Protecting the performer

AOP director of legal and regulatory services, Gerda Goldinger, on challenging the approach of NHS England and what it means to members

AOP director of legal and regulatory services

The AOP has been representing members in an action brought by NHS England. What is the background to the case?

The NHS has always had the remit to audit records produced by contractors. Historically, this was performed by way of post-payment verification (PPV). Carried out by what was then called the primary care trusts, a PPV would involve a visit to practice followed by an audit, the results of which would be sent back to the practice. Typically there would be a discussion as to whether any mistakes had been identified through the audit, and a repayment sum agreed by the parties if required.

This was how it had worked for years, but in 2013, NHS England appeared to adopt a different approach to the auditing and recovery of general ophthalmic services (GOS) claims that it thought had been inappropriately claimed in the first place. It became apparent that the PPV model was no longer being used by all area teams – and this shift took place with no warning or discussion with any members of the optical sector.

Another company had been brought in by NHS England – Mersey Internal Audit Agency (MIAA) – and it had been instructed to pursue the recovery of funds. It elected not to use a PPV, stating that it was not a mandatory requirement, and proceeded using its own auditing processes.

The change in approach was an aggressive one: MIAA started to work with a firm of solicitors to threaten members – not just with the recovery of sums that it considered to be due, but with taking away their livelihoods and their homes if they did not respond urgently and positively to letters of claim.

This was a frightening and intimidating tactic, and in many ways a surprising attack.

It started off by looking at contractors holding an NHS contract with NHS England. It then, crucially, extended this to performers, who were working as an employee or locum of the contractor.

It was this move that the AOP felt it had to act upon. These are performers who are working to a daily rate, are getting no bonus, and are not recovering anything extra; so if NHS England believed mistakes were being made, NHS England was in effect asking them to repay money that they never gained in the first place, for something that may or may not have been an innocent error, or not an error at all.

For the AOP, the case became a legal battle as to whether or not it was correct for NHS England to directly sue performers in the type of situation described above.

What was the AOP's role in supporting the members involved?

Taking the case represented a significant financial commitment. First of all, we had to make sure that, in our professional and legal opinion, the position that our members found themselves in should be defended and that the members had not gained anything, nor had acted in a grossly negligent manner, or worse. Once satisfied, we then had to consider whether the case was important enough for the whole of the sector that we should take a case and defend it right through to the High Court.

Our conclusion was that if NHS England could directly pursue the performer, the move was going to change the landscape forever, and we needed to act. We felt that there needed to be clarity – it couldn’t be that the NHS England could decide to behave in this way and performers be expected to roll over.

"For the members in question, it was a particularly frightening time. They were facing the prospects of losing their livelihoods...and their reputations"

Can you describe the experience for the AOP members involved?

It was the beginning of 2014, so we are talking about cases lasting over two years. For the members in question, it was a particularly frightening time. They were facing the prospect of losing their livelihoods, their homes, and their reputations.

I think it is so important that the AOP was there to say ‘hold on a minute’ to NHS England, and be able to support members. Defending litigation is a very expensive business, and for most people it is quite out of reach. I think a number of our members would have felt that they had nowhere to go if the AOP had not stepped in.

NHS England has withdrawn its claims completely against two performer members. What lasting impact does this have? 

First, it is important to note that this decision does not bind the NHS to any other cases – and of course it can’t because every case is fact-specific. The outcome is on an individual case of two of our performer members.

That being said, the significance is that NHS England has now woken up to the fact that it cannot simply take any case and run with it – the AOP will fight if we believe the principle is worth defending, and we consider that we have the right approach and they have the wrong approach.

I think NHS England will think long and hard now before they pursue any other performer members, certainly in cases where the facts are very similar to this one.

As it stands, we are aware of 10 cases of individual members being targeted, but we are hoping that we are going to get some closure on those cases in the coming months.

Why is it important for the AOP to act in cases of this kind? 

We will do anything we can to support our members, and this case could have meant a different landscape for performers – and a much more defensive mode of practice would have therefore had to have been adopted. I think this would have pushed a lot of performers out of the profession because it would have become a stressful way to work.

There appears to be an increasing trend in the amount of investigation instigated by NHS England – to the extent that it is almost becoming a second regulator. This creates another layer of anxiety for AOP members because, by way of example, they can proceed through a General Optical Council (GOC) process, only to find that the NHS wants to investigate it all over again.

We acted because we strongly believe that performers should not be put in a vulnerable position by a body like NHS England, which is seeking to recover money that we feel performers should not have to pay.

Should members act differently following this judgement? 

The first piece of advice to any AOP member who is under investigation is to contact the AOP immediately.

I also think it is important for every practitioner to remember that times change and practices change. Make sure that you are up to speed – and never feel that a refresher course is something for somebody else.

The Optical Confederation’s guide to Making accurate claims, authored by the AOP, is a resource worth repeat reading.