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BEFORE THE FITNESS TO PRACTISE COMMITTEE

             SIMON MORELLI
                (01-20020)




          Friday, 24 February 2006
          APPLICATION FOR INTERIM ORDER : SIMON MORELLI (01-20020)
                           Friday, 24 February 2006

Committee Members:           Ms M Hallendorff (Chair)
                             Dr D Azubike
                             Ms C Kershaw
                             Mr P Reeves (Optometrist)
                             Mrs H Tilley (Optometrist)

Legal Adviser:               Mr R Francis QC

For the GOC:                 Mr B Albuery (Blake Lapthorn Linnell)

Hearings Manager:            Mr D Henley BEM

___________________________________________________________________

Ms Hallendorff: Good morning, ladies and gentlemen. I am Chairman of the Committee for
      the Council‟s application for an Interim Order. [Introductions made] At the desk in
      front of the Committee to my left is the Transcriber who will be keeping an official
      record of all that is said today during the session at which the parties are present.
      Next to the transcriber is Mr Henley, the Hearings Manager, who will provide
      administrative support to the Committee, and we have Mr Albuery as the legal
      representative of the General Optical Council.

Mr Albuery: Good morning, Madam.

Ms Hallendorff: We need to decide whether this hearing is held in camera or not. At the
      moment we do not have any papers at all.

Mr Albuery: Madam, may I suggest, subject to the view of your Legal Adviser that before
      you consider that matter you may need to consider whether you are content to
      proceed in the absence of the Registrant and on behalf of the Council, I need to
      satisfy you that the rules have been followed and that it would be proper to do so. It
      seems to me that would be the first application for you to consider.

Ms Hallendorff: Thank you.

Mr Francis: Madam, I respectfully agree with Mr Albuery that the first matter is to consider
      whether the Registrant has been properly served and notified in these proceedings,
      and I would advise you – given that there is a presumption that matters should be in
      public – that part at least of these proceedings should be in public.

Ms Hallendorff: Right; may we have confirmation that due process was followed in serving
      notice on the Registrant?

Mr Albuery: Madam, that is my task and I propose to do it now, if I may address you and
      then ask you to consider a letter.

       Madam, as you know this is an application for an Interim Order and the procedure in
       terms of notices which should be served upon registrants is contained in the General
       Optical Council Fitness to Practise Rules 2005 which, if I may, I will now refer to
       simply as “the Rules”. For your Legal Advisor‟s benefit in particular, Rule 17 lays out
       certain matters which have to be followed before you can consider such an
       application.


                                              1
Mr Albuery: In particular it says that a registrant must be told – perhaps unsurprisingly –
      the date, time and venue of the Hearing. He must be served with a statement of facts
      upon which the Council relies in support of the application, names of any witnesses
      that might be called – and I can tell you now that there are none – copies of any
      documents to be relied upon – there are some - and also other information
      concerning his right to attend, his right to be represented, and, significantly, your right
      to proceed in his absence if he does not attend. Lastly, before I ask the Hearings
      Manager to show you confirmation that such information was given, unless you are
      satisfied that the public interest so requires it, seven days must pass between service
      of that information and today‟s date.

       I can tell you, having told you something about the legal background that on 10
       February, the Registrar of the General Optical Council served upon Mr Morelli at his
       home address and by recorded delivery, a letter which had within it that information
       and sent him documents in accordance with Rule 17, all documents I have to say
       that he had seen already in any event.

       Madam, lastly, dealing with this point, I should tell you in terms of your need to satisfy
       yourself that the proper procedures were followed, that Section 23A(1)(d) of the
       Opticians Act, deals with the manner in which when documents must be served they
       should be so served. One of the ways in which the Council can properly serve
       notifications is by a postal service which provides for the delivery of the notice by
       post to be recorded, and by virtue of that salient section, it should be served at the
       address contained for that registrant in the appropriate register.

       Madam, that has all been done. Perhaps a copy of the letter could now be handed to
       you and while that is being done, I just refer you perhaps to the most important Rule,
       which is Rule 21, which I will read to you if I may once you have the letter in front of
       you.

       Rule 21 states:

               “Where the registrant is neither present nor represented at a hearing, the
               Fitness to Practise Committee may nevertheless proceed if they are satisfied
               that:

                       (a) all reasonable efforts have been made to notify the registrant of the
                       hearing; and

                       b) having regard to any reasons for absence which have been
                       provided, they are satisfied that it is in the public interest to proceed.

       b) does not apply because there have been no representations whatsoever from this
       respondent. I can tell you also, in terms of reasonable efforts, that your Hearings
       Manager tried to contact Mr Morelli on his mobile phone and left a message on his
       VoiceMail, but that message has not been returned.

Ms Hallendorf: Thank you very much.

Mr Francis: You have heard what Mr Albuery has said, Madam, in relation to the
      requirements of service under the Act. One question if I may, through you, ask Mr
      Albuery to confirm is whether you need more evidence than this letter that this is in
      fact Mr Morelli‟s registered address, on the Register.



                                                2
Mr Albuery: What the Committee needs to be satisfied is a matter, I suppose, for them, but
      if the Committee wanted, we can bring the Register in and you can consult it. I am
      sure that can be done very easily, Madam, which might be quite proper if you want to
      satisfy yourself that the address to which all this has been sent is the Registrant‟s
      address. I do not have that in front of me, but I suspect that is information that we
      can obtain.

Mr Francis: Perhaps we should get it, so we shall adjourn for a short while. My concern is
      simply that in the absence of some formality about that, how do the Committee know
      that it is the Registrant‟s address?

