plaintiff. SACAT found the respondent altered 410 prescriptions deliberately, without clinical justification and contrary to patient interests; the conduct was substantially below the standard reasonably...
Key principles
On the balance of probabilities, having regard to the heightened consideration required by Briginshaw, the Tribunal was satisfied that the respondent deliberately altered 410...
Forensic metadata, timing analysis and workplace attendance records, taken together and assessed by expert forensic accountants, can establish authorship of electronic record...
Deliberate alteration of patient records that places patient welfare at risk and is substantially below the standards reasonably expected of a registered practitioner is...
Issues before the court
Whether the respondent altered optical prescriptions entered by another optometrist using his Socrates user account.
Whether those alterations constituted professional misconduct.
Whether alternative explanations (system error, other staff, conspiracy or third-party use of credentials) could account for the alterations,...
Plain English Summary
SACAT found that optometrist Ashok Bhoola altered 410 prescriptions entered by colleague Liddean McKernan in the store computer system. Forensic analysis of metadata and timing, combined with staff rosters and witness evidence, led the Tribunal to reject alternative explanations (typing error, database corruption, other staff or conspiracy). The Tribunal concluded the alterations were deliberate, not clinically justified, harmed patients (leading to incorrect glasses and remakes) and amounted to professional misconduct. A further hearing will determine Bhoola's fitness to remain registered.
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Deep Dive
1,608 words · generated 15/07/2026
What happened
Between February 2015 and 19 January 2016, 410 entries in the Specsavers West Lakes store Socrates patient management system that recorded prescriptions authored by optometrist Liddean McKernan were subsequently altered and the changes were recorded under the user account name of fellow optometrist and part‑owner, Ashok Bhoola. The alterations produced clinically significant differences in prescribed lenses and resulted in at least 313 pairs of glasses being made from altered scripts, with 96 customers returning for remakes (about 30% of those dispensed on incorrect scripts), which materially exceeded normal remake rates for the group (around 4–5%) (Evidence in detail - Mr Ivey [6]-[8]; Our assessment [20]-[23]).
Cited legislation
No linked legislation citations have been extracted yet.
Specsavers' internal investigation produced reports from a loss‑prevention accountant (Scott Ivey) and an independent forensic accountant (Jean‑Pierre du Plessis). Their analyses examined timing of entries, SOC system metadata, staff rosters and possible technical explanations (finger error, database corruption, accidental overwriting, third‑party use of credentials). SACAT heard those expert reports, witness evidence from Ms McKernan, and the respondent's own evidence, and after weighing all material concluded on the balance of probabilities that Bhoola was the person who made the alterations deliberately and without clinical justification. SACAT found the conduct amounted to professional misconduct and ordered a further hearing on the respondent's fitness to remain registered (Our conclusions on the evidence [3]-[5]).
Hearing dates were February and May 2020; the Tribunal comprised Member Schroeder, M Parsons and E Golding.
Why the court decided this way
Central to the Tribunal's decision was the combined probative weight of forensic metadata, timing analysis and circumstantial evidence, and the elimination (or rendering unlikely) of alternative explanations. Key points cited by the Tribunal:
Expert findings rejected simple typing errors or database corruption as explanations for the pattern and specific character of the alterations (Mr du Plessis' Hypotheses A and B were rejected; Our assessment [4]-[6]; Evidence in detail - du Plessis [4]-[8]).
The timing of alterations was telling: many changes occurred within about 1–2 minutes of Ms McKernan finalising an examination, and the average time between McKernan finalising an exam and the change being effected was 7–8 minutes, with the shortest 19 seconds (Mr Ivey analysis; Evidence in detail - Mr Ivey [8]).
Records showed no occasions where two different persons using the respondent's account made simultaneous entries in different patient records. Du Plessis examined 521,432 entries in the respondent's account to test whether a third party using the respondent's credentials would produce detectable simultaneous entries; he found none and concluded there was no evidence the respondent's credentials had been compromised (du Plessis second report and evidence [1]-[6], [65]-[73]).
Roster analysis demonstrated that only two people, the respondent and Ms McKernan, were present on all days when alterations were made, making it improbable that retail staff alone were responsible (Mr Ivey; Our assessment [11], [37]-[38]).
Some alterations were made at times when Ms McKernan was actively consulting and effecting entries, which physically precluded her from simultaneously logging in as the respondent and making those same changes (du Plessis and Ivey findings; Evidence in detail - du Plessis [10]-[15]; Our assessment [7]-[11]).
The Tribunal rejected the conspiracy theory among retail staff as implausible given the sophistication and coordination that would be required (Our assessment [12]-[15]).
Having weighed these points, the Tribunal concluded that on the balance of probabilities (and applying the Briginshaw caution appropriate to serious allegations) the most probable explanation for the pattern of alterations was that the respondent himself used his account to make the changes (Our conclusions on the evidence [1]-[6]).
Before and after state of the law
Before this decision, the governing legal framework was the Health Practitioners Regulation National Law (South Australia) Act 2010 and disciplinary principles established in tribunal practice and authorities such as Briginshaw v Briginshaw concerning the standard of proof. The Tribunal explicitly applied the Briginshaw approach: while the civil standard is the balance of probabilities, serious allegations demand careful, sometimes more exacting, consideration ([23]; Our conclusions on the evidence [1]).
This decision illustrates how disciplinary tribunals will treat reliable forensic metadata and timing evidence in establishing authorship of electronic records. It underscores two points for future disciplinary work:
Where electronic system logs and metadata permit, a robust forensic analysis can establish responsibility for record alterations even in the absence of direct observation or system terminal identifiers.
Tribunal will examine alternative explanations comprehensively; the more alternatives can be robustly eliminated by expert analysis, the stronger the inference that the named account holder was the author.
Post-decision, the law on professional misconduct remains the same; the case is significant as an application of existing disciplinary doctrine to electronic records and forensic metadata.
Key passages with plain-English translation
"We remind ourselves that it is not for the respondent to disprove anything. The onus of proof is squarely on the complainant." (Our conclusions on the evidence [2]).
Plain English: The Optometry Board had to prove their allegations; Bhoola did not have to prove his innocence.
"Having considered all of the evidence ... we are satisfied that the respondent did alter the prescriptions as alleged ... he did this deliberately, without clinical justification and contrary to the interests of the patients, and that his actions put the welfare of patients at risk." (Our conclusions on the evidence [3]).
Plain English: After weighing everything, the Tribunal concluded Bhoola changed the prescriptions on purpose, there was no medical reason, the changes harmed patients, and this was serious misconduct.
"I could not find any evidence suggesting that Mr Bhoola's user account credentials were compromised and/or used by a third party." (du Plessis' conclusion as adopted by the Tribunal; Evidence in detail - du Plessis [2]).
Plain English: The forensic expert looked for signs someone else was using Bhoola's login and found none.
