AND ALEXANDER FARQUHARSON (D-15246) DETERMINATION OF A 2nd SUBSTANTIVE REVIEW 31 AUGUST Mr T Stevens. Not represented.

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1 BEFORE THE FITNESS TO PRACTISE COMMITTEE OF THE GENERAL OPTICAL COUNCIL GENERAL OPTICAL COUNCIL F(15)05 AND ALEXANDER FARQUHARSON (D-15246) DETERMINATION OF A 2nd SUBSTANTIVE REVIEW 31 AUGUST 2018 Committee Members: Legal Adviser: Ms R O Connell - (Chair) Mr P Curtis - (Lay) Ms U Hoque (Lay) Mr M Chatham - (Dispensing Optician) Ms C Cowen (Dispensing Optician) Mr G Coll GOC Presenting Officer: Registrant: Registrant Representative: Mr T Stevens Not present Not represented. Hearings Officer: Ms C Kearney Outcome: Order for erasure

2 This is the second review of a suspension order first imposed following a substantive hearing on 15 March 2017, when a six-month suspension order was made, and which was extended by a period of 12 months when the first order was reviewed on 31 August The current suspension order expires on 13 October The General Optical Council (the Council) was represented by Mr Tom Stevens. Mr Farquharson (the Registrant) did not attend the hearing and was not represented. Proof of service The Committee heard an application from Mr Stevens on behalf of the Council for the matter to proceed in the Registrant s absence. First, the Council was required to satisfy the Committee that the notice of inquiry had been served in accordance with Section 23A of the Opticians Act 1989 (the Act) and Rules 56, 57 and 61 of the Fitness to Practise Rules 2013 (the Rules). The Committee accepted the advice of the Legal Adviser. The Committee was satisfied that the notice of hearing contained all necessary information and had been served at the Registrant's registered address more than 28 days before the hearing. The notice was sent to the Registrant by special delivery, and further an copy with all of the attached papers was sent to the Registrant. The Committee concluded that service of the notice of inquiry had been carried out in accordance with the statutory requirements. Proceeding in the absence of the Registrant The Committee then went on to consider whether it should proceed with the hearing in the Registrant s absence, in accordance with Rule 22 of the Rules. The Committee accepted the advice of the Legal Adviser. The Committee considered the factors set out in the case of R v Jones [2003] 1 AC 1, HL, and the decision of the Court of Appeal in General Medical Council v Adeogba and Visvardis [2016] EWCA Civ 162. The Committee was satisfied that all reasonable efforts had been taken to notify the Registrant. The Registrant s history of non-engagement throughout the entirety of the regulatory process was set out by Mr Stevens and this led the Committee to conclude that an adjournment of the hearing would be highly unlikely to result in his attendance. The Committee determined that the Registrant had voluntarily absented himself, and had waived his rights to attend. The Committee accepted that there could be prejudice to the Registrant in the case proceeding in his absence because he would not be able to effectively participate in the review by presenting any evidence or mitigation to the Committee. The Committee held in mind the balance that should be struck between the important personal interests of the Registrant, fairness to the Regulator and the public interest, reminding itself that the Court of Appeal indicated in Adeogba that there is not a premium on non-cooperation. The Committee was satisfied that

3 any prejudice to the Registrant was outweighed by the public interest in the review proceeding, particularly since the current suspension order will expire on 13 October 2018 and might do so without further consideration if the review did not go ahead today. Therefore, the Committee determined that it would be in the public interest for the hearing to proceed in the Registrant s absence. Background DETERMINATION The Registrant registered with the General Optical Council as a Dispensing Optician on 23 September The matters that relate to this order are in relation to one patient, Patient A. In June 2013, Patient A had a sight test, and purchased spectacles from, [redacted] (the practice). Optical. Having had the test (which was not carried out by the Registrant), he discussed the results with the Registrant who he understood to be the owner of [redacted] (the practice). The Registrant recommended varifocal lenses to Patient A, for which he paid After two days of use of the varifocal glasses, Patient A was struggling to see and was continually tripping over and so decided he did not want to keep his new spectacles. He returned to the store and spoke with the Registrant, who told him that he would have to order single vision spectacles. The single vision spectacles were less expensive than the varifocals and the Registrant suggested that the refund was organised at a later date, once the patient was happy with his new pair. Patient A agreed to this. Patient A returned to the store to collect his single vision spectacles in mid-july 2013, but forgot to raise the issue of the refund. He subsequently wore the single vision spectacles for two or three days but could not see when he was wearing them, and experienced double vision. He returned to the store to return them. Patient A then spoke with the Registrant again, who advised that he should have his sight re-tested. Patient A agreed to this and made an appointment for September He left his single vision spectacles with the Registrant. He was not provided with a refund, and nor was this raised by the Registrant. In mid-september 2013, Patient A returned to the practice for an appointment. New single vision spectacles were said to have been ordered following this appointment and the Registrant told the patient that they would be ready to collect prior to Patient A going on holiday at the start of October Patient A did not receive any contact from the Registrant prior to his holiday. He made a number of efforts to contact the Registrant both by attending at Solway Optical, writing to the Registrant and contacting him on social media. None of these were successful.