Mr Albuery: I accept that point. Madam, and your Legal Advisor will no doubt advise you –
      or, I do not wish to be impertinent, may advise you – that you should give reasons for
      each of your decisions and it may be in any event therefore that you might be retiring
      to consider your reasons for proceeding in absence, if indeed you do, and if that is
      your intention, then that period of adjournment can be used very swiftly, I am sure, to
      obtain a copy of the Register.

Ms Hallendorff: I would suggest that we do that, then. Thank you. The copy of proof of
      delivery is attached to the letter; I suggest that we have a short adjournment to see
      whether we proceed and if it is possible to get that confirmation from the Opticians
      Register that would clarify things to our satisfaction.

Mr Albuery: Thank you very much.


                                     [Hearing adjourned]
                                    [Hearing reconvened]

Mr Albuery: Madam, thank you for that adjournment. I apologise that this information was
      not available to you. The Hearings Manager has agreed that when a registrant has
      not engaged in the process, that it would be appropriate for all this information to be
      available to you, and in future cases it will be.

       May I hand up through the Hearings Manager a copy of a print-out of the database
       which confirms that the address to which the notification was sent was the address
       for Mr Morelli in the Register? [Document handed up] Madam, unless you have any
       queries once you have seen the document I do not intend to propose to say any
       more about service.

Ms Hallendorff: [reads out the address], yes?

Mr Albuery: Yes, Madam.

Ms Hallendorff: And the phone number that Mr Henley used was the number given there?
      [Yes] Thank you very much.

Mr Francis: Madam, while we were in camera you and your Committee asked me for
      advice about three matters and I should just say what my advice was.

       I was firstly asked about the meaning of “proof of service” under Section 23A and in
       particular sub-section 1(d), and my advice was that what was required to prove
       notification under the Act under that paragraph was proof of sending by Recorded
       Delivery, not formal proof of receipt; but that it was open to you to infer from delivery



                                               3
       and there being no evidence that the documents were returned, you could infer from
       that that the letter had been received at the address concerned.

Mr Francis: The other matter was in relation to Rule 21, and you have to be satisfied in
      order to proceed in the absence of the Registrant firstly, as Mr Albuery said, that all
      reasonable efforts have been made to notify the Registrant and you have heard
      evidence about that; secondly, having regard to any reasons for absence which have
      been provided by the Registrant, that you are satisfied that it is in the public interest
      to proceed. You have heard that the Registrant has offered no reasons for his
      absence, but nonetheless I have advised you that you still have to be satisfied that it
      is in the public interest to proceed.

       You have asked me whether in order to determine that it is in the public interest to
       proceed it is open to you to ask the Council to tell you something about the
       allegations in the case and my advice to you was that it was open to you to ask the
       Council.

       Those were the matters upon which I gave advice and the third one was that insofar
       as you are asking Mr Albuery to tell you something about the allegations to enable
       you to be satisfied that it is in the public interest to proceed, you may also wish to
       consider in tandem with that the extent to which such allegations should be heard by
       you in public session as opposed to in private session.

Mr Albuery: Is that then, Madam, how you would like to proceed?

Ms Hallendorff: I would like you to proceed, thank you.

Mr Albuery: Madam, in relation to that last point about public and private, may I deal with it
      in this way, by saying that there is an expectation that matters such as this, unless
      there is an application to the contrary, would be held in public.

       That is important, because those who regulate themselves in professions need to be
       transparent in the way that they do it. If they are to maintain the confidence of the
       public and the confidence of registrants in the way that regulators go about their
       business, then transparency is a matter which must be properly considered.

       There is no basis in this case, in my submission, for you to hear this case other than
       in public, and indeed there is no application, but obviously ultimately you must
       determine that when you know what the case is about – so let me tell you.

       Madam, Mr Morelli was first registered with the General Optical Council in the
       Register of Optometrists on 13 January 1995. He was removed from the Register on
       21 March 2002 following erasure for disciplinary matters, which your Council on that
       occasion found to amount to serious professional misconduct. Those matters, which
       are not for your inquiry today, related to domiciliary visits and matters of dishonesty in
       relation to the claiming patterns of Mr Morelli for those visits.

       Mr Morelli was restored to the Register of Optometrists on 21 January 2003 following
       a successful application for restoration and he is currently registered until the end of
       March of this year.

       Following his erasure from the Council and then successful re-admission to the
       Register, Mr Morelli was also re-admitted to the Shepway Primary Care Trust
       Ophthalmic List, which would allow him to carry out NHS sight tests in his area of



                                               4
       practice, but that was made subject by them to certain conditions because of the
       concern they had from his erasure hearing.

Mr Albuery: The four main conditions were: that all claims made by him would be checked
      by the Kent Primary Care Agency; secondly, that he would be placed under
      performance review for a period of at least one year; thirdly, that Mr Morelli would
      agree not to undertake domiciliary work, that being the basis of the original concern;
      and fourthly, that he not practise upon his own account – and by that I mean in his
      own business. Those were the four conditions imposed by –

Ms Hallendorff: Sorry, could you explain the last one?

Mr Albuery: I am sorry; Madam, the condition reads that “Mr Morelli will agree not to own
      his own business”. I put it badly before, but hopefully that is clearer.

Ms Hallendorff: Thank you.

Mr Albuery: The concern, Madam, in relation to management was because of the
      dishonesty found proven on his part by the GOC in relation to his claiming patterns
      previously.

