AND ANTHONY PETER PLIMMER ( ) DETERMINATION OF THE INQUIRY: 5-7, DECEMBER 2012

Transcription

1 BEFORE THE FITNESS TO PRACTISE COMMITTEE OF THE GENERAL OPTICAL COUNCIL GENERAL OPTICAL COUNCIL F(11)25 AND ANTHONY PETER PLIMMER ( ) DETERMINATION OF THE INQUIRY: 5-7, DECEMBER 2012 APPLICATION Mr Mumford, on behalf of the Registrant, made an application to strike out particular 8 (Part A) of the allegation. This particular reads: 8. In the period 18 May 2009 to 27 December 2009 when considering whether to refer a patient to a medical practitioner applied a policy based on whether 2 out of 3 of the assessments of intraocular pressures, visual field tests and/or the appearance of the optic nerve head, were abnormal, when to do so was not clinically appropriate. Mr Mumford relied upon Rule 26 of the Fitness to Practise Rules 2005 which provides that: The Registrar shall serve on the registrant (a) a notification setting out the particulars of the allegation and the information set out in paragraph 2. He further relies on the case of R-v- Assistant Commissioner House of the Metropolitan Police ex parte Wheeler [2000] EWHC 439 (Admin). In that case Mr Justice Burnton allowed an application for judicial review in a case where it was held that Charges must be sufficiently particularised so that the respondent to disciplinary charges knows not just what it is alleged he failed to do, but in what respects he failed so that he can see whether or not he could or should have done that which it is alleged that he should have done. Mr Mumford submits that particular 8 of the allegation is too vague to comply with this requirement and that it would not be fair for the Registrant to have to answer this allegation and therefore it should be struck out at this stage. Ms Hearnden, for the Council, opposed the application. She has referred the Committee to the basis on which the allegation is made in the alleged admissions of the Registrant about his practice. She also refers to the Registrant s response to the allegation in his witness statement for this hearing. Ms Hearnden submits that it is apparent that the Registrant is aware of the allegation and that it is sufficiently clear for the matter to proceed without unfairness. The Committee accepted the advice of the Legal Adviser and is mindful that at this stage it is not considering whether there is any or any sufficient evidence to substantiate the allegation.

2 The Committee has decided that the allegation is sufficiently clear and that no unfairness would be caused to the Registrant by the allegation proceeding to a determination in the light of whatever evidence is adduced. Accordingly, the application to strike out particular 8 of Part A of the allegation is denied. ALLEGATION Part A The Council alleges that you, Anthony Peter Plimmer, a registered optometrist, during your employment with Vision Express Limited, between 18 May 2009 and 27 December 2009, you: 1. Failed to: a) perform an intraocular examination in both eyes, by means of an ophthalmoscope or by other means as required by the Sight Testing (Examination and Prescription) (No.2) Regulations 1989; or b) having performed an intraocular examination, failed to include in the patient s record sufficient details to evidence ophthalmoscopy in respect of the following patients: i) Patient CM on 26 October 2009; ii) Patient GR on 22 October 2009; iii) Patient MT on 14 June 2009; iv) Patient AK on 22 June 2009; v) Patient SK on 29 June 2009; vi) Patient GM on 23 June 2009; or vii) Patient KS on 1 July Failed to maintain adequate patient records in respect of the following patients: a. Patient HT on 15 November 2009 in that you did not record the level of aided visual acuity for the right and left eye; b. Patient KS on 1 July 2009 in that you did not record: i) how long the patient had the spot for, whether the spot was constant or intermittent and whether it was visible on the eye itself or vision; ii) if the reported blurred vision was in the left or right eye, and if it was a sudden or gradual onset; or iii) sufficient detail of the patient s headaches including location, duration and onset; or c. Patient CB on 18 November 2009 in that you did not record: i) sufficient information in relation to the cataract which would include the location or density of the cataract;

