AND CHIET CHEE JANSON ( ) DETERMINATION OF A SUBSTANTIVE HEARING NOVEMBER 2017

Transcription

1 BEFORE THE FITNESS TO PRACTISE COMMITTEE OF THE GENERAL OPTICAL COUNCIL GENERAL OPTICAL COUNCIL F(17)09 AND CHIET CHEE JANSON ( ) DETERMINATION OF A SUBSTANTIVE HEARING NOVEMBER 2017 ALLEGATION The Council alleges that you, CCJ, a registered optometrist: 1. On 13 July 2015 carried out a sight test on Patient A and you: a. Failed to measure and / or record Patient A's vision and / or visual acuity in the left eye. b. Failed to dilate Patient A's left eye in circumstances in which dilation was clinically indicated. c. Having failed to dilate Patient A's left eye as set out in (1b) above, failed to refer Patient A for an examination of the retina under dilation. d. Failed to give Patient A adequate advice regarding the warning signs of retinal detachment and / or the management of her symptoms. 2. Your record of the examination of Patient A was inadequate in that, in addition to the circumstances set out above, you: AND a. Failed to record the presenting symptoms of recent onset floaters and / or a change in the vision of the left eye as reported to you by Patient A. b. Failed to record advice that a retinal detachment warning had been provided to Patient A. By virtue of the facts set out above your fitness to practise is impaired by reason of misconduct.

2 DETERMINATION Admissions in relation to the particulars of the allegation The Registrant partly admitted Particular 1a of the allegation in respect of a failure to record Patient A s vision and/or visual acuity in the left eye only. Background to the allegations On the 13 July 2015, Patient A attended a Boots Opticians in Bath for a sight test which was conducted by the Registrant who was first registered with the General Optical Council (GOC) in Patient A had previously attended Boots Opticians in 2011 and Patient A had a longstanding history of problems with her left eye, having had a congenital cataract and subsequent surgical management of this condition as an infant, with resultant associated ocular problems, including squint surgery. This had left her with very poor sight in her left eye in which she was technically blind. There was a dispute as to what occurred at the consultation on 13 July Patient A stated that she reported changes in her left eye, namely the occasional presence of floaters for approximately two months and that she could see better in the left eye. The Registrant disputed that Patient A had reported these symptoms. She did not record these, instead she recorded Routine no symptoms. At the conclusion of the appointment, the Registrant recorded that new spectacles were not required and that Patient A should return for a routine appointment in two years unless there was a deterioration or any problems with her sight. On 23 September 2015, Patient A saw flashing lights and experienced a loss of vision in her left eye. She attended the A&E Unit at the Royal United Hospital in Bath where she was assessed by a nurse, who advised her to attend the eye casualty clinic at Bristol Eye Hospital the next day. On 24 September she attended the Bristol Eye Hospital where she was diagnosed with a retinal detachment in her left eye. This diagnosis was confirmed on the following day and a pre-operative assessment for a retinal detachment repair took place. On 1 October 2015 Patient A underwent the operation. She underwent two further surgical procedures in February 2016, and another procedure in April Patient A made a complaint to Boots Opticians on 25 November 2015 and subsequently made a complaint to the GOC which was received on 21 December Findings in relation to the facts The Committee took account of all the evidence placed before it. It had regard to the submissions of Ms Scarbrough on behalf of the GOC and those of Mr Saad on behalf of the Registrant. It heard and accepted the advice of the legal adviser. The Committee reminded itself that the burden was on the GOC to prove its case and the standard of proof was the civil standard that is, that the matter must be proved on the balance of probabilities.