       Madam, there were two other conditions but they related to the way in which those
       conditions could be varied and also their need to be reviewed at some point, so they
       are not conditions in a sense.

       Madam, I pause while you read your note, in case it is a question for me.

Ms Hallendorff: Yes; does the PCT set time limits?

Mr Albuery: The only time limit of which I am aware was that the PCT would review and
      reassess the conditions in July 2004, but Madam, although I read that – you will
      receive copies of all these letters and there is a reason why you do not have them at
      the moment – I wonder whether that is right, because the letter also says that he has
      been on the List since July 2004, which does not quite make sense. However, there
      was a period of constant review and in five reports by the Trust‟s Optometric Advisor
      you will see that there were regular reviews of his performance against these
      conditions, and a copy of each of those reports will be available to each of you to
      consider. I will summarise it in my application but the documents are there for you to
      consider and read when you retire. Those were the conditions.

       Madam, because as you have heard the main condition was that he would be placed
       under performance review the Trust‟s Optometric Advisor, a Dr Susan Blakeney,
       carried out detailed analyses of records for Mr Morelli‟s patients and produced
       reports in July and December 2004, and April, July and August 2005, and copies of
       those reports and the findings will be available to you.

       Madam, the Trust had concerns which I will explain in a moment to you from those
       reports, but I wanted to satisfy itself that Dr Blakeney was not perhaps, if I may put it
       this way, imposing too high a standard upon Mr Morelli - perhaps imposing a
       standard of best practice rather than that which might be expected of a reasonably
       competent optometrist - and for that reason instructed another optometrist to conduct
       a review. That review was conducted in June 2005 by Mr Gordon Ilett and a copy of
       his report also will be made available to you.




                                               5
Mr Albuery: Madam, a summary – and I appreciate the stage that we are at in these
      proceedings so I will keep this short – of all those reports revealed six areas of
      mischief and concern. They are these: that Mr Morelli recorded on patient records
      results of tests which he did not and could not have carried out, and indeed there are
      some admissions in that regard; secondly, that he recorded results of tests which
      demonstrate that either the test was not carried out or that he had misinterpreted his
      findings in relation to those tests, and either way there is a public safety issue the
      Council says; thirdly, that in relation to at least five patients he had neither detected
      nor recorded ocular motor muscle imbalance, which as I understand it – but there are
      optometrists on the Committee who can correct me – is the way that the eyes work
      together, sometimes tests undertaken by way of a cover test; fourthly, that Mr
      Morelli‟s referrals were either inappropriate or incomplete of detail, and when I say
      „referral‟ I mean a referral either direct, for example to the Hospital Eye Service, or for
      ophthalmological opinion via a GP; fifthly, that Mr Morelli carried out inadequate eye
      examinations, for different reasons, in relation to at least 11 patients identified in the
      reports; and lastly, that Mr Morelli conducted field tests upon patients when it was
      clinically unnecessary, and that he failed to obtain copies of the results of those tests.

       Madam, bearing in mind the nature of all of these concerns, the period over which no
       or little improvement was seen - which was just more than a year - and the effect
       upon public safety in terms of Mr Morelli‟s conduct or deficient professional
       performance, the PCT having put in place proper training and support mechanisms
       about which you will read in the reports, determined finally that he should be
       suspended from their List, and he was with effect from 2 September 2005. The effect
       of that suspension was - and is - that he cannot undertake, lawfully at least, NHS-
       funded work.

       The point of this Interim Order, Madam, of course is that there is nothing currently to
       stop Mr Morelli seeing and carrying out private eye examinations on private patients.
       Shepway have the power to remove his ability to do that only in relation to NHS
       patients.

       Madam, I wonder if you have heard enough about it now to determine at least
       whether we should proceed in public or in private?

Mr Francis: Madam, my advice would be that you could if you so wish at this stage
      consider two things: first, if you are satisfied that service in the notification sense is in
      the public interest to proceed with this hearing, and were you so satisfied it would
      then be open to you in the same determination to consider whether you would
      proceed in public or in camera. On that basis you might want to retire – or go in
      camera – which ever is the appropriate procedure in this building.

Ms Hallendorff: We will just go in camera for two minutes?

                                      [Hearing adjourned]
                                     [Hearing reconvened]

Ms Hallendorff: Mr Albuery, our view is that we should proceed with the hearing in public.

Mr Albuery: Madam, thank you. Madam, you must take the law from your Legal Adviser
      and not from me, but I hope it may be helpful if I just tell you what I think the legal
      framework is so that when you consider the facts and read the reports, you will have
      it in your mind why the Council is making this application and the legal framework
      surrounding it.



                                                 6
Mr Albuery: As you know, this is an application for an Interim Order and such an order if
      you grant it may have the effect either of suspending registration or making such
      registration subject to conditions. The legal authority for this application can be found
      in Section 13D(10) of the Opticians Act, at page 26. Madam, bearing in mind this is a
      public hearing, although you can read it for yourselves perhaps you will forgive me if I
      read it out for the public benefit and the transcript:

               “If the Investigation Committee are of the opinion that the Fitness to Practise
               Committee should consider making an order for interim suspension or interim
               conditional registration in relation to the registrant, who or which is subject to
               the allegation, they shall give a direction to that effect to the Registrar, the
               Registrar shall refer the matter to the Fitness to Practise Committee for the
               Committee to decide whether to make such an order, and the Registrar shall
               serve notification of the decision on the registrant.”

       Madam, all that as you have already heard has been done. That decision of the
       Investigation Committee to refer this matter to you was made at the end of January
       this year when it considered these allegations from the Kent Primary Care Agency.

