Milton keynes PRIMARY CARE TRUST
1. This is an appeal by way of redetermination pursuant to Section 7C of the National Health Service (General Ophthalmic Services) Regulations 1986 (as amended),( hereafter referred to as “ the regulations”) against the decision of Milton Keynes PCT to refuse the application by Costco Wholesale UK Ltd for inclusion on its ophthalmic list. The 1986 regulations are made pursuant to National Health Services Act 1977 as amended by the Health and Social Care Act 2001.
2. At the hearing the Appellant was represented by Mr Karim of Counsel. As set out in their letter dated 16th December 2005 the PCT was content to submit written representations and did not attend. After the hearing the panel received further written representations from the Appellant dated 6th March 2006.
3. In October 2005, the Appellant made an application to the PCT for inclusion on its ophthalmic list to provide general ophthalmic services (hereinafter referred to as “GOS”) under the regulations. On 5th November 2005 the Respondent rejected the application on the basis that the GOS offered would be limited to members only and that the regulations do not allow for discrimination in relation to groups who are entitled to receive services other than those not covered under regulation 13.
The Appellant’s Case
4. Costco Wholesale UK Ltd provides cash and carry warehouse services to members only. There is a two pronged membership scheme consisting of trade and individual membership. The criteria for the latter is that the applicant must be a “professional” or in employment. A membership card must be shown to gain access to the building. A member may bring guests to the warehouse who may then purchase goods in the presence of the host member (hereafter referred to as “a member’s guest”). Membership for both trade and individuals requires an annual registration fee of £25 per annum.
5. The Appellant has been accepted onto the ophthalmic list of some other 16 PCTs throughout the country. It has been providing GOS since 1994. No issue in relation to suitability has previously been raised nor any complaint received. It was strongly argued that the attitude of the other PCTs plainly indicates that the objections of the Respondent PCT are ill founded.
6. The essential thrust of the appeal is that the regulations do not require that the contractors must provide GOS to all eligible individuals and/or must anticipate doing so. The Appellant contends that the contractor is only required to provide GOS when it accepts a valid application for an eye sight test under GOS pursuant to regulation 13. It is contended that the contractor has full discretion whether to accept an individual patient for GOS. In these circumstances it is submitted that “there cannot be a scenario when the Appellant does not and cannot provide GOS when presented with an eligible individual whom they accept to treat” (our emphasis). Further, it submits that it is not discriminatory to provide ophthalmic services for members only. The process of membership is not discriminatory under the Sex Discrimination Act 1975, the Race Relations Act 1976 or the Disability Discrimination Act 1995.
The Respondent’s Case.
7. The Respondent contends that Costco, by its membership scheme, would prevent an eligible person from making an application under regulation 13 because they will not consider such an application from someone who is not a Costco member or guest. It contends that this amounts to discrimination against eligible applicants based on the ability to pay a membership fee and, further, that it is contrary to the ethos of the National Health Service in that entitlement to treatment should be based not on the ability to pay but on need. It submits that to allow the appeal would create a precedent for contractors to make a non NHS charge prior to acceptance for treatment.
The Statutory Scheme
8. Under regulation 7 (1) (a) an applicant for inclusion to the ophthalmic list maintained by a PCT must provide, amongst other things, an undertaking to provide general ophthalmic services and to comply with the terms of service which are set out in Schedule I of the regulations.
9. Under regulation 7A(1)(a) of the regulations a PCT has power to refuse to include a corporate body carrying on business as an ophthalmic optician on its list on the grounds that it considers the applicant unsuitable on the basis of information provided in the application or other information in its possession in relation to the application. Regulation 7A(3) requires the PCT considering refusal to consider all facts which appear to it to be relevant in addition to various matters set out in subparagraphs (a) to (i) inclusive.
10. A person may have his sight tested free under GOS if at the time of testing he falls within one of the various categories set out under regulation 13. These include certain sections of the public such as those under 19 years of age in full time education, those over 60 years, people of limited resources, the registered blind or partially sighted or people who suffer from or who are predisposed to suffer from certain illnesses.
11. Under regulation 13A (1) “an eligible person who wishes to have his sight tested under GOS may make an application to any contractor for his sight to be tested.” (our emphasis).
12. A “contractor” is a person who has undertaken to provide GOS and whose name is included in the ophthalmic list.
13. “General Ophthalmic Services” are defined as the services which a contractor must provide pursuant to paragraph 10 of the terms of service. Essentially this consists of an eye test and prescription if required.
14. Paragraph 9 of the terms of service sets out various requirements in relation to a contractor’s claim to fees and payment by the PCT. Subparagraph 4 provides that, except as may be provided in the regulations, a contractor “shall not demand from any patient or from other persons the payment of any fee or other remuneration in respect of the provision of general ophthalmic services.” A notable exception relates to a contractor being allowed to charge a sum when a patient fails to keep an appointment.
