FAQs

1. I have a grievance at work – what can I do about this?

You should put your grievance in writing to your employer.  Some employers have their own grievance procedure which might be included in your contract or in a handbook.  If your employer does not have a formal procedure, you should simply write a letter stating that you wish to raise a grievance, giving the details.  The employer should then investigate and should meet with you to discuss the grievance. 

You have the right to be accompanied by a trade union representative or work colleague at the grievance meeting.  You should also be given the opportunity to appeal if you are not satisfied with the outcome of the grievance. It is very often the case that a grievance procedure must be followed before any legal action is taken against the employer.  If you have a problem that you think might result in legal action, it is best to take legal advice before writing the grievance letter.  You should act quickly as in some circumstances time limits will apply to the grievance procedure and any connected claim.

2. How can I determine whether I am employed or self employed?

It is often very difficult to determine the answer to this question.  Is not simply a question of deciding that you are one or the other.  It has been made clear by the courts that it is not possible for the parties to a contract to make it a contract for services (self employed) as opposed to a contract of service (employed) simply by declaring it to be so, unless this is borne out  by the facts.

Where disputes as to employment status arise the courts apply several tests to help them decide the issue.  These include looking at how much control the employer has over your  work, whether under the terms of the contract the employer is required to provide work and whether you are required to do the work or whether you can decline. The court would also look at whether you are required to carry out the work personally or whether you could send someone in your place,  whether you are genuinely in business on your own account or whether you are seen as integral to the employer’s business.  These are just some of the considerations that will apply, there are others.

Unfortunately, it is often the case that despite the wishes of the parties to the contract a Tribunal or Her Majesty’s Revenue and Customs may decide that they have entered into a contract of employment.

3. We have an employee who has been on long term absence with stress.  Her continued absence is affecting our business, can we dismiss her?

You should not dismiss this employee without first making relevant enquiries as to her condition, how long she is likely to be off work, and what steps you can take to assist her to return to work if possible.  This would probably mean getting her consent to obtain a medical report.  You would need to consult with her about alternatives to dismissal such as reducing her hours or finding alternative employment if this is possible.   Her condition may be a disability within the meaning of the Disability Discrimination Act 1995.  The Act requires you to make any reasonable adjustments that may be required to prevent her suffering a disadvantage as a result of the disability. If there are no adjustments that would help, and the medical report indicates she may continue to be unfit for work for some time, you may be able to dismiss her for capability reasons.  However you should tread very carefully and always take legal advice before acting

You should also consider and investigate the causes of her condition.  If she is alleging that it occurred as a result of her work, then she may be planning to claim constructive dismissal or to claim against you for personal injury. It is quite difficult to succeed in such a claim but employees in this situation often feel that they have good grounds for claiming.  It is therefore important that you deal with matter carefully and make sure that you do everything that a reasonable employer would do in the circumstances Seek legal advice if you are uncertain how to proceed.

4. Do I have to work on a Bank Holiday?

You do not have an automatic right to have Bank Holidays off.  You may be required to work them under the terms of your contract.

5. A member of staff has told me that she is pregnant – do we have to keep her job open for her and how much leave is she entitled to?

You are obliged to keep the employee’s job open for her.  She will be entitled to up to one year’s maternity leave. She has a right to return to her job on terms and conditions no less favourable than she would have enjoyed had she not been on maternity leave. There are some exceptions to this rule, but they rarely arise.

6. How do we go about recovering a debt for £100 owed by a customer on his new glasses?

You should write the customer a “letter before action” stating that the sum remains unpaid and if you do not receive payment in full within 14 days, you will take legal action to recover it. If it is still not paid you would need to issue a claim in the small claims track of the County Court. However, in view of the sum owing and the time and trouble involved in pursuing a claim through the court, you should make every effort to resolve this dispute amicably. If, for example the customer is dissatisfied with the service he has received and this is why he is withholding payment he may try to defend the claim. It may be better therefore to try to settle the matter without going to court.

An alternative to pursuing this course of legal action might be to use the services of a debt collection agency. This is a judgement call, as you will incur charges from the collection agency for a successful collection which may not be recoverable from the debtor, however you will only pay commission after the debt has been recovered. This can be a viable alternative to court action where there is no guarantee that the debt or the court costs will be paid by the debtor.

