“This case symbolises the AOP’s commitment to fearlessly defend our members”

The High Court has made a decision in favour of the AOP and sealed a consent order between the association and the General Optical Council (GOC).

The consent order was agreed between the AOP and GOC following an application for a judicial review made by the association on the behalf of a member earlier this year.

The AOP’s legal team had been supporting a member who was served with an interim order notice of hearing by email in 2020, which they had not seen, and were made the subject of an interim suspension order without their knowledge. Read more about this case in OT’s article: Supporting members “to the highest level.”

At the time of the hearing, the GOC had not yet made the Committee, Constitution, Registration and Fitness to Practice (Coronavirus) (Amendment) Rules Order of Council 2020 to send notices electronically, and did not have explicit consent from the registrant to send notices via email, as required through the Opticians Act.

The AOP’s legal team made an application for a judicial review, arguing that in the member’s case, the GOC’s decision to proceed with an interim order and subsequent interim order review had been unlawful, as the notice of initial hearing had not been served properly.

The GOC conceded that the first interim order, and subsequent interim order review, should be quashed and provided a consent order to which the AOP agreed. This has now been approved by the High Court.

In a statement, the regulator confirmed: “The GOC accepted that its method of serving a notice on this registrant, in 2020, did not comply in full with the provisions governing service.” 

Supporting members to have a voice

Discussing the case, Cassandra Dighton, head of professional discipline for the AOP, said: “In supporting members, it is the AOP’s role to ensure that when the GOC takes action, they do so in a way that is compliant with the law that governs them.”

Dighton explained that the unlawful service of notice was an important issue, telling OT: “It is paramount that a registrant is served with a notice of hearing in a lawful manner so that they have adequate time to prepare for the hearing, and attend with a representative if they so wish.

“In this case, not only did the registrant have no idea that he was subject of an interim order hearing, he had no idea that he was subject to an order. He was denied the opportunity to attend and be represented at the hearing.”

The consent order is a confirmation that the GOC has accepted they were wrong in law and the decisions made in the case should be quashed, Dighton explained. This has been agreed by a High Court judge in the AOP’s favour.

“I think this case symbolises the AOP’s commitment to fearlessly defend our members and hold the GOC to account,” Dighton told OT.

Following the introduction of the GOC’s Rules in December 2020, the regulator can now serve notices by email, with permission of the registrant.

The regulator produced, following a public consultation, a new draft policy on the service of statutory notices by email, setting out how and when the GOC will use email to serve notices as well as how consent will be obtained, and the safeguards in place. Alongside the new policy, the GOC has shared its updated protocols for remote hearings and indicative sanctions guidance.

The GOC shared in a statement that the new detailed policy for service of notices “will ensure fairness to our registrants as well as compliance with the legislation.”

The AOP has been involved in the consultation process, providing a response to the draft policy and protocols. The AOP’s consultation responses can be found online.

Dighton explained that this has involved highlighting points “regarding safeguards when it comes to serving notices.”

“A registrant of the GOC would need to know a notice has been served so that they can prepare properly, obtain legal advice and be properly represented at a hearing,” she emphasised.

As notices can now be sent electronically, members should ensure their contact details are correct.

“Members need to be alert to the fact that, if they give consent to the GOC for notices of hearing to be sent by email, then that is what will happen,” Dighton explained. “Members need to make sure that the email addresses they are using are always up-to-date with the GOC, and that those emails will not be filtered into their spam or junk folders.”

Members are reminded to contact the AOP professional discipline team as early as possible if they receive correspondence regarding any GOC proceedings.

“Contact the professional discipline team and be safe in the knowledge that we are here to support members, and we are fearless when it comes to defending their position,” Dighton concluded.