15. Paragraph 10 of the terms of service provides that “a contractor shall, having accepted pursuant to the regulations an application for the testing of sight, test the sight of a patient to determine whether the patient needs to use an optical appliance and in so doing shall fulfil any duty imposed on him by, or in regulations made under Section 20(B) of the Opticians Act 1958”.
16. The issue to be decided in our redetermination is whether the Appellant is suitable to be included on the list, given that access to the GOS it seeks to provide under the NHS will necessarily be restricted to persons who are members of Costco or member’s guests.
17. The Appellant’s central submission is that it is only on acceptance of an application for eye sight testing that any obligation to provide GOS arises. Whilst we accept that this is so, we do not consider that this advances resolution of the issue before us. The fact that a contractor does not owe a duty to test the eyesight of the population in general is wholly unsurprising. In our view paragraph 10 of the terms of service simply define the point at which the duty to examine arises.
18. The submission advanced, however, is that paragraph 10 of the terms of service, as set out in Schedule I, grants to the contractor discretion as to whether he accepts an eligible patient. In particular the Appellant relies upon the Optometry Red Book: Non Clinical and Regulatory Aspects of Optometric Practice in the UK, published by the Association of Optometrists, which states at page 50 “ Practitioners have full discretion whether to accept an individual patient for GOS”.
19. The existence of and limits to any discretion have not, so far, been tested in any case brought to our attention. It is, in our view, beyond argument that any permissible discretion would have to be exercised reasonably and on proper grounds. For example, it might be possible that a contractor could justify his refusal to provide a free eye test under GOS to a patient on the grounds of a prior history of assault against the optician. In our view, however, this sort of individual refusal is far removed from what amounts to a wholesale refusal to accept eligible patients because they are not paid up members of a club or a member’s guest.
20. Indeed it is notable that the preceding sentence in the Red Book states that “The Department’s advice, which would be given to Health Authorities if the question arose, was that they doubted that a practitioner could exclude whole categories of patients from those to whom they are providing GOS without breaching the terms of service.”
21. In our view paragraph 10 of the terms of service simply defines the contractor’s obligations once he has accepted an application for eye testing. We do not consider that it purports to define the circumstances in which a contractor may refuse an application for an eye sight test by an eligible or potentially eligible person. Moreover, we do not consider that it enables a contractor to refuse to accept an application for eye testing by an applicant who satisfies the conditions for eligibility under regulation 13 simply because he is not a Costco member or member’s guest.
22. The Appellant submits that it is not suggested by the PCT that an eligible person wishing to apply for GOS will not be provided with those services by the Appellant. In our view this begs the question as to the word “eligible”. In so far as this submission relies on the fact that access is granted /denied to the premises at the main entrance on proof of membership so that only persons who are Costco members/guests will in fact present to the optician for GOS, it is entirely without merit. In our view it is not open to the Appellant to rely upon its internal restrictions to full access to support its application.
23. The Appellant also relies upon the permissive wording in regulation 13 (1) as an indication of the nature of the obligation upon the contractor. In our view Paragraph 13 (1) carries no such implication but simply defines the categories of persons who are eligible for an eye sight test under GOS should they wish to avail themselves of that facility.
24. In our view the regulation 13A (1) is much more in point. This entitles an eligible person to make an application to “any contractor” for his sight to be tested. In our view the plain meaning of regulation 13A (1) is that persons eligible for eye sight testing under GOS are free to apply to any contractor on the PCT list.
25. As a matter of construction, we have reached the view that the Appellant is unsuitable to be included on the ophthalmic list because its membership scheme prevents a person who is (or may be) eligible for a free eye sight test under GOS from applying for the provision of that service by the Appellant unless he is also a member of Costco or a member’s guest. In our view this would be plainly contrary to regulation 13A (1). The effect of allowing the Appeal would be to create further criteria for eligibility under regulation 13, namely, membership or guest membership of the Appellant’s company.
26. We turn to consider paragraph 9(4) of the terms of service. Whilst it can be said that for existing members and/or those members of the public who might become future members of Costco (uninfluenced by the availability of GOS), the demand for payment of a fee is not “ in respect of GOS”, the fact remains that the unfettered access envisaged by parliament when enacting regulation 13A (1) is clearly contravened by a membership scheme which prohibits access except upon the fulfilment of criteria re occupation/employment as well as payment of an annual fee or guest membership derived from the ability of a host member to pay a fee. Moreover the spirit, if not the letter, of paragraph 9(4) of the terms of service is breached by the Appellant’s requirement for an annual fee.
27. It is a striking fact that some 16 other PCTs have allowed the Appellant’s application to their local lists. We are, of course, unaware of the precise reasoning of the PCTs involved or, indeed, whether they specifically considered the interpretation of regulation 13A (1) of the regulations and/or the general points of principle that have been raised by the Respondent in this appeal. It may be that some PCTs were influenced by decisions previously made by other PCTs. It could be said that acceptance to the list by so many could be taken to suggest that the Respondent PCT (irrespective of interpretation of the regulations) is out of step with current views as to the concept of “suitability.”
