1330835.01

IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY

Case Nos.10982;10983;10984;10985;10986;

10987;10988;11004;11005;11015 and 11016

Mr G T Carney – Chairman

Professor C V Clark – Professional Member

Ms K Wortham – Member

B E T W E E N:

MR SIMON MORELLI

(GOC Regn No.01-20020)

Appellant

And

SOUTH EAST OXFORDSHIRE PRIMARY CARE TRUST

NORTH EAST OXFORDSHIRE PRIMARY CARE TRUST

SOUTH WEST OXFORDSHIRE PRIMARY CARE TRUST

CHERWELL VALE PRIMARY CARE TRUST

WINDSOR, ASCOT & MAIDENHEAD PRIMARY CARE TRUST

BRACKNELL PRIMARY CARE TRUST

SLOUGH PRIMARY CARE TRUST

NEWBURY & COMMUNITY PRIMARY CARE TRUST

WOKINGHAM PRIMARY CARE TRUST

READING PRIMARY CARE TRUST

OXFORD PRIMARY CARE TRUST

Respondents

DECISION WITH REASONS

1 These eleven appeals were considered at the same time as they related to identical facts. Further, in each case the grounds of appeal and the grounds for opposing the appeal were identical.

2 In view of the above the Appeal Panel felt that their decision in respect of all eleven cases could be set out together.

3 All the appeals were against the refusal of the following Primary Care Trusts to include Mr Morelli in their Ophthalmic Lists:

South East Oxfordshire Primary Care Trust

North East Oxfordshire Primary Care Trust

South West Oxfordshire Primary Care Trust

Cherwell Vale Primary Care Trust

Windsor, Ascot & Maidenhead Primary Care Trust

Bracknell Primary Care Trust

Slough Primary Care Trust

Newbury & Community Primary Care Trust

Wokingham Primary Care Trust

Reading Primary Care Trust

Oxford Primary Care Trust

(together the “PCT’s”)

4 All the PCT’s had appointed Mrs Elizabeth Allison of the Thames Valley Primary Care Agency to be their representatives for the purpose of the appeals.

5 Mr Morelli qualified as an Optometrist in January 1995 and during the same year he joined the Kent Health Authority Ophthalmic List.

6 On the 25 September 2001 at the Canterbury Crown Court Mr Morelli pleaded guilty to sixteen counts of false accounting under Section 17(1)(a) of the Opticians Act 1989. On the 1 November 2001 he was sentenced to eighteen months imprisonment suspended for a period of two years and was ordered to pay costs of £2,000.

7 By an application dated the 11 March 2003 addressed to the Thames Valley Primary Care Agency Mr Morelli applied to be placed on the Ophthalmic Lists of all of the PCT’s.

8 By various letters dated between the 18 December 2002 and 16 January 2003 the Thames Valley Primary Care Agency informed Mr Morelli that all of the PCT’s had refused his application on identical grounds.

9 By letters dated the 12, 14 and 24 January 2003 Mr Morelli appealed to the FHSAA against the decisions of the PCT’s.

10 In his letter of appeal dated the 24 January 2004 Mr Morelli set out his grounds of appeal and submitted documents for consideration by the Appeal Panel.

11 By a letter dated 18 February 2004 the Thames Valley Primary Care Agency gave notice on behalf of the PCT’s of their intention to oppose the appeals made by Mr Morelli referring in their notice of opposition to Regulations 7A(1)(b) and (e) of the NHS (General Ophthalmic Services) Amendment (No.2) Regulations 2001.

12 By a letter dated 8 March 2004 the Thames Valley Primary Care Agency submitted on behalf of the PCT’s the grounds of their opposition to the appeals together with accompanying documentation.

13 Both Mr Morelli and the PCT’s had indicated that it was not their intention to attend the hearing, but to rely on the submissions and papers submitted by them to the FHSAA and accordingly, at the hearing on the 15 April none of the parties attended or were represented.

