AND BRIAN KELLY ( ) DETERMINATION OF A SUBSTANTIVE HEARING 1-14 FEBRUARY 2017

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1 BEFORE THE FITNESS TO PRACTISE COMMITTEE OF THE GENERAL OPTICAL COUNCIL GENERAL OPTICAL COUNCIL F(16)18 AND BRIAN KELLY ( ) DETERMINATION OF A SUBSTANTIVE HEARING 1-14 FEBRUARY 2017 Proof of service The Committee heard an application from Ms Harris for the Council for the matter to proceed in the Registrant s absence. First, the Council was required to satisfy the Committee that the documents had been served in accordance with Section 23A of the Act and Rule 61 of the Fitness to Practise Rules The Committee accepted the advice of the Legal Adviser. The Committee was shown a Service bundle which included an appropriate notification of this hearing dated 30 June 2016 which was delivered to the Registrant s registered address on 1 July The Committee was satisfied that all reasonable efforts have been made to notify the Registrant of the hearing. Proceeding in the absence of the Registrant The Committee then went on to consider whether it would be in the public interest to proceed in the Registrant s absence in accordance with Rule 22. Ms Harris took the Committee through the various communications with the Registrant to notify him of the hearing and his right to be there. The correspondence showed that Registrant should be aware of this hearing but appears to have withdrawn his engagement from the Council s investigation. In the Committee s view, the Registrant has decided not to attend this hearing. There is a strong public interest in resolving these very old allegations. The Committee was aware that it must exercise its discretion to proceed in the absence of the Registrant with great care and caution. It was satisfied that in the present case it was appropriate to proceed, having regard to the public interest. It bore in mind that it appeared unlikely that any adjournment would secure the Registrant s attendance. The Committee determined that it would be in the public interest for the hearing to proceed in the Registrant s absence.

2 ALLEGATION In relation to you, Brian Kelly (a registered optometrist), the Council alleges that: Part A 1. Between 1 April 1995 and 31 December 1999, you were a Partner at B&C Kelly Opticians, 58 Commercial Street, Lerwick, Shetland ZE1 0BD [ the Practice ]. 2. You were included on Shetland Health Board s [ the Health Board ] Ophthalmic List and pursuant to an agreement with the Health Board, you provided NHS Ophthalmic Services at the Practice as part of the General Ophthalmic Service [ GOS ]. 3. Between 1 April 1995 and 31 December 1999, you issued and/or caused GOS (S) (R) or GOS 4 vouchers to be issued on behalf of the Practice in respect of the following patients: a. Patient 1 Voucher dated b. Patient 2 Voucher dated c. Patient 3 Voucher dated d. Patient 4 Voucher dated e. Patient 4 Voucher dated f. Patient 5 Voucher dated g. Patient 5 Voucher dated and h. Patient 5 Voucher dated i. Patient 6 Voucher dated j. Patient 6 Voucher dated l. Patient 6 Voucher dated m. Patient 6 Voucher dated n. Patient 7 Voucher dated o. Patient 7 Voucher dated p. Patient 7 Voucher dated q. Patient 7 Voucher dated s. Patient 9 Voucher dated t. Patient 10 Voucher dated u. Patient 11 Voucher dated w. Patient 13 Voucher dated x. Patient 13 Voucher dated y. Patient 14 Voucher dated The voucher claims listed at paragraph 3 above were: a. Inappropriate in that they were vouchers issued for replacement spectacles in circumstances not permitted by the NHS (General Ophthalmic Services) (Scotland) Regulations 1986 [ the Regulations ]; b. Dishonest in that you knew you were not entitled to issue vouchers for replacement spectacles in those circumstances. 5. Between 1 April 1995 and 31 December 1999, you issued and/or caused GOS

3 (S) (R) or GOS 4 vouchers to be issued on behalf of the Practice in respect of the following patients: a. Patient 15 Voucher dated b. Patient 16 Voucher dated c. Patient 17 Voucher dated The vouchers claims listed at paragraph 5 above were: a. Inappropriate in that they were vouchers issued for replacement spectacles in circumstances not permitted by the Regulations; b. Dishonest in that you knew you were not entitled to issue vouchers for replacement spectacles in those circumstances. 7. Between 1 April 1995 and 31 December 1999, you issued and/or caused GOS (S) (R) or GOS 4 vouchers to be issued on behalf of the Practice in respect of the following patients: a. Patient 18 Voucher dated b. Patient 6 Voucher dated c. Patient 19 Voucher dated The vouchers claims listed at above were: a. Inappropriate in that the vouchers claimed for work in excess of that actually carried out; b. Dishonest in that you knew you were claiming for remuneration for work not carried out. 9. On 13 March 2006, in proceedings before the National Health Service Tribunal Scotland, formal admissions were made on your behalf in the following terms: a. That there was a system operated within [your] knowledge whereby spare pairs of glasses were provided and claimed for by post-dated GOS (S) (R) or (4) forms in the period ; b. That you accepted responsibility for that system; c. That in the period the firm made a substantial number of inaccurate and inappropriate claims for: the issues of spare, second or free pairs of glasses to children under 16 years of age (or 18 years and in full time education) shortly after issuing the original pair of glasses; repairs and replacements not provided; replacement for adults who do not qualify under the scheme. 10. As a consequence of the inappropriate claims admitted by you, the Practice overclaimed remuneration from the NHS in the sum of 29, Part B 11. On various dates in November and December 2006: a. You were employed by Mr A as a locum at Gregory Pecks Opticians, 179 Brooke Street, Broughty Ferry, Dundee, DD5 1DJ [ Gregory Pecks ];

