01 and alpesh bhundia

13 Pages·2017·0.41 MB·English

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.