14 On the 29 March 2004 Mr Morelli had indicated to the FHSAA that he would be submitting further written representations and was informed that he should do so by the 1 April 2004 (14 days before the hearing) and that any representations submitted after the 1 April might not be accepted by the Appeal Panel. No such representations were received by the FHSAA. However, on the 13 April 2004 (the hearing being set for the 15 April 2004) Mr Morelli sent further representations by e-mail to the FHSAA.

15 As a preliminary issue the Appeal Panel considered whether or not it should take these further representations into account. The Appeal Panel decided:

15.1 That Mr Morelli had had ample time to make further representations.

15.2 That Mr Morelli had been made aware of the timescales involved and the risk, if he delayed in making further representations, that the Appeal Panel might feel unable to consider those representations, and

15.3 That there had been insufficient time for those further representations to be circulated to and considered by the PCT’s and that the PCT’s would not have an opportunity to make representations in response.

In these circumstances the Appeal Panel decided not to consider or take into account the further representations received on the 13 April 2004.

16 The Appeal Panel considered in detail all the other representations and documents submitted by Mr Morelli and by the Thames Valley Primary Care Agency on behalf of the PCT’s.

17.1 The Appeal Panel noted that in two letters of the 15 and 19 January 2004 written to Mr Morelli the FHSAA had inadvertently referred to Regulation 8(6) of the NHS (Pharmaceutical Services) Regulations 1992 (as amended) stating that:

“Any notice of appeal made under this regulation shall contain a concise statement of the grounds of appeal.”

17.2 The Appeal Panel decided:

17.2.1 That the wording used in the letter written by the FHSAA was the same as that contained in Regulation 6(2)(f) of the Family Health Services Appeal Authority (Procedure) Rules 2001; and

17.2.2 That Mr Morelli had subsequently submitted a notice of appeal containing the required details.

In these circumstances the Appeal Panel found that Mr Morelli had not been prejudiced by the inadvertent reference to the wrong regulation.

18 The Appeal Panel then considered the several grounds of appeal put forward by Mr Morelli in his letter of appeal dated 24 January 2004 and the grounds of opposition put forward by the Thames Valley Primary Care Agency on behalf of the PCT’s in their statement of opposition dated the 8 March 2004.

19.1 In his first ground of appeal Mr Morelli stated that since his reinstatement to the General Optical Council’s Register in January 2003 he had joined the Ophthalmic Lists for Kent, East and West Sussex, Hampshire and Northamptonshire.

19.2 The PCT’s point out that Mr Morelli failed to mention that his inclusion in three of these lists were subject to conditions. The PCT’s go on to state that should Mr Morelli submit a fresh application for community ophthalmic premises at a fixed location then the PCT’s would be mindful to consider such an application subject to conditions.

19.3 The Appeal Panel felt that it was unfortunate that Mr Morelli did not refer to the conditions imposed on him in his letter of appeal. Having considered the documents submitted by the Thames Valley Primary Care Trust Agency, the Appeal Panel were satisfied that at the time of taking their decision the PCT’s were aware that Mr Morelli’s inclusion in the three Ophthalmic Lists in question were subject to conditions.

20.1 In his second ground of appeal Mr Morelli stated that his suspended sentence was completed as of the 1 November 2003.

20.2 The PCT’s point out that Mr Morelli’s sentence was ongoing at the time they made their decisions.

20.3 The Appeal Panel concluded, first, that at all times the PCT’s were aware of the date of expiry of the suspended sentence. Secondly, that the period of suspension had expired by the time they gave notice of their decisions. Thirdly, that the date of expiry of the suspended sentence was not in itself fundamental to the decision as to whether Mr Morelli should be admitted to the Ophthalmic Lists of the PCT’s.

21.1 In his third ground of appeal Mr Morelli contended that he had paid “financially, professionally and through the judicial system” for his criminal offence.

