Mr Toomey, on behalf of the Registrant, would be making an application to adjourn, Ms Culleton, for the Council, outlined the Council’s position. Ms Culleton submitted that it is anticipated that the hearing would conclude within 3 days as the factual evidence was agreed. She indicated that the oral evidence was likely to conclude today but suggested that it was unclear whether the Panel would reach the stage of deliberating on the evidence or drafting a determination. However, Ms Culleton submitted that the hearing could commence today for the following reasons:  There is a legitimate expectation that there would be a detailed handover between the Legal Advisers;  A transcript could be made available for the new Legal Adviser to read tomorrow morning;  It is the Committee that makes the decision not the Legal Adviser; Registrant’s Submissions Mr Toomey, on behalf of the Registrant, indicated that the only particular of the Allegation in dispute related to the issue of dishonesty. He submitted that the hearing could be completed within 3 days and therefore, in the interests of fairness the same Legal Adviser should be present throughout the evidence, drafting, reasoning and findings. Mr Toomey further submitted that there was no discrete point at which a new Legal Adviser could take over without running the risk of causing an injustice. He stated that the issue in dispute relates to an allegation of dishonesty and invited the Committee to conclude that fairness dictates that the hearing should commence tomorrow morning. Committee Decision The Committee, having taken into account the submissions from both parties and the legal advice from the Legal Adviser, determined that the hearing should be adjourned until tomorrow. The Committee noted that both parties agreed that in light of the anticipated admissions the only dispute relates to the issue of dishonesty and that although the expert witnesses and the Registrant will give evidence, this evidence will be concluded within a day. The Committee also noted that it is anticipated that the entire case can be concluded within 3 days. The Committee took the view commencing the hearing today would only save limited time as an allowance would have to be made for the Legal Adviser attending the hearing tomorrow to read the transcript. Although there is unlikely to be any unfairness to the Registrant in commencing the hearing today, it would be preferable for the same Legal Adviser to hear all of the evidence and submissions. Furthermore, as there is an expectation that the hearing can be concluded within 3 days, proceeding today, when there is time to follow the usual procedure of maintaining the same Legal Adviser throughout, may undermine the perception of fairness. ALLEGATION The Council alleges that you, Alpesh Jitendra Bhundia, being a registered optometrist: 1. On or around 10 September 2014, conducted a sight test on Patient A at Ely Specsavers Ltd. 2. On 21 February 2015, following receipt of a complaint made to the practice by Patient A's mother, made a series of amendments to the record of Patient A's sight test carried out on or around 10 September 2014. 3. On 30 April 2015, following receipt of a notification from the General Optical Council of a fitness to practise investigation, you made further amendments to the record of Patient A's sight test carried out on or around 10 September 2014. 4. Your actions at 2 and / or 3 above were: a. Inappropriate; b. Misleading; c. Dishonest AND by virtue of the above, your fitness to practise as an optometrist is impaired by reason of your misconduct. DETERMINATION Admissions in relation to the particulars of the allegation The Registrant admitted particulars 1, 2, 3, 4(a) and 4(b) of the allegation. The Committee found those particulars proved on admission. Background to the allegations The Registrant is an optometrist who has been registered with the General Optical Council since 22 December 1999. On 10 September 2014, the Registrant had seen and examined a minor (“Patient A”) at the Specsavers store in Ely. As a result of that examination, the Registrant issued a prescription for Patient A. On 21 February 2015, the mother of Patient A attended the store to complain about what she alleged was an inaccurate prescription issued by the Registrant. On the same day very shortly after that visit, the Registrant accessed Patient A’s record and amended it by adding further information. Patient A’s mother subsequently referred her complaint about the allegedly inaccurate prescription to the Council. By letter dated 28 April 2015, the Council informed the Registrant that he was the subject of an investigation in relation to this complaint. On 30 April 2015, the Registrant again accessed Patient A’s record and made some further amendments, by way of further additions. The amendments made by the Registrant consisted of the insertion of various values in the record in the sections entitled: “Vision”, “BIN Vision” and “Dist Bin VA”. These values were inserted both in the box entitled “Refracted Rx” and in the box entitled “Prescribed Rx”. The Registrant also added further information in the box entitled “History and Symptoms” by inserting the words “optom recall”. He added an entry in the box entitled “Accommodation” by inserting the words “Normal For Age” and he added the words “any sx to return” in the box entitled “Advice given/Action taken”. In responding to the allegation of misconduct against him, by letter dated 4 October 2016, the Registrant wrote that he could not account for any amendments made in February 2015 as he did not believe he knowingly made the amendments and that the amendments made in April 2015 were made so as to ensure a full record. Subsequently, on 21 August 2017, the Registrant made a statement in which he accepted that he must have made the amendments in February 2015 whilst maintaining that he could not remember doing so. Findings in relation to the facts Witnesses The witness statements of Witness A and Witness B were admitted in evidence as their contents were agreed. Witness A explained the circumstances in which Patient A’s mother came to visit the store in Ely on 21 February 2015. Witness B explained the audit that he had carried out on Patient A’s record which enabled him to identify the various additional entries