Supporting members "to the highest level"

The AOP has supported a member in a High Court judicial review challenge of a decision taken by the General Optical Council (GOC).

The AOP argued that in the member’s case, the GOC’s decision to proceed with an interim order and subsequent interim order review had been unlawful as the notice of initial hearing had not been served properly.

At the start of the pandemic in March 2020, following the Government’s advice to work from home where possible, the GOC moved to send statutory notices by email, and published a statement to the effect on its website.

The AOP opposed this approach at the time, highlighting the Opticians Act, which stated this step could only be taken if the GOC had made specific Rules to allow this, and if the registrant had given explicit consent to receive notices of hearing by email.

Highlighting the concerns with the approach, Cassandra Dighton, head of professional discipline for the AOP, explained that if a registrant did not see the email, “this creates a risk to registrants that a hearing could go ahead in their absence and without their knowledge. In the worst-case scenario, a registrant could be erased or suspended and potentially not know.”

This would create a risk for both the registrant and the general public, particularly if a registrant is suspended or erased in order to protect the public, but they continue to practise unaware of the GOC’s decision, Dighton suggested.

This risk was illustrated when, in January 2021, the AOP’s legal team was contacted by a member who had received an email regarding an interim order review which he had no knowledge of.

“The member had been served with an interim order notice of hearing via email, which he had not seen. The GOC had pushed ahead and he had been made the subject of an interim suspension order without his knowledge,” Dighton explained.

The AOP noted that when the Fitness to Practise Committees’ interim order hearing had taken place in September, the GOC had not yet made the Rules to send notices electronically, or had explicit consent. The GOC’s (Committee, Constitution, Registration and Fitness to Practise) (Coronavirus) (Amendment) Rules Order of Council 2020 came into force in December, meaning notice of hearings could be sent by email, though the Opticians Act meant the registrant must give consent.

The member discovered the email at the point at which the interim order was due for review. Representing the member, the AOP wrote to the GOC and attended the interim order review to argue that a hearing could not be held because the initial notice had not been served properly and the first hearing had not been convened lawfully and therefore should not progress.

After the interim order review went ahead, the AOP’s legal team decided to make an application for a judicial review – used to challenge a public body or decision-making power on grounds which include when a decision is unlawful.

In response to the application, the GOC conceded that the first interim order and subsequent interim order review should be quashed and provided a draft consent order which would allow this to happen administratively, which the AOP agreed to.

At the time of going to press, the AOP awaits confirmation that the order has been approved.

Reflecting on the case, Dighton shared: “This underlines the importance of the service the AOP provides for members. We are robust and if the GOC takes action that is unlawful or inappropriate, we will challenge it to the highest level for our members.”

The AOP reminded members to contact the AOP legal team immediately as soon as they are notified of an investigation.

Share your views

As more restrictive lockdown measures were eased from April 2021, the GOC said it would serve notices by email where the registrant had provided consent, and will otherwise revert back to sending this by post.

The GOC is currently consulting on a new draft policy on the service of statutory notices by email, as well as updated protocols for remote hearings and indicative sanctions guidance.

The new draft policy for the service of statutory notices will set out how the GOC will obtain consent and the safeguards that will be applied once this has been obtained.

Launching the consultation earlier this summer, Dionne Spence, GOC director of casework and resolutions, said: “We are committed to serving statutory notices in a way that is fair to registrants and individuals and in line with the requirements of our legislation.”

Spence added that the GOC moved to a position of sending notices by email “to ensure we could comply with Government advice to work from home wherever possible and to mitigate the risk of the loss of personal data through our letters being left on doorsteps.”

“In doing this, we acknowledged we were not fully compliant with our legislation in respect of obtaining written consent,” Spence added.

The consultation is seeking feedback on the content, clarity and impacts of the policy, protocol and guidance, as well as if there are any missing areas.

The policy team will be developing the AOP’s response to the consultation, taking into account the interests of members. The policy team is encouraging members to get in contact to share their views by the end of August.

Members can see the AOP’s responses to previous consultations on the website.