       Your power to make an Interim Order may be found at the top of page 34 in Section
       13(1):

               “Where the Fitness to Practise Committee are satisfied that it is necessary for
               the protection of members of the public or is otherwise in the public interest,
               or is in the interests of a registrant, for –

               (a) his registration to be suspended, or to be made subject to conditions; or
               (b) an entry relating to a specialty or proficiency to be removed temporarily or
               made subject to conditions,

               the Committee may make an order, specified in subsection (2) below.”

       Those orders, Madam, as I have said relate to the suspension or the imposition of
       conditions for periods set out thereafter. The rest of the section I do not deal with
       because that deals with the review of these orders if you determine to impose one.

       Madam, in this case for the reasons I have begun to set out and will amplify if I may,
       the Council says that you can be satisfied that it is necessary both for the protection
       of the public and it is in the public interest that an Interim Order should be made. I do
       not rely on the (?) which refers to Mr Morelli‟s own interests.

       In determining this application you will need to balance, of course, the proper desire
       of a regulator like the General Optical Council to protect the public, with the legitimate
       expectation of registrants that they be allowed to continue to practise without
       restrictions and you must determine that any interference you place upon that ability
       to practise is properly justified and that it is proportionate to the risk identified by the
       mischief which the Council relies upon.

       That was put rather more articulately than I can put it by Lord Justice Brooke in the
       case called Madan (No. 2)-v-General Medical Council, in which he stated this:

               “A court or tribunal conducting a fair hearing must make no response affecting
               a doctor‟s right” – but there you could equally put „optometrist‟s right – “to
               practise her profession which is not proportionate in the context of the
               unproved complaints that have been made against her, especially if they are


                                                7
               said to call for interim relief restricting or suspending the doctor‟s right to
               practise.”

Mr Albuery: Now, the point I hope therefore is clear, is one of proportionality particularly
      when you are dealing, as inevitably you are at Interim Order stage, with uncontested,
      unchallenged - so far unproven - allegations because no Notice of Inquiry formulating
      the charges has yet and cannot yet be served upon Mr Morelli.

       Of course, that is the whole point of Interim Orders; that will take some time. Does
       the public need to be protected from him in the meantime? The answer the Council
       invites you to say is „Yes‟ – very clearly and robustly, „Yes‟.

       Madam, so much for the law.

Mr Francis: If I may ask a question before we leave the law, it may come up and perhaps
      more certainly would have done had the Registrant been represented, but what do
      you say the standard of proof is to which this Committee has to be satisfied before
      finding it justified, as you have with respect properly put it, to make an order?

Mr Albuery: Madam, the Rules are silent on it so you have to be satisfied. To what
      standard do you have to be satisfied? Let me just make sure that the Council is
      happy with what I am about to say, may I, because this is the first Interim Order
      where that question may have been asked. [Confers] I am told it is. [Pause]
      Madam, bearing in mind the interim nature of this application and the public
      protection issues it raises, my submission is that it is the balance of probabilities and
      no higher burden. This is not the substantive hearing where you will be determining
      matters relating, for example, to dishonesty or clinical competence in a formal setting.

       Obviously, I accept that you have to be satisfied that there are sufficient issues raised
       by what you have heard and what you will read to justify the restriction of practice of
       Mr Morelli. That is the Council‟s submission on the standard or proof, but of course I
       accept the burden of proof is on me.

Ms Hallendorff: With that response, would you like to take it further?

Mr Francis: In the absence of argument it is difficult for me to ask Mr Albuery to say more
      than he has done. I could ask the unfair question as to whether he has any authority
      for that proposition, clearly not in relation to this Council but whether there is any in
      relation, for instance, to the GMC?

Mr Albuery: Are you asking me that unfair question?

Mr Francis: I am.

Mr Albuery: I have not, in relation to Interim Orders.

Mr Francis: I must admit that I did look and I could not personally find any in the time
      available to me, but that does not mean there aren‟t any.

Mr Albuery: No; I am not aware of any. This is an issue which is relevant of course not just
      to Interim Orders but generally to substantive hearings because the Rules are silent
      on it. Historically, I think it fair that you know in relation to substantive hearings, the
      Council has adopted the criminal standard of proof at that stage and it is also a
      matter of public record that the Council is currently consulting with stakeholders as to
      whether that is the proper standard of proof for it to have, bearing in mind the „fall-


                                                8
       out‟, if I can put it in that way, of Dame Janet‟s report and the involvement of the
       CHRE and other commentators in the healthcare sector. I cannot assist you any
       more, I am sorry.

Mr Francis: Thank you; as far as I am concerned Mr Albuery has done what he can.

Ms Hallendorff: Would any member of the Committee like to ask questions?

Mr Reeves: Mr Albuery, can I ask you to confirm one thing; that this action is brought on the
      evidence of the PCT in the absence of public complaint in the presence of adverse
      peer review of Mr Morelli‟s work?

Mr Albuery: Exactly that. There is no evidence of any complaints that I have, made by
      members of the public. Of course that may well be, when you read the reports,
      because they would not be aware of the concerns raised by another professional. It
      is about peer review and that is why I hope you will be pleased to be able to read not
      just the report of one other optometrist, but a second one.

Ms Hallendorff: Does anybody else wish to ask questions? [No] Please carry on.