3 3. Failed, where the patient presented with a cataract or cataracts, to: 4. Failed to: 5. Failed to: 6. Failed to: a. give any advice to the patients about cataracts; or b. maintain adequate patient records in that you did not fully record whether you had given advice and/or recommendations to the patients about cataracts and the substance of the advice and/or recommendations, in respect of the following patients: 1. Patient CB on 18 November 2009; 2. Patient PD on 8 July 2009; or 3. Patient GP2 on 23 November 2009 a. give any advice to the patients; or b. maintain adequate patient records in that you did not fully record whether you had given advice and/or recommendations to the patients and the substance of the advice and/or recommendations, in respect of the following patients and conditions: i. Patient GR on 22 October 2009 where the patient had blepharitis; or ii. Patient IW on 2 November 2009 in relation to the presence of a small dot retinal haemorrhage in the right eye; a. carry out further investigations; or b. refer the following patients to a medical practitioner, when it was clinically indicated: i. Patient TS on 2 December 2009 when you found average intra-ocular pressures of 24 and 21.33; ii. Patient TM on 28 June 2009 when you found average intra-ocular pressures of 20 and 23.5; iii. Patient MD on 23 June 2009 when the patient suffered from glaucoma; or iv. Patient IW on 2 November 2009 on finding the reduced vision in the right eye and the small dot retinal haemorrhage. a. refer patient MP1 to an Ophthalmologist; or b. undertake further investigations, when on 22 September 2009 the following factors were present:

4 c. A significant decrease in the level of acuity in both eyes compared to that obtained previously in 2005 and 2008; and/or d. A large arcuate defect in the superior field of the right eye which was detected by a visual field test. 7. On or around 22 September 2009, failed to ensure that you checked the results of the visual field test in relation to patient MP1; 8. In the period 18 May 2009 to 27 December 2009 when considering whether to refer a patient to a medical practitioner applied a policy based on whether 2 out of 3 of the assessments of intraocular pressures, visual field tests and/or the appearance of the optic nerve head, were abnormal, when to do so was not clinically appropriate. And by reason of the misconduct and/or deficient professional performance set out at 1-8 above your fitness to practise is impaired. Part B The Council alleges that you, Anthony Peter Plimmer, a registered optometrist: 1. During the period 16 March 2010 to 19 November 2010, failed to inform NHS Hertfordshire that you were subject to an investigation by the General Optical Council; 2. During the period 30 June 2010 to 19 November 2010, failed to inform NHS Hertfordshire that your registration was subject to an interim conditions order imposed by the Fitness to Practise Committee of the General Optical Council; And by virtue of the matters set out above your fitness to practise is impaired by reason of your misconduct. DETERMINATION Admissions in relation to the particulars of the allegation At the outset of the hearing the Registrant did not admit any of the particulars of the allegation. Background to the allegations The allegations are based on events relating to a failure to undertake intraocular examinations, failure to refer and failure to record other tests undertaken. The Registrant was first employed by Vision Express in Milton Keynes on 18 May At Vision Express, initial patient assessments are undertaken by Optical Advisors; they obtain a medical history and any other background information before the patient undergoes an eye examination. The optometrist would then examine the patient, advise on any treatment and administer that treatment, if appropriate. All patient information is recorded on an electronic record keeping system called Acuitas. On 27 December 2009, the practice manager had reason to interview the Registrant due to a patient of the Registrant returning to the practice and requiring a referral to the Hospital Eye Service for glaucoma, which it appeared the Registrant had missed during an earlier

