Advice for optical businesses: Clinicians practising without registration

In this article, our Senior Associate and optical specialist, Laura Smith, addresses the topic of “How to avoid an individual practising without GOC registration and what to do if this happens in your business”.

Every month the GOC publishes a list of amendments to the Register¹. This includes registrants who have been removed following Fitness to Practise hearings as well as administrative removals. The annual renewal process and the end of a CPD cycle are particular points when removals spike but the GOC’s guidance on how to check registration² emphasises that an individual’s registration status can change at any point.

So, what if a professional member of staff is removed from the GOC’s register? In some cases, the employer will be made aware by the individual or the GOC but in other cases they may not know that this has happened. Whether this is due to the individual genuinely being unaware of the situation, attempting to deceive or having buried their hand in the sand, there are a number of cases every year where employees fail to tell their employer about their removal from the register. Those individuals continue working, holding themselves out as registrants and carrying out restricted activities. It can be some time before their lack of registration comes to light, depending on the checks and systems that the company has in place. 

The implications for the business in these circumstances can be significant. The individual concerned is no longer registered with the GOC and so cannot be subject to their own regulatory investigation (proceedings could be instigated by the GOC for illegal practise but this is rare). The business, on the other hand, if registered with the GOC, could be subject to its own fitness to practise investigation. 

There is also a risk of reputational damage to the company. The duty of candour requires the business to notify patients if they have had their sight tested by someone without registration or where a child’s spectacles were dispensed by an unregistered member of staff with no supervision (both being in contravention of the Opticians Act 1989). Time and resources will need to be allocated to dealing with the consequences of the individual’s lack of registration and remedial action will need to be taken. 

Factors to consider

Where an individual has practised without registration, the following are relevant factors to consider:

• How long was the individual practising without registration? Practising without registration for any period of time is serious but the longer that the situation has gone undiscovered, the more likely it is that the company will face criticism. 
• How many patients have been affected? 
• How was the issue identified (i.e. by the business or via some other means such as a member of the public or notification by another organisation)? 
• What restricted activities took place (e.g. sight testing or dispensing to restricted category patients)?
• Why did the company not identify the individual’s lack of registration earlier? 
• Were established procedures in place for checking GOC registration and, if so, were those procedures followed?
• Have weaknesses in the company’s procedures been highlighted and do those procedures need to be tightened?

Immediate Actions

If a company identifies that an individual has been practising without registration, the following steps should be taken without delay:

• Stop them from undertaking any further restricted activities with immediate effect. This may involve cancelling clinics at short notice.
• Escalate the issue to Head Office, Professional Services or your indemnity provider/insurer.
• Speak to the individual involved to make them aware that the business has identified the issue and arrange a time to speak to them about it formally. Keep notes of all meetings and copies of all written correspondence. 
• Consider whether to suspend them from work pending an investigation.
• Take urgent advice regarding the need to notify the GOC.
• Instigate an audit of their work to identify all instances of restricted activities following removal from the register. This process may be more involved and take longer if the individual has dispensed or supervised dispenses to restricted category patients.

Remedial action

The business will need to take prompt action to address any potential past harm to affected patients and to ensure that going forward, there can be no repetition. The following are steps that the business will need to consider taking:

• Investigating why the issue went undetected and what needs to be done to prevent repetition. This may involve tightening procedures, reviewing who takes responsibility for GOC registration checks, increasing the frequency of checks, adding additional layers of checking and requiring that evidence of registration be retained. The aim is to identify what went wrong and to ensure that it could not happen again. A written report should then be produced confirming that all of the above has been done. 
• Identifying cases within the audit referred to above that may require a duty of candour letter to be sent to the patient/ the patient’s parent or guardian. It may be possible to exclude some patients from this process where they have subsequently been seen by a registrant (although careful consideration should be given to this).
• Making sure that team members understand the significance of practising without registration. The requirement to maintain professional registration should already be set out within employment and locum contracts but it is worth reinforcing this important message to the team.
• Ensuring that everyone is clear as to each person's role; do people know who the registrants are within the store and what people can and cannot do in terms of restricted activities? Consider, whether name badges are helpful, displaying the person's name and title, if this is not already in place.
• Making sure that team members know how to raise concerns. If someone is unsure or concerned about their colleague's registration status, do they know how to escalate that concern? Do they know who to speak to if their concerns are about someone in a position of seniority?
• The person may still be employed by the business, in which case a disciplinary investigation should take place, with input from Human Resources, to establish whether they were aware of their lack of registration and whether they potentially deliberately withheld this information. The member of staff could be redeployed to a non-registrant role pending a decision being taken by the GOC regarding restoration if the business considers that there is still a relationship of trust. Copies of all disciplinary investigation and hearing documents and outcome letters should be kept.

GOC registration checks

The GOC's “Standards for Optical Businesses” set out an expectation that businesses will take “reasonable steps” to ensure that individuals are appropriately registered. It is impractical for businesses to be constantly monitoring the online register but companies will need to consider what is reasonable to avoid the risk of an unregistered individual continuing to undertake restricted activities. I do not consider that a company is likely to be criticised by the GOC for carrying out registration checks every month (some may consider this unnecessarily frequent) or every quarter but the GOC are likely to consider pre-employments checks and an annual check of registration after the retention period to be required as a bare minimum.

It is important to ensure that no one can slip through the net. Registration checks should apply to all relevant members of the team. This means students (pre-registration optometrists and trainee dispensing opticians) as well as fully qualified professionals. Checks should also apply to members of the team who hold a dual role as a manager and as a registrant. It can be easy to overlook someone who performs a number of roles but if they are understood by the company to be registered, it will be important to check that that is still the case.

Given the importance of avoiding someone being able to practise without registration, I consider that registration checks should be carried out by or overseen by someone with sufficient seniority and accountability within the company. These checks will need to work on a practical level given the size and structure of the company. For example, a registrant director may decide to take responsibility for checking GOC registration within a single store whereas centralised checks or oversight may be more appropriate for companies with a large number of stores across the UK. The checks should also be recorded in the event that issues arise in the future. 

Summary

Businesses do not set out to allow someone to practise without registration. A number of factors usually coincide to create the perfect storm. These types of issues can be time consuming, stressful and costly to address.

Prevention is always better than a cure but if an issue arises, act swiftly and show that you have taken all appropriate action to put matters right. 

By Laura Smith, Senior Associate in the London Healthcare team. 

¹Monthly amendments to the register | GeneralOpticalCouncil
²How an employer can check if an optical professional is registered with us | GeneralOpticalCouncil