Charge
A Professional Conduct Committee (PCC) charged that Ms Andrea Nancye Buckingham, registered Optometrist formerly of Auckland (the Optometrist) was guilty of professional misconduct. The particulars of the charge alleged:
Since on or in the period before 20 May 2011 when Eyezone Limited (Eyezone), a company in which the Optometrist was at all material times the sole director and shareholder, was put into liquidation, she failed to make appropriate arrangements to ensure the continuity of Eyezone's patients' optometric care and/or to ensure that the patients' care would not be compromised after her business went into liquidation.
The Optometrist:
- Failed to inform Eyezone's patients and/or their health care providers that Eyezone would no longer be providing its patients with optometric care; and/or
- Failed to provide Eyezone's patients with the names and contact details of alternative providers from whom they could obtain optometric care; and/or
- Failed to take appropriate statutory and/or professional steps for the retention and/or storage of Eyezone's patients' notes; and/or
- Failed to make appropriate arrangements to allow for the transfer of Eyezone's patients' notes and/or medical information on the request of Eyezone's patients; and/or
- Failed to notify the Registrar of the Optometrists and Dispensing Opticians Board (the Board) of her change in postal address, current residential address and/or current work address so that when the Board received requests from Eyezone's patients relating to the whereabouts of their patient notes, the Board was compromised in its ability to respond to those patients requests due to the unknown whereabouts of the Optometrist at the relevant times.
Finding
The Tribunal found all particulars of the charge were established and amounted to gross negligence and malpractice and taken together or separately, constituted professional misconduct.
Background
The Optometrist acquired a Diploma in Optometry in 1975 and from 1976 until 31 March 2010 held current practising certificates (APC).
On 18 September 2004 the Health Practitioners Competence Assurance Act (the Act) came into force. To receive an APC from 1 April 2010, the Optometrist, who was not trained in the use of diagnostic pharmaceutical agents (DPA) was requried by the Board to upskill in that area by the end of March 2010.
The Optometrist was sent 3 reminder letters before 1 April 2010 but she did nothing and did not apply to renew her APC before it expired on 31 March 2010. On 8 April 2010, the Board sent the Optometrist a letter recording her failure to renew her APC and her failure to fulfil the DPA requirements.
The Optometrist told the Tribunal that she sent a letter to the Board in approximately December 2009 saying she was not going to undertake diagnostic qualifications and would not be registered after March 2010. The Board has no record of this letter, nor was it produced by the Optometrist. Despite further correspondence from the Board to the Optometrist she continued to practice until May 2011 and at no time did she clarify her position.
The Board advised the Optometrist by letter on 17 May 2010 that a condition was to be placed on her scope of practice stating she was not entitled to practice optometry until she fulfilled the DPA requirements. This was to take effect from 3 June 2010. Nothing was heard from the Optometrist.
The Optometrist was sole director and shareholder of Eyezone Ltd and until May 2011, Eyezone carried on providing optometry services to patients in Auckland from branches in Devonport, Birkenhead and Apollo Drive in Auckland as well as Waiheke Island.
On 15 May 2011 the landlord of the Devonport branch locked the doors and notice had been given at Birkenhead and Waiheke Island to vacate the premises.
On 18 May 2011, the Optometrist was adjudicated bankrupt and left the Birkenhead practice. Eyezone was placed in liquidation on 20 May 2011. It is understood that the Optometrist's partner was to arrange secure storage of the patient records and to provide the records to patients who requested them.
The liquidator's agent found that assets at each of the premises had been "ripped out" and no patient records were discovered. The Optometrist was asked to supply the patient records but these were never supplied to the liquidator.
Another optometrist was approached to take the records but he did not wish to do so because of the size of the files (some 20-30,000 patient records). A statutory declaration from Mr K D Algie of CFS Money Ltd stated that the records were held in a safe storage area at the rear of the business and the Optometrist's partner checked phone and email messages every few days in order to answer record requests from patients. The Optometrist stated that from approximately May to Octoberf 2011 around 460 records were sent to people on request.