4 b. You failed to disclose to Mr A, or any other person responsible for your employment at Gregory Pecks, that you were not registered with Tayside Health Board to provide NHS services under the GOS; c. You failed to contact Tayside Health Board and/or apply for registration with Tayside Health Board despite being asked to do so by Mr A; d. You provided NHS GOS services at Gregory Pecks despite not being appropriately registered to do so; e. You informed Mr A that you were registered with the Lothian Health Board and that you thought this allowed you to test patients in Tayside, or words to that effect; 12. Your conduct as set out at paragraphs 11 (b) (c) (d) and (e) above was: a. Misleading; b. Dishonest. 13. Between 3 January 2007 and 14 February 2007: a. You were employed as a locum by Ms B at Optimeyes Opticians, 3 Greendykes Road, Broxburn, EH52 5AF [ Optimeyes ]; b. You incorrectly informed Ms B that: i. You were registered to provide NHS Ophthalmic Services specifically at Optimeyes; ii. You did not need an additional addresses application form; c. You provided NHS GOS services at Optimeyes despite not being appropriately registered with Lothian Health Board to do so; 14. Your conduct as set out at paragraphs 13 (b)(i) (b)(ii) (b)(iii) and (c) above was: a. Misleading; b. Dishonest. 15. In March 2007: a. You were employed as a locum by Mr C at Vision Express, High Street, Falkirk, FK1 1NW [ Vision Express Falkirk ]. b. You incorrectly informed Mr C that your registration status with a relevant Health Board was in hand or words to that effect; c. You provided NHS GOS services at Vision Express Falkirk despite not being appropriately registered with a Health Board to do so; d. You did not return to sign the relevant NHS claims forms despite having told Mr C you would do so.

5 16. Your conduct as set out at paragraphs 15 (b) (c) and (d) above was: a. Misleading; b. Dishonest. 17. On various dates between May 2007 and July 2007; a. You were employed as a locum by Mr D at Vision Express, 195 High Street, Ayr KA7 1QT [ Vision Express Ayr ]; b. You failed to inform Mr D, or any person responsible for your employment at Vision Express Ayr, that you were not registered with the Ayrshire and Arran Health Board to provide NHS services under the GOS; c. You provided NHS GOS services at Vision Express Ayr despite not being appropriately registered to do so; d. You suggested to Mr C that another optometrist could sign GOS forms in your place; e. You informed Mr C that you had tried to register with the Ayrshire and Arran Health Board but that it had not gone through because of some clerical error, or words to that effect. 18. Your conduct as set out at 17 (b) (c) (d) and (e) above was: a. Misleading; b. Dishonest And by virtue of the facts set out above, your fitness to practise is impaired by reason of your misconduct. Amendment of the Allegation Ms Harris, for the Council made an application to make amendments to the Allegation. The Committee accepted the advice of the Legal Adviser. The Committee allowed a number of minor amendments to be made to the Allegation so that its final appearance is as set out below. These amendments were either typographical or involved minor adjustments to a date or the insertion of a correct full title to a piece of legislation. In each case, the Committee considered carefully the question of fairness to the Registrant and concluded that no unfairness to him would be caused by the amendments. The amendments so allowed were as follows: (i) Particular 3(g): Substitute Voucher dated & for Voucher dated (ii) Particular 4 a: Substitute and the NHS (Optical Charges and Payments) (Scotland) Regulations 1989 and (iii) Particular 5 b: Substitute Voucher dated for Voucher dated

6 (iv) Paragraph 11: Add and January 2007 to the sentence On various dates in November and December (v) Particular 17d: Substitute Mr D for Mr C. (vi) Particular 17e: Substitute Mr D for Mr C. Ms Harris, on behalf of the Council also withdrew certain parts of the Allegation as a result of the evidence given during the hearing. The parts withdrawn were as follows: (a) Particular 3: Sub-paragraphs k, p, q, r and v. These were individual vouchers which Mr L, in his oral evidence, accepted might not have been the subject of criticism. (b) Particular 13 b i: It was clear from the evidence that the Registrant was in fact registered with the Lothian Health Board at the time that he was alleged to have incorrectly told Ms B that he was so registered. ALLEGATION (as amended) In relation to you, Brian Kelly (a registered optometrist), the Council alleges that: Part A 1. Between 1 April 1995 and 31 December 1999, you were a Partner at B&C Kelly Opticians, 58 Commercial Street, Lerwick, Shetland ZE1 0BD [ the Practice ]. 2. You were included on Shetland Health Board s [ the Health Board ] Ophthalmic List and pursuant to an agreement with the Health Board, you provided NHS Ophthalmic Services at the Practice as part of the General Ophthalmic Service [ GOS ]. 3. Between 1 April 1995 and 31 December 1999, you issued and/or caused GOS (S) (R) or GOS 4 vouchers to be issued on behalf of the Practice in respect of the following patients: a. Patient 1 Voucher dated b. Patient 2 Voucher dated c. Patient 3 Voucher dated d. Patient 4 Voucher dated e. Patient 4 Voucher dated f. Patient 5 Voucher dated g. Patient 5 Voucher dated and h. Patient 5 Voucher dated i. Patient 6 Voucher dated j. Patient 6 Voucher dated l. Patient 6 Voucher dated m. Patient 6 Voucher dated n. Patient 7 Voucher dated o. Patient 7 Voucher dated s. Patient 9 Voucher dated t. Patient 10 Voucher dated u. Patient 11 Voucher dated