"The alterations nearly always occurred within one to two minutes after user [Ms McKernan]'s consultations ended." (du Plessis' report summary; Evidence in detail - du Plessis [65]).
Plain English: The timing is consistent with someone watching for the end of a consultation and quickly changing the record.
"It is unfortunate that the Socrates system does not record the identity of the computer terminal ... It only records failed attempts." (Our assessment [16]).
Plain English: If the system had logged which physical computer made changes or recorded every successful log-in, determining authorship would have been simpler.
What fact patterns trigger this precedent
This decision is relevant where:
There are a substantial number of electronic record alterations attributed to another practitioner's user account;
Forensic metadata exists showing time stamps and user‑account attributions for changes;
Roster and attendance records can be compiled to identify who was present at relevant times;
Experts can test and reject alternative hypotheses (typing error, system corruption, accidental overwriting, third‑party credential use, conspiracy) by statistical or technical analysis;
The timing of alterations is closely tied to the conclusion of consultations, suggesting opportunistic access;
There's corroborating operational evidence (e.g., physical layout that would permit observation of patients exiting).
When those elements are present and alternative explanations are unlikely, a disciplinary tribunal may infer authorship and find professional misconduct.
How later courts have treated it
As of the judgment text’s last update, SACAT's decision stands and is an example of a tribunal accepting forensic metadata as probative in professional disciplinary cases. Practitioners should check subsequent administrative or appellate decisions to see whether any challenge to this reasoning succeeded. The Tribunal expressly relied on expert methodology and Briginshaw principles; subsequent tribunals and courts reviewing similar cases are likely to scrutinise the forensic evidence and the completeness of alternative-explanation testing in the same way.
Still-open questions
System logging standards and evidentiary robustness: SACAT noted the absence of terminal identifiers and successful log‑on records hampered definitive attribution. There remains an open practical question about minimum logging standards for clinical practice management systems to facilitate reliable forensic attribution. Regulatory guidance (or technical standards) could close that evidentiary gap.
Weight to statistical analyses: du Plessis analysed over 500,000 entries and used a statistical approach to test the third‑party use hypothesis. How appellate courts will treat statistical absence‑of‑double‑entry evidence as conclusive remains an open procedural and evidential question for future litigation.
Credibility balancing with character evidence: The Tribunal accepted a character witness but found the forensic evidence far more persuasive. Future courts may further define how much weight character evidence should carry where technical evidence points to culpability.
Remedies and proportionality: SACAT found professional misconduct and ordered a further hearing about fitness to be registered. The appropriate sanctions for electronic‑record tampering remain to be developed as a body of administrative decisions: removal of registration, conditions, suspension, or reprimand, and how these are calibrated in cases where motive is unclear.
Employer liability and system governance: The matter highlights potential employer exposure for poor logging practices and workforce password culture. Whether regulatory standards will impose stricter IT governance on practice‑management systems used by health practitioners is an unresolved policy question.
Defence strategies in similar cases: The decision shows that alleging system glitch, password sharing, or conspiracy will require forensic rebuttal. Defence teams need early and rigorous forensic testing to establish reasonable doubt on alternative explanations.
Conclusion: Optometry Board of Australia v Bhoola demonstrates that, in health‑practitioner disciplinary contexts, robust forensic analysis of electronic records, combined with careful circumstantial evidence, can satisfy a tribunal on serious allegations. It also exposes technical and governance vulnerabilities in commonly used practice management systems and points to the need for better logging, clearer password practices and heightened organisational controls where patient welfare could be affected by record changes.
Judgment (60 paragraphs)
[1]
Optometry Board of Australia v Bhoola [2020] SACAT 46 (14 May 2020)
The Optometry Board of Australia referred a complaint against a registered optometrist, alleging professional misconduct. Particulars alleged that on 410 occasions between February 2015 and January 2016, the respondent changed the results of sight tests (referred to as optical prescriptions or scripts), where the tests were performed by another optometrist.
[4]
The respondent denied that he was responsible for the alterations made to the optical prescriptions. He submitted that, on the evidence advanced to support the Board's case, it was not open to deduce that it was the respondent who made the alterations. He also argued there was a lack of motive for him to make the alterations, and that he was a person of good character who would not do such a thing.
[5]
The Tribunal heard from a number of witnesses, including a forensic accountant, to determine whether the Board's case was strong enough to prove, to the required standard, that the respondent altered the optical prescriptions as alleged.
[6]
Held, finding the conduct amounted to professional misconduct:
[7]
the respondent is responsible for the alterations of patient prescriptions and this was done without clinical justification and contrary to the interests of the patients;
the respondent's conduct is substantially below the standard reasonably expected of a registered health practitioner;
the conduct amounts to professional misconduct;
the respondent's status as fit and proper person to be registered as an optometrist will be subject to a further hearing of the complaint.
[8]
Health practitioners - Complaint by the Optometry Board of Australia - Professional misconduct - Alter, delete or falsify patient notes or records
[9]
Health Practitioners Regulation National Law (South Australia) Act 2010
Mr M Dadds and Mr M Jandy, Dadds Jandy Lawyers, for the Respondent
[13]
This decision relates to a complaint by the Optometry Board of Australia, which alleges that the respondent, Ashok Bhoola, a registered optometrist, has breached the Code of Conduct, engaged in conduct that was substantially below the standard reasonably expected of an optometrist and engaged in conduct that was inconsistent with him being a fit and proper person to hold registration in that profession. At all material times, the respondent was employed by Specsavers West Lakes (SA) Pty Ltd, although he is no longer employed there.
Particulars allege that on 410 occasions between February 2015 and January 2016, the respondent changed the results of sight tests (referred to as optical prescriptions or scripts), where the tests were performed by another optometrist, Liddean McKernan.
The thrust of the case for the complainant was that the respondent used his computer terminal whilst logged in to secretively alter the optical prescriptions for reasons other than medical reasons. No specific purpose was alleged. The alterations made significant differences to the lenses in glasses to be manufactured for the patients, and resulted in a significant number of glasses being returned to the store as being unsatisfactory. Those glasses had to be re-made at the cost of the store.
The complainant relied on a forensic accountant's report and also other evidence of entries made into the computer system of the store, which system was called Socrates. In general terms, the complainant's evidence showed that on the 410 occasions in question, Ms McKernan entered results of her testing of patients into the Socrates system, and a person using the log-in password of the respondent changed those results. On some occasions, Ms McKernan changed the results back to the correct values, and on one of those occasions, the person using the respondent's log in password then changed them a second time.
The complainant's case was that the person who used the log-in password of the respondent was in fact the respondent himself. The basis for this was that all other possibilities were eliminated by an analysis taking account of all of the circumstances. The complainant's case relies heavily on conclusions to be drawn from computer metadata.
