Case No’s 11607, 11646, 11647





Mr Christopher Limb                Chairman

Mr Richard Stokes              Professional Member

Mrs Libhin Bromley.                      Member






(GOC No: 01-12465)









  1. Mr Hosgood is an Optometrist who qualified in Australia in 1962 and has been registered with the General Optical Council since 1976.  He initially applied to join the Respondent’s ophthalmic list by application dated 1st August 2002.  He subsequently completed a complementary or supplementary application for inclusion in the ophthalmic list for domiciliary visits dated 24th December 2003.  Following a rather drawn out history the PCTs decided to refuse Mr Hosgood’s application, which was notified to him by letter of 24th November 2004. 


  1. Mr Hosgood did by letter of 2nd December 2004 indicate that he wished to appeal the decision but sent such letter to the Respondents and not to the FHSAA.  After further communication the application was forwarded to the FHSAA in January.  By letter to the FHSAA of 18th January 2005 Mr Hosgood confirmed his wish to pursue the appeal and (at least implicitly) his application to extend time beyond the normal 28 day limit.


  1. We have received submissions and argument on behalf of the Respondents from Mr Forde of Counsel.  Save for some minor matters of clarification orally provided by the Respondents witness Sally-Anne Kayes we have considered the evidence in written form.  Following earlier directions and in particular following indication of possible inability to attend on the part of two of their witnesses, the PCTs provided written statements from Dr Jane Fryer, Sally-Anne Kayes, and Mr Geoff Roberson.  We otherwise had available the documentation provided which has been either paginated by the FHSAA or provided in a separate bundle by the PCTs.  Such documents are contemporaneous documents arising in the course of the history of the case save for the statement of grounds for opposing the appeal dated 21st March 2005 prepared by the representatives of the PCTs and which provides a very useful summary of the overall history as well as summarising the PCTs arguments. 


  1. Mr Hosgood did not attend the hearing.  He had asked in his letter of 9th March 2005 whether it was necessary for him to attend and by letter of 14th March 2005 he was advised by the FHSAA Appeals Administrator (having spoken to myself) that the hearing would be a “live” hearing which both parties were entitled to attend and that he must make his own judgment or take his own advice as to whether he should attend.  It was pointed out that he may wish to respond to argument from the Respondents as well as putting his own case with oral argument.  We were satisfied that he was fully aware of all the evidence before the Tribunal and fully aware of his entitlement to attend and address the Tribunal. 


The law

  1. The Family Health Service Appeal Authority (Procedure) Rules 2001 provide for an appeal such as the present within Part II.  Rule 5 provides that appeals should be brought within 28 days beginning on the date on which the Health Authority (the PCTs in the present case) gave notice of the disputed decision.  The substantive as opposed to procedural regulations which are relevant are the National Health Service (General Ophthalmic Services) Regulations 1986 as amended.  In particular Regulation 7A is of relevance together with Schedule 1A, paragraph 9.  So far as relevant to issues raised in this appeal the grounds on which the Health Authority may refuse to include an ophthalmic medical practitioner or optician to the list are (pursuant to paragraph 1(c) and (e) of Regulation 7) that having contacted the referees nominated by the ophthalmic medical practitioner or optician in accordance with paragraph 9 of Schedule 1A they are not satisfied with the references given, or that there are any grounds for the Health Authority to consider that admitting the ophthalmic medical practitioner or optician to the list would be prejudicial to the efficiency of the service which he would undertake.  Schedule 1A refers to the information to be given when making an application to be included in a list and in particular paragraph 9 refers to the provision of two referees “who are willing to provide references in respect of two recent posts (which may include any current post) as an ophthalmic medical practitioner or optician, which lasted for at least three months without a significant break and, where it is not possible, a full explanation and alternative referees”. 


  1. We remind ourselves that insofar as the PCTs rely upon any facts against Mr Hosgood the burden of their establishing such facts is upon the PCTs.  The Panel bears in mind that before concluding that an allegation is established we must be satisfied the necessary facts are established on the balance of probabilities.  We also remind ourselves that this is a re-hearing in which this Panel can make any decision open to the PCTs making the original decision which is appealed.


Time for appeal/permission to appeal out of time

  1. It is clear that both the Procedure Rules and the Decision letter of the Respondents of 24th November 2004 indicate that an appeal must be made within 28 days and must be made by giving notice in writing to the FHSAA.  It is clear that Mr Hosgood did not comply with such requirements but equally clear that he indicated his intention to appeal to the Respondents by his letter of 2nd December 2004 (well within the 28 day period).