21.2 The Appeal Panel concluded that the PCT’s and their advisors were under a duty to take Mr Morelli’s comparatively recent conviction for fraud into account in considering Mr Morelli’s application for admission to their Ophthalmic Lists.

22.1 In his fourth ground of appeal Mr Morelli argued that he had endeavoured to utilise the time whilst he was removed from the General Optical Council Register to undertake a large amount of continuing education, which was ongoing.

22.2 The PCT’s stated that they, when considering the application, took this information fully into account. They went on to argue that Mr Morelli’s achievements whilst he was removed from the General Optical Council Register were highly commendable, but that they were not relevant to either his application or appeal.

22.3 The Appeal Panel concluded that Mr Morelli’s achievements during this period were relevant and indicative of his attitude to his professional commitment.

23.1 In his fifth ground of appeal Mr Morelli argued that he would not compromise the smooth running and efficiency of the service as evidenced by:

23.1.1 His reinstatement to Membership of the General Optical Council and College of Optometrists.

23.1.2 The comments of the Probation Officer in her pre-sentence report to the Court that:

“He [Mr Morelli] does not pose a risk of harm to the public and that there is a low risk of future re-offending.”

23.1.3 The statement of Judge Van Der Bijl on the sentencing of Mr Morelli that:

“…….. no damage or difficulties have arisen so far as your patients are concerned and my general belief that you will not be involved in this again, I am sure……..”

23.2 The Appeal Panel noted with interest the following extracts from the Minutes of the Hearing of the Disciplinary Committee of the College of Optometrists held on the 25 July 2002 when Mr Morelli’s case came before them.

“The Committee felt that the penalty of erasure imposed by the General Optical Council appearedHearing of the Displiniary to be unduly severe in the circumstances of this particular case, and therefore agreed that expulsion from the College membership would be inappropriate. On the other hand, the Committee took a serious view of fraud and considered that suspension from College membership would be an appropriate reflection of the gravity of the offence.”

“After careful consideration and in the spirit of support for the Respondent (Mr Morelli), the Committee decided to suspend Mr Morelli from membership of the College for a period of twelve months, this suspension to take effect from the 1 November 2001, the date of the Crown Court sentencing hearing. The Committee was mindful that by determining this effective date the suspension would have expired by the time that Mr Morelli applied for reinstatement to the Register and his reinstated College membership would support his application to the General Optical Council.”

23.3 The Appeal Panel also noted that the Minutes of the Disciplinary Committee of the General Optical Council dated the 21 January 2003 when Mr Morelli’s application for restoration to the Register was considered, the Chairman, when giving its decision, stated:

“The Committee considers fraud of any sort in a very serious light, particularly when it is fraud of a public body such as the NHS. However, we note that during the period of erasure, you have acknowledged that you have done wrong and have shown remorse and taken appropriate remedial action. We have also considered very carefully the submissions made on your behalf and the evidence placed before us of voluntary work and continuing education and training at the City University. In view of the above, the Committee are unanimous in our decision to restore you to the Register. Needless to say, Mr Morelli, we would not expect to see you before us again.”

The Appeal Panel were impressed with the supportive attitude adopted by the College of Optometrists and the positive comments of the Disciplinary Committee of the General Optical Council in respect of Mr Morelli’s application for restoration to their Register. The Appeal Panel felt that the attitude of these professional bodies were material in deciding whether or not Mr Morelli’s application to the PCT’s should be allowed.

24.1 The sixth ground of appeal for Mr Morelli was that the PCT’s did not consider all the facts in his file of evidence and that they failed to explore the effects of the imposition of conditions on him if he were to be admitted to their Ophthalmic Lists.

24.2 The Appeal Panel were satisfied from the information and papers provided by the Thames Valley Primary Care Agency on behalf of the PCT’s that they had fully considered Mr Morelli’s file of evidence. They had also considered the effects of the conditions imposed by those PCT’s who had already admitted Mr Morelli to their Ophthalmic Lists.