7. What can I do about an assault by a patient?

Any serious assault by a patient should be reported to the police.  If you have suffered an injury as a result, you may also be able to claim compensation, either by claiming directly against the person who assaulted you or under the Criminal Injuries Compensation Scheme.

Where the assault relates to an NHS patient the incident can also be reported to the NHS Counter Fraud and Security Management Service Division, who treat such incidents very seriously, offering advice and assistance with regard to the complaint.

8. How do I register my business name?

If your business is a limited company, it must be registered with the Registrar of Companies at Companies House.  There is no requirement to register the names of other types of business.

9. What should I do about theft from the shop by a patient?

There is very little you can do except report it to the police. If there is sufficient evidence the police should act and it may result in the culprit being prosecuted.

10. Can I own a partnership with people who are unqualified or who have different qualifications?

Yes, an optometrist may enter into a partnership with dispensing opticians or unqualified people, as well as with other optometrists. The following advice in respect of optometrists relates equally to dispensing opticians (DOs) who are in partnership with lay people or optometrists.

Where an optometrist practises in partnership with a dispensing optician, each will be liable for matters within their own professional competence and responsibility. Thus the optometrist should not be liable for the dispensing optician’s actions in dealing with patients in matters within his/her competence. The optometrist might, however, be liable for the activities of the DO which s/he was not competent to undertake, but which were within the optometrist’s competence.

Optometrists and dispensing opticians may set up in partnership with lay partners, i.e. people who are not qualified to practice as an optometrist or a dispensing optician. In such a partnership, the optometrist or dispensing optician should remember that s/he will be professionally liable for the actions of the lay partner. It is therefore important that the activities for which partners are responsible should be set out in writing. The ideal place for this is in a binding partnership agreement, which should set out everything pertaining to the business activities and relationships of the partnership as well as the partnership’s finance, ownership of the assets, payments to partners when they leave the partnership and distribution of the assets and contributions to the liabilities when the partnership comes to an end.

The College of Optometrists has guidelines setting out the responsibilities of optometrists working in association with non-optometrists as to the confidentiality of patient records.

It is important to know that partnerships do not have to be evidenced in writing, it is possible to enter into a partnership arrangement informally, by virtue of the manner in which the business is conducted. Care should be taken, therefore, not to operate in the manner of a partnership where it is not intended to do so.

Guidance for optometrists and dispensing opticians on partnership agreements is available from the AOP. In addition, potential partners are each strongly advised to seek independent legal advice on the partnership agreement.

11. How long should records be retained? What is the limitation period for clinical negligence claims?

Records should be retained to provide evidence of your dealings with patients and in respect of business dealings.

The AOP recommends that patients’ records are retained for as long as possible. It is recognised, however, that space will not permit records to be kept forever so records may be disposed of in time. The AOP therefore recommends that the records of adult patients should be kept for 10 years after the conclusion of treatment or the patient’s permanent departure from the country, or the death of the patient, and those of minors until the patient’s 26th birthday.

The legal requirements for the retention periods for records differ with the nature of the records. These are set out below for information.

Contract. In contractual matters people are entitled to bring claims for up to six years from the date of the contract. (In Scotland the period is five years from the discovery of the problem.) Records relating to contractual matters, e.g. dealings with suppliers and patients, should therefore be retained for at least six years. In Scotland they should be retained for a minimum of five years.

Income tax and Customs & Excise. Tax and revenue authorities may pursue claims for up to six years and, in certain circumstances, beyond six years. Advice should be sought from an accountant in respect of how long to keep business records in respect of these matters.

Negligence. Claims in negligence, e.g. for personal injury, may be brought up to three years from the time that the injured party became aware of the injury giving rise to the claim. Claims may also be brought in respect of personal injuries done to children for three years after they reach their majority. Therefore no absolute period can be stated with regard to retaining patient records, however minimum guidelines may be used.

The NHS has stated retention periods for records of NHS patients. The following recommendations issued by the Department of Health for record retention periods are pertinent to patients’ claims in respect of negligence. If optometrists follow these guidelines, or any revised guidelines issued by the Department, they will be adhering to current standards of best practice in respect of keeping patient records:

• adults: 10 years after the conclusion of treatment or the patient’s permanent departure from the country;
• children and young people: until the 25th birthday, 26th if the entry was made when the patient was 17;
• deceased patients – 10 years after the death of the patient.