7 w. Patient 13 Voucher dated x. Patient 13 Voucher dated y. Patient 14 Voucher dated The voucher claims listed at paragraph 3 above were: a. Inappropriate in that they were vouchers issued for replacement spectacles in circumstances not permitted by the NHS (Optical Charges and Payments) (Scotland) Regulations 1989 or the NHS (Optical Charges and Payments)(Scotland) Regulations 1998 [ the Regulations ]; b. Dishonest in that you knew you were not entitled to issue vouchers for replacement spectacles in those circumstances. 5. Between 1 April 1995 and 31 December 1999, you issued and/or caused GOS (S) (R) or GOS 4 vouchers to be issued on behalf of the Practice in respect of the following patients: a. Patient 15 Voucher dated b. Patient 16 Voucher dated The vouchers claims listed at paragraph 5 above were: a. Inappropriate in that they were vouchers issued for replacement spectacles in circumstances not permitted by the Regulations; b. Dishonest in that you knew you were not entitled to issue vouchers for replacement spectacles in those circumstances. 7. Between 1 April 1995 and 31 December 1999, you issued and/or caused GOS (S) (R) or GOS 4 vouchers to be issued on behalf of the Practice in respect of the following patients: a. Patient 18 Voucher dated b. Patient 6 Voucher dated c. Patient 19 Voucher dated The vouchers claims listed at above were: a. Inappropriate in that the vouchers claimed for work in excess of that actually carried out; b. Dishonest in that you knew you were claiming for remuneration for work not carried out. 9. On 13 March 2006, in proceedings before the National Health Service Tribunal Scotland, formal admissions were made on your behalf in the following terms: a. That there was a system operated within [your] knowledge whereby spare pairs of glasses were provided and claimed for by post-dated GOS (S) (R) or (4) forms in the period ; b. That you accepted responsibility for that system; c. That in the period the firm made a substantial number of inaccurate and inappropriate claims for: the issues of spare, second or free pairs of

8 glasses to children under 16 years of age (or 18 years and in full time education) shortly after issuing the original pair of glasses; repairs and replacements not provided; replacement for adults who do not qualify under the scheme. 10. As a consequence of the inappropriate claims admitted by you, the Practice overclaimed remuneration from the NHS in the sum of 29, Part B 11. On various dates in November, December 2006 and January 2007: a. You were employed by Mr A as a locum at Gregory Pecks Opticians, 179 Brooke Street, Broughty Ferry, Dundee, DD5 1DJ [ Gregory Pecks ]; b. You failed to disclose to Mr A, or any other person responsible for your employment at Gregory Pecks, that you were not registered with Tayside Health Board to provide NHS services under the GOS; c. You failed to contact Tayside Health Board and/or apply for registration with Tayside Health Board despite being asked to do so by Mr A; d. You provided NHS GOS services at Gregory Pecks despite not being appropriately registered to do so; e. You informed Mr A that you were registered with the Lothian Health Board and that you thought this allowed you to test patients in Tayside, or words to that effect; 12. Your conduct as set out at paragraphs 11 (b) (c) (d) and (e) above was: a. Misleading; b. Dishonest. 13. Between 3 January 2007 and 14 February 2007: a. You were employed as a locum by Ms B at Optimeyes Opticians, 3 Greendykes Road, Broxburn, EH52 5AF [ Optimeyes ]; b. You incorrectly informed Ms B that: i. You were registered to provide NHS Ophthalmic Services specifically at Optimeyes; ii. You did not need an additional addresses application form; c. You provided NHS GOS services at Optimeyes despite not being appropriately registered with Lothian Health Board to do so; 14. Your conduct as set out at paragraphs 13 (b)(i) (b)(ii) (b)(iii) and (c) above was: a. Misleading; b. Dishonest. 15. In March 2007:

9 a. You were employed as a locum by Mr C at Vision Express, High Street, Falkirk, FK1 1NW [ Vision Express Falkirk ]. b. You incorrectly informed Mr C that your registration status with a relevant Health Board was in hand or words to that effect; c. You provided NHS GOS services at Vision Express Falkirk despite not being appropriately registered with a Health Board to do so; d. You did not return to sign the relevant NHS claims forms despite having told Mr C you would do so. 16. Your conduct as set out at paragraphs 15 (b) (c) and (d) above was: a. Misleading; b. Dishonest. 17. On various dates between May 2007 and July 2007; a. You were employed as a locum by Mr D at Vision Express, 195 High Street, Ayr KA7 1QT [ Vision Express Ayr ]; b. You failed to inform Mr D, or any person responsible for your employment at Vision Express Ayr, that you were not registered with the Ayrshire and Arran Health Board to provide NHS services under the GOS; c. You provided NHS GOS services at Vision Express Ayr despite not being appropriately registered to do so; d. You suggested to Mr D that another optometrist could sign GOS forms in your place; e. You informed Mr D that you had tried to register with the Ayrshire and Arran Health Board but that it had not gone through because of some clerical error, or words to that effect. 18. Your conduct as set out at 17 (b) (c) (d) and (e) above was: a. Misleading; b. Dishonest And by virtue of the facts set out above, your fitness to practise is impaired by reason of your misconduct. Background to the allegations DETERMINATION The Registrant has been registered with the General Optical Council as an optometrist since 7 July The Registrant is an Optometrist who between 1995 and 1999 owned a practice in the Shetland Islands known as B&C Kelly Opticians, 58 Commercial Street, Lerwick, Shetland, from which he provided ophthalmic services to NHS Patients. In 2006 and 2007 he was no longer practising in the Shetland Islands but was working as a locum practitioner in various regions of Scotland. The Allegation in these proceedings is divided

