Memorandum of Understanding: General Optical Council

A memorandum of understanding between NHS Practitioner Health and the General Optical Council

March 2021

Purpose

The purpose of this memorandum of understanding is to set out a framework between the General Optical Council (GOC), and NHS Practitioner Health (NHSPH) to ensure that effective channels of communication are maintained between the GOC and NHSPH.

1. This memorandum relates to the areas of interface between the GOC and NHSPH, clarifies respective roles and responsibilities and outlines mechanisms in place to promote effective liaison.

2. The agreement does not affect existing statutory functions or amend any other policies or agreements relating to the activities of the GOC and NHSPH.

Functions of the GOC and NHSPH

The General Optical Council

The GOC is the independent regulator for optometrists, dispensing opticians and optician premises in the UK. Its role is to protect, promote and maintain the health, safety and wellbeing of patients and the public who use optical services in the UK by upholding standards and public trust in optical services. The core functions of the GOC are:

a) Setting standards for optical education and training, performance and conduct.

b) Approving qualifications leading to registration.

c) Maintaining a register of individuals who are qualified and fit to practise, train or carry on business as optometrists and dispensing opticians.

d) Investigating and acting where registrants’ fitness to practise, train or carry on business is impaired.

NHS Practitioner Health

NHS Practitioner Health is a free, confidential NHS service based in England. Acting on behalf of Scottish government NHS Practitioner Health will also be providing a treatment service for regulated staff working in NHS Scotland and social care in Scotland. Where necessary, they will arrange onward referral to specialist services. Optical professionals accessing NHSPH will have health concerns that relate to:

a mental health or addiction problem (at any level of severity).

NHS Practitioner Health is a national NHS service, commissioned by NHS England and by the Scottish Government and is a self-referral service. Health care organisations may seek advice or make referrals.

Confidentiality

3. The GOC has a statutory duty under the Opticians Act 1989 to process personal information to enable them to fulfil their statutory functions, including the duty to disclose, share and publish personal information when it is in the public interest to do so. It has discretion to withhold any information concerning the physical or mental health of a person which it considers to be confidential. The Disclosure Policy sets out the approach to disclosing personal information and to publishing about individual professionals and optical businesses.

4. When making a decision on what information to publish, the GOC are committed to adhering to the following principles:

a) Being open and transparent about the process we adopt and the decisions we make whilst protecting confidentiality.

b) Ensuring that commercially sensitive information is treated confidentially

c) Ensuring we comply with legal duties placed upon us with regard to data protection and the common law duty of confidentiality

d) That any disclosure of information is lawful and proportionate in all of the circumstances

e) Completing a public interest test when applicable

f) Publishing information in an easily accessible format where possible

5. Optical professionals approaching NHSPH for help need to be assured that they have the same rights to confidentiality as any other patient. To this end, NHSPH has devised a confidentiality policy for regulated professionals which will be found on NHSPH’s website.

Potential areas of communication

6. Communication between the GOC and NHSPH is based on an overriding duty to protect patients while, as far as possible, being fair to optical professionals and protecting confidential health information about individual optical professionals. Areas of potential communication between the GOC and NHSPH include the following (the list is not intended to be exhaustive):

a. Pre-referral discussion:

i. ‘in principle’ about how best to manage concerns about an optical professional and whether or not the GOC would need to be informed on an anonymised basis, or

ii. discussions about individuals who have been referred to either organisation, where there are concerns about public protection or the safety of patients under the care of the optical professional, on a named basis.

b. Post-referral discussion – to coordinate activity where appropriate.

7. Each of these areas is further explored in the following paragraphs.

Pre-referral discussions ‘in principle’ or about named optical professionals.

8. Both NHSPH and the GOC are approached for advice by organisations which have concerns about the health of particular optical professionals; the purpose of these discussions is to determine whether the organisation should take further steps locally, refer to the GOC, or refer to NHSPH.

9. Although in most cases it will be clear what advice should be given to the enquiring organisation at this stage, it may sometimes be appropriate for the GOC and NHSPH to liaise in order to clarify the issues raised.

10. In these cases the GOC or NHSPH will discuss the matters raised by the enquiring organisation. Consent should be sought before doing so and if not provided there should be an assessment of whether the risk is such that the information should be disclosed without consent. If the nature of the risk is not such that it would be appropriate to disclose the information without consent, the enquiring organisation should be offered appropriate contact details for both bodies so they may conduct their own discussions.

Should NHSPH need to provide contact details for the GOC, they should give the enquiring organisation the details for the operational contact identified at Annex A.

Post-referral discussions about individual optical professionals

11. The GOC and NHSPH recognise that there will be times where they both have a case open about a named optical professional. They will work together to ensure that appropriate channels of communication exist.

Disclosure of concerns

12. Disclosure should be made to the GOC where the optical professional’s health raises concerns regarding the possibility of impaired fitness to practise. This will normally be limited to those cases where the optical professional’s condition may affect patient safety and/or the optical professional is not complying with assessment, treatment or monitoring, or heeding advice to remain on sick leave.

13. Disclosure should also be made to the GOC where there are allegations (at initial assessment or emerging during assessment or treatment) about an optical professional’s performance or conduct which may call into question their fitness to practise.

Cases under investigation/monitoring by the GOC

14. Whenever the GOC receives a concerns about an optical professional an initial assessment is conducted. The concerns may include information which indicates the optical professional may be unwell.

15. Where the concerns raise issues which call the optical professional’s fitness to practise into question, the GOC’s fitness to practise procedures are engaged and an investigation may follow. In these cases, for optical professionals who appear to have a mental or physical health concern, the GOC will ask the optical professional if they are currently undergoing assessment or treatment by NHSPH. If so, it will, with the optical professional’s consent, seek relevant information from NHSPH.