25.1 In his seventh ground of appeal Mr Morelli contended that his rights under the Human Rights Act 1998 had been compromised and that the PCT’s had failed to strike a fair balance between his rights and the public good.

25.2 The PCT’s pointed out that none of them had refused Mr Morelli the option of working in their PCT areas should he wish to re-apply in different circumstances and that they had not therefore denied him his livelihood. The PCT’s went on to argue that Mr Morelli’s right to work as an Optometrist had, therefore, not been infringed in any way and the decision taken had been on the basis of the nature of the application Mr Morelli had made. The PCT’s therefore felt that a fair balance had been struck between Mr Morelli’s individual rights and the public good.

25.3 The Appeal Panel concluded that Mr Morelli’s rights under the Human Rights Act 1998 had not been breached and that the actions of the PCT’s had not been intended to prevent Mr Morelli from working as an Optometrist. The PCT’s had clearly weighed in the balance Mr Morelli’s rights against the public good and had foreseen the possibility of Mr Morelli being able, in certain circumstances, to be included in their Ophthalmic Lists.

26.1 In his eighth ground of appeal Mr Morelli stated that it had taken almost a year for the Thames Valley Primary Care Agency to advise him of the decisions of all of the PCT’s and that when he was informed of the decisions no explanation as to why he was refused inclusion in the Ophthalmic Lists were given.

26.2 The Appeal Panel concluded that whilst this was not a ground of appeal, it was unfortunate that Mr Morelli’s application dated the 11 February 2003 took over ten months to be dealt with and that apart from the reference to Regulation 7A(1)(b) and (e) no reasons for the decision were provided to him, particularly having regard to paragraph 7A(5) of the NHS (General Ophthalmic Services) Amendment (No.2) Regulations 2001 which require the Health Authority to notify the Ophthalmic Medical Practitioner or Optician of its decision and the reasons for it (including any facts relied upon).

27.1 In their statement of opposition the PCT’s argued that Mr Morelli’s application, as submitted, should not be granted under Regulation 7A(1)(b) and Regulation 7A(1)(e) of the NHS (General Ophthalmic Services) Amendment (No.2) Regulations 2001.

28.1 Regulation 7A(1)(b) reads as follows:

“(b) That having checked the information provided by the Ophthalmic Medical Practitioner or Optician in paragraphs 5 and 6 of Schedule 2, the Health Authority is not satisfied with the information.”

28.2 Paragraphs 5 and 6 of Schedule 2 relate in the case of paragraph 5 to qualifications and where they were obtained and in the case of paragraph 6, to the applicant’s professional registration number.

28.3 The Appeal Panel found that no arguments had been put forward by the PCT’s as to why they should not be satisfied with the information provided under paragraphs 5 and 6 of Schedule 2 and that there were no grounds on the papers before them for refusing Mr Morelli’s application under this particular regulation.

29.1 Regulation 7A(1)(e) provides that a Health Authority could refuse admission to its Ophthalmic Lists if admitting the Ophthalmic Medical Practitioner or Optician to the List would be prejudicial to the efficiency of the service which he would undertake.

29.2 In their statement of opposition the PCT’s stated that the Thames Valley Primary Care Agency’s Probity and Performance Team had the remit to monitor prescribing trends of general ophthalmic services activity and identify outliers. Any contractor identified as giving cause for concern is subject to scrutiny and monitoring. Any contractor with a known and/or recent conviction for fraud would automatically be closely observed for a set time period. The Thames Valley Primary Care Agency went on to say on behalf of the PCT’s that they strongly believed that the monitoring of an individual already under close observation and the real difficulties involved in tracking a solely domiciliary service provider would result in the prejudice of efficiency of service due to the increased workload incurred.

29.3 The PCT’s also stated that they cast no aspersions on Mr Morelli’s ability to practise, his professional conduct, his standard of clinical governance nor his character.