  1. The Rules have no provision one way or the other as to jurisdiction to extend the time for appeal.  It is noted that the Respondents do not object to the time for appeal being extended.  We are of the view that both by reference to the overall nature and purposes of this Tribunal which exists to serve and assist the parties and by reference to the general import of Article 6 of the Human Rights Convention as incorporated into British law by the Human Rights Act it is appropriate to consider that the Tribunal has jurisdiction to consider an appeal out of time in order to allow access to the FHSAA.  Accepting that there is jurisdiction in principle we consider that whilst Mr Hosgood does not explain why he failed to note that the appeal should be sent to the FHSAA (which is clearly stated in the Decision letter sent to him), it is nevertheless the case that the Decision letter of 24th November 2004 did not give the address or other means of contact for the FHSAA.  We indicated in the course of the hearing that it would be appropriate that Primary Care Trusts include such information as a standard item in notifying their decision. 


  1. We note and commend the reasonable approach of the Respondents to this issue and consider that it is appropriate in the circumstances of this case to extend time and to proceed to consider the appeal upon its substantive merits.


The issues/evidence

  1. By their Decision letter, their statements from Fryer, Kayes and Roberson, and their statement of grounds for opposing the appeal dated 21st March 2005 together with Mr Forde’s oral submissions, the Respondents have put their case on a dual basis:

(a)   They were not and were  reasonably not satisfied that the references provided were satisfactory (Regulation 7A(1)(c) and Schedule 1A, paragraph 9);

(b)   By reference to the General Optical Council hearing and findings in 1999 they were satisfied that there were reasonable grounds to consider that the admission of Mr Hosgood to their list would be prejudicial to the efficiency of the service (Regulation 7A(1)(e)).


The Respondents further make the overall contention that it was appropriate, reasonable and proportionate to exercise their discretion so as to refuse Mr Hosgood’s application.


  1. We do not recite the detailed history of the various references which were supplied by Mr  Hosgood over a period of time save to note that his reference from Mr Paxton was in due course accepted as appropriate and satisfactory but that the reference from Mrs Khan was not so accepted.


  1. Paragraph 9 of Schedule 1A of the Regulations has already been quoted in this Decision.  Whilst it refers to the references being in respect of recent posts as an ophthalmic medical practitioner or optician it makes no express provision in relation to the qualifications or status of the people providing the references.  The various letters from the Respondents to the Applicant relating to provision of referees makes plain that in their opinion the reference “should be an optometrist, an OMP, an ophthalmologist or in exceptional  circumstances a dispensing optician (registered with the GOC) to be able to provide a clinical reference, who has worked with (Mr Hosgood)”.  By letter of 28th April 2003 Mr Hosgood was informed for the first time that if he was unable to provide a referee within such parameters he should contact Sally-Anne Kayes “and we will arrange for an advisor to visit you and look at an alternative”.  In the course of the hearing we were informed by Sally-Anne Kayes that when there was difficulty in providing referees fulfilling the criteria required by them then the PCTs would consider other alternatives, such as a sole practitioner with little contact with other optometrists who might rely upon other related professionals such as a GP to whom he had made references or a recently qualified applicant relying upon references from persons such as his tutor.  We are of the view that it is at the least unfortunate that such alternatives are not clearly spelt out in the initial application form or in the initial correspondence.  The Regulations are not prescriptive to the same extent as the Respondents letters.  Such observations are not central to the decision in this particular case.


  1. There is no evidence that Mr Hosgood did not have professional contacts who would in principle fulfil the requirements spelt out by the Respondents own correspondence relating to referees.  In the absence of any explanation by him it is difficult to understand why he did not provide such referees initially.  In any event by the time that the Respondents made their decision there were references available from Mr Paxton (which was considered satisfactory) and two references from Mrs Khan.  We note that the origin and reasons for there being a second reference from Mrs Khan are unexplained.


14.  In their Decision letter of 24th November 2004 the Respondents make plain that the reference from Mrs Khan is not considered unsatisfactory in its terms but unsatisfactory because she was subject to the same General Optical Council proceedings as Mr Hosgood.  We have available to us a transcript of that hearing and note that no finding of serious professional misconduct was found to be proved against Mrs Khan.  The observation that “her method of record keeping falls short of the standard required” is therefore not part of a formal decision and we note that in the course of evidence she had indicated that she was unhappy with the documentation but had been assured by those for whom she was working that the documentation was in a form used by domiciliary providers.  We are satisfied that it is not appropriate to treat Mrs Khan as though “tainted” by  the GOC finding to the extent that she can be automatically treated as an unsatisfactory referee.  In the absence of a finding against her by the GOC and in the absence of any other evidence as to her general professional standing not being satisfactory, her reference is to be considered on its merits in our view. On its face it was a satisfactory reference.  The Respondents did not treat the reference on its merits.  No submissions of substance were made as to the reference being unsatisfactory, albeit there were some observations made as to the slight differences between the two different references provided by Mrs Khan.  We are satisfied that the reference was upon the face of its contents a satisfactory reference.