that had been made in Patient A’s records in February and April 2015. The Committee also heard expert evidence from Professor Frank Eperjesi, called on behalf of the Council and Mr Lyndon Taylor, called on behalf of the Registrant. Both of these experts reviewed Patient A’s record and gave their views to the Committee as to the significance of the additional entries that had been entered in the record in February and April 2015. Professor Eperjesi referred to the relevant guidelines issued by the College of Optometrists (“the College”) and indicated that the additional entries had the potential to mislead any optometrist who subsequently treated Patient A. Mr Taylor accepted that the entries were misleading but contended that they would have little impact on any subsequent treatment offered to Patient A. The Registrant gave oral evidence to the Committee. He told the Committee that, having reflected upon the matter, he now accepted that he must have been responsible for the amendments to the record made in February 2015 as well as those made in April 2015. He told the Committee that when he made the entries in February 2015 he had no independent recollection of the values that he was inserting but he had inserted values that were “guessed” but nevertheless consistent with the prescription he had issued. He said that in April 2015, he had further amended the record because he was in a state of panic because of the GOC investigation. He wanted to insert additional information so that the record read better. He told the Committee that the entry he had made in the box entitled “Accommodation” was the result of an entry in a drop down menu which he had activated in error. The Registrant accepted that in amending the records in this way he was behaving inappropriately. He knew it was wrong to behave in this manner. However he did not accept that he had acted dishonestly. He said that he was an honest person who had never amended records in this way on any other occasion. Submissions The Committee has heard submissions from Ms Culleton on behalf of the Council and from Mr Toomey on behalf of the Registrant. Miss Culleton submitted that what the Registrant had done was plainly dishonest. He had accepted that he had made the amendments to the record for the purpose of improving the record and making it appear consistent with the prescription he had issued. The Registrant had accepted that in doing this he was seeking to protect himself and that he knew what he had done was wrong. Mr Toomey emphasised that the Registrant had not altered any of the values which he had inserted during the initial examination in September 2014. He had subsequently added further information but this was, Mr Toomey submitted, for the purpose of tidying up the record. The Committee accepted the advice of the Legal Adviser. The Committee was reminded that cogent evidence was required if an allegation of dishonesty was to be proved on a balance of probabilities. The Committee was also reminded of the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 which stated that it was the Committee’s task first to ascertain (subjectively) the actual state of the Registrant’s knowledge or belief as to the facts and then to consider whether his conduct was honest or dishonest by applying the (objective) standards of ordinary decent people. The Committee was also reminded that the Registrant was a person of good character and that it could take that into account when considering the credibility of his evidence and the likelihood that he would behave in the manner alleged. In the light of the admissions that were made at the outset of the case, the only remaining issue for the Committee to decide was whether, in amending Patient A’s record, the Registrant had behaved dishonestly or not. In deciding this question, the expert evidence was of limited help. Of much more significance was the evidence given by the Registrant himself and the circumstances in which he came to amend the record. The Committee noted that the record was initially amended in February 2015, when Patient A’s mother intimated a complaint about the prescription the Registrant had issued, and again in April 2015 when the Registrant received notice that the Council were pursuing an investigation. On each occasion the effect of the amendment was to improve the content of the record either by inserting values which were consistent with the prescription or by furnishing additional information in respect of which the Registrant had no independent recollection. The Registrant accepted readily in cross-examination that to interfere with the integrity of the record in this way was wrong. He was not prepared to accept that such conduct was dishonest, largely, it seemed, because he regarded himself as an honest person who had not behaved this way on other occasions. However, he did accept that the purpose of amending the record was to strengthen his position in relation to any complaint or investigation. The Committee is satisfied that the Registrant’s conduct was dishonest. He knew what he was doing when amending the records, first of all in the face of a patient complaint and later in the face of an investigation by his regulator, and he knew that what he was doing was wrong. On his own account, he did it so as to protect himself. To create a false record in this way is dishonest. In those circumstances, the Committee finds Particular 4(c) is proved. Findings in relation to misconduct and impairment With the agreement of the parties, the Committee determined that it would be appropriate to deal with questions of misconduct and impairment at the same stage of the proceedings. The Registrant gave further oral evidence. He told the Committee that he was extremely embarrassed and remorseful about the events that had led to this allegation. He said that the behaviour was out of character and an error of judgement on his part and that the experience of these proceedings had taught him a lot. [redacted]. The Registrant also referred to various improvements that he said he had made with regard to the practice of amending records in the store at Ely. The Committee heard submissions from Ms Culleton on behalf of the Council and from Mr Toomey on behalf of the Registrant. Ms Culleton submitted that dishonesty was always a