Whilst no specific motive was alleged for the making of these changes, the evidence indicated that the alterations had a serious effect upon Ms McKernan in that the employees in the store questioned her reliability and she herself lost confidence in her ability to work as a competent optometrist. For a time, she considered that she was making mistakes in recording scripts. At one stage, she considered seeking medical help about her psychological state.
[15]
The respondent has worked in various parts of the world. While in the United Kingdom in 2004 he successfully applied for a position as an optometrist in Australia and moved to here. In 2009 he joined Specsavers. He worked at various Specsavers stores including the West Lakes store. In about 2010 he formed the opinion that the West Lakes store was not well run as it was operating at a loss. He believed that he could turn the store around and agreed to become a director. He bought 40 A class shares, being the maximum number that one director could own. He did turn the store's finances around.
The respondent denied that he made the alterations to the optical prescriptions. He produced printouts of the Socrates system that showed that thousands of entries had been made at the computer terminal in the dispensing area of the store, known as the till, where he would not have made these entries, yet the entries referred to his name. Questions were raised as to whether these entries meant that someone else had used the password of the respondent, or whether the respondent's name simply meant that he had been the optometrist who performed the testing of the patient.
Although the respondent, when interviewed soon after these events came to the attention of the management of Specsavers, said that he had not given out his password to any other person, in his evidence he said that on one occasion when he had been unwell, he did give the password to another employee who wrote it down. It was submitted that this may have been the source of another person using his password.
[16]
In very simplistic terms, the dispute was as follows. The complainant submitted that the forensic evidence, combined with other evidence concerning who was present at specific times, and other testimony, when combined together, made a strong case that it must have been the respondent who made the alterations that were made using his log-in password. The respondent submitted that it was not him, and that this direct evidence from his personal knowledge was strong evidence, and that the complainant's conclusion reached by way of deductions from the evidence must be wrong. He also argued that there was no apparent motive for him to make the alterations, and that he was a person of good character who would not do such a thing.
The respondent also submitted that computer systems do not always work reliably, and errors can occur, such that in this case, the alterations to the optical prescriptions apparently in his name may have resulted from a malfunction in the Socrates system.
Much of the evidence and argument at the hearing was as to whether an explanation could be put forward as a reasonable possibility to explain how the Socrates system recorded alterations as having been made by the respondent when he did not in fact make those alterations.
We now set out the factual evidence as presented by the various witnesses, so as to give an understanding of the case for the complainant.
[17]
The West Lakes Specsavers store was operated as a company under an agreement with Specsavers Pty Ltd, which we will refer to as Specsavers. Precise details of the agreement are not before us, nor need they be. The store company, Specsavers West Lakes (SA) Pty Ltd, had 3 A class shareholders at the relevant time. The agreement permitted each director to own up to 40 A class shares. If any of these shares were not purchased by the director, Specsavers took up the shares. The 3 directors were the respondent (with 40 shares), Ms McKernan (with 12 shares) and a retail partner, Rob Marsden, who was not an optometrist. Ms McKernan was entitled to contribute more money to buy more shares up to 40 in total. There were also B class shares that were held by Specsavers.
[18]
We received both an affidavit and oral evidence from Ms McKernan. She studied optometry in the UK and worked with Specsavers in Northern Ireland.
In 2013, she moved to Australia and became a director of the Specsavers West Lakes store. She only bought 12 A class shares. She worked with the respondent as an optometrist. Various other locum optometrists also worked at the store. She estimates that there were approximately 17 staff employed in the store in such roles as store manager, supervisors and optical assistants.
The respondent and Ms McKernan used rooms that were opposite each other. Ms McKernan's room did not have a window, but the respondent's room did. It enabled him to view the corridor immediately outside Ms McKernan's room provided that the venetian blinds were at least partly open. It was the only test room with such a view. If the blinds were partly open, a person in the corridor could not see into the respondent's room.
When a patient comes into the store, the patient is allocated a Test Result number, called a TR number, on the Socrates system. These are allocated in chronological order, with each number being one above the preceding patient's number. Not all patients attended for testing. Some brought prescriptions from other optometrists and asked for glasses to be made without the need to see a Specsaver optometrist. Where a patient was to see an optometrist, they would be allocated to the first available optometrist, unless they specifically requested a particular optometrist.
The optometrist would perform a series of eye tests and enter the results in Socrates. At the end of the consultation, the optometrist would finalise the record by clicking a button on the computer screen. The results would then be used by the dispensing staff to order glasses or contact lenses for the patient.
From midway through 2015, Ms McKernan became aware that there was an increase in the number of glasses for which she had tested and prescribed being returned to the store with a complaint from the patient that they were not satisfactory. The store gave a guarantee for glasses, and it was therefore necessary for the store to arrange a re-make at its cost. The test results for all of such glasses appeared to have simple typing errors. It was not the case that the errors were such as could result from lack of care in performing the testing procedure.
[19]
Scott McMorran, the Service Improvement Manager of Specsavers, gave evidence. His expertise was in information technology. He gave evidence about the Socrates system used by Specsavers stores. He also gave evidence that he obtained printouts in electronic format from the Socrates system for the investigations in this matter.
[20]
Scott Ivey, a chartered accountant, is now the head of Financial Risk Support for Specsavers in Australia and New Zealand, but at the relevant time was Head of Loss Prevention for Specsavers. He conducted investigations into the alterations to the prescriptions which are the subject of this matter. In essence, his investigations were of what possible sequences of events could have led to the matters recorded in the Socrates system.
He requested Specsavers IT department to provide a list of the prescriptions by Ms McKernan which had been altered by another user. The list of 405 items (later increased to 410 items) showed the alterations recorded as having been made by someone using the password of the respondent. He then prepared a loss prevention report in which he considered the various possible explanations for the errors.
He considered whether any other staff member could have made the alterations. For this, he used rosters and sales entries to determine which persons were present on the occasions when the changed were made. He found that no member of the retail team worked on all of the days when alterations were made, and in fact every such member had multiple days of not working when alterations were made.[1]
Mr Ivey found that the only people working in the store on all of the days when the alterations were made were the respondent and Ms McKernan.
The alterations to Ms McKernan's scripts began on 4 February 2015 and ended on 19 January 2016, being the day when Ms McKernan ceased working with the respondent. On average, there was one change every three days. The maximum time without any alterations was 28 days, which was when Ms McKernan was on holidays in July and August 2015.
Mr Ivey considered that the alterations appeared neither logical nor clinically required. A number of scripts were found to have changed a + to a -, or to have removed a digit from a figure. Others had a different digit. Mr Ivey's report gave examples of the alterations.
His investigations revealed that there were 313 pairs of glasses that were made up with an incorrect script due to the alterations under consideration. In a further 46 cases, alterations were corrected before the glasses were made. Of the 313 glasses made on incorrect scripts, 96 were returned by customers, being about 30% of such glasses. Ordinarily, about 4% or 5% of this type of customers seek remakes of glasses.