10 into two parts, Part A and Part B, the first relating to his practice in the Shetland Islands and the second relating to his work as a locum practitioner. Part A In relation to Part A, the Registrant was providing ophthalmic services under the terms of an agreement between himself and Shetland Health Board and his remuneration was governed by the NHS (General Ophthalmic Services) (Scotland) Regulations 1986 (1986 Regulations), the National Health Service (Optical Charges and Payments)(Scotland) 1989 and its successors and associated explanatory memorandums. When the Registrant provided services to his NHS patients he was obliged to submit a form to the Health Board in order to obtain payment. These forms were known as GOS (General Ophthalmic Service) Vouchers, each of which carried a suffix consisting of a particular number or letter which identified the nature of the work for which payment was being claimed. Payment was made by the Health Board on the basis of what was claimed on the voucher. The Registrant is alleged to have abused this system by persistently submitting claims for payment for the issue and supply of additional pairs of spectacles for children, in circumstances where the Regulations did not permit this type of claim. The Regulations permitted a claim for the issue of additional pairs of spectacles in some limited circumstances, for example when a patient under 16 years of age had broken the pair originally issued. It is alleged however that the Registrant persistently claimed payment for the issue of additional spectacles in circumstances where what was being provided was simply a spare, not a replacement pair of spectacles. The Council alleges that the Registrant often post-dated payment vouchers by one month so as to reduce the chance of these claims attracting scrutiny. The Council further alleges that the Registrant also abused the system by submitting claims for spectacles to the Health Board when spectacles had already been provided by the separate Hospital Eye Service and that he submitted claims for work on spectacles which were excessive, for example a claim for total replacement when a claim for repair should have been submitted. An investigation of the Registrant s claims was eventually undertaken at the behest of the Shetland Health Board. Criminal proceedings were instituted but were discontinued. Prior to discontinuance the Registrant paid a sum of money towards what was alleged to have been inappropriately claimed. The Registrant also appeared before an NHS tribunal in relation to the allegations in Part A. The Committee has been supplied with a number of documents which were produced for the various tribunal hearings and a transcript of the evidence given by the Registrant at those hearings. In these proceedings, the Council alleges that the claims which it has identified as representative of the Registrant s claiming practices were misleading and, further, were made when he knew that he was not entitled to payment. He was, it is alleged, seeking to maximize his revenue by dishonest practice. The sum inappropriately claimed is alleged to be 29, Part B By 2006 the Registrant was no longer working in Lerwick but was working on the mainland as a locum optometrist. From 1 April 2006, when The National Health Service (General Ophthalmic Services) (Scotland) Regulations 2006 (the 2006 Regulations)

11 came into force it was necessary for an optometrist who provided ophthalmic services to NHS patients in any particular region to be registered with the Health Board for that region. The Register was divided into two parts, the first part designed to include those who worked regularly from a particular practice and the second for peripatetic optometrists carrying out locum work. Claims for payment for work done by an optometrist would be met by the Health Board if it was satisfied the 2006 Regulations were complied with. It should be noted that the 2006 Regulations made a substantial change to the practice which had existed previously which did not require a peripatetic optometrist to be registered with the Health Board for the region in which he happened to be working. A substantial amount of time at the hearing before this Committee has been expended in discovering how the new system was actually applied in practice in 2006 and 2007 shortly after it came into effect. It has become clear that there were significant variations in practice between different Health Boards and at times the 2006 Regulations were not applied consistently. The Council alleges that the Registrant, when securing these engagements as a locum optometrist, either failed to disclose that he was not appropriately registered or, on other occasions, falsely claimed that he was appropriately registered or that his registration was in hand or words to that effect. The Council allege that his conduct in securing these engagements in these circumstances when not appropriately registered was misleading and/ or dishonest. Evidence and submissions Documentary evidence In relation to Part A, the Committee has received in evidence much of the material used at the NHS Tribunal hearings. This material includes the vouchers on which the Council relies, copies of relevant clinical records and transcripts of the evidence given by the Registrant to the NHS Tribunal. It also includes various formal admissions and statements of position made at the NHS Tribunal, at which the Registrant was legally represented. In relation to Part B, the Committee has been provided with copies of correspondence between the Registrant and various Health Boards, which includes applications made by the Registrant to join Ophthalmic Lists. Witnesses In relation to Part A, the Committee heard oral evidence by Skype Link from Mr G, the present clerk to the redacted. Mr G had had no personal dealings with the Registrant but set out the history of the tribunal proceedings, which was protracted and complicated by a number of appeals, and the eventual outcome of those proceedings. The Committee also heard oral evidence from Mr L, a forensic auditor who was instructed by the Shetland Health Board to carry out an audit of the Registrant s claims. Mr L produced an expert report for use in these proceedings, although in reality his evidence consisted almost entirely of reporting on what he found during his audit of the records and, in particular, the disparities he identified between claims made by the Registrant and the information revealed by the corresponding dispensing records. The Committee found Mr L to be a careful and reliable witness.

