Hearings and indicative sanctions guidance

The GOC has updated its guidance for its Fitness to Practise Committees, to reflect COVID developments and recent case law. This consultation raises some technical issues which we address in our response.

Q. To what extent do you agree that the updated guidance achieves our aim of assisting members of the fitness to practise Committee to understand their individual and collective responsibilities, leading to the making of fair and just decisions?

AOP response: Agree

The AOP contributed to the development of the current guidance which was revised in 2018, and we note that the proposed revised guidance is largely an updating exercise with no large scale revisions. We agree these changes are helpful, subject to our comments in our response to question two.

Q. Is there anything unclear or missing in the updated guidance?

AOP response: Yes

In section 4: equality and diversity, the guidance refers to equality and human rights legislation. It would be helpful if the guidance referred specifically to all the relevant legislation. This should include the Human Rights Act (1998), the Equality Act (2010), the Gender Recognition Act (2004) and the Data Protection Act (2018).

We welcome the inclusion of recent case law in the draft guidance but we suggest that it would be helpful to members of Fitness to Practise Committee (FtPC) if an additional case be added at section 11 on bias [Para 11.3]. In addition to the case law already referred to in section 11.3 (Akers v Kirkland [2019]), the Council also needs to have regard for the case of Locobail v Bayfield Properties ltd [2000] QB 451. This case stated that a real danger of bias might be thought to arise if  there were personal friendship or animosity between the judge and any member of the public involved in the case, or close acquaintanceship. Optometry is a profession characterised by small, often interlinked professional networks. We believe that this makes close acquaintanceships a more likely occurrence.

We welcome the new section on adverse inference [Para 13.21, 13.22, 13.23] and agree that this will assist members of the FtPC to understand their individual and collective responsibilities, leading to the making of fair and just decisions, but we think the GOC should also consider producing and consulting on guidance on the existence and use of the power to draw adverse inferences. This would be useful for both panels and practitioners.

In reviewing the draft guidance we also identified some confusing drafting and formatting errors. We provided separate feedback on these issues to the GOC project team, including suggestions for redrafting, on 9 August 2021 and ask that they are taken into account as part of this consultation response.

Q. Are there any aspects of the guidance that could have a negative 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: Yes

There is a potential for adverse effects on certain groups of registrants if the guidance does not direct Fitness to Practise Committee members to all the relevant human rights and equality legislation (see our answer to question two above).

Q. Are there any aspects of the guidance 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

Q. Are there any other impacts or benefits of the updated guidance that you would like to tell us about?

AOP response: No