4 Substantive hearing 15 March 2017 At the substantive hearing on 15 March 2017, the following Allegation (as amended during the hearing) was considered by the Fitness to Practise Committee: In relation to you, Alexander Bruce Farquharson (a dispensing optician), the Council alleges that: 1. Between June 2013 and July 2014 you: a. took payment for optical appliances from Patient A but did not supply him with appropriate spectacles to aid his vision; and b. did not refund Patient A his payment after failing to provide him with the optical appliances he had purchased; and c. your actions as outlined above were: i. inappropriate; and/or ii. dishonest. 2. Between September 2013 and July 2014 you did not provide an adequate standard of patient care to Patient A in that you failed to contact him in order to arrange for the supply and fitting of optical appliances or to provide a refund of his payment. 3. Between August 2013 and July 2014 you did not provide an adequate standard of patient care to Patient A in that your practice Solway Optical closed and you did not arrange for the transfer of patient medical records. And by virtue of the matters set out above your fitness to practise is impaired by reason of your misconduct. The substantive hearing Committee found all of the particulars proved with the exception of dishonesty. The Committee further found that the Registrant s actions constituted a serious breach of the Council s Code of Conduct for individual Registrants and amounted to misconduct. The substantive hearing Committee determined that the Registrant s fitness to practise was impaired by reason of his misconduct, for the following reasons: The Committee accepted that the Registrant s misconduct was capable of remedy but there was no evidence before it to demonstrate that the misconduct had been remedied. The Registrant has not engaged, demonstrated insight nor offered evidence of any attempt to remedy the misconduct. There was no evidence before the Committee as to whether he has continued to practise, as a locum or from other premises. Therefore, the Committee could not be satisfied that the Registrant would not repeat the misconduct, which has implications for patient safety, given that the Registrant left Patient A without appropriate spectacles to aid his vision and failure to transfer his patient records.

5 The Committee was satisfied that the Registrant s misconduct had breached the principles contained in the Code of Conduct [ ] and that he had brought himself and the profession into disrepute. The Committee found that, regardless of risk to patients, the need to uphold proper professional standards and public confidence in the profession would be undermined if the Committee were not to find the Registrant s fitness to practise to be impaired. The substantive hearing Committee imposed a 6-month suspension order, on the basis that such an order would be appropriate and proportionate in satisfying the public protection and reflect the public interest in upholding professional standards and maintaining confidence in the profession. The Committee identified four factors which may be of assistance to a future reviewing Committee, the Registrant s engagement; evidence of remediation and insight; evidence that the Registrant has kept his knowledge and skills up to date; appropriate references and testimonials. 1 st review - 31 August 2017 The Registrant did not attend nor engage with the first substantive review. At that time, there had been no contact made by the Registrant, and there was no evidence of his having made any attempt to remediate his conduct. The Committee considered that there had been no material change in circumstances and accordingly there was no basis for it to alter the substantive order except that it was then necessary to extend the order for a period of twelve months. This was to allow the Registrant a further opportunity to engage with the Council, and to provide evidence of insight and remediation, and any steps he had taken to keep up to date with his professional skills and knowledge, as suggested by the previous Committee. 2 nd review 31 August 2018 Submissions on behalf of the Council Mr Stevens invited the Committee to find that the Registrant s fitness to practise remained impaired. The Registrant had not taken any steps to participate in the current three-year cycle of Continuing Education and Training (CET) which began in He had not fulfilled his CET requirements in the previous cycle There was no evidence that the Registrant had worked in any professional capacity or undertaken any study or placement that might serve to maintain his professional skills as a Dispensing Optician. Mr Stevens informed the Committee that the Registrant had not applied for renewal of his Registration. Mr Stevens pointed out that the first reviewing Committee had observed that evidence of the Registrant's persistent lack of insight into the seriousness of his actions would be a relevant factor for the next reviewing Committee. In that regard, the Registrant's continued failure to engage in any way with this process was evidence of a continued lack of insight, which, in Mr Steven s submission, was a