5 examination. The Registrant was suspended on full pay while an investigation was undertaken. During January 2010, an optometrist, Hannah Cooper, from another branch of Vision Express, carried out an audit of the Registrant s patient records where the following were found: Customer(s)/history and symptoms not being identified or recorded; Incorrect prescriptions being issued to customer(s); No record of recommendations outlined to the customer(s); Lack of detection of potential glaucoma case; Lack of notes relating to those customers whose visual acuity fell beneath the required legal standard for driving. On 20 January 2010, the Registrant was informed that the matter was being referred to the Regional Manager. A disciplinary hearing at Vision Express head office on 10 February 2010 was held to consider allegations of gross misconduct, gross negligence and bringing the company into serious disrepute/risk of litigation claims. At the conclusion of the disciplinary hearing, the Registrant s employment was terminated. Findings in relation to the facts at Part A At the conclusion of the evidence, the Registrant admitted the facts alleged in the following allegations, namely: Part A - 1(b)(i) to (vii) inclusive, 2(a), 3(b)(i) to (iii) inclusive, Part B 1 and 2. The Committee finds the following allegations proved: Part A 2((b)i, 5(a)ii, 5(a)iv, 5(b)ii, 6(a) and (b) and 7. The Committee finds the following allegations not proved: Part A 1(a)i-vii inclusive, 2b(ii-iii), 2(c)i, 3(a)i-iii, 4(a)i and ii, 4(b)i and ii, 5(a)i, 5(b)i, 5(b)iv and 8. The Committee s reasons for its findings are as follows: allegation A1(a)i-vii all relate to the Registrant s alleged failure to perform intraocular examinations in both eyes of various patients. The Committee accepted the evidence of the Registrant that he did in fact carry out the examinations but failed to record them on the Acuitas system in which he was not sufficiently competent. His evidence about this was not effectively challenged on behalf of the Council. For the same reasons, the Committee accept the Registrant s admissions to his failure to record intraocular examinations as set out in Allegations 1(b)i-vii. With regard to Allegation 2(b) a spot was reported in the corner of the right eye of the patient KS. The Committee finds that the Registrant should have recorded further information about the spot on the grounds that this could have been a significant finding. However, with regard to allegations in 2(b)ii and iii, the Committee accepted the Registrant s evidence that, at the time of the examination, the patient did not complain of a blurred vision or headaches and accordingly it was not necessary for the Registrant to make any record in those respects. With regard to 2(c)i, the Committee finds that the Registrant did record early cataract on the records of CB and the Committee accepted that this was a sufficient indication of the

6 problem without further elaboration. The evidence of Ms Weddell, the expert witness on behalf of the Registrant, was accepted in this regard. The Allegation at paragraph 3(a) is that the Registrant failed to give advice to patients about cataracts. 3(b) states that he failed to maintain adequate records about the advice he had given. The Committee accepted the Registrant s evidence that he had in fact given the advice but failed to record the advice given. Accordingly, 3(a) is found not proved and 3(b) is found proved. Similarly, allegation 4 alleges that the Registrant failed to advise a patient GR who had level 1grade blepharitis and patient IW who had a small dot retinal haemorrhage. The Committee accepted the evidence of the Registrant and his expert witness that neither condition was sufficiently serious to require him to give advice to the patients in question and it follows that there was no record required of such advice. The Council s Presenting Officer very fairly accepted that there was no evidence in support of allegation 5(a)i. The Committee finds 5(a)ii proved on the basis that patient TM was a young man who was found to have above normal intraocular pressures (IOP s) over time which necessitated further investigation which the Registrant failed to instigate. The Council did not proceed with allegation 5(a)iii. 5(a)iv relates back to the finding of a small dot retinal haemorrhage in the right eye of patient IW. The Committee accepted the evidence of Professor Parrish that this was a condition which required further investigation by the Registrant which he failed to undertake including making specific enquiries about their general health from the patient. However, it was not at that stage necessary to refer the patient to a medical practitioner. Accordingly 5(b)iv is not proven. Allegations 6 and 7 relate to patient MP1 who on 22 nd September 2009 presented with a significant decrease of acuity in both eyes compared with that previously obtained in 2005 and The Registrant claims that he did not see the results of the field tests carried out by the Optical Assistant and wrongly presumed that this was therefore normal. In fact, the field test showed a large arcuate defect in the superior field of the right eye. Given that the patient had reduced acuities, it was incumbent on the Registrant to satisfy himself that there was no pathology to account for the reduced acuities, and specifically to check and review the results of the visual field test carried out that day for MP1. Therefore, allegation 6 and allegation 7 are proved. There was no evidence that the Registrant applied the 2 out of 3 policy to any patient in the period 18 May to 27 December 2009 and therefore allegation 8 is not proved. Findings in relation to Part A (misconduct and/or deficient professional performance) The Committee has heard submissions from Ms Hearnden, on behalf of the Council and from Mr Mumford, on behalf of the Registrant. It has accepted the advice given to it by the Legal Adviser. The Registrant has admitted Deficient Professional Performance to the extent that he failed to make proper records. He described his record keeping in relation to allegation 2(a) and patient HT as deplorable. The Committee s findings of fact demonstrate inadequate record keeping in a large number of cases and over an extended period. The Registrant seeks to excuse himself on the basis that he was not fully competent in the use of the Acuitas system with which he was unfamiliar and that he received inadequate training from his employer. The Registrant failed to take manual records of his examination despite being aware of his difficulties with the recording software. He further admitted that he had not sought help or checked whether he had successfully entered data on any occasion. Record keeping is a key clinical tool and failure to keep records puts patients at risk.

