26 January 2022

The College responds to a GOC consultation on a revised illegal practice protocol

We have responded to the GOC consultation on the illegal supply of eye care services and optical appliances.

Summary

The illegal supply of eye care services and optical appliances has always been a concern for our members. We welcome the updated protocol as it rightly provides guidance on when the GOC will open an investigation following a report of alleged illegal practice. However, we recommend the GOC do more to stop illegal activity by adopting a more proactive approach in tackling illegal practice from overseas suppliers that do not comply with UK legal requirements, and by leading regular public awareness campaigns on the risks of sourcing optical appliances from these overseas online suppliers, to help protect patients and the public.

1. To what extent do you agree that the updated protocol links more closely with our overarching public protection function?

Disagree

Please explain your reasons.

  • The College of Optometrists welcomes this updated protocol, and in particular we support the GOC’s collaborative approach to prevent online illegal sales of optical appliances, such as children’s spectacles and cosmetic contact lenses, that can be sold only under the supervision of a registered eye care professional.
  • The updated protocol rightly provides guidance on when the GOC will open an investigation following a report of alleged illegal practice, however, it should form part of a wider illegal practice strategy. The protocol does not constitute in itself such a strategy, as set out in paragraph 1.5 of the consultation document, and it will not be sufficient to effectively prevent illegal practice in all cases, in particular where providers of optical appliances are based overseas.
  • More specifically, we recommend including in this protocol guidance on how patients, registrants and businesses could report cases of illegal practice. This process should be as easy and quick as possible. This would encourage the public and registrants to report cases of illegal practice without delay.
  • Now more than ever, we need a wider illegal practice strategy. In recent years, the healthcare environment has seen an increase in online prescribing and dispensing of optical appliances. This raises issues with potential lack of appropriate supervision for safe supply of contact lenses without specification verification and spectacles supplied without ensuring the prescription is valid. This has always been a concern for the sector and even more so since the pandemic started. COVID-19 has indeed accelerated a shift to drive citizens to access health care online and use self-care and wellbeing apps. Although there are some benefits, there are also risks as supply of medical devices or remote consultations may take place from jurisdictions outside the GOC’s regulatory powers. Increased shift to online consumer behaviour exposes more patients to online suppliers of spectacles and contact lenses, and thus increases risk of harm occurring. This risk may rise with respect to increased presence of potentially unscrupulous spectacle/contact lens suppliers, whether they are provided from jurisdictions inside or outside the GOC’s regulatory powers, particularly those that give the impression they are based in the UK. Further, online sight tests and remote care Apps lack the regulatory oversight that UK citizens may take for granted. This results in an increased risk of harm posed by issues related to competency, conduct and poor efficacy.
  • We appreciate that the GOC does not have jurisdiction to take action on overseas sales, but we would like the GOC, as a minimum, to raise the issue with the appropriate local regulator / authority and recommend a course of action to end the illegal practice occurring in the UK.
  • In addition, we recommend the GOC to:
    • Explore whether the upcoming Opticians Act review will be an opportunity to extend the GOC’s jurisdiction to cover all businesses and individuals providing services in the UK no matter where they are based.
    • Explore whether the current work on reforming healthcare regulators (led by the DHSC) will be able to extend the GOC’s enforcement powers to ensure suppliers follow their legal obligations with respect to the Opticians Act.
    • Engage more with providers and those who have the power to stop non-compliant sales, like the main online platforms, other regulators and enforcement bodies, manufacturers, MHRA, Trading Standards, professional bodies, optical businesses, representatives of patients and the public, and consumer groups. Addressing illegal practice effectively will require concerted effort across and outside of the optical sector.
    • Raise public awareness by leading regular campaigns about the risks of buying optical products online that have not been verified as safe, and by publishing information on the benefits of seeking optical appliances from suppliers that do comply with UK legislation, including the importance and role of registered eye care professionals. Better information for patients will help UK patients to differentiate and identify compliant and non-compliant suppliers. We also feel there is a key role for the GOC in advising patients:
      • on safety
      • that they should wear the contact lenses as advised by their original fitting optometrist or contact lens optician
      • on their rights and entitlements when buying online (including to return lenses that are not fit for purpose)
      • what to do if they encounter a problem.
  • Work with manufacturers, suppliers and retailers to produce, publish and distribute consumer information that educates the public about safe optical appliances supply in easily understandable language, and highlights the risks of ordering a different lens from what was recommended.
  • Publish targeted information for other health professionals outside of the optical sector, eg pharmacies, about the risks of buying optical products online that have not been verified as safe. Professionals from outside of the optical sector should also be able and encouraged to report cases of illegal practice with a quick and easy route for the GOC to investigate and possibly prosecute.

2. To what extent do you agree that the updated protocol will improve sector awareness of our remit regarding illegal optical practice?

Disagree

Please explain your reasons.

  • We appreciate the openness and transparency of the GOC when highlighting the constraints and limitations of what the regulator can do, however, we recommend including instead a list of actions the GOC could effectively take forward, as suggested in our response to question one above. This would help the sector better understanding exactly what the regulator could do to tackle an illegal practice inside or outside its remit or jurisdictions.
  • We also recommend the GOC to publish regular reports on the number of illegal cases that are reported, the manner in which they were addressed and the outcomes achieved. This would improve transparency and awareness of this specific area of activity.

3. To what extent do you agree that the updated protocol will provide clarity on when we will act and what action will be taken?

Disagree

Please explain your reasons.

  • We agree that the updated protocol will provide clarity on when the GOC will act and what action will be taken, however, it is not clear how the GOC will assess if a case carries a higher risk in line with the factors as set out in paragraph 3.10 and how this will inform the GOC’s assessment decision.
  • We recommend the GOC to also be able to prosecute cases where there is potential and not only actual harm. This may not be possible if a case, being adjudged to be lower risk, has been closed or referred elsewhere at an earlier stage.
  • Furthermore, it is not clear which cases may be judged as suitable for referral to Trading Standards and what the GOC would do if no positive outcome is reported by Trading Standards. The GOC should be able to reopen a case if Trading Standards are not able to act or not able to act successfully. We recommend the protocol to include such provision.
  • Finally, as mentioned in our responses to questions one and two above, the GOC should clarify its position in relation to non-UK businesses and individuals as the protocol only suggests that in no circumstances it will be possible to take any formal action against such businesses and individuals. It should instead include a list of potential actions the GOC could take as a minimum.

4. Is there anything unclear or missing in the updated protocol?

Yes.

Please give details.

  • See our responses to questions one, two and three above. 

5. Are there any aspects of the updated protocol that could discriminate against stakeholders with specific characteristics? 

Not sure.

6. Are there any aspects of the updated protocol that could have a positive impact on stakeholders with specific characteristics?

Not sure.

7. Are there any other impacts of the updated protocol that you would like to tell us about?

Yes.

Please give details.

  • As mentioned in our response to question one above, the updated protocol should be part of a wider illegal practice strategy. This will increase the positive impact of the updated protocol.

Submitted: January 2022

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