16. Any information provided by NHSPH will be considered by GOC decision makers and, if needed, the fitness to practise committee, in relation to the optical professional’s fitness to practise.

17. Where an optical professional is under investigation/being monitored by the GOC and is also under the care of NHSPH, NHSPH will inform the GOC whether they are acting in a treating capacity or as a support group. If the NHSPH/Scottish Workforce Specialist Service is acting in a treating capacity they will provide a named person with whom the GOC can liaise.

18. The NHSPH/Scottish Workforce Specialist Service will ensure that any information arising from the monitoring of the health of an optical professional being investigated or monitored by the GOC that indicates they have breached restriction(s) imposed on their registration and/or are not complying with advice on managing their health problem, and/or their condition appears to pose a risk to their patients, will be shared with the GOC as soon as possible.

Optical professionals being treated/monitored by NHSPH

19. When NHSPH receives a referral (self-referrals or referrals from an employer/contracting organisation) they will ask the optical professional/ referring organisation if the optical professional is currently under investigation/ being monitored by the GOC and perform a registration check to ascertain if restrictions are in place.

20. If the optical professional or referring organisation indicates that the GOC is currently investigating/ monitoring, NHSPH will seek the optical professional’s consent to contact the GOC to explain that the optical professional has NHSPH’s intervention. If consent is not forthcoming, NHSPH will consider whether or not disclosure to the GOC is required, without consent, using the criteria set out in paragraph 13, 14 and 19.

Thresholds for referral

21. The GOC is able to advise the employers of optical professionals on thresholds for referral to the GOC, the sharing of fitness to practise case related information and the making of revalidation recommendations. NHSPH should access the operational contact for the GOC identified at Annex A in order to seek advice on thresholds for referral on an ‘in principle’ or a named optical professional basis.

Lawful exchange of information

22. The GOC and NHSPH are subject to a range of legislative duties in relation to information governance, including the Data Protection Act 2018, Human Rights Act 1998, and the Freedom of Information Act 2000. This document sets out the approach to the routine exchange of information between the two organisations within this legal framework.

Both organisations hold and use information about organisations and individuals to perform their core functions. The GOC and NHSPH will share information where it is necessary in order to perform these functions effectively and where it is in the public interest.
The organisations recognise that this exchange of information needs to be carried out responsibly and within the guidelines set out in this MoU.
It is understood by both organisations that statutory and other constraints on the exchange of information will be fully respected, including the requirements of data protection legislation (including the Data Protection Act 2018 and the General Data Protection Regulation ((EU 2016/679) as applied in the UK), the Human Rights Act 1998 and the common law duty of confidentiality.
Where information shared under this MoU falls within the scope of a request for information under either the Freedom of Information Act 2000 (FOIA) or data protection legislation, the organisation receiving the request will consult the other party before any disclosure is made. This is so that they are aware of the potential impact of any disclosure on the work of the other party. Both organisations recognise that the final decision on disclosure will rest with the organisation that receives the request.

Data protection

Both organisations recognise their respective responsibilities as data controllers under data protection legislation (including the Data Protection Act 2018 and the General Data Protection Regulation ((EU 2016/679) as applied in the UK). Both will comply with any data sharing code published by the Information Commissioner under that legislation.
The following principles will apply to the sharing of personal information:

a. There must be a fair and lawful basis for sharing information.

b. Information must only be used for the purpose stated at the time it is shared.

c. Information to be shared will be limited to what is necessary for the purpose and will be anonymised or pseudonymised where appropriate.

d. Shared information that is not in the public domain must be treated as confidential and must not be shared with other parties without the written agreement of the organisation that provided the information.

e. Information must be transmitted securely, for example by secure email or other agreed method.

f. Information must be stored and processed securely and in a manner that reflects its sensitivity for example, where shared information includes special category and/or criminal information.

g. Shared information must not be stored or shared outside the UK or European Economic Area without prior written agreement and appropriate assurances in place.

h. The organisation receiving personal data will apply a reasonable retention period based on the purpose for which it was shared

i. Each organisation will act as an independent data controller and take appropriate steps to protect the confidential nature of documents and information that the other may provide

Resolution of disagreement

23. Where any issues arise which cannot be resolved at an operational level, the matter will be referred to the policy leads identified at Annex A to ensure a satisfactory resolution.

Review and Governance arrangements

24. This MoU will have effect for a period of 36 months commencing on the date which it is signed by the Chief Executive of the GOC and the Medical Director of NHSPH.

25. Both bodies have identified a MoU manager at Annex A, and these will liaise as required to ensure this MoU is kept up to date and to identify any emerging issues in the working relationship between the two bodies.

26. The MoU managers may coordinate a formal review of this MoU at any time for the duration of this MoU. The purpose of such a review will be to consider the operational effectiveness of this agreement in enabling both bodies to fulfil their functions.

On behalf of GOC

Name: Lesley Longstone
Chief Executive, GOC
Date: 30th March 2021

On behalf of NHSPH

Name: Dame Clare Gerada
NHSPH Medical Director
Date: 28th March 2021

Annex A

The memorandum of Understanding will be managed on behalf of the two bodies by the following contacts:

Managers for the MOU

1. The General Optical Council

Dionne Spence
Director of Casework and Resolutions

Keith Watts
Head of Case Progression

2. NHS Practitioner Health

Dame Clare Gerada
Medical Director, NHS Practitioner Health

Operational contacts