Response to the GOC consultation on the service of statutory notices by email
Our response to the GOC service of statutory notices by email consultation, September 2021
During the COVID pandemic the GOC started using email to send statutory notices, such as notices of fitness to practise proceedings, to registrants. We argued that doing this without the registrant’s explicit consent was unlawful.
The GOC has now changed its policy so that it will only send these notices by email if it has explicit consent to do so, and is consulting on a new policy statement. We welcome the change in policy, but still think the current GOC rules are inconsistent with the Opticians Act. In our response we urge the GOC to follow the Act and ensure there are adequate safeguards in place for our members.
Q. To what extent do you agree with the content of the policy?
AOP response: Disagree
We think the overall approach that the policy outlines to the use of email for the service of statutory notices is reasonable, and a significant improvement on the GOC’s previous policy of using email addresses it held for registrants without any attempt at seeking consent for their use for this purpose.
We have answered ‘disagree’ to this question because both the draft policy and (as we have previously pointed out to the GOC) the new Rules made in late 2020 fail to meet the requirements set out in the Opticians Act 1989. S23A(3) of that Act says that such Rules shall secure that an electronic communication is sent “to the number or address specified by that person when giving consent”, but the 2020 Rules do not require this. The draft policy on which the GOC is consulting also fails to reflect this requirement of the Act. Although section 1.5 of the policy says the GOC will only consider serving notices by email “where the individual/registrant has consented in writing and provided an email address for this purpose”, section 4.1 of the policy (“Process to be followed to obtain consent”) simply asks registrants to answer yes or no to the question of whether they consent, without confirming the email address to be used.
This is not just a technical point. The GOC cannot assume that an email address held on the registrant’s membership record for general communication purposes will be an appropriate address for the service of statutory notices.
When seeking member views on the draft policy we received comments from a registrant who has been distressed by the experience of receiving a statutory notice by email which they had not consented to. This member received an initial notice of the GOC's intention to open a fitness to practice investigation against them to an email address they had only recently changed over to. Had the notice been sent out slightly earlier to the email address affiliated with their GOC account, the registrant might not have picked up the notice for some time. To learn that the initial documentation letter they received was not lawfully served as no consent had been sought, has been distressing, so too the receipt of a large bundle of papers from the GOC also sent by email.
The appropriate solution to this problem is for the GOC to amend the 2020 Rules so that they are consistent with the Opticians Act. In the meantime, the draft policy should be amended to make it clear that the GOC will only use an email address for the service of statutory notices where a registrant has explicitly consented to the use of that specific address for the purpose. Since the GOC intends to use its annual registration process to seek consent for the electronic service of notices, the process will also have to be amended accordingly.
We are also concerned that although the draft policy sets out safeguards to check the receipt of notices sent by email, it is not clear whether those safeguards will give a registrant who has not received an email notice adequate time to prepare to deal with the consequences of a notice subsequently received by other means.
For instance, section 5.5 of the policy states that the GOC will “make reasonable attempts to check the notice has been received” and “will send the notice by first class post” if necessary. It is not clear how long this will take, and in the case of a registrant facing an Interim Order notice it is vital that they are given at least 7 days’ notice in order to prepare for a hearing, and preferably 14 days’ notice.
These significant concerns aside, we think that overall the content of the draft policy is reasonable. We note that the GOC will use the annual registration renewal process to ask registrants to consent to receive statutory notices by email, and provided that request is framed in a way consistent with the Opticians Act as set out above, we will be happy to work with the GOC to communicate this to our members.
It is helpful that section 4.4 of the draft policy confirms that even where a registrant has given consent to e-service the GOC will still post out hard-copy notices on request.
The additional safeguards set out in section 5 of the draft policy appear helpful in principle, but we think some of the assurances in the draft policy need to be clarified, as we have outlined in our response to question two below.
Q. Is there anything unclear or missing in the policy?
AOP response: Yes
Some of the content of the draft policy could be clearer. Our concerns relate to section 4 Process to be followed to obtain consent; section 5 Safeguards to be applied for checking receipt of notices sent by email; and section 8 Reasonable adjustments.
Section 4 Para 4.5 – states that if a registrant opts out of e-service for statutory notices, other communications including registration reminders will still be sent by email, and routine fitness to practise correspondence will continue to be sent “by email or post”. We think this paragraph should be expanded to set out what “routine” correspondence involves, and how the GOC will decide whether to send q notice by post or email in any given case. Where a registrant has opted out of e-service for statutory notices it seems reasonable to assume that they will prefer to receive all GOC correspondence about fitness to practise issues by post rather than email.
Section 5 Para 5.3 onwards – the policy says there will be different safeguards for registration and fitness to practise notices sent by email, because registration notices are often sent in bulk:
- Registration notices will only get a routine check that emails haven’t been blocked or sent to spam, followed in the case of removal notices by “an additional attempt to contact the person by telephone and leave a voicemail if necessary” (5.4.3)
We do not think this is a robust enough safeguard in the case of removal notices; instead the policy should state that the GOC will always follow up by post if it cannot contact the registrant by phone
- Fitness to practise notices will be sent with a request for the registrant to acknowledge receipt, and the absence of an acknowledgement will lead to the GOC making “reasonable attempts” to check receipt (5.5.3) and sending the notice again by first class post as a fallback (5.5.4). It would be helpful if the draft policy were to give examples of what constitutes “reasonable attempts”
Section 8 Para 8.1 – the undertaking that the GOC “will consider whether to send” hard copies of notices if a registrant who has previously consented to e-service is finding it difficult to deal with emails, is too weak. We think the policy should be that the GOC “will always send” hard-copy notices in these circumstances unless the registrant has specifically agreed otherwise.
Q. Are there any aspects of the policy that could discriminate against stakeholders with specific characteristics? (Please consider age, sex, race, religion or belief, disability, sexual orientation, gender reassignment, pregnancy or maternity, caring responsibilities or any other characteristics.)
AOP response: No
Q. Are there any aspects of the policy that could have a positive impact on stakeholders with specific characteristics? (Please consider age, sex, race, religion or belief, disability, sexual orientation, gender reassignment, pregnancy or maternity, caring responsibilities or any other characteristics.)
AOP response: No
Are there any other impacts (including financial) of the policy that you would like to tell us about?
AOP response: No