7 In the light of the large number of failures in record keeping over the period of six months when he was employed at Vision Express, and potentially serious consequences for patients in his care, the Committee find Anthony Plimmer guilty of misconduct. Further, in relation to MP1 and allegations 6 and 7, the Registrant s failure to undertake further investigations or to check the field test results for this patient, fell seriously below the standard of practise to be expected from a competent optometrist. Another example of this included patient TM, a young patient whose IOP s were consistently raised over two visits, which the Registrant failed to investigate by conducting a field test, or referring to a medical practitioner and for whom he considered a recall period of 24 months to be appropriate. Furthermore, with Patient IW, the Registrant failed to carry out further investigations when they were clinically indicated (allegation 5(a)iv). The Committee judges these to be two further instances of misconduct by the Registrant. Findings in relation to Part B (misconduct) The Committee do not accept the Registrant s submission that his admitted failure to inform NHS Hertfordshire that he was subject to investigation by the GOC and thereafter to an Interim Conditions order were merely technical infringements. These were serious obligations of which he was well aware and his non-compliance constituted misconduct. Findings regarding impairment The Committee has heard submissions from Ms Hearnden, on behalf of the Council and from Mr Mumford, on behalf of the Registrant. The Committee took into account the Registrant s long and previously unblemished career as an optometrist, the testimonials of his former professional colleagues and his CET record of professional training undertaken since the date of the incidents. It has accepted the advice given to it by the Legal Adviser. This case involves multiple failures by the Registrant in record keeping throughout the six month period of his employment by Vision Express and several instances of inadequate patient care. At the outset of the hearing the Registrant disputed all the allegations and, apart from very limited admissions, maintained his denial of any failures in his practice throughout his evidence. It was only at the conclusion of the evidence that he finally admitted numerous failures in his record keeping, which should have been apparent to him at the outset of the case. The Committee formed the conclusion that the Registrant failed to appreciate the importance of record keeping as a key clinical tool in decision making and patient care and that he lacked insight into the potentially serious consequences for his patients by his failure to maintain proper records. Allowing for the fact that he was initially unfamiliar with the Acuitas computer system, he failed to make any other records of treatment or to seek assistance from his colleagues. His attitude to the record keeping was surprisingly lax. Rather than accept personal responsibility for any shortcomings in his practice, he sought to blame his employers for failing to provide him with adequate training, or upon assistant optometrists for failing to provide him with field test results. The Committee was also concerned about the Registrant s casual attitude towards the need to keep up to date with professional training and with methods and procedures. The Registrant s lack of insight, and nonchalant attitude regarding professional development, could put patients at risk and could give rise to a risk of repetition. Public confidence in the profession and in the Council as a regulator would be undermined if a finding of impairment were not made. The Committee therefore found that the fitness of Anthony Plimmer to practise as an optometrist is impaired by reason of his misconduct.

8 Sanction The Committee has heard submissions from Mr Mumford, on behalf of the Registrant. Ms Hearnden, on behalf of the Council, did not make any submissions as to sanction. The Committee has accepted the advice of the Legal Adviser. The Committee has considered the sanctions available to it and applied the Indicative Sanctions Guidance, considering the options for disposal (namely, no sanction, financial penalty, conditional registration, suspension, erasure) in ascending order of severity. The Committee took into account mitigating and aggravating factors and applied the principle of proportionality. The case is too serious for the Committee not to impose a sanction. A financial penalty would not address any of the issues identified in the case. The Committee is persuaded that a conditional registration order for a period of three years is the appropriate sanction in all the circumstances. Whilst the Committee was concerned about the Registrant s apparent lack of insight into the seriousness of the allegations against him, it accepts that he has been chastened by proceedings and now appreciates that there were failures in his practice and accepts the necessity to address them. The Registrant has expressed a willingness for his practice as an optometrist to be subject to conditions. The Committee considers that the failures in the Registrant s practice are remediable and that the public can be protected from any repetition by suitable conditions. The Committee considered that a suspension order would be unduly severe and would not address the failures in his practice. Immediate order The Committee did not feel it was necessary to impose an immediate order as there is a low risk to the public. Review hearing A review hearing will be held between four and six weeks prior to the expiration of this order. The Review Committee will need to be satisfied that the Registrant: has fully appreciated the gravity of the failings identified; has fully complied with the conditions of his registration. Revocation of interim order The Committee hereby revokes the current interim order for conditional registration with immediate effect. LIST OF CONDITIONS 1. You must advise the Registrar of the details of any employment you obtain as an optometrist. 2. You must make contact with the Registrar within three months of this order and at three monthly intervals to inform the Registrar of your employment status. 3. If you obtain employment as an optometrist you must place yourself and remain under the supervision of a specified supervisor approved by the Registrar. The supervisor must regularly oversee your professional performance and record keeping. This is to include monthly meetings in the first year, quarterly reports submitted to the registrar by the supervisor based on a sample of not less than 25