3 The Committee first considered the witnesses from whom it had heard. The Committee determined that, as there were two completely different versions of the events as to what had occurred at the eye examination on 13 July 2015, the main issue for it to consider was to determine upon whose evidence it could rely as to what had taken place at the consultation. It considered the evidence of Patient A. The Committee concluded that Patient A had formed a genuine belief that she had reported to the Registrant that she had had floaters present in her left eye for approximately two months prior to the eye examination. However, the Committee was concerned that this belief was based on a version of events that Patient A had constructed after she had gone through what the Committee accepted was a very unpleasant experience involving a number of surgical procedures. The Committee noted that there were a number of inconsistencies in her evidence which caused it to consider that her evidence lacked credibility. An important example of this was that Patient A claimed to have a detailed recollection of what had occurred at the eye examination, but she did not recall that: the Registrant had used a slit lamp; she had answered questions about her own and her family s ocular history all of which were clearly detailed by the Registrant in the records; she had mentioned that she occasionally wore a contact lens in her right eye; she had been asked about the surgery which she had undergone as an infant and as a child, which were clearly recorded by the Registrant in her notes of the examination. Patient A s evidence was also inconsistent in respect of the details recorded by a number of health professionals when she attended hospital in September The Committee noted that on three separate occasions it had been independently recorded that she had reported having floaters for two months, which was inconsistent with her evidence before the Committee, namely that she had first developed floaters in approximately May The Committee noted that when these inconsistencies were put to her, her explanation was that the health professionals had made a mistake on each occasion. The Committee considered this to be highly unlikely. The Committee noted that when Patient A was faced with independent and, in its view, overwhelming evidence that she did not accept, she stuck rigidly to her version of events and was unable to accept any possibility that she might be mistaken and made no concessions. The Committee was concerned about Patient A s evidence in a number of other respects. For example, there was a clear record that in 2013 she had been given advice about flashes and floaters, yet she denied that she had received such advice. Further, the Committee found it implausible that on Patient A s evidence, when she had suffered some floaters in her good right eye she had been unconcerned and yet when she said that she had suffered floaters in her poor left eye, in which she had very little vision, she had been very concerned. Despite her evidence of the extreme concern she said she felt, the Committee noted that she did not arrange an early appointment to return to see an optometrist, indeed, it was only

4 when she received her reminder for a routine sight test from Boots two months later that she decided to arrange an appointment. The Committee also noted that there was no note in the records of any of the hospital appointments in September 2015, that Patient A had attended for a sight test with the Registrant in July 2015 and reported experiencing floaters. The first time that this was recorded was in Patient A s complaint to Boots dated 25 November The Committee concluded that as an overall assessment, Patient A s evidence was unreliable and inconsistent. It drew the inference that Patient A s evidence had been demonstrably influenced by hindsight. The Committee found the evidence of the experts, Dr Harper and Professor Barnard to be helpful. It considered them to be knowledgeable and consistent witnesses whose opinion was the same on all the main matters upon which the Committee was required to decide. The Committee found their evidence to be of assistance in reaching its decisions. The Committee found the Registrant to be a credible and consistent witness. It noted that she was candid in stating that she did not recall the detail of the examination, and relied upon her normal protocols backed up by her records to assist her in describing what had occurred. The Committee was impressed by the fact that she had given a good explanation as to why she had concentrated in particular upon Patient A s left eye during her internal examination of Patient A s eyes. The Committee noted that she had used two instruments to examine the eye and appeared to be a diligent and conscientious practitioner. The Committee also noted that the Registrant did recall Patient A saying she sometimes used a contact lens in one eye. The Committee concluded that this was an unusual detail of an examination which a practitioner might recall, consistent with an honest account and not connected with the allegation. The Committee was mindful that the Registrant is of previous good character. It also noted the evidence of the generally good standard of her record keeping, as accepted by both experts. In light of this, the Committee considered that it would be inconceivable that she would record Routine no symptoms rather than making a record of the symptoms that Patient A said that she had reported. Furthermore, there was no evidence that Patient A had reported any concerns to the receptionist and/or the pre-screener whom she had seen prior to her sight test. The Committee concluded that the Registrant was an assured witness, confident in her own ability who was able to rely upon her detailed records when giving evidence. It noted that she had admitted her failure to record the vison/visual acuity in Patient A s left eye at the outset of the hearing. Based upon all these matters, the Committee concluded that it preferred the Registrant s evidence to that of Patient A and determined that, on the balance of