12 In relation to Part B, the Committee heard oral evidence by telephone from a number of Health Board administrators who were concerned with applying the 2006 Regulations. These were JH, at the relevant time a Practitioner Services Manager redacted, AM, currently an Interim General Manager redacted, LS (who gave evidence via Skype link) and who was at the relevant time a Primary Care Contract Support Officer redacted, and CM, employed by redacted or its predecessors since 1974 and currently redacted. Each of these witnesses was able to produce relevant contemporary documents and to provide information as to the way in which the 2006 Regulations were applied. The Committee found all of these witnesses to be helpful but derived particular assistance from CM who explained the way in which the 2006 Regulations were designed to be applied in a way which the Committee found to be clear and authoritative. In particular CM emphasized that a practitioner who was on Part 1 of a Health Board s ophthalmic list, and thereby under an obligation to supply details of the addresses at which he habitually worked, was not under an obligation, when carrying out additional locum work, to supply details of the additional locum addresses to that Health Board. CM described her view of the way in which the 2006 Regulations were designed to work as being widely shared by other administrators and her view seemed to the Committee to be amply justified by the wording and scheme of the 2006 Regulations themselves. For reasons which will become apparent later this point is of importance because redacted Health Board appears to have taken a different view of the Registrant s obligations. The Committee also heard evidence from the owners of, or partners in, four different practices at which the Registrant had provided locum services in 2006 and Mr A and Mr C gave evidence by telephone and Ms B and Mr D by Skype link. The Committee found Mr A, Ms B, and Mr C to be generally helpful and credible witnesses, although insofar as there was any material difference between Ms B s understanding of the requirements imposed by the 2006 Regulations and that of CM, the Committee preferred the view of CM. The Committee was unable to attach the same weight to the evidence of Mr D. During his oral evidence Mr D accepted that he had known from about midday on the first of the three days that he engaged the Registrant, that the Registrant was not prepared to sign claim forms because he was not on the necessary ophthalmic list. Knowing this, Mr D subsequently engaged the Registrant to work on two further days. This history did not emerge clearly from his written witness statement. Further, it became apparent during the course of the hearing that Mr D had given a quite different account of the dealings between himself and the Registrant to his then line manager, JM. In the Committee s view the account he gave to JM was misleading and designed to deflect any potential criticisms. The Committee was therefore not prepared to accept the evidence of Mr D where it related to matters that were in dispute unless such evidence was supported by other credible evidence. JM, then a Regional Manager with redacted, gave oral evidence by telephone. The Committee found her to be a credible witness. As already noted, she was the line manager of Mr D. She told the Committee what she had been told by Mr D in respect of the circumstances in which the Registrant came to carry out locum work at that particular branch of redacted and of a subsequent telephone conversation she had with the Registrant in respect of fees which had not been paid to him.

13 The Committee also carefully read the transcripts of the evidence given by the Registrant at the various NHS Tribunal hearings. Although this evidence was untested in these proceedings, the Committee nonetheless considered that it gave a valuable insight into the account and explanations offered by the Registrant and was evidence given on oath in a formal setting. The Evidence in relation to Part A The Committee was taken through the individual vouchers particularised in the Allegation and noted the discrepancies between claims made on those vouchers and the corresponding dispensing records. A helpful schedule was prepared by Ms Harris, Counsel for the General Optical Council, which identified the location of the relevant documents within the Bundle. The Committee accepted the evidence of Mr L to the effect that, during the relevant time, although the Shetland Health Board would check vouchers to ensure that they were adequately completed in terms of information, dates, signatures and such matters, the Board would not investigate whether the claim was itself appropriate but would pay on a basis of trust. The Committee noted in particular the number of claims for additional spectacles that were post-dated to a month or so later than an original claim for spectacles when it seemed very unlikely that the pair of spectacles originally issued would already have broken and noted further that the Registrant was unable, in his evidence to the NHS Tribunal, to offer any explanation for this post-dating. The Committee noted transactions, which were entered separately on the same day on the dispensing record were then claimed separately by means of two vouchers, one of which was a post-dated voucher. Mr L informed the Committee that post-dating the claim for additional spectacles would enable it to pass undetected as a possible abuse of the system because the additional claim would be included in a different batch of vouchers from the batch which contained the original claim. The Committee also noted the claims for pairs of spectacles when the records showed that spectacles had already been issued by the Hospital Eye Service and claims for work that could not be justified by the practice s clinical records. At the NHS Tribunal, the following Statement of Facts was agreed by the parties: 10. That in relation to the Representations made by the Complainers, the Respondent [i.e. the Registrant] admits that there was a system operated within his knowledge whereby spare pairs of glasses were provided and claimed for by post-dated GOS (S) or (4)forms in the period. 11. That the Respondent accepts responsibility for this system (the system mentioned in Paragraph 10 above) 12. That in the period the firm made a substantial number of inaccurate and inappropriate claims for: the issue of spare, second or free pairs of glasses to children under 16 years of age (or 18 years of age and in full time education) shortly after issuing the original pairs of glasses; repairs and replacements not provided; repair and replacement for adults who do not qualify under the scheme. In the transcript of his evidence to the NHS Tribunal the Registrant referred to the unique geographical factors that affected his practice in the Shetlands and to what he contended was a lack of clarity in the Regulations. However he also eventually accepted