very serious matter and plainly amounted to misconduct. In relation to impairment, she submitted that dishonesty was difficult to remediate and that the Registrant had not provided a great deal of evidence to demonstrate that he had acquired the appropriate degree of insight into his misconduct. Mr Toomey made no submissions in relation to misconduct. He did however submit that the Registrant’s fitness to practise was not impaired on the ground that the Registrant fully understood the implications of his behaviour and was unlikely to repeat it. He emphasised the [redacted] that existed at the time of the events in question. The Committee accepted the advice of the Legal Adviser, who indicated that for any action to be categorised as misconduct it must cross a certain threshold of seriousness. Whether it did cross that threshold was a matter for the judgement of the Committee. In relation to impairment, the Committee was referred to the case of CHRE v NMC and Grant [2011] EDHC927 Admin and the approach, originally formulated by Dame Janet Smith in the Shipman Inquiry which was endorsed in that case. Misconduct The Committee was concerned with two occasions on which the Registrant had amended patient records by adding, long after the event, plausible details of which he had no independent recollection. The purpose of the additions was to protect himself in the face of a patient complaint and an investigation by the GOC. Whilst it is true to say that the contemporaneous details contained in the original record were not altered, interference with the integrity of patient records must always be regarded as a very serious matter. Fellow professionals rely upon clinical records as a contemporaneous and accurate record of what occurred at the consultation to which the records relate. The Committee is in no doubt that fellow professionals would regard the Registrant’s behaviour as deplorable. It was behaviour which involved a blatant breach of the following provisions of the Code of Conduct (effective from 1 April 2010) and which was in force at the time of the events in question. 1 Make the care of the patient your first and continuing concern 10 Be honest and trustworthy 19 Ensure your conduct, whether or not connected to your professional practice, does not damage public confidence in you or your profession The Registrant’s behaviour in this case can only be categorised as misconduct. Impairment The Committee considered that all four limbs of Dame Janet Smith’s well known formulation were engaged in this case. The Registrant’s conduct was such as to bring the profession into disrepute, it breached fundamental tenets of the profession, and it also involved dishonest conduct. There was also some potential for patient harm through the creation of misleading patient records. In reaching this conclusion and looking forward, the Committee had regard to the Standards of Practice for Optometrists and Dispensing Opticians, effective from April 2016. In particular, the Committee had regard to the following standards: 16 Be honest and trustworthy 17 Do not damage the reputation of the profession through your conduct 18 Respond to complaints effectively 19 Be candid when things have gone wrong In evaluating the Registrant’s oral evidence, the Committee was satisfied that the Registrant had shown genuine remorse for his behaviour and had developed some insight into what had gone wrong. He did appreciate the damage that behaviour of this kind caused the profession and the consequential adverse effect on public confidence. Turning to the issue of remediation, the Committee bore in mind that dishonesty was inherently difficult to remediate and that it was not easy to produce comprehensive evidence of such remediation. The Committee accepted the submission of Ms Culleton that the evidence produced by the Registrant was somewhat thin, but, having regard to the Registrant’s remorse and the impact of these proceedings, the Committee concluded that the risk of repetition of this type of conduct in the future is low. The Committee was also required to consider whether the public interest required a finding of impairment to be made in order to declare and uphold proper standards of conduct and behaviour so that public confidence in the profession and in its regulation could be maintained. The Committee was in no doubt that a finding of impairment on this ground was required. Any reasonable member of the public would be dismayed by the Registrant’s conduct in this case and would expect a finding of impairment of current fitness to practise to be made. Sanction The Committee has heard submissions from Ms Culleton on behalf of the Council and from Mr Toomey on behalf the Registrant. Ms Culleton submitted that dishonesty was a matter that was likely to attract a serious sanction. Whilst acknowledging that sanction was a matter for the Committee, she submitted that a period of suspension was necessary in this case to protect the public interest. Mr Toomey submitted that an order for conditional registration would meet the requirements of the case. He contended that appropriate conditions could be devised. These conditions could include, for example a probity audit and regular appraisal of random records. The Committee has accepted the advice of the Legal Adviser. The Committee was reminded of the Indicative Sanctions Guidance and of the obligation to act proportionately. The Committee began by summarising the aggravating and mitigating features of the case. In the Committee’s view, the aggravating features included the fact that the Registrant occupied a senior role in the store in Ely, and that the two episodes of dishonesty with which the Committee was concerned, involved, amendments to clinical records and were carried out in response to a patient complaint and to a notice of GOC investigation. The mitigating features included genuine and significant remorse, developing insight and the fact that the Registrant was under considerable [redacted]. The Committee took into account the testimonials submitted on the Registrant’s behalf and acknowledged that he was of previous good character over some 17 years of practice. There was nothing to suggest that he had behaved in a similar way since these events. In considering the appropriate sanction, the Committee had