Mr Albuery: Madam, you have heard me rather tantalisingly refer to a number of reports,
      and there are five reports – four substantive and then an amended one made by
      Susan Blakeney who was the Trust‟s Optometric Advisor, and one made by Mr
      Gordon Ilett. I could summarise all of those to you but I think that would be unhelpful,
      although I have done it already in the sense that I have told you what the areas of
      mischief are. My suggestion would be that rather than me say more about her
      particular findings in relation to each of those areas, in a moment you retire to read
      them and if you have any questions for me as a result of them then I will try to deal
      with them at that stage.

       If, Madam, you are content to proceed in that way – and if you are not you will tell me
       I know – I just want to read from two other statements but not deal with those reports.
       Does that seem an acceptable way of proceeding, to you?

Ms Hallendorff: Yes, please continue.

Mr Albuery: Madam, I am grateful. You may have heard me – in fact I am sure you did hear
      me and hopefully you will remember me mentioning earlier in the day, one area of
      mischief related to the fact that Mr Morelli recorded results of a test which he could
      not and did not carry out, and so even if the optometrists on your Committee took the
      view that „Susan Blakeney or Gordon Ilett are imposing too high a standard‟ –
      although I invite you not to take that view – here is an area of real concern.

       I want to read to you, if I may, from two statements which again you will be able to
       consider in your pack, but it seems to me important for the public record and
       transparency that I read parts of these statements out to you.

       The first is a statement made by Jacqueline Rothery in June of last year [2005]. She
       is a contact lens optician and a pre-registration optometrist - or she was at that time -
       so somebody who has a BSc in optometry, but who is in her pre-registration year of
       training. She worked with Mr Morelli on two occasions, on 7 and 10 June 2005, at a
       practice in Ashford. The parts of her statement that I say are relevant read as follows:

              “I found Mr Morelli to be pleasant to work with and we had no patient
              complaints about him.”


                                               9
Mr Albuery: I am reading parts which, in fairness to Mr Morelli, may assist him since he is
      not here.

               “The reason for this statement is that I have concerns about patient care”.
       Then,

               “On 7th June 2005 I was working as a contact lens optician with Kevin
               Shaxted as dispensing optician and Simon Morelli as optometrist. Mr Morelli
               performed an eye examination on a patient, Miss P, and then passed her over
               to me for a contact lens consultation. I noticed that on Mr Morelli‟s card he
               had noted „slit lamp clear R + L‟. “

       Madam, a slit-lamp is used, I am told, to examine the front of the eye in detail and
       also can be used to examine the back of the patient‟s eye.

               “When I examined this patient” says Jacqueline Rothery “I noticed she had
               superficial staining of both corneas and blocked meibomian glands in both
               eyes. These were visible using the slit-lamp. There is only” – and this is the
               mischief – “one slit-lamp on the premises, and it was in my consulting room.
               When the patient had gone, I asked Mr Morelli if he would like me to move the
               slit-lamp from my room into his room. He replied “no thank you, I don‟t use it
               – I just write it down on the card”. For the whole of Tuesday 7th June the slit-
               lamp was in my room and Mr Morelli could not have used it without my
               knowledge.

               I was concerned that Mr Morelli was writing the results of tests down on the
               patients‟ record card that he did not perform.”

       Madam, before I go on - and I depart now from the statement - the recording of
       clinical information on a record is of the utmost importance in terms of continuity of
       care. Any clinician who examines the records must be able to rely upon the records
       as a baseline for further tests and needs to understand what the tests were at a
       moment in time so that he or she can compare them at another point it time. It is
       suggested in reports that you will see that pathology could go undetected if results
       are unreliable.

               “The next and final day that Mr Morelli was at the practice was Friday 10th
               June. I was providing dispensing cover on that day. I noticed that he had
               written down the results of a colour vision test on all of the patients he had
               examined, and that he had noted that he had performed a Lang stereotest.”

       Again departing from the statement now, the statement by way of explanation at the
       end helpfully tells us that:

               “The Lang test is generally used for very young children, and tests for less
               accurate degrees of stereopsis than the Titmuss test. The Titmuss test
               involves the patient wearing a pair of „3D‟ spectacles and looking at a book
               with 3D pictures. The patient has to identify which pictures appear to „jump
               out‟ of the page of the book.”

       Says Jacqueline Rothery:

               “We do not have a Lang stereotest in the practice. We have the Titmuss
               stereotest. I was surprised that he was testing every patient‟s colour vision,


                                              10
              as this is not a routine test to perform on every patient. We only have one
              test for colour vision in the practice (the Ishihara test). I put this test, and the
              Titmuss stereotest into my room at approximately 10am. I noticed afterwards
              that Mr Morelli continued to record that he had apparently performed these
              tests on subsequent patients. Mr Morelli did not ask me where the colour
              vision and stereopsis testing equipment was. For the whole day the slit-lamp
              was again in my consulting room, and Mr Morelli did not ask to use it, even
              though he continued to record the fact that he had examined patients using
              the slit-lamp.

              When I went into Mr Morelli‟s room I noticed that he had a „crib sheet‟ in his
              room, with a template of what should be written on the record card.”

Mr Albuery: The flavour that comes out of the report, I invite you to conclude, is that here
      is a man whose records on the face of it sometimes look rather impressive and
      comprehensive, but that when you begin to digest them you see that he appears to
      record things which clinically he could not have found, to have undertaken tests
      which he did not have the equipment to perform, and recording clinical results which
      the experts say are dubious. I will explain that in a moment.