28. Recognising that this might be considered an artificial or circular exercise, we have sought to consider the matter without strict regard to our interpretation of the regulations. Further, it should be acknowledged that, irrespective of the regulations, the concept of equality of access to the NHS could be said to be so engrained into the public consciousness that there is a risk that the suitability of a different model of contractor provision could be overlooked. The point we need to consider is whether any harm or potential harm is caused if the Appellant is included in the list and, conversely, whether the public or a section of the public might derive benefit from its inclusion to the list.
29. In our view the potential harm is that identified by the PCT in this case. It is, in our view, feasible that to include the Appellant in the list may be perceived as a precedent by which contractors are permitted to make a non NHS charge or impose other eligibility criteria prior to acceptance for GOS. By way of example, it is recognised that eye testing for the young or old may take significantly longer than the average eye test. The NHS remuneration rates do not, however, allow for a differential rate to reflect the extra time needed in examination of certain groups. A contractor could restrict or select the range of patients he is willing to examine by reference to a membership scheme that effectively excludes young or old patients because care of such a group is not sufficiently profitable. If permitted the effect of this would be a restriction on choice of contractor by the eligible person and an unfair burden on other contractors.
30. What of the potential benefit to the public, assuming, for arguments sake, that the regulations present no constraint? It might be said that “eligible” persons under regulation 13 are not adversely affected by the fact that similarly eligible persons who are also members of Costco or the guest of such a member are uniquely able to access NHS services provided by the Appellant. It could be said that the inclusion of the Appellant to the list will certainly not affect the accessibility of services currently available in the PCT locality but will simply increase access and choice for those who happen to be Costco members or member’s guests.
31. Lest our view as to the interpretation of regulation 13A (1) is incorrect we have balanced the benefit to existing or potential Costco members against the general principle of equal access to NHS services. Our majority view is that the principle of equality of access should prevail. Any person eligible for a free eye test can obtain his/her prescription and/or any voucher from any contractor under GOS and is then free to purchase glasses at wholesale premises such as Costco or wherever he may so choose. In our majority view, the inconvenience of this section of the public having to access two premises in order to exercise consumer choice is outweighed by preservation of the principle that inclusion to the list of contractors who provide NHS services should be on the basis that the services that a NHS contractor offers should be available to all without prior condition in relation to membership or contingent upon payment or other conditions that may exclude or restrict access by sections of the general public.
32. The panel canvassed the possibility of the imposition of a condition whereby the Appellant permitted free access to non members wishing to access the GOS it wishes to provide. It soon became apparent that the Appellant considered that it would be unable to comply with such a condition because of the nature of the planning consent and agreement under Section 106 of The Town and Country Planning Act 1990 governing its use of the land on which the premises are built. Suffice it to say that that the difficulties that the Appellant experiences in relation to the provision of GOS within the terms of the regulations or within the spirit of provision under the NHS arise from its own decision to obtain planning permission on the basis that it will solely provide wholesale services on a membership basis.
33. In conclusion, it is the unanimous decision of this panel that the Appellant is unsuitable to be included to the list because such inclusion would involve contravention of regulation 13A (1) and is contrary to the spirit of paragraph 9(4) of the terms of service. Lest we are wrong in law we have considered the appeal without strict regard to our interpretation of regulation 13A (1) and /or paragraph 9(4). In this alternative context, we have determined by a majority that the Appellant is unsuitable to be included on the list for the reasons set out above. Accordingly the appeal is dismissed.
34. Pursuant to regulation 9(D) (2) and Rule 46 and 47(1) of the Family H ealth Services Appeal Authority (Procedure) Rules 2001 (hereafter referred to as “the Rules”) we have decided that the Secretary of State, the Scottish Executive, the National Assembly of Wales, the Northern Ireland Executive and any PCT in England that has the Appellant on any of its lists or is considering an application by the Appellant for inclusion in any of its lists shall be notified of this decision.
35. The attention of the parties is drawn to Rule 43(2) of the Rules.
36. As indicated at the hearing the panel provisionally consider that the issue of National Disqualification may arise under section 49N (2) of the National health Service Act 1977 as amended. We direct the parties to submit written representations within 4 weeks of receipt of this decision. In the light of the Appellant’s request for an oral hearing on this potential issue we will consider oral representations from the parties on this issue on a date to be arranged.
37. Finally, in accordance with Rule 42 (5) of the Rules we notify the parties of their right of appeal against this decision under Section 11 of the Tribunals & Inquiries Act 1992. Any appeal shall be made by lodging a notice of appeal in the Royal Courts of Justice, The Strand, London WC2A 2LL within 14 days from receipt of this decision.
Chair of Appeal Panel
18th April 2006