[21]
Mr du Plessis is a highly qualified forensic accountant employed by Ferrier Hodgson. Following the investigations by Scott Ivey, Mr du Plessis was asked by the solicitors for the Optometry Board of Australia to conduct further investigations into this matter and to provide his expert opinion.
His first report dated 26 June 2019 was tendered. It is quite long, and we do not set out details of the investigations that he carried out in detail. Essentially, he carried out a number of specific investigations that were more detailed than the investigations up to that time.
For this report, Mr du Plessis considered a number of issues, which he listed as hypotheses A to E.
For hypothesis A, he considered whether the erroneous script entries the subject of the investigation might have been attributable to simple typing errors during entry of the data. He referred to this as finger error.
On considering the details of the errors, he was of the opinion that the errors were not of a type that could result from finger error. The incorrect figures were not from adjacent keys on a keyboard. The erroneous entries did not look similar to the correct entries.
He considered hypothesis B, namely whether there was database corruption due to unforeseen matters. He enquired of Specsavers IT department whether they were the victim of a cyber-attack, software glitch or any other computer related risk that might have effected a database corruption. Based on a review of metadata, he could find no evidence of data corruption. He considered that if data corruption had occurred, it would most likely have affected all types of patient records. He considered that these possibilities could not explain the altered entries the subject of the investigation.
He considered hypothesis C, namely accidental overriding of one patient's data with another, specifically whether the respondent had entered data that somehow became the data for Ms McKernan's patients through a computer error. He was unable to draw a correlation between the subject patients and the prescriptions issued to patients who consulted the respondent around the relevant time.
He noted that the amendments appeared to be completely random in nature but very focussed as to time of alteration, and seldom took longer than one minute. On the basis of his findings, he eliminated hypothesis C.
[22]
So my conclusion at the end was sure, there were instances where she could have made those amendments because she wasn't consulting at the time. But then there were instances where she was actively consulting, effecting entries into the database when these amendments were made. My conclusion was well, she cannot be logged into two different patient records on her machine at the same time. In other words, it could not have been her. So hypothesis D did not stand for me, for that reason.
[23]
9.4.8 We further noted that these amendments were made at a time either;
(i) Just after a consultation by user [Ms McKernan];
(ii) Just before or after a consultation by user [respondent]; or
(iii) At a time user [respondent] was not consulting or was not entering data into the patient record he was seeing at the time the amendment was made."
[24]
His conclusion was therefore that it was possible that the respondent could have been responsible for all of the alterations, but it was not possible that Ms McKernan could have been responsible for all of them, although if Ms McKernan knew the respondent's password, in relation to the data under consideration, she could have been responsible for some of the alterations.
There were 5 instances where Mr du Plessis noted that Ms McKernan had corrected alterations, and one instance where the respondent's user name had been used to re-alter the records for a second time.[4]
Mr du Plessis noted that the alterations nearly always occurred within one to two minutes after user Ms McKernan's consultations ended. He considered the layout of the consulting rooms and noted that the respondent's room had a view of the door to Ms McKernan's room, provided that the respondent had the blinds open enough to see out of his window. On that assumption, the respondent could have known when consultations conducted by Ms McKernan ended, because he would have been able to see the patient leave the room.
He raised a qualification in relation to this hypothesis. At paragraph 10.4.7 of his first report, he concluded that, on the assumption that no other person had the log in details of the respondent, the alterations must have been made by the respondent, but if information should arise that a third person could have known the log in password of the respondent, then might alter his opinion, pending further analysis.
Mr du Plessis was asked to conduct further investigations and provide a second report. This report dated 29 June 2019 was tendered.
The main point of this report was to consider whether there was any evidence to indicate whether there might be another person who had used the password of the respondent at any time.
He explained this in his evidence[5] where he said,
[25]
So, if I'm to assume Mr Bhoola's working 6 hours a day typing away all these line entries. Someone else knows his password who wants to effect these amendments and make it look as if it's him, they will be typing; they will be logging in as Mr Bhoola. So, my logic tells me is I am expecting to see two log ons for Mr Bhoola at the same time, to the second. Because they are effecting entries to the second all day long. So that was what I was looking for. I was looking for double entries at the exact same time because if I found it, it could not have been Mr Bhoola. Because you cannot log in and effect entries at the exact same time; one person can't do it at the exact same time.
[26]
To test this, Mr du Plessis examined 1,018 entries related to the alterations in question. He found that there were no occasions when another entry was made in the name of the respondent at the same time as one of the entries in question effecting an alteration.
Mr du Plessis then considered a wider question. He looked at all entries made in the name of the respondent from February 2015 to January 2016. He firstly eliminated double entries that are generated by the computer system. He considered the entries of the respondent, which numbered 521,432. He looked for entries to the records of two different patients at the same time using the respondent's user name.
He then made estimates of the rate at which entries would likely have been made by the respondent. He put a statistical argument that if another person were using the respondent's password to alter patient records, it is likely that at some point, there would be two entries in the respondent's name made at the same time affecting two different patients.
Since he saw no evidence of this, he concluded in his second report at paragraph 5.2.1 that,
[27]
5.2.1 I could not find any evidence suggesting that Mr Bhoola's user account credentials were compromised and/or used by a third party.
[28]
We refer to the overview of the respondent's evidence set out above, and do not add to this here. The dispute in this case is whether or not we should rely on the forensic evidence to conclude that it must have been the respondent who made the alterations in question, or whether we should accept his evidence that it was not him.
[29]
The respondent also called a character witness, Mr Bousfield. Mr Bousfield is and has been a school principal for 30 years. He is aged 66 years. He gave the following evidence about the respondent.
He has known the respondent for about ten years. Both he and the respondent were on the board of Westminster School for about two years. He came to know the respondent well, and also knew others who knew the respondent. The respondent made a valuable contribution to the board. The respondent had an impeccable reputation for honesty and, apart from the current proceedings, he had never heard any negativity about the respondent.
[30]
This is a case where we will refrain from reaching conclusions on all of the individual items of evidence as we progress. Rather, we will make findings as to the strength of items of evidence in supporting arguments, and then consider all of the evidence and arguments as a whole. The case for the complainant is such that it is based on the strength of all evidence in combination rather than a line of reasoning based on evidentiary steps. There are, however, some matters where will make findings as we progress. We regret that this process leads to some repetitive discussions about the same evidence in different contexts.
We begin our considerations with the complainant's witnesses. We find that they are all witnesses of truth. The real challenge by the respondent was to the conclusions that can be drawn from the observations that they made and from the material that they gathered.