5 probabilities, Patient A did not report the presence of floaters to the Registrant at the examination on 13 July Consequently, the Committee made the following findings: Particular 1a: Found proved on the admission of the Registrant as to a failure to record Patient A s vision and/or visual acuity of the left eye. Found not proved as to a failure to measure. The Committee noted the evidence of the Registrant that she did measure the vison/ visual acuity of Patient A s left eye. This evidence was supported by the evidence of Patient A that she did recall the Registrant measuring the vision/visual acuity, in her eye. Particular 1b: Found not proved Having determined that Patient A had not reported the presence of floaters, the Committee considered that, consequently, dilation was not clinically indicated. In reaching this decision, the Committee took account of the evidence of Dr Harper and Professor Barnard who both said that if there was no report of floaters, there would be no clinical indication requiring dilation of the left eye. Particular 1c: Found not proved. Having found that there was no report of the presence of floaters in the left eye and therefore no requirement to dilate the left eye, the Committee determined, based upon the evidence of Dr Harper and Professor Barnard, that there would be no requirement to refer Patient A for examination of the retina under dilation. Particular 1d: Found not proved The Committee determined that, as it found that there had been no report of the presence of floaters in Patient A s left eye, there was no requirement to give advice regarding warning signs of retinal detachment and/or management of Patient A s symptoms. Again, the Committee took account of the evidence of Dr Harper and Professor Barnard. Particular 2a: Found not proved. The Committee determined that, in the absence of a report of floaters or any change in the left eye, there could be no requirement to record these symptoms. Particular 2b: Found not proved The Committee determined that, as it had found, there was no requirement to give a retinal detachment warning, there could be no requirement to record the giving of such a warning.

6 Findings in relation to misconduct The Committee has heard the submissions made by Ms Scarbrough, on behalf of the Council, and those of Mr Saad, on behalf of the Registrant. It has accepted the advice of the Legal Adviser. The Committee noted that the issue of whether the Registrant s conduct amounted to misconduct was a matter for its judgement. The Committee had regard to the fact that the only factual finding upon which the allegation of misconduct was based was a failure to record the measurement of the vision and/or visual acuity in Patient A s left eye. The Paragraph in the Code of Conduct 2010 to which it was referred was: 6. You must maintain adequate patient records. The Committee noted the evidence of both Dr Harper and Professor Barnard that the overall standard of the Registrant s record keeping was adequate and in some respects, with regard to the detail which the Registrant had recorded, it could be described as above average and good. Both experts agreed that this recording omission fell below but not far below the requisite standard. The Committee noted that the requirement in the Code of Conduct was that the maintenance of patient records should be adequate. It concluded, based upon the evidence of the expert witnesses, that the Registrant had maintained adequate records. It determined that the Registrant s failure to record this one measurement could be described as one recording oversight in an otherwise unblemished career spanning forty years. It concluded that there was no actual patient harm nor could there be a risk of harm to the patient as a result of this omission. The Committee had regard to Professor Barnard s evidence that a number of reasonably competent optometrists might omit to record this measurement on the basis that the patient had very poor sight in her left eye and was technically blind. The Committee concluded that this failure to record one measurement in what was an otherwise adequate record of this eye examination did not cross the threshold of seriousness to support a finding of misconduct. The Committee determined that the fact found proved does not amount to misconduct. Findings regarding impairment The Committee found that the fitness of Chiet Chee Janson to practice as an optometrist is not impaired.

7 Declaration The Committee makes a formal declaration that the Registrant s fitness to practise is not impaired on the basis that it did not find misconduct. Chair of the Committee: Ms Eileen Carr Signature. Date: 29 November 2017 Registrant: Ms Chiet Chee Janson Signature. Date: 29 November 2017

8 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 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 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. 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.

9 The GOC is the competent authority for all opticians registered in the United Kingdom (UK). If you have been made subject to either a suspension or conditions of practice order (whether interim or substantive), or to an erasure order, we hereby notify you of the following: - Within 3 days of the Fitness to Practise Committee decision taking effect you will be the subject of an alert sent under article 56a(1) of the Directive; - You have the right to appeal the decision to issue the alert or to apply for rectification of the decision; and - You have the right to access remedies in respect of any damage caused by false alerts sent to other competent authorities. The alert is sent securely via the Internal Market Information (IMI) system. The alert will include the following details: - Your identity (full name and date of birth); - Your profession; - Your GOC registration number; - The fact that the GOC is the national authority which adopted the decision on the restriction or prohibition of your professional activities; - The scope of the restriction or prohibition; - The period during which the restriction or the prohibition applies. If you wish to appeal the decision to issue this alert then please see the information sheet below. Please note that this relates to your right of appeal against the issuing of the alert see above regarding your right of appeal against a substantive decision. A copy of the alert may be obtained via the contact details at the end of this document. Please see the attached information sheet for further information. Contact If you require any further information, please contact the Council s Hearings Manager at 10 Old Bailey, London, EC4M 7NG or, by telephone, on