The Board received two queries from patients of Eyezone concerned at Eyezone's sudden closure with no advice to patients/customers as to alternative provideres for the handling of the existing optometry records.
The Board made inquiries and was told by the liquidator that the Optometrist had no fixed address and that he was having difficulty reaching her to acquire patient records; that the best means of obtaining the records would be to contact the receiver.
On 19 October the Board wrote to the Optometrist recording she did not hold a current APC and provided options of remaining on the Register or requesting cancellation of registration. The Board also stated the law required a practitioner to promptly inform the Board of any change of address. The letter was returned with advice that the box number had been closed.
On 21 October the Board referred the issue of access and transfer of records to a PCC to investigate.
The Board received a number of complaints over the next few months and as late as May 2012, from patients of Eyezone, concerned at the closing down of Eyezone branches with no notice to patients or advice as to where they could obtain their records. Patients also contacted the Board during this time requesting their records.
Contact was made by the PCC with the Optometrist on 12 April 2012 who gave an email address for a person who had security over the company but no advice was given as the location of the patient records. The Optometrist was again asked for the location of the records and on 2 May 2012, the PCC was contacted by a person who advised there was a pallet load of material. That same day the PCC sent a detailed letter to the Optometrest advising her of an intended hearing and requesting 19 patient files to be provided within 24 hours.
The Optometrist responded on 5 May 2012 listing a number of reasons for her lack of contact and lack of advice as the whereabouts of the patient records, stating that "any patient could go to another Optometrist and have an eye exam; records show a previous history and any health issues; any competent Optometrist would pick up any abnormalities. Records such as visual fields would obviously be helpful but considering many Optometrists still do not have this equipment "...it is hardly a threat to a person's sight". No address as to the whereabouts of the records was given in that correspondence or in any further correspondence from the Optometrist.
On or about 20 June 2012, a selection of Eyezone patient records was delivered by courier to the Board's offices in Wellington. The Board emailed the Optometrist on 22 June 2012 asking what arrangements were being made for other patients to acquire their records and asking for an up to date residential and postal address as soon as possible.
On 14 August 2012 the Optometrist emailed the Board advising that the Eyezone records had been in the possession of "an Optometrist for some time now". It appears that in August 2012, Mr S Khayami (an optometrist) was approached to take possession of the records which he did.
On 22 August 2012, Luxottica retail (which owns OPSM Optometrist) was approached by the Optometrist requesting the company take possession of the records. Luxottica agreed and approximately 40 boxes some 20,000 to 30,000 records were uplifted on 25 and 27 September 2012.
Reason for Finding
The Tribunal was satisfied that, at all material times, the Optometrist was a registered optometrist and therefore had ongoing professional obligations even if an APC was not held authorising that person to practise. Accordingly, her failure to take adequate steps to advise patients and/or healthcare providers that Eyezone would no longer provide care and her failure to provide patients with contact details of alternate providers was a significant departure from acceptable professional standards.
The Tribunal agreed that the Optometrist's failure to make appropriate statutory arrangements for the retention and/or storage of records denied or potentially denied the patients their right to continuity of care and/or care that would not be compromicsed after her business closed down.
The failure to arrange for appropriate transfer of the records showed a signifiicant lack of insight into the care of patients, particularly given her somewhat cynical statement to the Board 5 May 2012 as quoted above.
The Tribunal also considered the Optometrist had a legal obligation to communicate properly with the Board and keep it properly informed.
Penalty
The Tribunal ordered that the Optometrist's registration be cancelled. It ordered censure to express its strong disapproval of the conduct it was required to review.
The Optometrist was ordered to pay costs of $17,000 exclusive of GST in respect of the costs and disbursements of the PCC and $9,800 exclusive of GST in respect of the costs and disbursment of the Tribunal.
The Tribunal directed that a copy of its decision and summary be placed on the Tribunal's website and a notice stating the effect of the Tribunal's decision be placed on the Board's website and in its newsletter.
The Tribunal also declined to order permanent suppression of the Optometrist's name.