              “When Mr Morelli passed patients over to me for dispensing he said „There is
              a change in this patient‟s spectacles‟. I said „Is this since the pair we‟ve made
              her?‟. He said „She has had a subsequent pair made elsewhere, but I have
              not checked them?‟. He therefore could not confirm that there had been a
              change.”

       Madam, as a result of those concerns, a Mr Whiteley made a statement to the Trust
       on 25 July as a result of a conversation he had with Mr Morelli on 10 June - the
       second of his days working for this particular practice of opticians. He was asked
       whether in fact he had actually carried out the tests and this is how the conversation
       went:

              “I had waited until Simon had seen his last patient of the day” – Simon is Mr
              Morelli – “and went into his room to have a chat with him. I challenged him on
              the slit-lamp question and asked him „Why have you written a slit-lamp result
              when you actually hadn‟t used it?‟. He said „I have been using my
              ophthalmoscope and some strong plus lenses to do the examination‟. I asked
              him „Why have you actually written „slit-lamp‟ on the record then?‟. He said „I
              have still done the examination‟. I replied „It would be usual then to record the
              method of examination and not to write on a record something that had not
              been done‟.”

       He was then asked about the colour vision testing he had undertaken, apparently
       without the equipment to do it, and he replied when asked whether he had the
       Ishihara test:

              “I usually have one in my bag but I don‟t seem to have it with me today‟.
              When I asked him „Have you actually done it?‟ – because I knew the „book‟
              was in the other consulting room – he said „I haven‟t, but I usually do‟.”

       Now bear in mind, this is a man who has recorded this as having been done.

              “I said „It isn‟t ethical to write something down if you haven‟t done it, and that
              as a company we cannot support your actions‟.”



                                               11
Mr Albuery: And then there was an unrelated piece –

Ms Hallendorff: Can I just query his status? Is this gentleman the owner of the practice?

Mr Albuery: He is the Area Manager for the –

Ms Hallendorff: Of the group of practices?

Mr Albuery: I haven‟t known him to be so and I perhaps do not need to, but of the whole of
      the practice of opticians. It is a group of opticians and he is the Area Manager for the
      branch in Ashford which was in his patch.

Ms Hallendorff: And is he an optometrist?

Mr Albuery: I don‟t know what he is. He might not be, but I don‟t know. But he is not
      commenting on clinical matters so much as matters relating to writing things down
      when you haven‟t done them.

       Madam, I mentioned earlier dubious clinical results and in the first report that you will
       read of Susan Blakeney she deals with this. She examined 49 patients of Mr Morelli
       for her first report between April and June 2004, and she had a number of concerns
       about which you will read but in particular she had a concern about his recording of
       the cup/disc ratio, the results of which are useful for two reasons: first, because it
       shows the optometrist has examined the patient‟s fundus which is at the back of the
       eye and secondly it is useful in determining whether or not the patient may be
       developing glaucoma.

       Now, of these 49 patients Mr Morelli had recorded for 44 of them that they all had a
       cup/disc ratio of 0.2. Mrs Blakeney says that she carried out an audit of 1,265 of her
       patients over a period of time and only 20 per cent of her patients had such a cup/
       disc ratio whereas Mr Morelli‟s figures represent 90 per cent. She concludes, and
       this is the important part of her summary you might think:

               “Either Mr Morelli is not looking at the patients‟ fundi. If this is the case there
               is a patient safety issue” and then “or, Mr Morelli is not interpreting what he
               sees correctly. If that is the case there is also a patient safety issue”.

       Madam, you will remember that I said there were six areas of mischief and all of
       them are set out clearly in the reports and I will not do anything now other than invite
       you to retire to read those reports and then if you have any outstanding questions I
       will deal with them.

       I should say, lest you expect to hear further from me or unless you think there is
       something that I should have covered and I have not, unless you ask me to I do not
       intend to say anything else.

       Could then you be handed, please, a copy of the pack which was sent to Mr Morelli?
       This deals with all the reports to which I have already referred. The patient records I
       am told are available for you to inspect them, but bearing in mind the nature of this
       hearing you might take the view that it was unnecessary for you to do that – but that
       is a matter for your judgment.

Ms Hallendorff:     I have one question.      Did Mrs Blakeney examine the patient or the
     records?



                                               12
Mr Albuery: No, the records. There was talk of seeing the patients, but it was felt by the
      Trust that might not elicit any helpful information because the patients may not be
      best placed to comment on the matters which were causing concern.

Mr Francis: Could I ask a question? In relation to a procedural point, as I understand it
      reading these facts, and I would be grateful for your confirmation, the jurisdiction to
      make this order arises merely – and I say that without any disrespect – merely
      because the Investigation Committee has referred the matter for consideration of an
      Interim Order to the Fitness to Practise Committee?

Mr Albuery: Yes.

Mr Francis: There has to have been no further consideration by the Investigation
      Committee, such as that there is a case to be answered before the Fitness to
      Practise Committee on a substantive charge?

Mr Albuery: The Investigation Committee does have to determine that there is sufficient
      evidence to justify a substantive hearing before the Fitness to Practise Committee. It
      has done that and it has referred it, and in due course whether you impose an Interim
      Order or not there will be a hearing about that matter. It is fair to say that, I think, the
      case law is relatively clear, that the threshold at the Investigation Committee is
      relatively low and specifically they must not seek to determine conflicts of evidence,
      but to consider only whether the issues raise a case to answer.

Mr Francis: So this Committee may take it that the matter will in due course be considered
      as a substantive charge?