Computerised patient records. Until further advice is received, it is recommended that computerised patient records are retained at the site and in the form in which they were originated for these periods of time.

Record format. Methods of storage will continue to develop, therefore both the periods of retention and the storage of the retained records should be subject to periodic review.

12. Disclosure of records to patients and third parties

The Data Protection Act 1998, which applies to living “data subjects”, governs access to the health records of patients other than deceased patients. The Access to Health Records Act 1990 governs the access to health records of deceased patients.

The 1998 Act applies to patient records held manually and on computer. Two categories of people are allowed to have access to a patient’s health records.  These are:

(1)    the patient; and,

(2)    an applicant acting on behalf of the patient:

• a child patient’s parent;
• someone authorised in writing by the patient;
• a person appointed by the court to manage the affairs of patients incapable of doing so for themselves

Under the Data Protection Act 1998 (Fees and Miscellaneous Provisions) Regulations 2001 the maximum fee that can be charged for providing copies of health records is £10 for computer records and £50 for copies of manual records or a mixture of manual and computer records.

There is no obligation to comply with an access request unless the data controller has such information as he or she needs to identify the applicant and locate the information and unless the required fee has been paid. Once the data controller has all the relevant information and fee where relevant, they must comply with the request promptly and by no later than forty days after the request has been made. In exceptional circumstances if it will not be possible to comply within this period the applicant should be informed.

The optometrist will be required to explain any abbreviations etc. in order to make the record intelligible. Note that if an optometrist is employed, the employing organisation will be the record-holder.

If the applicant considers the health record is incorrect, misleading or incomplete, the record-holder can be requested to amend the record.  If the record-holder disagrees with the proposed amendment, the patient has the right to note in the record matters he thinks are inaccurate.

The right of access can be wholly excluded in certain cases. This may occur where the patient is a child and the optometrist is satisfied the patient cannot understand the nature of the application. Where a parent applies for or on behalf of a child patient, the health professional must be satisfied that:

(a)    the child patient has consented to the application; or,

(b)    the patient is unable to understand the nature of the application, and giving access to the applicant would be in the best interest of the child.

Access can be refused if health professionals consider that any information disclosed by them may be seriously damaging to the physical or mental health of the patient.

If information has been provided by the patient in expectation that it will not be disclosed to an applicant, the applicant does not have the right of access to the patient’s health record (thus preserving confidentiality).

You may refuse access where to grant access would disclose information about a third party (not a health professional) who had not agreed to the disclosure.

A request for access should ideally be in writing signed and dated by the patient. Access requests should be noted on the patient’s record.

Deceased patients

Access to the records of a deceased patient must be given to the patient’s personal representatives (e.g. an executor) where there is a claim arising out of the death of the patient. This right is given under the Access to Health Records Act 1990, which relates to written records made on or after 1st November 1991.

Access must be given by the record holder to a bona fide applicant within 21 days of the application (in respect of records relating to treatment within the last 40 days), or 40 days (in respect of records relating to earlier treatment). Where the 40 day limit for access applies, a charge of up to £10 can be made for access, the fee being linked to the access fee under the Data Protection Act.  If a copy of the relevant record is supplied, the cost of copying and postage can also be charged to the applicant.

The optometrist will be required to explain any abbreviations etc. in order to make the record intelligible. Once again, note that if an optometrist is employed, the employing organisation will be the record holder.

13. Who owns the records in the practice that I work in? Do I have access to the records of patients I have seen?

Patient’s records are the property of the practice, whether the practice is owned by a qualified person (an optometrist or a dispensing optician) or an unqualified person. The patent records are a key asset of the business: they will form part of the value of the business when it is sold or valued for other purposes. The patients in a practice, as evidenced by the practices’ patient records, form part of the good will which accrues to the practice.

The Data Protection Act 1998 (DPA) only allows patients to have access to their records – to have copies or to view the records – it does not confer ownership on the patient.

Whilst working in the practice an optometrist or dispensing optician should have access to the records of the patients in the normal course of work. They are not entitled to take copies of the records for their own purposes. Should they require access to the records to defend a claim alleging negligence against them, they may have access with the permission of the practice owner (the owner of the records) or, failing that, they will be entitled  to gain access under section 35 of the DPA.