We accept the evidence of both Mr Ivey and Mr du Plessis concerning forensic investigations, and we adopt their reasoning. We do not necessarily repeat that reasoning in our considerations of each issue. The issue still remains that we must weigh that evidence against the evidence of the respondent that he did not make the alterations, noting the evidence of Mr Bousfield that the respondent is a person of good character.
We accept the evidence of Mr du Plessis that the alterations were not finger error by Ms McKernan (his hypothesis A). We agree with him that the alterations do not appear to be related to incorrect keying in, or mistaking similar-looking keys. We accept the reasoning of Mr du Plessis in his evidence at transcript pages T54-55 of Thursday 27/2/20 and page 49 of his first report, which was dated 12 March 2019.
We also accept the conclusions of Mr du Plessis that the alterations cannot be explained by corruption of the database (his hypothesis B). The nature of the alterations appears to us to be inconsistent with such a possibility.
We now consider the conclusion of Mr du Plessis that the alterations could be explained by accidental overwriting by the respondent of one patient's data with that of another (his hypothesis C). The fact that these alterations only occurred in specific situations concerning Ms McKernan indicates against accidental overwriting. We accept the reasons and conclusion of Mr du Plessis that this hypothesis does not explain the alterations.
[31]
7/1/16 After making contact with Specsavers IT department on the preceding day, Ms McKernan lodged a formal complaint about the respondent and spoke to Cain Cooke of Specsavers about this.
[32]
16/1/16 Ms McKernan noticed alterations to her scripts, changed them back, and noted that they were re-altered.
[33]
19/1/16 Ms McKernan told Cain Cooke of further script changes. This is the last day that Ms McKernan and the respondent worked together, and the day after last day of the script alterations.
[34]
26/2/16 The respondent was suspended from working at Specsavers.
[35]
On 23 February 2016 Benjamin Ashby of Specsavers interviewed the respondent and put allegations to him that he had altered the scripts of Ms McKernan.[7] This day, or the preceding day when the arrangements for the interview were made,[8] is the first occasion that it is clear that the respondent knew the details of the allegations. Prior to that date, Ms McKernan had taken care not to let him know. She sent text messages to him indicating that she was taking time away from work for health reasons, when in fact the reason was that she did not wish to work with the respondent in the circumstances.
Whilst it is possible that the person making the alterations might think that Ms McKernan was aware that alterations were being deliberately made when Ms McKernan corrected the alterations, this does not follow. Rather, we consider that it is more likely that the person making the alterations would think that Ms McKernan thought that she was correcting her own errors.
The respondent gave evidence that he became aware of the fact that there was a complaint against him on 3 February 2016, but he was not aware of the substance of the complaint until 22 February 2016.[9]
The respondent said that he changed his password two or three days prior to going on leave on 23 January 2016.[10] This was just after the last date that any alterations to scripts were made, namely 19 January 2016.
We must consider whether this change of password indicated that the respondent was taking specific action in furtherance of his plan such as to provide evidence in his favour, or whether the timing is a coincidence.
Having considered this in some detail, we are unable to reach any useful conclusion. It is possible that the respondent was thinking ahead, and planning to argue in due course that the script changes had been made by someone using his log-in password, and his change of password would bolster this explanation because the alterations ceased from that time. We consider that this is somewhat speculative. Although it is consistent with the complainant's case, we consider that it does not bolster the complainant's case.
Another issue for us to consider is the fact that in the interview conducted by Benjamin Ashby on 23 February 2016, the respondent denied ever having shared his log-in details with anyone.
[36]
[The respondent's] password was written in the back office on a little note under the computer keyboard.
[37]
We find that the nature of the data protected by password was not particularly secretive in nature. It was of no use to any person for an improper purpose. The need to prevent unauthorised access is far less than for sensitive data such as for the operation of a bank account. One would not necessarily expect rigid adherence by all staff at all times to secrecy of passwords. Nonetheless, the whole point of having a password is to prevent others from accessing data or functionality.
In view of all of the evidence, we find that the respondent did allow his password to be written down by Edward Prior in 2011 or 2012. He did not change the password until 2016 after the relevant events had occurred. This is not a finding that others actually used his password. The fact that the respondent did not admit to disclosing his password may well have been due to an oversight on his part.
We now consider the second report of Mr du Plessis which is dated 26 June 2019. A summary of this report is set out above in paras 67-73.
Mr du Plessis tested the hypothesis that if another person were using the respondent's log-in password, there was a likelihood that at some point in time, both that other person and the respondent would make an entry at the same time to the second on a different patient account. He said that he could not find any evidence suggesting that the respondent's user account credentials were compromised and/or used by a third party.
The report adds weight to the argument that it must have been the respondent who made the alterations to scripts which are the subject of the complaint. It indicates against the possibility that a person other than the respondent made the alterations using his log-in password. It is not conclusive proof, but it is evidence that adds strength to the complainant's case.
We now consider the evidence about terminal 50, referred to as 'the till'. During the proceedings, it appeared that an argument might be developed that the computer records from that terminal indicated that some other person was using the log-in password of the respondent for a very large number of transactions. We are satisfied that this is not the case, and the reference to the respondent in a printout of transactions from terminal 50 was because the transactions related to his patients.
Having considered the evidence generally, we now move on to consider some specific possibilities that might explain the script alterations. This involves a review of some matters already discussed, but we consider that it is appropriate for completeness. The possibilities that we now consider are;
[38]
(a) Ms McKernan was the person who made the alterations.
[39]
(b) Some other person within the store other than the respondent made the alterations.
[40]
(c) Several others within the store in combination made the alterations.
[41]
(d) Ms McKernan and others in combination made the alterations.
[42]
(e) Some other person or persons in Specsavers but not in the store made the alterations.
[43]
As to possibility (a) that Ms McKernan was the person who made the alterations, we accept the evidence referred to in paragraph 86 above that it could not have been Ms McKernan that made at least some of the alterations that were made using the log-in password of the respondent. In other words, someone else must have made at least some of the alterations.
We also heard the evidence of Ms McKernan. We accept her as a witness of truth. In particular, we accept that she suffered genuine distress at the script alterations occurring in circumstances where she came to doubt her own abilities. It was clear to us from the evidence as a whole that she had not embarked upon a scheme of dishonesty to achieve some objective.
As to possibility (b) namely that some person within the store other than the respondent made the alterations, we rely on the evidence of Mr Ivey in his report at Exhibit C1 p575 section headed 'Payroll Forensic Review'. His conclusion was that no member of the retail team worked on all of the days when alterations were made, and in fact every such member had multiple days of not working when alterations were made. Refer to the summary of his evidence at para 37-38 above. If only one person in the store was making the alterations, we find that it had to be either the respondent or Ms McKernan, as they were the only people present on all occasions. We have already noted that the evidence indicates that it was not Ms McKernan.