Mr Albuery: It has already been referred. My firm has been instructed, most of the evidence
      has already been obtained, and a Notice of Inquiry which will set out the allegations
      will be served upon Mr Morelli and he will be invited to attend a hearing in due
      course, which will consider his impairment of his fitness to practise.

Mr Francis: [Pause; documents distributed] You have been handed a note, Madam
      Chairman, which has asked for advice about the status of what is described as the
      hearsay evidence of Mr Whiteley. Before I give any advice Mr Albuery, could I turn to
      you to ask you whatever the standard of proof is – and I bear in mind Rule 38 which
      is applied to these proceedings – as to what as it were evidence this Committee
      receives and the status of it on one of these applications.

Mr Albuery: That is a very pertinent question if I may say, because unusually for healthcare
      regulators, the General Optical Council Rules import into Interim Orders Rules which
      might be regarded as rather more relevant to substantive hearings, where you would
      normally proceed as we have done without any witnesses and this issue as to
      admissibility would not occur. However, when I read the Rules and saw it I hoped
      that I had prepared for an answer for it.

       My understanding of it is this: first, that Rule 38 does apply because it is said to apply
       by virtue of Rule 19 to these hearings. Madam, Rule 38 for you and your colleagues
       is on page 99 and deals with admissibility of evidence, and says:

               “- the Fitness to Practise Committee may admit any evidence they consider
               fair and relevant to the case before them, whether or not such evidence would
               be admissible in a court of law.”




                                                13
Mr Albuery: Let us just pause there; I am not going to try and define those words any
      further. You have to determine what you think is “fair and relevant”. The important
      words are, “fair and relevant to the case before them, whether or not such evidence
      would be admissible in a court of law”. That might you think be straightforward, if we
      did not then have to go on to consider that in the context of the next two paragraphs:

               “Where evidence would not be admissible in criminal proceedings in England
               and Wales, the Committee shall not admit such evidence unless, on the
               advice of the legal adviser, they are satisfied that their duty of making due
               inquiry into the case before them makes its admission desirable.”

       Let‟s pause there; would this evidence be admissible in criminal proceedings? Well,
       that depends. A year or so ago, not, but in fact as you will know the Criminal Justice
       Act has changed in some ways the admission of evidence in criminal proceedings,
       and Section 114 of the Criminal Justice Act would allow you, in my submission, to
       admit what is clearly documentary hearsay if you are satisfied that it is in the interests
       of justice that you should admit it. It is a sort of catch-all provision. There is a set of
       criteria which you are invited to take into account in determining whether such
       admission would be appropriate.

       I am just looking around because I have somewhere – I did bring the criteria with me
       but I cannot immediately see them - but if you think it important then I will lay my
       hands on them, I hope.

       However, even if you were against me and you said „We are not satisfied, having
       received the legal advice from our Legal Adviser that it would be admissible in
       criminal proceedings‟, then I rely on the second part of Section 38(2) which says that
       even if they would not be admissible, having received legal advice, if you are
       satisfied that your duty of making due inquiry into the case before you make the
       admission of these documents desirable, then you may admit them.

Mr Francis: Sorry to interrupt, but in the context of a hearing in relation to Interim Orders it
      is quite difficult to know what is meant by “criminal proceedings” in these Rules,
      because it does not say a criminal trial in front of a jury or a magistrate, it says
      “criminal proceedings”, which could include a bail application?

Mr Albuery: Yes.

Mr Francis: Sentencing?

Mr Albuery: Yes, in which case all the normal rules would not apply.

Mr Francis: Practice directions?

Mr Albuery: Yes.

Mr Francis: In those hearings - and you will correct me if I am wrong - the Crown Court for
      instance would frequently hear hearsay evidence of one sort or another.

Mr Albuery: I certainly would not ever seek to correct you, but that is my experience, that in
      all the bail applications I have made I would merrily give what might be regarded
      otherwise as hearsay evidence.

       I would ask you to bear in mind the nature of this hearing. It is an Interim Order and –
       well, I will tell you, it is certainly not the expectation or hope of the Council that you


                                               14
       would expect to have, before you could consider a hearing in relation to every bit of
       evidence in front of you, witnesses to be called in support of it. That is a matter for
       later at the final hearing. I ask you to say that your duty to make due inquiry at an
       Interim Order stage requires you to admit the documents.

Mr Albuery: Admission of course is not quite the same as the question I was asked, which
      went to weight to some extent perhaps (or that is how I interpreted it anyway) – what
      weight perhaps you can put on statements that are hearsay. First, you have to be
      satisfied that you can admit them - and I am clear that you can but you have to
      receive legal advice on them - and then what weight you should admit to them; well,
      whatever weight you determine is appropriate.

       I accept that, as is inevitable and will always be the case on Interim Orders that it is
       not tested evidence and that is why Lord Justice Brooke referred as he did to
       unproven complaints. Ordinarily if this was a substantive hearing I would concede
       that the amount of weight that you might feel able to attach to evidence given by
       people whose whites of eyes you have not seen might be less than other evidence,
       but that is not necessarily so. Weight is always a matter for you to determine.

Mr Francis: Madam, with your permission I will give you advice now on this issue and also
      on the issue of the standard of proof to be applied.

       So far as admissibility of evidence is concerned, as Mr Albuery says Rule 38 is
       imported into this hearing by way of Rule 19, and Rule 38(2) tells you that you shall
       not admit evidence unless it would be admissible in criminal proceedings in England
       and Wales, unless on my advice you are satisfied that your duty of making due
       inquiry into the case before you make this submission desirable.