6 highly material factor for the Committee to take into account in assessing whether the risks posed to the public by the Registrant, and the public interest, had become heightened over the period of the Registrant's suspension. The Committee could also take into account that the Registrant had potentially lost professional skills and failed to keep current in professional developments. Mr Stevens reminded the Committee of its powers in terms of section 13F(7) of the Opticians Act 1989 (the Act) and submitted that, in a technical sense, it was open to the Committee to permit the current order to expire without imposing an extended or alternative order. He invited the Committee to impose an order erasing the Registrant's name from the Register in all of the circumstances of this case. Findings regarding impairment The Committee accepted the advice of the Legal Adviser. The Committee first considered whether the Registrant s fitness to practise remained impaired. The Committee took account of the impairment reasons given by the substantive hearing Committee and noted that the Registrant had not taken any of the steps suggested by that Committee either prior to the last review hearing or in advance of this review. The Committee held in mind the observations of Mr Justice Blake in Abrahaem v General Medical Council [2008] EWHC 183 (Admin) to the effect that there is a persuasive burden on the practitioner at a review to demonstrate that they have sufficiently addressed past impairments. The Registrant has not engaged with the Regulatory process and has put no evidence before the Committee to show any insight or remedial action. Further, the Committee observed that the Registrant appeared, on the basis of information now before it, to have not taken up any CET since 2014, and there is no evidence that he has kept his professional skills and training up to date during the period that he has been subject to a suspension order. There was some information available to an earlier Committee that the Registrant has closed his business and has failed to complete Continuing Education and Training (CET) since Accordingly, he may no longer be intending to practise as a Dispensing Optician. When assessing the impact that this might have on the risk of repetition and on public confidence, the Committee considered the Appeal Court case of General Optical Council v Clarke [2018] EWCA Civ where the Court of Appeal said that the risk of repetition of misconduct is not necessarily diminished by the apparent fact of retirement from practice. In those circumstances, a Registrant may be at a heightened risk of professional misconduct by having not kept current her or his skills, education and training. The focus of a reviewing Committee was therefore closely centred on the assessment of the Registrant's current Fitness to Practise. A discontinuation of practice was an important matter for the Committee to consider in assessing the current risks to the public posed by (among other things) a potentially de-skilled practitioner. The Committee concluded that the risk of repetition and the risk to public confidence remained, for the same reasons as set out by the substantive hearing Committee.

7 The situation had been made worse by the Registrant s continuing lack of engagement and his failure to address the issues which were of concern to the Committee at the substantive hearing. For these reasons, the Committee found that the Registrant s fitness to practise remains impaired. Decision on sanction The Committee accepted the advice of the Legal Adviser, and it took into account the Council s Indicative Sanctions Guidance. In particular, the Committee bore in mind that the purpose of sanction in regulatory proceedings is not to be punitive, but is to protect the public and to maintain public trust and confidence in the profession and its regulator. Any sanction should be proportionate to the risk it is seeking to address. The Committee reminded itself of its powers in section 13F(7) of the Opticians Act 1989: it could direct a period of conditional registration; extend the current suspension order; or direct that the Registrant s name be erased from the register. The Committee considered these options in ascending order of seriousness. The Committee considered that the public would be concerned were the regulator to permit the current order to expire without any further action being taken. The public interest would not be supported and protected in this way, even were it the case that the Registrant was not in fact engaging or intending to engage in professional practice. The Committee did not consider that a period of conditional registration was appropriate or proportionate. The Registrant has provided no information about his current or future intentions. The Committee noted that he does not appear to have complied with his CET requirements since Furthermore, the Registrant s lack of engagement led the Committee to doubt his willingness to comply with conditions. The Committee next considered an extension of the current period of suspension. The Committee took the view that the circumstances of the case did not support this as an appropriate and proportionate means to contain the heightened risks to the public and the public s trust and confidence in the profession and in the Regulator. A further period of temporary removal from the Register would be unlikely to secure the Registrant's engagement in remediation. In the Committee s view, there remains a risk of the Registrant repeating his misconduct, and the public s confidence in the profession and in the regulatory process would be undermined if the Registrant were to be further suspended. He has not engaged at all with the process and has not demonstrated any remorse, insight and remediation during the previous two periods of suspension. Accordingly, a further period of suspension would be neither appropriate nor proportionate, and created the risk of diminishing the public s confidence that the regulator will deal properly with cases like this. The Committee considered that it should direct that the Registrant's name be erased from the Register. Recognising that this was the most restrictive of the sanctions available, it nonetheless concluded that nothing less would be sufficient to protect