It is recommended that employed optometrists and dispensing opticians and locums have a contractual arrangement upon leaving a practice whereby they or their representatives will be given access to patients’ records to defend claims against them. Although they will still have a right of access under section 35 DPA, it should be easier to obtain access under a contractual right than by seeking to enforce the statutory right, if necessary. Similarly, on the sale of a practice the seller should include in the contract of sale a clause allowing the seller, or his or her representatives to have access to the patients’ records to defend any claim against the seller.

14. What and how should I tell patients about their records when I close my practice?

Where a practice closes down, ideally someone should take on the responsibility for keeping the records and letting patients have access to them. Patients have the right to copies of the records or to see the records. They do not have the right to have the original records, and should not be given original records.

Patients should be informed as to where their records will be held should they require access to them, but they should also be informed that they do not have a right to the original record.

To have someone take on responsibility for the records, the person closing the practice should do one of the following.

1. Try to sell the records to another practice. A rule of thumb for the value is £1 for each active record card. An active record card in a practice in an urban area is the card of a patient who has been seen in the last two years, in a rural area the period is three years. The easy way to get the number of patients seen is from the appointment diary.

If another practice purchases the records there should be a contract along the following lines:

a. I Mr X pay you Mr Y £z for the records of patients from the NAME OF Practice.

b. Mr X will write to all Mr Y’s patients to inform them that their records are now available at [NAME AND ADDRESS OF PRACTICE WHERE THE RECORDS WILL BE AVAILABLE].

c. Mr X will give Mr Y or his representatives access to the records should they require access in respect of claims which patients might bring against Mr Y. Mr X will also require his successors in title to do the same.

2. If he cannot sell the records he should see if a local practice will take them off of his hands without paying the market price. However, in this case a token price should be paid, e.g. £1, for the records and a similar contract to the above should be entered into. The token sum is a legal requirement to make the contract enforceable.

Notes on the above:

A. Although the price will be paid based on the active records, or a token amount will be paid, the buying practice takes all the records.

B. Patients should be written to as soon a practicable. In writing to the patients the buying practice will be able to sort out the active records from those of patients they are never likely to see, e.g. where they are informed that the patient is “deceased” or has "gone away". Writing to patients will often remind people that they should have their eyes tested.

C. The Information Commissioner's Office, which is the official body overseeing the Date Protection Act 1998, has said that an advertisement would not be sufficient to inform patients as to who has their records, they should be written to individually. As an advertisement is not permissible, it is even more important to have the contract saying that the buyer will write to the patients. If the buyer will not agree to this, the seller should write, but it is preferable that the buyer writes for the reasons set out in B, above. If it is agreed that the seller will write to the patients, the seller may wish to add the cost of doing so to the price agreed for the records.

3. If the practitioner cannot get another practice to take the records then he should approach the local health authority to see if they will look after them. The practitioner should have a written arrangement that he can get access to the records when needed, as in contract clause c, above. The health authority, or more probably the practitioner, should write to the patients to inform them of where their records are.

4. If all the above fails, the practitioner should make arrangements to keep the records and write to the patients accordingly.

15. I have been told that I am not allowed to report a patient with poor eyesight to the DVLA, if I consider that the patient should not be driving. Is this true? And, are there any circumstances in which I may report a patient to the DVLA?

If you feel that a patient’s standard of vision is not adequate for driving you must advise the patient and note your advice on the patient’s record. You may therefore advise the patient, for example, that they may only drive while wearing spectacles, or that they should not drive at all. If you become aware that the patient is not taking your advice you may in most cases only report the matter to the patient’s doctor or the DVLA with the patient’s explicit permission. Again, you should note on the patient’s record that the patient has given you permission to do so.

Your duty of patient confidentiality as an optometrist is paramount. It is the patient’s duty to report the matter to the DVLA, if you feel that they should not be driving, and you should advise the patient accordingly. But remember, there is no precise Snellen equivalent for the driving standard for vision.