15.  We note in passing that had it not been for the fact that Mrs Khan was part of the same hearing before the GOC as Mr Hosgood both the Respondents and this Tribunal would have been entirely unaware of an appearance which had not led to any formal finding against her.  Indeed it appears that the general checks of referees which are made with the GOC confirm solely that the person is registered with them and would not generally reveal a finding against the practitioner so long as they remained properly registered with the GOC.


16.  We now consider the second aspect of the case, relating to the admission of Mr Hosgood being “prejudicial to the efficiency of the service which he would undertake” in the light of the GOC finding.  It is appropriate to briefly quote from the decision of the GOC:

“As a primary health care profession optometrists have a professional responsibility to maintain proper patient records to a high standard.  We are satisfied so as to be sure that failure to do so can amount to serious professional misconduct..As regards the charge against Mr Hosgood we conclude that his records are of a significantly lower standard than those of Mrs Khan.  It is further alleged that he failed to perform adequate sight tests and we are satisfied so as to be sure from his records that the evidence given today that Mr Hosgood did fail to perform an adequate sight test on a number of occasions.  We are satisfied so as to feel sure that this amounts to serious professional misconduct”.


17.  We are satisfied that it is appropriate to accept the GOC finding as an authoritative finding.  The failures of professional care both in relation to proper patient records and in relation to adequate sight tests are in our judgment both matters of substance relating to the standard of care provided to patients and properly considered relevant to the efficiency of the service to be provided to patients.  The failure in relation to sight tests is self evidently important to patient care.  The failure in relation to records is not purely an administrative failing but is in our view properly considered a matter of sub-standard professional care relevant to provision of efficient and satisfactory care and advice to patients, in particular on future occasions when such records would be relied upon. 


18.  In his application to the Respondents Mr Hosgood referred to the GOC finding but only to its finding as to the patient records being inadequate.  He made no reference to the finding as to inadequate sight tests.  In the absence of Mr Hosgood giving any explanation it is impossible to make a finding whether such failing on his part was simple oversight or arose from a failure to realise the importance of the finding or was deliberate in its intention to omit reference to such part of the GOC finding.  We feel compelled to note that at the time of the decision Mr Hosgood expressly stated that “I do not believe I am guilty of inadequate sight testing”.


19.  Whatever is the explanation for his partial reference to the extent of the GOC finding, we are satisfied that we can accept the GOC finding as satisfactory evidence of Mr Hosgood’s failings in care at the time of such finding.  In the absence of any evidence as to subsequent steps taken by Mr Hosgood to correct such aspects of his practice we are satisfied that it is appropriate to conclude that there continue to be grounds to consider that admitting Mr  Hosgood to the list would be prejudicial to the efficiency of the service which he would undertake.  Although there are some rather general and vague references to him having undertaken training there is no defined or clear evidence that he has both recognised the validity ofosgood’s  the GOC finding and taken steps to heed such finding and improve his practice. 


20.  Whilst in our opinion the PCTs could have been more proactive in making enquiries as to Mr Hosgood’s current practice and any evidence he might reasonably be able to provide in relation to training and in relation to assessment of the level of his practice, Mr Hosgood as an intelligent professional man must objectively realise the relevance and therefore the importance of a finding of professional misconduct by the GOC and provide evidence to demonstrate that he has revised his practice so as to properly heed such finding. 


21.  We are satisfied that the GOC finding does in the absence of any evidence as to subsequent revised practice entitle both the Respondent and ourselves to conclude that there are grounds to consider that admitting Mr Hosgood to the list would be prejudicial to the efficiency of the service which he would undertake.  Upon this aspect of the matter we therefore agree with the submissions of the Respondents and we dismiss the appeal. 


22.  We wish to add (as briefly indicated orally at the end of the hearing) that we would not wish our present finding to unduly influence or harm any subsequent application by Mr Hosgood if such application were combined with adequate and proper evidence as to the steps which he has taken since 1999 to amend his practice and to heed the GOC finding. 



23.  Although agreeing with only one of the two grounds relied upon by the Respondents we are of the opinion that this appeal should be dismissed by reference to Regulation 7A(1)(e) of the 1986 Regulations as amended. 



24.  The parties are reminded that they have rights of appeal pursuant to Section 11 of the Tribunals and Enquires Act 1992.











      April 2005