30.1 The Appeal Panel noted that under Regulation 7C(2) of the National Health Services (General Ophthalmic Services) Amendment (No.2) Regulations 2001 the appeal was by way of re-determination.

31.1 The Appeal Panel decided, subject to paragraph 31.2.2 below, to allow Mr Morelli’s appeal for the following reasons:

31.1.1 Mr Morelli’s ability to practise, his professional conduct, his standard of clinical governance and his character have not been put in issue by the PCT’s.

31.1.2 The fact that the General Optical Council had restored Mr Morelli to its Register and the support shown to him by the College of Optometrists demonstrated that his professional bodies felt that he was fit to practise.

31.1.3 The only argument put forward by the PCT’s in support of their refusal under Regulation 7A(1)(e) was “that the monitoring of an individual already under close observation and the real difficulties involved in tracking a solely domiciliary service provider would result in the prejudice of efficiency of the service due to the increased workload incurred”.

The Appeal Panel were of the opinion that there was, in any event, an obligation for there to be a system in place for monitoring Optometrists as Contractors providing NHS services regardless of the setting in which the NHS service is provided and that the difficulties involved in “tracking” Mr Morelli had been overstated.

31.1.4 There was no real evidence that Mr Morelli’s admission to the Ophthalmic Lists of the PCT’s would be prejudicial to the efficiency of the service, which he would undertake.

31.1.5 There was no evidence or suggestion that the service to patients would be prejudiced.

31.1.6 The statement of Mr Morelli, the comments of the Probation Officer in her sentence report, the comments of the Judge when Mr Morelli was sentenced and the views expressed by his professional bodies suggest that the likelihood of Mr Morelli re-offending are low.

31.1.7 In the light of the above the Appeal Panel was of the view that Mr Morelli should be conditionally admitted to the Ophthalmic Lists of all the PCT’s.

31.2

31.2.1 The Appeal Panel, having considered the various conditions imposed by other PCT’s upon Mr Morelli took the view that these conditions would cause difficulty for Mr Morelli in re-establishing himself into his profession.

31.2.2 In these circumstances the Appeal Committee were of the opinion that Mr Morelli’s admission to the PCT’s Ophthalmic Lists should be subject to the sole condition that Mr Morelli should not have his own independent practice and that this condition should be reviewed by the PCT’s after twelve months from his admission to their Ophthalmic Lists.

31.2.3 The reason for this condition being that Mr Morelli’s conviction was in relation to the way lenses were dispensed whilst he was running his own business and it would seem sensible for Mr Morelli to re-establish himself in his profession before being free to run his own business.

31.2.4 Whilst the Appeal Panel does not seek to impose a further condition on Mr Morelli it would recommend to him that he should consult with the PCT’s Optometric Advisor in relation to any uncertainty he may have over complex lenses.

32 In accordance with regulation 42(5) of the Family Health Services Appeal Authority (Procedure) Rules 2001, any party to these proceedings may have a right to appeal this decision under Section 11 of the Tribunals and Inquiries Act 1992.

DATED THIS 11 day of May 2004

(Signed) G T Carney

………………………………………………..

G T Carney - Chairman

DECISION REVIEW BY PANEL

Dated 21^st June 2004 – As requested by the Respondent PCTs

‘I have now had the opportunity of consulting with my fellow panel members ain relation to the clarification sought by Thames Valley Primary Care Agency.

The unanimous decision of the members of the Appeal Panel was that no conditions should be imposed by the PCTs represented by the Thames Valley Primary Care Agency with the sole exception that a condition should be imposed that Mr Morelli could not own his own independent practice and that this condition would be reviewed by the PCTs after twelve months from his admission to their Ophthalmic Lists.

The Appeal Panel were clear that no other conditions should be imposed and in these circumstances the PCTs are not free to impose conditions of a similar nature to those that they had initially wished to impose.’

Yours sincerely

G T Carney

Chair