       The first question that is prompted by looking at that Rule is what is meant by
       “criminal proceedings in England and Wales” for this purpose. Generally speaking in
       relation to substantive conduct hearings, that Rule would be understood to refer to a
       criminal trial. At a criminal trial, as Mr Albuery says, there are now under the Criminal
       Justice Act 2003 – regrettably, some people would say – highly complex rules under
       which what was previously inadmissible hearsay evidence can be admitted. Unless
       specifically required to do so, I would not seek to advise you in this case whether
       evidence of the type put before you would be admitted in a criminal trial in England
       and Wales, and I do not give you that advice because in order to give it a whole
       range of argument and considerations would need to be gone into.

       However, you are not sitting at the equivalent of a criminal trial, you are sitting in the
       equivalent of a preliminary hearing. I suppose the nearest equivalent in a criminal
       process would be a hearing for bail, in which a defendant faces the even more
       draconian penalty than this Committee can impose, namely on restriction on liberty.
       At such a hearing it is my understanding common practice for evidence to be
       admitted which is hearsay evidence and often frankly no more than assertion.

       Therefore my advice would be that in equivalent criminal proceedings the sort of
       material that has been placed before you would probably be admitted one way or
       another, but even if that were not the case bearing in mind that this is an interim
       hearing and by definition considering unproven – and at this stage unprovable –
       allegations, that you could be satisfied that your duty of making inquiry into whether
       or not an Interim Order should be made requires the admission of the material that
       has been placed before you by the Council. As Mr Albuery says, the fact that
       evidence is admissible does not make it necessary for you to attach any particular
       weight to it. The weight of course is a matter entirely for you.


                                               15
Mr Francis: That brings me on to the question of the standard of proof. This is a difficult
      area. It is made difficult by the fact that not only are your Rules silent on the subject,
      there is, so far as I have been made aware, no authority on it. However, we start
      again with Rule 38 in my judgment, because that is where we look at the admissibility
      of evidence. If it be the general rule that evidence that you consider should be
      admissible in accordance with the criminal law, that might suggest that not only the
      burden but the standard of proof you should apply is the criminal one. If it be the
      case furthermore that at the substantive hearing of this matter or matters like it the
      criminal standard of proof should apply, it is at least strongly arguable that the
      criminal standard should also apply here. Just for the avoidance of doubt by
      “criminal standard” I mean that you would have to be satisfied, so that you are sure
      before making an order that it was in the public interest and the other tests that are
      relevant.

       On the other hand, it could be argued that the protection of the patient and the public
       interest generally might justify a lesser standard, namely one where the threshold
       was lower, in order to favour public protection particularly when, as is here, the
       allegations of necessity are just that and can be no more than that.

       My advice to you is that the criminal standard should apply if it be the case, as I
       understand it to be, that it is and remains the practice and acceptance in this Council,
       that the standard of proof to be applied at the substantive hearing should be the
       criminal standard. If I were wrong about that and the civil standard applied, namely
       that you should be satisfied on a balance of probabilities, I would advise you that
       bearing in mind the potentially draconian nature of the power that you are being
       invited to exercise - namely the restriction at a time when allegations are unproven of
       a practitioner‟s right to practise - you should require before making such an order
       cogent evidence proportionate to the gravity of the order you are invited to make.

       You may think, and it is a matter for you, that at the end of the day there is precious
       little difference between those two tests which it may be said excite lawyers rather
       more than they excite laymen, but it is clearly a serious point.

       Whichever route you decide to follow you should bear in mind, as I have already
       said, that Interim Orders have to be considered in the context of unproven allegations
       and without knowing what the Registrant‟s defence or explanation might be at a
       substantive hearing. However, you are entitled to consider the material and the
       allegations that arise out of that material critically, but you should not dismiss or
       disregard the allegations and the material just because you have not heard evidence
       on oath. That is my advice.

Ms Hallendorff: Thank you. We now need time to read these documents. I do not want to
      put a time on this because we need to look at this very carefully and take some legal
      advice, so can I suggest that we disband and we will call you when we have had a
      chance to look at this.

                                     [Hearing adjourned]




                                               16
                                    [Hearing reconvened]

                                       Determination

Ms Hallendorff: We have come to a decision and we do not need to question you any
      further.

Mr Albuery: Thank you.

Ms Hallendorff: I will read the Determination:

       The Fitness to Practise Committee considered an application for an Interim Order
       made by the Council and decided as follows in relation to Simon Morelli.

       We are satisfied so that we are sure on the evidence put before us that it is
       necessary for patient safety, protection of the public and confidence in the profession
       that the Registrant be suspended in accordance with Section 13(l) of the Opticians
       Act 1989.

       Such an order is proportionate to the seriousness of what has been put before us,
       and which if proved will show inaccurate and unreliable record-keeping and claiming
       to undertake tests which could not have been carried out, despite a number of
       reviews and a period of retraining.

       Therefore, the Committee order that the Registrant‟s registration shall be suspended
       for a period of 12 months from today. The effect of this order is that the Registrant‟s
       registration will be suspended for this period, or until the earlier determination of his
       case.

       The Committee will review the order within a period of six months from today, and
       also for so long as the order remains in force; or further review it before the end of
       the period of six months beginning on the date of the immediately preceding
       decision; or, if after the end of the period of three months beginning on the date of
       the decision of the immediate preceding review, the Registrant requests an earlier
       review as soon as practicable. The Order may also be reviewed if new evidence
       relevant to the Order becomes available.

       Thank you.

Mr Albuery: Thank you very much.


                                     [Hearing concluded]




                                              17

				
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