8 the public or to maintain the public interest. The original misconduct remains capable of remediation and was not, in itself, fundamentally incompatible with continued registration. However, the Committee is satisfied that the Registrant's behaviour in terms of his continued non-engagement with the Regulatory process in any way and his failure to take any steps to complete CET since 2014, means that the risks posed by him have materially heightened. In making its decision, the Committee took account of paragraph 36.5 of the Indicative Sanctions Guidance which states that the sanction of erasure is likely to be appropriate when the behaviour is fundamentally incompatible with being a Registered professional and involves any of the following: g. Persistent lack of insight into seriousness of actions or consequences. The Committee directs that the Registrant's name be erased from the Register. Chair of the Committee: R O Connell Signature. Date: 31 August 2018 Registrant: Alexander Farquharson not present Signature. Date:

9 FURTHER INFORMATION Transcript A full transcript of the hearing will be made available for purchase in due course. Appeal Any appeal against an order of the Committee must be lodged with the relevant court within 28 days of the service of this notification. If no appeal is lodged, the order will take effect at the end of that period. The relevant court is shown at section 23G(4)(a)-(c) of the Opticians Act 1989 (as amended). Professional Standards Authority This decision will be reported to the Professional Standards Authority (PSA) under the provisions of section 29 of the NHS Reform and Healthcare Professions Act PSA may refer this case to the High Court of Justice in England and Wales, the Court of Session in Scotland or the High Court of Justice in Northern Ireland as appropriate if they decide that a decision has been insufficient to protect the public and/or should not have been made, and if they consider that referral is desirable for the protection of the public. PSA is required to make its decision within 40 days of the hearing (or 40 days from the last day on which a Registrant can appeal against the decision, if applicable) and will send written confirmation of a decision to refer to registrants on the first working day following a hearing. PSA will notify you promptly of a decision to refer. A letter will be sent by recorded delivery to your registered address (unless PSA has been notified by the GOC of a change of address). Further information about the PSA can be obtained from its website at or by telephone on Effect of orders for suspension or erasure To practise or carry on business as an optometrist or dispensing optician, to take or use a description which implies registration or entitlement to undertake any activity which the law restricts to a registered person, may amount to a criminal offence once an entry in the register has been suspended or erased. European Alert The General Optical Council is required by Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015 to inform all European competent authorities of any restrictions or prohibitions on a dispensing optician or an optometrist s practice. Competent authority effectively means the relevant regulator for each EU member state.

10 The GOC is the competent authority for all opticians registered in the United Kingdom (UK). If you have been made subject to either a suspension or conditions of practice order (whether interim or substantive), or to an erasure order, we hereby notify you of the following: - Within 3 days of the Fitness to Practise Committee decision taking effect you will be the subject of an alert sent under article 56a(1) of the Directive; - You have the right to appeal the decision to issue the alert or to apply for rectification of the decision; and - You have the right to access remedies in respect of any damage caused by false alerts sent to other competent authorities. The alert is sent securely via the Internal Market Information (IMI) system. The alert will include the following details: - Your identity (full name and date of birth); - Your profession; - Your GOC registration number; - The fact that the GOC is the national authority which adopted the decision on the restriction or prohibition of your professional activities; - The scope of the restriction or prohibition; - The period during which the restriction or the prohibition applies. If you wish to appeal the decision to issue this alert then please see the information sheet below. Please note that this relates to your right of appeal against the issuing of the alert see above regarding your right of appeal against a substantive decision. A copy of the alert may be obtained via the contact details at the end of this document. Please see the attached information sheet for further information. Contact If you require any further information, please contact the Council s Hearings Manager at 10 Old Bailey, London, EC4M 7NG or, by telephone, on