9 records randomly selected by your supervisor. For years two and three of conditional registration quarterly meetings with the supervisor must be held and six monthly reports submitted to the registrar based on a sample of not less than 25 randomly selected records. The reports to the Registrar should provide details of any progression or regression in the following areas of your practice: Record keeping; Glaucoma / visual fields assessment; Patient communication Clinical decision making. You must advise the Registrar of the nominated supervisor s contact details and of any change to the specified supervisor. 4. The GOC will enter these conditions against your name in the register. You must allow the Registrar to share any information, including confidential information, with any employer, supervisor, professional colleague or any organisation for which you provide ophthalmic services for the duration of your conditional registration. You must also allow the Registrar to share this information with other regulatory bodies and the Department of Health. 5. You must notify the Registrar within 14 days of commencement of any professional appointment you accept whilst you are subject to these conditions (this includes any teaching posts) and provide contact details of your employer and if providing ophthalmic services under a NHS contract, the PCT on whose ophthalmic practitioners list you will be included (this includes any equivalent employer in the EC). 6. You must inform the Registrar within 14 days of any criminal convictions, police cautions or formal disciplinary proceedings taken against you from the date of this determination. 7. You must inform the Registrar: a. If having obtained employment you cease working; b. If your work takes you out of the UK for a significant period of time; or c. Of any employment you apply for outside of the UK (and in which countries) as conditions of registration only apply to practice undertaken in the UK (you must consider whether your time out of work or out of the UK will allow you to fulfil the conditions during the period of conditional registration). The Registrar may inform the relevant competent authorities in that country of your current conditions of UK registration. 8. You must continue to fulfil the CET requirements under the GOC CET scheme to secure appropriate points for continued inclusion on the GOC register. 9. You must, within thirty months, successfully complete the following courses or equivalents (to be confirmed by your appointed supervisor), as proposed on your behalf at the hearing: The Legal Aspects of UK Optometry;

10 Glaucoma cpd; Enhanced services training for Glaucoma, Cataract, Low Vision and Primary Eyecare Acute Referral Scheme; The Return To Work Programme at the Vision Care Institute. 10. You must inform the following parties that your registration is subject to conditional registration: a. Any organisation or person employing or contracting with you to undertake ophthalmic services (to include any locum agency); b. Any prospective employer (whether within the UK or EC); c. Chairman of the Local Optometric Committee; d. The PCT in whose ophthalmic practitioners list you are included or seeking inclusion. 11. You must ensure that your GOC registration is renewed by 15 March annually while you are subject to the GOC FTP conditional registration procedures. Should you fail to renew your registration a review hearing will be arranged immediately. Chairman of the Committee: Mercy Jeyasingham MBE Signed Date 11 December 2012 Registrant: Anthony Peter Plimmer Signed Date 11 December 2012

11 FURTHER INFORMATION Transcript A full transcript of the hearing will be made available via the GOC website 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 Agency This decision will be reported to the Professional Standards Agency (PSA) under the provisions of section 29 of the NHS Reform and Healthcare Professions Act 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 unduly lenient 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 or by telephone on 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. Contact If you require any further information, please contact the Council s Hearings Manager at 41 Harley Street, London, W1G 8DJ or, by telephone, on