We are conscious of the point made by the respondent that the retail staff could have seen patients leaving Ms McKernan's room, and would have known that the consultation was completed. Thus, it can be argued that if a retail staff member had the log-in password of the respondent and used it to log in, that staff member could have made the script alterations. The second report of Mr du Plessis points against this possibility. We also note the conclusion in Mr Ivey's report no one staff member was present when all of the alterations were made. We therefore reject possibility (b).
As to possibility (c), namely that several others within the store in combination made the alterations, we consider the possibility of a conspiracy. Such a conspiracy only makes sense if the plan is to frame the respondent for the script alterations by using his log-in password. We find that this possibility is inherently unlikely. It would require a level of complexity and determination that is most unlikely to have occurred. Our view is that people embark upon conspiracies where there is a need for more than one person to be involved. We do not see such a need in this case. We regard this possibility as fanciful and reject it.
[44]
And in 2015, there was an increase in the number of remakes that were attributable to [Ms McKernan], weren't there?"
[45]
I didn't see - it didn't flag as anything other than normal.
[46]
He agreed that there were discussions at meetings about the rate of remakes of glasses.
The respondent gave similar answers when interviewed.[21]
We do not have all relevant data as to the usual number of remakes ordered by the West Lakes store such that we can clearly see the significance of an increase of 96 re-makes. Whilst 96 re-makes may well be a number that would stand out, we are not confident enough about this to draw any inference that the respondent was being less than candid in his cross examination by playing down the significance of the problem. We do not place any weight on this issue in our assessment of credit.
We make an observation about the character witness Mr Bousfield. There have been submissions about the extent to which he was aware of the allegations in the complaint. We are of the view that it really makes no difference one way or the other. He spoke of the good character of the respondent, and we accept him as a witness of truth. Character evidence is of some value in weighing up whether or not the respondent carried out acts that are inconsistent with good character. We do, however, regard the forensic evidence as being of much greater weight in dealing with this matter.
The respondent has consistently denied that he carried out the acts alleged. He has direct knowledge on that point. We take this denial into account in weighing up all of the evidence.
We have carefully considered the question of possible motive of the respondent. It is not necessary for us to find a motive if we are satisfied that the respondent carried out the acts alleged. If there were a clear motive, this would add credibility to the allegations.
We note that the increased number of glasses needing a re-make caused a cost to the business, which was a direct disadvantage to the respondent as a part-owner of the business. This indicates against the allegations in that it would be a motive for the respondent not to have done the acts alleged against him.
We also note the evidence about the business and the relationship between the respondent and Ms McKernan. There are some significant matters that arise in the evidence, specifically as recorded in the interview of the respondent.[22]
One relevant event was the publication of an advertisement when a new retail partner joined the store in late 2014. The advertisement in pamphlets was published by Ms McKernan and the retail partner, and featured a photograph of both of them, but not of the respondent who was also a partner. The advertisement stated that the business was under new ownership or new management. The respondent was unhappy and contacted Kane Cooke, the state director of Specsavers at the time, and had the pamphlets withdrawn.
[47]
It was, it felt toxic when something like that happened, I just didn't feel comfortable when something like that happened.
[48]
The partner relationship was...a little strained.
[49]
There was also an issue about whether the respondent's wife might be allowed to join the business. She is also an optometrist. This issue, however, seemed more related to Specsavers management than the partners in the store.
This is not a case where we can with any confidence find a motive to explain why the respondent would deliberately alter Ms McKernan's prescriptions, but on the other hand, it is possible that the respondent did feel vindictive towards Ms McKernan and set out to destroy her career. Perhaps the respondent was unaware that the alterations to the scripts could be traced through the Socrates metadata to his log-in password, and thought that he could make the alterations without fear of being detected. To be clear, the evidence does not prove that vindictiveness towards Ms McKernan was a motive, but simply that it is a possibility. The lack of any specific motive being demonstrated by the evidence is a factor that points in favour of the respondent. We have given anxious consideration to this.
[50]
We note that the relevant standard of proof is the balance of probabilities, having regard to the requirements set out in the decision of Briginshaw v Briginshaw[23] and also other cases concerning the standard of proof for decisions to be made by disciplinary tribunals, as have been referred to us. We are very conscious that the allegations in this matter are very serious, and the findings that we make could have severe consequences. It is therefore appropriate for us to take great care in weighing the evidence and in reaching a decision, for which we must have a comfortable level of satisfaction, taking account of the seriousness of the allegations.
We remind ourselves that it is not for the respondent to disprove anything. The onus of proof is squarely on the complainant. The question we must now determine is, in light of all of the evidence, are we satisfied to the required standard of proof that the respondent altered the optical prescriptions as alleged in the complaint?
Having considered all of the evidence and all of the considerations set out above, we are satisfied that the respondent did alter the prescriptions as alleged in the complaint. We find that he did this deliberately, without clinical justification and contrary to the interests of the patients, and that his actions put the welfare of patients at risk.
Our reasons for making this finding based on all of the evidence taken as a whole is primarily that the forensic evidence points not only to the alterations having been carried out by someone using the respondent's log-in password, but to the respondent being the person who did in fact make those alterations. We find that the forensic evidence is compelling, and in combination with all other evidence, is sufficiently clear and strong to persuade us that the respondent's denials are untrue.
Some points stood out in our deliberations. We were satisfied that the evidence showed that Ms McKernan could not have made some of the alterations to scripts using the respondent's log-in password and also that the only persons present at the store on all occasions when script alterations were made were the respondent and Ms McKernan. When we considered these important points with the whole of the evidence it amounted to a compelling case that it was the respondent who made the script alterations.
[51]
[1] Refer to the Loss Prevention Report of Mr Ivey at exhibit C1 p 575.
[52]
[2] Refer to the affidavit of Mr Ivey para 70(a) at exhibit C1 p157, and his evidence at T 25/2/20 p 9.
SACAT found the respondent altered 410 prescriptions deliberately, without clinical justification and contrary to patient interests; the conduct was substantially below the standard reasonably expected of a registered optometrist and amounted to professional misconduct; a further hearing was ordered to consider the respondent's fitness to remain registered.
Ms McKernan became concerned that she appeared to be making simple typing errors, silly mistakes. She was conscious that re-makes were a cost to the business. She asked the respondent for advice. Ms McKernan questioned whether she was working too quickly or was not completely focussed. She was embarrassed because the retail staff were aware that she appeared to be making mistakes.
Ms McKernan tried taking more care but the errors continued. She considered working at a store with less volume of patients so that she could take more time. She spoke with the State Development Manager, Cain Cooke about the problem.
On 23 December 2015, Ms McKernan performed an examination for a family friend of a staff member and also for the friend's husband. On testing the female patient, Ms McKernan found that there should be no change in the new prescription for new glasses, compared to a previous prescription. She told the patient this.
