On 14 May 2020 the Tribunal published its reasons for finding that the respondent was responsible for making the alterations and that the conduct amounted to professional misconduct: see Optometry Board of Australia v Bhoola [2020] SACAT 46.

The Tribunal reconvened to consider what orders should be made with respect to the respondent.

• The respondent is reprimanded;
• The respondent's registration as an optometrist is cancelled;
• The respondent is disqualified from applying for registration as an optometrist for 12 months;
• The respondent must pay the complainant's costs of and incidental to these proceedings to be agreed or, if in default of an agreement, to be fixed by the Tribunal.

Health practitioners - Complaint by the Optometry Board of Australia - Professional misconduct - Alter, delete or falsify patient notes or records - Registration cancelled - Disqualified from applying for registration for 12 months

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 3, 196

Nursing and Midwifery Board of Australia v Rogers [2011] SAHPT 21

Craig v Medical Board of SA [2001] SASC 169

Medical Board of Australia v Yeo (Review and Regulation) (No 2) (Corrected) [2019] VCAT 1928

Medical Board of Australia v Singh [2017] WASAT 33

Medical Board of Australia v Lal [2017] WASAT 23

Mr M Dadds and Mr M Jandy, Dadds Jandy Lawyers, for the Respondent

1. These reasons for decision follow our reasons of 14 May 2020 in which we found the allegations against the respondent proved. A brief summary of our findings is as follows. The respondent worked as an optometrist at Specsavers at West Lakes. He was a partner in the business, along with another optometrist partner and a business partner. Others were also employed.
2. For reasons that are not clear to us, the respondent secretly altered clinical details recorded on the office computer system by the other optometrist partner. These were details of measurements taken in sight tests that were used for the prescriptions of glasses, and are referred to as scripts. There were 410 such alterations to scripts made by the respondent over the period February 2015 to January 2016.
3. Glasses were manufactured for patients pursuant to 359 of these scripts, and of these, 313 sets of glasses were defective due to the altered data used. The data had been corrected before manufacture for the other 46 sets of glasses. The store had a policy that if any customer was dissatisfied with glasses sold after a consultation, the store would remedy this. Ordinarily, about 4% or 5% of glasses were returned on this basis.
4. Of the 313 defective sets of glasses, 96, or about 30%, were returned as unsatisfactory.
5. The scheme was detected after the other optometrist partner became conscious that she was apparently making silly mistakes in her recording of sight test results. She suffered a significant loss of confidence. The errors were noticed by others in the business, which caused her embarrassment. She considered changing her place of employment to a less busy workplace. Her worries as to her apparently silly errors led her to keep some records, which led to the franchise investigating the computer system to ascertain the cause of this problem. At first she thought that it might be a computer glitch.
6. Investigations revealed that the alterations appeared to have been done on a systematic basis by a person using the log in details of the respondent. The question was whether it was the respondent or someone else using his log in details. Detailed analysis by a forensic accountant together with other investigations of records revealed that the alterations could not have been made by the other optometrist partner whose records were being altered. Further, the investigations revealed that the respondent was the only other person who was present at the workplace on all of the occasions when alterations were made.
7. The forensic evidence was very detailed, and we do not attempt to summarize it all. Suffice it to say that we found it persuasive in showing that it must have been the respondent who made the script alterations. We found that the respondent 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.
8. After the franchise owner Specsavers had carried out investigations, it formed the conclusion that it was the respondent who made the alterations, and terminated the business arrangement with the respondent, effectively dismissing him. At all times, the respondent has denied that he was the person who made the script alterations.

1. The primary purpose of disciplinary proceedings and sanctions is to protect the public and not to punish the practitioner.[1]
2. Wider purposes were well set out in Nursing and Midwifery Board of Australia v Rogers [2011] SAHPT 21 at [5], where the SA Health Practitioners Tribunal stated,

For example, the sanction may have one or more of the following purposes:

preventing persons who are unfit to practice from doing so;

securing the maintenance of proper professional standards;

assuring members of the public, and the profession, that appropriate standards are being maintained and that unprofessional conduct will not be tolerated;

bringing home to a practitioner the seriousness of his or her unprofessional conduct;

deterring the practitioner from any future departures from appropriate standards;

deterring other members of the profession who might be minded to act in a similar way, and

imposing restrictions on the practitioner's right to practice so as to ensure that the public are protected.

1. We accept the respondent's submission that any sanction imposed should be of the minimum force necessary to achieve a degree of protection of the public which the Tribunal believes necessary.[2]

1. We must now consider s 196(1)(b) of Schedule 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010. We will refer to Schedule 2 of that legislation as 'the National Law'. It provides that conduct may be classified as professional misconduct, unprofessional conduct or unsatisfactory professional performance. These terms are defined, and there are various decisions as to the meanings of these respective terms.
2. We find the conduct in this matter to be "substantially below the standard reasonably expected of a registered health practitioner" as required by the definition of professional misconduct. The conduct was dishonest and done with knowledge that it would put the welfare of patients at risk. It had a significant adverse effect on the other optometrist partner. We have no difficulty in finding that the conduct amounts to professional misconduct.

