Six ways the regulation of optical businesses could change

Plans to reform the regulation of optical businesses in the UK would see all entities that carry out restricted functions subject to regulation – including charities and university eye clinics.

The General Optical Council’s (GOC) proposals for reforming optical business regulation were discussed at the latest meeting of the optical regulator (24–25 September, held virtually).

Other changes incorporated in the draft – which are subject to consultation and would require legislative reform to be implemented ­– include removing the maximum fine available for breaches and introducing a power to visit an optical business.

OT presents a summary of key points from the discussion below.

1 Under the proposals, the GOC would regulate many more optical businesses

Under the proposed changes, all entities that carry out restricted functions would be subject to regulation unless exempted.

This will see a significant increase in the proportion of optical businesses that are registered with the GOC.

At present, the GOC estimates that only around 57% of optical businesses are registered with the optical regulator.

The GOC plans would see charities and university eye clinics that carry out restricted functions subject to regulation. Generally, the GOC does not envisage locums, GP practices or hospitals to be covered by the extension of its regulatory powers.

GOC policy manager, Marie Bunby, shared: “We will explore as part of the consultation whether commercial units operating in GP practices or hospitals should be regulated by the GOC, but we don't wish to duplicate regulation.”

Director of regulatory strategy at the GOC, Steve Brooker,highlighted that the proposed changes to business regulation remain at an early stage.

“In some cases, we have a fairly clear idea of our preferred option, but in other cases, we see the issues as much more finely balanced, and we want to hear the views of stakeholders before putting a proposal forward to the government,” he said.

He shared that it remains unclear when the Government intends on carrying out the legislative reform that would be necessary for the changes to be implemented.

“Council has harboured ambitions to extend business regulation for more than a decade now, but in fact, we're still really at the beginning of our journey on business regulation,” he said.

He noted that council had agreed to prepare a proposed approach so that the GOC would be ready when the time for legislative reform came.

A 13-week consultation on the draft proposals for business regulation reform will be launched by the end of October.

2 The requirement for some businesses to have a majority of registrant directors would be removed

Bunby highlighted that removing the requirement for some body corporates to have a majority of registrant directors would give businesses flexibility.

“Businesses can choose the structure that works best for them,” she said.

“Essentially, registration will be based on whether the business is carrying out the specified restricted functions regardless of its structure,” Bunby highlighted.

3 Participation in the consumer redress scheme – which is currently voluntary and run by the OCCS – would become mandatory

The GOC is proposing that business involvement in the consumer redress scheme would become mandatory, with views sought on whether a mediation or adjudication model should be used.

The current scheme is provided by the Optical Consumer Complaints Service (OCCS) – which offers a voluntary mediation service for consumers of optical care and the professionals providing that care.

Providing her feedback on the proposal, GOC council member, Dr Josie Forte, shared that reviewing access to consumer redress is important in the context of proposals to increase the number of registered businesses.

“I think there is a level of satisfaction with the work that the OCCS does – both at the registrant level but also at the GOC level,” she said.

“I don’t think that, just because it is performing very well, we should not review it. It will be interesting to see if people propose alternative models,” Forte observed.

GOC council member, Mike Galvin, highlighted that making the consumer redress scheme compulsory would “irrevocably change the nature of the OCCS.”

He shared that while making involvement in consumer redress mandatory was an essential element to ensure the reform proposals work, it could also be resource intensive.

“The OCCS will be put on a much stronger legal footing generally. You could be unlocking another layer of work here by making it compulsory,” he said.

GOC council member Tim Parkinson shared that there were varied views on the issue within the GOC companies committee.

“It was a controversial area and I expect it might be when we get feedback on the consultation,” he said.

4 There would be no limit to the fine that can be imposed on optical businesses for breaches

The GOC is proposing the removal of a cap on the maximum fine that can be imposed on optical businesses for breaches. At present, the maximum fine that can be imposed by the GOC on a business is £50,000.

In documents prepared for the meeting, the optical regulator noted that the maximum fine was imposed on Boots Opticians in 2019 for failures in its whistleblowing policy and a lack of remorse or insight.

“To put this in perspective, Boots had an annual turnover that year of £167 million,” the optical regulator noted.

Speaking at the meeting, GOC policy manager, Angharad Jones, highlighted that an uncapped financial penalty would enhance the enforcement powers of the optical regulator.

“The consultation will seek views on whether there should be no maximum limit specified in legislation, or, as an alternative, a maximum fine linked to the size of the business – for example, a percentage of the business’ turnover,” she said.

Forte shared that she anticipated they would receive a range of views on the potential for an uncapped fine.

“I imagine we're going to get somewhere where it's linked to the turnover of the business, rather than just an arbitrary amount of money – which can be quite destructive for a small business, but actually not that meaningful for a very large business,” she said.

GOC council member, Sinead Burns, reflected: “I have no objection to the uncapped fine but I think there would need to be very clear guidelines so an appropriate and proportionate fine could be determined in each case.”

5 The GOC would have the power to visit optical businesses

Jones highlighted that the power to visit an optical business would be exercised as part of a fitness to carry on business process.

“This isn't the same as a routine inspection regime. This will just be limited to our fitness to practice process,” she emphasised.

Burns shared that further details are needed about the power to visit. For example, if a practice is being visited by the GOC because of short testing times, notifying a practice in advance of a visit may provide an artificial view of what practice workflow is like.

“I still think we need a bit more thought in terms of that right to visit – is it an announced visit? It should be exceptional rather than the norm and there should be a true justification as to why it is necessary,” she said.

Parkinson shared that the right to visit could help the regulator understand how a practice is operating in more depth.

“One of the benefits that [the GOC] companies committee saw is that intangible thing of being able to get under the skin of business to understand the culture,” he said.

6 Each practice would nominate an individual with overall responsibility for business conduct

Under the proposed changes, registrants would nominate a head of optical practice (HOP) who would have overall responsibility for the conduct of the business – in accordance with the GOC’s regulatory arrangements.

Speaking at the GOC meeting, Jones explained: “The HOP would need to be a registrant who is a senior employee of the business. The consultation is seeking views on whether all businesses, or only those above a certain size threshold, should fall within the scope of the HOP requirements.”

She added that there are secondary issues, such as whether there should be a separate set of standards for the HOP and whether the HOP should be listed on a public register.

GOC council member, Clare Minchington, shared that the proposal echoes with other professional regulatory environments.

She highlighted that further thought needs to be put into the fitness to practise implications for an individual taking on this role.

GOC council member, William Stockdale, highlighted that while large optical businesses will have a director of professional services, smaller businesses may struggle to meet this requirement.

“As we slide down the scale, we need to make sure that we are not putting an undue burden on them,” he said,

GOC council member Ken Gill agreed that it was important not to overload smaller practices.

“What we will need to do, if this is accepted and implemented, is have our own arrangements to provide a conduit for those vital roles,” he noted.

GOC council associate Deepali Modha questioned whether the HOP could follow the model of other healthcare professions – for example, pharmacy – where the person responsible changes depending on staffing.

Jones shared: “In terms of job sharing, that’s an interesting point that we haven’t heard before, but we don’t envisage that the role would change on a daily basis.”