14 in cross-examination that he abused a position of trust between 1995 and 1999 and that he had obtained money from the NHS when he knew that he had no entitlement to the money. He accepted that he had been dishonest in submitting fraudulent claims for financial gain. The Evidence in relation to Part B It is clear that during the course of 2005 the Registrant was included in the Ophthalmic Lists of Greater Glasgow Health Board and Lothian Health Board, as well, incidentally, as the Ophthalmic lists of NHS Shetland and NHS Highland. At this time his inclusion in any list enabled him to work anywhere in Scotland as a peripatetic locum optometrist. This position was altered by the 2006 Regulations which required any optometrist working in a particular region to be included in some part (i.e. either in Part 1 or Part 2) of that region s Ophthalmic list. At the end of 2005 the Registrant was notified that a failure to submit relevant documentation was to lead to his removal from the Greater Glasgow list but by 16 November 2006 Glasgow had been advised to reinstate the Registrant and to treat him as continuously on its list since 2005, which it did. The Registrant was not on the Ophthalmic List for Tayside Health Board. On 15, 17 and 29 November and 1 and 14 December 2006 he carried out some locum work for Mr A in the Tayside Health Board region and was paid for that work by Mr A. When Mr A submitted claim forms in respect of that work to the Tayside Health Board they were not paid by the Board because the Registrant was not on any part of the Tayside list. Mr A s evidence was that when he took up the matter of the unpaid forms with the Registrant, at the beginning of March 2007, the Registrant told him that he thought he was entitled to work in Tayside because he had registered with his host board which was Lothian. Between 3 January and 14 February 2007 the Registrant carried out some locum work at Ms B s practice in the Lothian Health Board region. At this time the Registrant was on Part 1 of the Lothian list (which required notification of the address of proposed practice premises) but not on Part 2. He had not told Lothian that Ms B s practice was a practice at which he would be working. Ms B told the Committee that there was some discussion between her and the Registrant as to whether the Registrant was appropriately registered to work at her practice and the Registrant assured her that he was and did not need the additional addresses application form which she had ready in case it was needed. When Ms B sought to recover payment in respect of the Registrant s work from Lothian she was eventually told that there was an ongoing dispute between Lothian and the Registrant about his registration status and Lothian were not prepared to pay for work done by the Registrant because he had not given the address of her practice as a practice at which he would be working. On 7 March 2007 the Registrant signed and dated an application form in respect of inclusion on Part 2 of the Lothian Health Board list. He asked that his inclusion run from 1 March He indicated, by ticking the relevant boxes, that he wished to practise in all areas of mainland Scotland. The form contained the following rubric in bold type NB: You are required to make a separate application to each NHS Board but a copy of this form will be forwarded by the first NHS Board to which the application is sent by you to the other Boards, along with copies of the information you provide to it. You do not need to take any further action unless contacted by any of the remaining Boards.

15 Following the submission of this form, further correspondence took place between the Registrant and Lothian Health Board as to whether he should be on Part 1 or Part 2 of the list. The Registrant, in a letter of made it clear that he wished to be on Part 2 but did not wish to find himself not listed on either the Part 1 or Part 2 list. On 6 September 2007 Lothian informed the Registrant that it was not prepared to transfer the Registrant to Part 2 of its List because of outstanding NHS Tribunal proceedings. On 8,9,13 and 15 March 2007 the Registrant carried out locum work for Mr C whose practice was in the Forth Valley Health Board region. Mr C said that there was some discussion about the registration requirements under the new Regulations and the Registrant said that there was no need to check the position with Forth Valley as it was all in hand and he was in the process of listing himself with Greater Glasgow Health Board which would enable him to work in Forth Valley. He did not sign any vouchers but said that he would return to sign them when his registration was complete and he had an appropriate Health Board number. In fact this never happened. Mr C had not paid the Registrant s fees and the Registrant sought to recover these in the small claims court but his claim was dismissed when he failed to attend a hearing at the court with the correct jurisdiction. On 4 May 2007 and on two subsequent days the Registrant carried out locum work for Mr D whose practice was in the Ayrshire and Arran Health Board region. Mr D accepted that by about midday on the first day he realised that the Registrant was not prepared to sign claim forms because he was not on the list. Mr D said that the Registrant told him that he had tried to register but had not been successful because of a clerical error. Mr D also alleged that the Registrant had said to him that he should get another optometrist to sign the Registrant s claim forms. Mr D did not settle all of the Registrant s invoices which led to angry phone calls between the Registrant and Mr D and the Registrant and JM. The Committee has considered a great deal of correspondence between the Registrant and Lothian Health Board and the Registrant and Greater Glasgow Health Board. It has been assisted by the chronology prepared by Ms Harris. It is apparent that various difficulties were caused by the Registrant s failure to respond promptly or satisfactorily to requests for documentation, particularly from Lothian Health Board. Nonetheless, the following points seem clear. Throughout the events described above, the Registrant was on the Part 1 Ophthalmic list for Lothian and was seeking inclusion on the Part 2 list. From 7 March 2007 he had sought inclusion on the relevant lists of all other Boards in mainland Scotland and had signed a form which contained the rubric in bold type referred to above. There was no reason for the Registrant to suppose that he would not be granted inclusion on any of these lists so that he could practise as a peripatetic locum, as he had been doing before the coming into force of the 2006 Regulations. Lothian Health Board appears to have adopted a markedly different attitude towards the Registrant s ability to practise as a locum than the approach adopted by Greater Glasgow. As noted above, the Committee accepts CM s evidence that a practitioner on Part 1 of the list was entitled under the Regulations to practise as a peripatetic locum in that same region without supplying to the Health Board evidence of the addresses at which he carried out locum work. In the Committee s view the scheme of the Regulations supports CM s interpretation, which, she told the Committee was shared by other