1. We must consider whether the respondent is a fit and proper person to be registered as an optometrist. We note that these proceedings have occurred a significant time after the relevant events. We do not have sufficient evidence to make findings as to the reasons for any delays, and we do not attribute responsibility for them.
2. We must consider the question of whether or not the respondent is a fit and proper person to be registered as an optometrist at the present time as distinct from the time of the conduct.[3]
3. We take into account a number of factors. Firstly, the conduct was dishonest and was done knowing that it may well have an adverse effect on the welfare of patients. Most of the script alterations were of a relatively minor nature, and would have resulted in less than optimum glasses for the patient. Some of the alterations, particularly the altering of a positive refraction adjustment to a negative, would have had more significant effects on patients. We reach this conclusion from the evidence, and making use of the expertise of the Tribunal in this case.
4. It is of great concern to us that an optometrist would make alterations to scripts in these circumstances.
5. We refer to the affidavit of Mr Cook in which he described the effect of the script alteration on a particular patient. He recalled the report of the patient to him, but could not recall the name of the patient. We find in these circumstances that it would not be appropriate for us to place any reliance on the affidavit. The information is hearsay and the respondent does not have an opportunity to cross examine the person making the substantive statement, nor the opportunity to investigate the facts to see whether the statements appear consistent with the script alteration in that case. We received this affidavit under objection and we decline to admit the affidavit.
6. We also received an affidavit of Mr Ivey in which he deposed to the costs incurred by Specsavers in the investigation into the conduct of the respondent. Apart from one payment to a consultant optometrist, the costs are listed as hourly rates charged in respect of employees. The respondent objected to the admission of this affidavit. There is no claim for these costs in these proceedings, and as far as we are aware, we would have no power to order payment of them. It is clear from the evidence received at the hearing that the time spent by employees of Specsavers would have been significant.
7. We find that the quantification of the cost of investigations to be information that does not influence our decision that we now make. We find that the affidavit should be admitted, and we do admit it into evidence, but the information does not influence our decision. We are concerned with the protection of the public and maintaining confidence of the public in the supervisory scheme under the National Law. A detailed quantification of losses has little relevance to that.
8. It is of concern to us that the respondent has not acknowledged that he was the person who performed the conduct of altering the scripts. It appears to us that when Specsavers conducted its investigations, the ultimate findings were not obvious during the time of the investigation. The respondent chose to deny responsibility. He has maintained that position since then.
9. This is not a case where the respondent has suggested that the conduct is acceptable. His defence was based on the argument that he did not do the actions alleged. In that sense, this case is different to many others where the practitioner has not shown proper insight into the wrongfulness of the conduct. The denial is, however, still a matter of concern.
10. Taking all matters into account, we find that at the present time, the respondent is not a fit and proper person to be registered as an optometrist.

1. We have considered the nature of the misconduct in this case, along with the events that have occurred since the misconduct took place. After losing his position with Specsavers, the respondent sought other work and has been employed in various positions as an optometrist on a full time basis since January 2017. It is therefore with some reluctance that we find it necessary to impose a period of suspension or disqualification, but we consider that the seriousness of the misconduct in this case does warrant such a sanction.
2. Honesty is fundamental to the concept of professionalism. Calculated dishonesty can be inimical to membership of a profession.[4] This case involved a calculated course of conduct over a period of just under a year. The misconduct is serious.
3. We have regard to the significant number of favourable character references produced by the respondent. We are satisfied that, apart from the misconduct the subject of this case, he is of good character. We note that he has done much voluntary work.
4. Taking all matters into consideration, we have concluded that the respondent's registration as an optometrist should be cancelled and he should be disqualified from registration as an optometrist for a period of 12 months from the present time. Because the respondent is presently employed as an optometrist, we will delay the cancellation and disqualification such that it will operate from the beginning of Wednesday 5 August 2020.

1. We will also issue a reprimand pursuant to s 196(2) of the National Law.
2. We will order that the respondent pays the complainant's costs.
3. We add that we have considered whether we should impose an order that the respondent be prohibited from providing any health service for a set period, but we have decided not to make such an order in this case.

1. The following orders are made pursuant to s 195 and s 196 of the National Law.
2. The Tribunal imposes a reprimand in respect of the professional misconduct as set out in the complaint.
3. The Tribunal cancels the registration of the respondent as an optometrist and disqualifies the respondent from applying for registration as an optometrist for 12 months, such cancellation to operate as at the beginning of Wednesday 5 August 2020 and such period of 12 months to commence at the beginning of Wednesday 5 August 2020.[5]
4. The Tribunal orders that the respondent pay the complainant's costs of and incidental to these proceedings to be agreed or, if in default of an agreement, to be fixed by the Tribunal.

[1] Craig v Medical Board of SA [2001] SASC 169 at [41]

[2] National Law s 3(3)(c) and Medical Board of Australia v Yeo (Review and Regulation) (No 2) (Corrected) [2019] VCAT 1928 at [26]

[3] Medical Board of Australia v Singh [2017] WASAT 33 at part 2 [24]

[4] Medical Board of Australia v Lal [2017] WASAT 23 at [113]

[5] Please note that this date was amended by a slip order dated 3 August 2020.