regard to its previous determinations in respect of misconduct and impairment. It considered sanction in ascending order of severity, moving upwards until it arrived at a proportionate outcome. The Committee first considered taking no further action, and concluded this would not satisfy the public interest and was inappropriate in view of the seriousness of the case. The Committee did not consider this was an appropriate case for a financial penalty order. The misconduct was not financially motivated and did not result in financial gain. The Committee did not consider an order for conditional registration was appropriate. The misconduct did not relate to matters of clinical treatment but to personal integrity. Conditional registration would be inappropriate to deal with this and the matter was in any event too serious for this kind of disposal. The Committee considered carefully the guidance contained within the ISG in relation to suspension. The Committee concluded that this case involves a serious instance of misconduct where a lesser sanction is not sufficient. In view of the Registrant’s remorse and developing insight, the Committee also concluded that there is no evidence of harmful, deep seated, personal or attitudinal problems. There is no evidence of any repetition of the behaviour and the Committee has already determined that the risk of the Registrant repeating the behaviour is low. In all the circumstances, the Committee has concluded that an order for suspension would be sufficient to satisfy the public interest in this case. The Committee has decided that this order should be for a period of 9 months. The Committee acknowledges that this is likely to cause hardship to the Registrant but no shorter period would adequately satisfy the public interest. It is important that a clear message is sent that tampering with the integrity of patient records, particularly in these circumstances, is wholly unacceptable conduct and is likely to result in a serious sanction. The Committee also considered whether an order for erasure should be made, but concluded that suspension for a significant period of time would satisfy the public interest. In those circumstances an order for erasure would be disproportionate. The Committee directs that the suspension order should be reviewed prior to its expiry. At that review hearing the Committee which reviews the order may be assisted by a reflective statement dealing with the importance of honesty and integrity and evidence that the Registrant has read and understands the GOC Standards of Practice and taken note of those standards relevant to his misconduct. Immediate order Ms Culleton informed the Committee that there was no application from the GOC for an immediate order and noted that the substantive suspension order imposed by the Committee had been made on public interest grounds rather than on grounds of patient safety. In those circumstances she indicated that the GOC’s position was that of neutrality but reminded the Committee that it was obliged to consider in any event whether an immediate order should be imposed. Mr Toomey made no submissions on this issue. The Committee accepted the advice of the Legal Adviser. He reminded the Committee of the jurisdictional basis for imposing an immediate order which would come into effect today and remained in force during any appeal period. The Committee was not satisfied that an immediate order of suspension was justified in this case. The Committee has previously found that the risk of repetition of this type of misconduct is low. Further, the Registrant has been working since the events which gave rise to the allegation and during that time no patient safety concerns have been bought to the attention of the Committee. The Committee was not satisfied that the public interest required an immediate order for suspension. Chair of the Committee: Pamela Ormerod Signature ……………………………………………. Date: 7 February 2018 Registrant: Alpesh Bhundia Signature ……………………………………………. Date: 7 February 2018 FURTHER INFORMATION Transcript A full transcript of the hearing will be made available for purchase in due course. Appeal Any appeal against an order of the Committee must be lodged with the relevant court within 28 days of the service of this notification. If no appeal is lodged, the order will take effect at the end of that period. The relevant court is shown at section 23G(4)(a)-(c) of the Opticians Act 1989 (as amended). Professional Standards Authority This decision will be reported to the Professional Standards Authority (PSA) under the provisions of section 29 of the NHS Reform and Healthcare Professions Act 2002. PSA may refer this case to the High Court of Justice in England and Wales, the Court of Session in Scotland or the High Court of Justice in Northern Ireland as appropriate if they decide that a decision has been insufficient to protect the public and/or should not have been made, and if they consider that referral is desirable for the protection of the public. PSA is required to make its decision within 40 days of the hearing (or 40 days from the last day on which a registrant can appeal against the decision, if applicable) and will send written confirmation of a decision to refer to registrants on the first working day following a hearing. PSA will notify you promptly of a decision to refer. A letter will be sent by recorded delivery to your registered address (unless PSA has been notified by the GOC of a change of address). Further information about the PSA can be obtained from its website at www.professionalstandards.org.uk or by telephone on 020 7389 8030. Effect of orders for suspension or erasure To practise or carry on business as an optometrist or dispensing optician, to take or use a description which implies registration or entitlement to undertake any activity which the law restricts to a registered person, may amount to a criminal offence once an entry in the register has been suspended or erased. European Alert The General Optical Council is required by Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015 to inform all European competent authorities of any restrictions or prohibitions on a dispensing optician or an optometrist’s practice. ‘Competent authority’ effectively means the relevant regulator for each EU member state.