After the test, Ms McKernan passed the patient over to the staff member to attend to the retail process of choosing and ordering the glasses. Within a few minutes, the staff member returned to Ms McKernan and pointed out that the prescription had changed from the previous prescription. Because the testing had just been completed, Ms McKernan recalled the results, and on checking, noted that the add amount was +2.50 when it should have been +2.00.
Ms McKernan was embarrassed because the staff member had entrusted her friends to Ms McKernan despite the doubts about Ms McKernan's accuracy. The error was corrected and the glasses then ordered. Ms McKernan was concerned at her own performance, with the error being attributed to her.
On 5 January 2016 Ms McKernan examined a patient late in the afternoon. She did not have time to order a trial pair of glasses that afternoon, so she wrote down the test results on a note paper and kept it in the room. The next day she found that the results as recorded on the Socrates system were different to those noted by her on the preceding afternoon. Her note was +1.75 R+L, whereas Socrates showed +2.25 R+L. This is a significant difference. She changed the prescription back to the correct value.
As a result of this, Ms McKernan contacted the IT department of Specsavers. She believed that the error was possibly due to a computer glitch, and wanted the situation resolved. After several days, the IT department told Ms McKernan that the respondent had logged into the test results on two occasions when results had been changed. Ms McKernan requested that a standard email as to the investigation results not be sent to the directors of the store, as this would have alerted the respondent to the advice from the IT department.
Ms McKernan was still uncertain as to the cause of the errors and was suspicious of the respondent, but also concerned that if the respondent had been changing her prescriptions, this was a very serious allegation for her to make.
On 16 January 2016, Ms McKernan noticed that one of her test results appeared to have an error recorded, and changed the entry to correct the error. Later that afternoon, she noticed that the error was again recorded. She reported these events.
After that, Ms McKernan took extra care in recording test results, and in various tests took photos of the computer screen with the results of tests displayed. Of 6 patients with photographed results, she noted that 2 had been altered after she had entered the results.
She reported these developments, and requested that she work only when the respondent was not working. After that, no further errors occurred. The respondent ceased working at the store on 26 February 2016.
Investigations revealed that prescriptions by one locum were changed by way of adjustment following further testing. This was a separate issue to the present matter.
Since glasses are ordered by the dispensing staff soon after the eye testing of a patient is completed, only alterations to the test results made within a moderately short time after the testing will result in incorrect scripts for glasses. Mr Ivey found that the average time between Ms McKernan finalising the eye examination and the change to the script was between 7 and 8 minutes. The shortest time was 19 seconds and the longest was 3 and a half hours.
Mr Ivey also considered the times at which the various entries were made in the Socrates system. There were two questions to consider. Firstly, would it have been possible for the respondent to have been using his computer terminal while logged in in his own name, and changed from accessing his patient to accessing the patient of Ms McKernan so as to alter her test results? Secondly, would it have been possible for Ms McKernan, if she knew the respondent's password, to have logged out of her name and logged in as the respondent and made the alterations under consideration.
As to the first question, Mr Ivey said that testing by the IT department gave an estimate that, if the respondent did not have pre-printed TR number for a patient, it would take about two or three seconds to make a change to a test result in Socrates of a patient of Ms McKernan.[2]
There was only one instance where a script of Ms McKernan was altered in the name of the respondent within 5 seconds, and in that instance, it was greater than the two second window. Thus, the possibility of the respondent being the person who made the alterations could not be eliminated on that ground.
As to the second question, Mr Ivey investigated whether records of the timing of entries made by Ms McKernan might have indicated whether she could have made the subject alterations by logging out of her name in the Socrates system and logging in as the respondent, assuming that she knew his password.
The records indicated that there were 13 instances where Ms McKernan was recorded as performing an entry to another customer within 5 seconds of a change being effected in the name of the respondent. In some instances, the alterations made in the name of the respondent were made at the same time to the second as entries were made by Ms McKernan in her name. Other entries were made with a gap of only one or two seconds.
This meant that it could not have been Ms McKernan using the log in details of the respondent to make those script alterations. It would have been impossible for her to have done both operations at the same time, or even within about 5 seconds.
The consequence of Mr Ivey's investigations on the second question is the conclusion that someone other than Ms McKernan must have made at least some of the subject alterations that were recorded in the name of the respondent. He was not able, on the investigations that he did, to eliminate the respondent as possibly being responsible for the alterations.
The argument follows that if it were not Ms McKernan making the alterations on some of the occasions, then it must have been someone else on those occasions, and presumably on all occasions.
He considered hypothesis D, namely that Ms McKernan made the alterations to her own entries by logging in as the respondent each time that a change was made, making it appear that it was the respondent who was responsible for the alterations.
Mr du Plessis compiled a spreadsheet showing the timing of relevant entries made by Ms McKernan and the respondent on the various days. This spreadsheet was annexure D to his first report, and also exhibit C10, which was a sheet of larger size paper displaying the various colours indicating various activities. He considered whether Ms McKernan was herself engaged in consulting with a different patient at the time the entries were made in the name of the respondent.
In his evidence on 27 February 2020 at page 58, he said,
Mr du Plessis went into detail on the question of whether Ms McKernan made changes to her own entries using the log-in password of the respondent to make it appear as if the respondent was responsible for those alterations (his hypothesis D). As set out in his first report,[6] he reviewed the timing and user account of each amendment and concluded that the circumstances of some of the alterations imply that the alterations could not have been made by Ms McKernan because she was actively involved in a consultation at the time the amendments were made.
He then made a more detailed analysis and prepared his annexure D which is exhibit C10. He concludes at exhibit C1 p71 para 10.4.4 that this hypothesis is "unlikely". This conclusion is addressing the question of whether Ms McKernan could have made any of the alterations under consideration if she had known the log-in password of the respondent. It had already been found that there were some alterations that she could not have made.
We refer to his oral evidence on this point, which is set out in paragraph 61 above. It ties in with the conclusion of Mr Ivey at paras 46-48 above that Ms McKernan could not have made all of the alterations in the name of the respondent.
We conclude from the evidence of Mr du Plessis and Mr Ivey that at least some of the alterations were made by a person using the log-in password of the respondent and that this person was not Ms McKernan. We also conclude that the alterations were made deliberately. That is clear to us from the fact that they appear to be specifically targeted. The evidence of Mr du Plessis that it was unlikely that Ms McKernan made any of the alterations adds weight to the complainant's case, but is not proof of that point.
We now consider the evidence of Mr Ivey as to the persons present on various dates when the alterations occurred. As mentioned above, Mr Ivey found that the only people working in the store on all of the days when the alterations were made were the respondent and Ms McKernan. We accept this evidence.
We conclude from this that either it was the respondent who used his log-in password to make the alterations, or there was a conspiracy in the business involving some staff who set out to deliberately make the alterations on various days when some of those staff were present and others were not.