The only exception which would allow you to override your duty of confidentiality and report a patient to the DVLA without the patient’s explicit permission is where it would be in the overriding public interest for you to do so. In assessing whether there is a sufficient public interest to justify disclosure it must be borne in mind that there is an important public interest in maintaining professional confidences. You may think that it would be in the public interest to report any person to the DVLA who is driving when they should probably not be doing so because they have very poor eyesight. Unfortunately the authorities do not set out the circumstances which would constitute being in the public interest. A view has therefore been taken that the normal course of driving, e.g. driving a car, would not constitute sufficient public interest to report a patient with poor eyesight to the DVLA without the patient’s explicit permission to do so. According to the common law, the test of overriding public interest is a substantial hurdle which must be overcome before disclosure is made. It should not be equated merely with a need to show good reason for the disclosure of confidential information. Circumstances which would probably constitute being in the overriding public interest are if the patient were a bus driver, when it is clear that bus passengers would be in danger, and where a patient drove a lorry or a tanker, and the consequences of an accident in such a vehicle might be particularly serious.

If you are uncertain of what to do in particular circumstances you should seek legal advice; AOP members may seek advice from the AOP.

16. I have recently seen a patient who has what I believe is a sight threatening disease.  I wish to refer the patient but they have refused and don’t even want me to write to their doctor.  I have tried to explain why it is important, but they still refuse.  What should I do in this situation?

Answer. All patients have the right to refuse to be diagnosed/treated if that is their desire.  However, it is your duty to provide sufficient information to enable them to make an informed choice.  In particular you must explain to them what you have found, why you feel in is in their best interests to be referred and what the potential consequences of their not being referred might be.  If having done this they still refuse to be referred then, unpalatable and frustrating as it might seem, you must abide by their wishes.  If it is possible get the patient’s consent to write to their GP with your findings as a less satisfactory alternative.  If they agree to this then at least the GP will be aware of your concerns and may possibly be able to influence the patient.  You must remember however that without the patient’s explicit consent you should not pass information to the GP; this would be construed as a breach of confidence.

Make sure you have noted these events on the patient’s record card.  To ensure you minimise the risk of successful medico-legal action after the event, write to the patient explaining, as you did in the consulting room, what you found during your examination, what your concerns are and why you think they need to be referred.  Send this letter recorded delivery.  In case your letter causes them to change their mind and be referred, also draft a referral letter for them to use and enclose it in the same envelope.  In this way you will be able to defend your position by showing the patient made an informed choice, and proving they had the necessary information at their disposal when making that choice.  Beware of so-called “signed disclaimers”, i.e. getting a patient to sign the record card to acknowledge they have refused to be referred.  In law such ‘disclaimers’ are of very limited value and offer little protection.

A similar approach may also be helpful in the case of patients who refuse to have particular investigations, such as pupil dilation or tonometry, undertaken.

17. Recovery of outstanding professional services (locum) fees

The answer to this question is not dissimilar to the answer to question 6, above, about the recovery of a debt owed by a patient.

The locum should write the business a “letter before action” stating the sum outstanding, the reason the money is owed and the date or dates for which is it owed, e.g. £250 for work carried out as an optometrist at [practice name and address] on [date]. State that the sum remains unpaid and that if payment is not received before a stated date (e.g. within 14 days, or by [date]) then the locum will take legal action to recover it. If it is not paid by the stated date the locum would need to issue a claim under the small claims procedure in the County Court.

An alternative to pursuing a claim through the courts, would be to use the services of a debt collection agency to recover the debt. This could save the locum a lot of time and trouble.

18.  I recently committed a traffic offence and someone told me that I had to tell the GOC about it. In discussing this it came up that I had received a criminal conviction some years ago, which I thought was spent, but I was told that as an optometrist my criminal conviction will never be spent. Do I have to declare what I thought was  spent criminal conviction to the GOC?

The GOC requires registrants to notify them immediately of criminal convictions and cautions which they receive whilst registered and which they have received prior to registration. People applying to register as optometrists or dispensing opticians are also required to declare any convictions or cautions they may have received.

This applies equally to student resistrants as it does to full registrants.

Failure to notify the GOC can have serious consequences including being erased from the register or refused registration.

All registrants must provide the GOC with details of any criminal convictions or cautions. Minor misdemeanours and traffic offences must also be declared. Only motoring offences dealt with by way of a fixed penalty notice do not need to be declared. GOC registrants come within the exceptions orders under the Rehabilitation of Offenders Act 1974 which means that for them (and other exempt professions) no convictions, cautions are ever spent.

Practitioners should also notify their PCT of any convictions or cautions they have received within seven days of receiving the conviction or caution.

Registrants must also notify the GOC of any adverse findings or ongoing investigations by any other healthcare regulatory body in the UK or overseas, NHS primary care organisations or health board.