16 administrators at the time. This has obvious implications for the locum work which the Registrant carried out at Ms B s practice in the Lothian Health Board region. The Committee heard and accepted the advice of the Legal Adviser. It recognised that it was for the Council to prove the allegations to the requisite standard; i.e. on the balance of probabilities. It drew no adverse inference from the non-attendance of the Registrant. Findings in relation to the facts (in accordance with the allegation) The Allegation In relation to you Brian Kelly,(a registered optometrist), the Council alleges that Part A 1. Between 1 April 1995 and 31 December 1999, you were a partner at B&C Kelly opticians,58 Commercial Street, Lerwick, Shetland ZE1 0BD [The Practice] Proved. There has never been any dispute about this as is evident from the transcripts of the evidence given at the NHS Tribunal. 2. You were included on Shetland Health Board s [ the Health Board] Ophthalmic List and pursuant to an agreement with the Health Board, you provided NHS Ophthalmic Services at the Practice as part of the General Ophthalmic Service [ GOS Proved. The Committee has seen the vouchers submitted by the Practice. 3. Between 1 April 1995 and 31 December 1999, you issued and/or caused GOS (S) (R) or GOS(4) vouchers to be issued on behalf of the Practice in respect of the following patients a. Patient 1 Voucher dated b. Patient 2 Voucher dated c. Patient 3 Voucher dated d. Patient 4 Voucher dated e. Patient 4 Voucher dated f. Patient 5 Voucher dated g. Patient 5 Voucher dated & h. Patient 5 Voucher dated i. Patient 6 Voucher dated j. Patient 6 Voucher dated l. Patient 6 Voucher dated m. Patient 6 Voucher dated n. Patient 7 Voucher dated o. Patient 7 Voucher dated s. Patient 9 Voucher dated t. Patient 10 Voucher dated

17 u. Patient 11 Voucher dated w. Patient 13 Voucher dated x. Patient 13 Voucher dated y. Patient 14 Voucher dated Proved. The Committee was satisfied that the Registrant accepts responsibility for the issuing of these vouchers. 4. The voucher claims at paragraph 3 above were: (a) Inappropriate in that they were vouchers issued for replacement spectacles in circumstances not permitted by the NHS (Optical Charges and Payments) (Scotland) Regulations 1989 and the NHS (Optical Charges and Payments) (Scotland) Regulations [ the Regulations ] Proved. The Committee accepted the evidence of Mr L and noted the admissions made to the NHS Tribunal (b) Dishonest in that you knew you were not entitled to issue vouchers for replacement spectacles in these circumstances. Proved. The Committee attached considerable weight in this context to the fact that the Registrant was unable to give any explanation for the post-dating of vouchers. It was a practice that suggested the deliberate submission of claims in the knowledge that those claims should not have been made. The Committee also noted the formal admissions made at the NHS Tribunal and the admissions made by the Registrant in crossexamination. There was no evidence of any specific local practice which might in some way have justified the great number of apparently inappropriate claims. 5. Between 1 April 1995 and 31 December 1999, you issued and /or caused GOS (S) (R) or GOS 4 vouchers to be issued on behalf of the Practice in respect of the following patients a. Patient 15 Voucher dated b. Patient 16 Voucher dated Proved. The Committee was satisfied that the Registrant accepts responsibility for the issuing of these vouchers. 6. The voucher claims listed at paragraph 5 above were a. Inappropriate in that they were vouchers issued for replacement spectacles in circumstances not permitted by the Regulations; Proved for the same reasons as at 4(a) above. b. Dishonest in that you knew you were not entitled to issue vouchers for replacement spectacles in those circumstances Proved for the same reasons as at 4(b) above. 7. Between 1 April 1995 and 31 December 1999, you issued and/or caused GOS (S) (R) or GS (4) vouchers to be issued on behalf of the Practice in respect of the following patients:

18 a. Patient 18 Voucher dated b. Patient 6 Voucher dated c. Patient 19 Voucher dated Proved. The Committee was satisfied that the Registrant accepts responsibility for the issuing of these vouchers. 8. The vouchers listed at 7 above were: a. Inappropriate in that the vouchers claimed for work in excess of that actually carried out; Proved for the same reasons as at 4 (a) above. b. Dishonest in that you knew you were claiming for remuneration for work not carried out. Proved for the same reasons as at 4 (b) above 9. On 13 March 2008 in proceedings before the National Health Service Tribunal Scotland, formal admissions were made on your behalf in the following terms: a. That there was a system operated within [your] knowledge whereby spare pairs of glasses were provided and claimed for by post-dated GOS (S) (R) or (4) forms in the period b. That you accepted responsibility for that system; c. That in the period the firm made a substantial number of inaccurate and inappropriate claims for the issues of spare, second or free pairs of glasses to children under 16 years of age (or 18 years and in full time education)shortly after issuing the original pair of glasses; repairs and replacements not provided; replacement for adults who do not qualify under the scheme Proved. The Committee has seen the Joint Minute signed on your behalf in respect of these formal admissions. 10. As a consequence of the inappropriate claims admitted by you, the Practice overclaimed remuneration from the NHS in the sum of 29, Proved. The Committee accepted the evidence of Mr L. Part B 11. On various dates in November and December 2006 and January 2007 a. You were employed by Mr A as a locum at Gregory Peck s Opticians,179 Brooke Street, Broughty Ferry,Dundee,DD5 1DJ [ Gregory Pecks ] Proved. The Committee accepted the evidence of Mr A b. You failed to disclose to Mr A or any other person responsible for your employment at Gregory Pecks, that you were not registered with Tayside Health Board to provide NHS services under the GOS. Proved. The Committee accepted the evidence of Mr A, and JH who told the Committee that there was no record of the Registrant on Tayside s list. The Committee was satisfied

19 that an optometrist at this time ought to have known of the requirement to be registered with the local health board. c. You failed to contact Tayside Health Board and/or apply for registration with Tayside Health Board despite being asked to do so by Mr A. Proved. The Committee accepted the evidence of Mr A and JH. d. You provided NHS GOS services at Gregory Pecks despite not being appropriately registered to do so Proved. The Committee accepted the evidence of Mr A and JH e. You informed Mr A that you were registered with the Lothian Health Board and that you thought this allowed you to test patients in Tayside, or words to that effect. Proved. The Committee has seen Mr A s letter to JH, received by her on 5 March 2007 in which Mr A, referring to you writes He thought that he had registered with his host Board Lothian to test in Tayside Mr A could only have received this information from the Registrant who had no doubt told him this when the problem with the forms that had been submitted in respect of the Registrant s work emerged. 12. Your conduct as set out at paragraphs 11 (b) (c) (d) and (e) above was: a. Misleading Not proved. In respect of b, the Committee was not satisfied to the required standard that the Registrant had misled Mr A when he carried out locum work at Mr A s practice. Mr A himself was not aware of the new Regulations and did not ask the Registrant whether he was registered with Tayside. The Committee think it more likely than not that the Registrant had a genuine but mistaken belief that his registration with Lothian entitled him to carry out locum work in Tayside, as would have been the case in The Regulations were still at this time relatively new in their operation and the Committee was not satisfied that an innocent mistake was not made by the Registrant in this respect. In respect of c, this is an omission and the Committee cannot find that the failure to contact Tayside was misleading. In respect of d, the same considerations apply as to a, above. In respect of e, the Committee was of the view that this is likely to have been the Registrant s genuine albeit mistaken belief. b. Dishonest. Not proved. In the light of its findings above, the Committee does not consider that the Registrant s conduct was dishonest. 13. Between 3 January 2007 and 14 February 2007 a. You were employed as a locum by Ms B at Optimeyes Opticians, 3 Greendykes Road,Broxburn,EH52 5 AF [ Optimeyes ] Proved on the basis of the evidence of Ms B

20 b. You incorrectly informed Ms B that: ii. You were registered to provide NHS Ophthalmic Services specifically at Optimeyes; Not proved. In her oral evidence to the Committee, Ms B said that the conversation she had with the Registrant in respect of his registration status was about registration with the Board i,e. Lothian, rather than about registration specifically at Optimeyes. This was rather different to the information given by her witness statement. Accordingly the Committee was not satisfied iii. You did not need an additional addresses application form. Not proved. The Committee was satisfied that any conversation which took place was likely to have involved the Registrant telling Ms B he did not need an additional registration form. The Registrant s understanding in this regard was correct in the Committee s view. c. You provided NHS GOS services at Optimeyes despite not being appropriately registered with Lothian Health Board to do so. Not proved. The Registrant was on Part 1 of the Lothian Health Board List and the Committee was satisfied that the interpretation of the Regulations provided by CM was correct. 14. Your conduct as set out at paragraphs 13 b ii,b iii and c above was a. Misleading Not proved in the light of the factual findings above. b. Dishonest Not proved in the light of the factual findings above. 15. In March 2007: a. You were employed as a locum by Mr C AT Vision Express, High Street,Falkirk,FK1 1 NW [ Vision Express Falkirk] Proved on the basis of the evidence of Mr C b. You incorrectly informed Mr C that your registration status with a relevant Health Board was in hand or words to that effect. Not proved. The Registrant had signed the day before he spoke to Mr C an application form which included an application for registration with Forth Valley Health Board. He had no reason to suppose this would not be processed in the normal way, as the rubric to which the Committee has referred implies. The Committee considers that an expression such as in hand is loose enough to cover this situation. The information given to Mr C therefore cannot be said to be incorrect. c. You provided NHS GOS services at Vision Express Falkirk despite not being appropriately registered with a health Board to do so. Proved. Lothian never processed the application dated 7 March 2007 so it follows that the Registrant was never registered with Forth Valley Health Board.