We have carefully considered this possibility and have formed the view that such a conspiracy is very unlikely. We expect that staff generally would not have a detailed knowledge of how the Socrates system kept records of such alterations in its metadata, and we strongly doubt that staff would make elaborate plans to have different staff enter data on different days for a common purpose.
We have also carefully considered the possibility that Ms McKernan was one of those in the conspiracy. We hold the same view of this possibility, and strongly doubt that Ms McKernan and one or more staff members would make such elaborate plans.
Based on the evidence so far considered in these reasons, we find that the evidence does point to the respondent being the person who made the alterations.
We note at this point that it is unfortunate that the Socrates system does not record the identity of the computer terminal from which the alterations were made. If it did so, the explanation of how the alterations were made would be obvious. Similarly, the Socrates system does not record the fact that a person has successfully logged in to the system. It only records failed attempts. If it did record log-in events, it is likely that the explanation of how the alterations were made would be obvious.
We must decide this matter on the evidence that is available to us, and in particular, we must decide whether we are satisfied about the allegations to the requisite standard of proof. We are conscious that any uncertainty should weigh in favour of the respondent. It is for the complainant to prove the allegations made.
We now proceed to consider further evidence. Some important dates are as follows;
In evidence, the respondent said[12] that in 2011 or 2012 he did allow the retail partner at the time, Edward Prior, to note his password because the respondent got quite ill and was suspected of having a transient ischaemic attack, making him forgetful. He said that the password was recorded in written form and everyone had access to the office in which it was stored. He said that he was aware of this at the time but had forgotten about it when interviewed. It may well be that this change of position was indicated earlier, because Mr du Plessis prepared his second report in relation to this very question. But the timing of the notification of change is not important. Rather, it is the fact of change that matters.
We must consider whether this change is a belated attempt by the respondent to invent an explanation for the situation. We note the affidavit of Jessica Thompson[13] to the effect that at Specsavers the sharing of passwords was common. At para 71 says
We also note that the script alterations ceased at about the time that the respondent and Ms McKernan ceased working together. The last day on which they both worked together was 19 January 2016. The last script alteration occurred on that very day. Prior to that, script alterations occurred on average every three days.[14]
We find that the fact that the alterations ceased at the time they did adds weight to the allegation that the respondent was the person making the alterations. If the respondent did make the alterations by observing the completion of a consultation by Ms McKernan, he would have been deprived of this opportunity when they ceased working together. The cessation of alterations occurred well before the respondent was given any details of the allegations against him.
As to possibility (d), namely that Ms McKernan and others in combination made the alterations, we find that the same considerations apply as for possibility (c). In addition, we accept the evidence of Ms McKernan that this was not the case.
As to possibility (e), namely that some other person or persons in Specsavers but not in the store made the alterations, we note the evidence as to the timing of the alterations, as detailed in the evidence of Mr Ivey. We rely on the evidence of Mr du Plessis summarised above in paragraph 65 that the alterations nearly always occurred within one to two minutes after user Ms McKernan's consultations ended, and as a consequence we are satisfied that the alterations must have been made by someone in the store. We therefore reject possibility (e).
The evidence so far considered points to the respondent being the person responsible for the script alterations in question ie possibility (f). Before reaching a conclusion, we consider other issues raised in the hearing. We also discuss some arguments raised by the respondent.
There was evidence about the layout of the store. In particular, the evidence was that the respondent's room had blinds, and that if the blinds were open or partly open, it would have been possible for the respondent to see patients exiting Ms McKernan's room. He therefore had the opportunity to see when script alterations could be made at a time after Ms McKernan had completed entering the data, but before the data would be used by the dispensing staff to order glasses to be made.
The respondent said that he had the blinds shut and therefore could not see patients exiting Ms McKernan's room.
We find that this evidence shows that the respondent had the opportunity to alter the scripts in the way that occurred if he chose to have the blinds partly open. Apart from that, the evidence of the store layout does not indicate one way or the other what actually happened.
There was evidence about TR numbers. When a patient entered the store, the patient would be given a TR number. These were allocated sequentially such that a patient would be given a TR number one greater than the preceding patient. If a patient brought in a prescription for glasses to me made up, that patient might not see an optometrist, but would still be given a TR number.
Patients were allocated to the next available optometrist in order of their TR numbers, unless the patient requested to see a particular optometrist.
The TR number was significant because it enabled an optometrist in the store to access the data pertaining to an examination of that patient, and to alter that data. There was contention as to whether the respondent could have quickly accessed the TR number of a patient being seen by Ms McKernan, and therefore whether he was able to alter the scripts within a limited time frame.
We find that since the TR numbers were chronological, it would have been easy for the respondent to work out a likely TR number for a patient being seen by Ms McKernan. It is likely that it would be within one or two numbers of the TR number for the patient being seen by the respondent. It follows that it would have been possible for the respondent to have quickly and easily accessed the patient records to make the alterations to the script.
We note that in cross-examination,[15] it was put to the respondent that it is not very difficult to find a TR number for a patient being seen by Ms McKernan. He agreed that in theory it would be possible and not very difficult, but said that in practice it is difficult. We reject this evidence of the respondent, and find that he was overstating the difficulty.
The respondent did then agree[16] that it was not difficult to access the TR number of a patient through using the sales basket.
There was evidence about the fact that glasses had to be re-made because the script alterations made the glasses unsuitable for the patient's requirements. In the affidavit of Mr Ivey para 65[17] he said that of the 410 alterations to prescriptions, 359 were dispensed glasses. Of those 359 glasses, 313 were made up with the prescription altered prior to the dispense occurring, and 96 of those customers had glasses re-made. This represents 30% of those customers. He said that the standard rate of re-makes for the Specsavers group was around 4% to 5%.
At the time of his analysis (March 2016), 96 of the 313 customers had returned to the store and had glasses remade. This analysis occurred just after the respondent was suspended from his work at Specsavers on 26 February 2016.
In Ms McKernan's affidavit from para 50,[18] she said that from midway through 2015 she became aware that there was an increase in the number of remakes relating to glasses for which she had prescribed the lenses. During meetings in 2015, there were a few discussions regarding the high number of remakes the store had recorded. She said that the retail partner, Robert Marsden, was conscious of the cost impact this was having on the business and questioned her for an explanation, given that it was higher than normal. She asked the respondent for advice.
We accept the evidence of both Mr Ivey and Ms McKernan on these matters.
The respondent was cross examined about this.[19] He was asked,[20]
The respondent reported that he was concerned about his position and asked if he was not wanted, why doesn't Specsavers buy his shares and have him out of the business? As to the business at the store (presumably referring to the atmosphere within the store as between the partners), he said in the interview,
At this point, we propose to publish our reasons and arrange for the registry to contact the representatives of the parties to arrange a suitable date for further hearing of the complaint.