Grafton Street

Brighton

East Sussex

BN2 1AQ

12 April 2009

To whom it may concern,

I am writing in reference to my Father, Robert Nicholson, who has endured some horrendous – need I say libellous – accusations over the course of the past 15 years, following his divorce from my Mother. The first of these lies is that he is a violent man. In truth, he is the gentlest, most loving Father a person could wish for. He supported my little brother and I tremendously throughout our early years – while he was still financially able, especially. He took us places and taught us about the world. We travelled, and he encouraged us to learn different languages. He taught us physics and played football with us in the park. My Dad isn’t a young man – he had me when he was 50 and my brother when he was 52. Yet, he still drives us places, picks me up- from Cardiff when I have the chance to visit. Apart from the large amount of time he has spent working away from home (long hours and difficult jobs to try and provide for my brother and I), I could not have wished for a better Dad. He is so all about his children, to suggest he would be violent is preposterous.

The second accusation – and the one which offends me personally – is the one made by Mrs Shan Davies and Builth Wells High School. Now, I love that school. I have nothing but fond memories of my time there, including all my teachers. Especially Mrs Davies, who was a wonderful head and biology teacher. I was incredibly upset when I read the letter that she circulated to families of children attending Builth Wells High School. Firstly, because I am so far away it is difficult to support my Dad, and that makes it very hard knowing that he is being personally attacked by an institution that, frankly, should be a bit more responsible. I say this because Mrs Davies knew of the concerns raised by my Father. In fact, he requested that only they two should know of the situation. She, however, became reticent to aid him in his investigation into the corruption of the examinations, the local council as well as factors between the two.  Mrs Davies and Mr Barlow – the man in charge of the exams in Builth High School – were belligerent and deceitful.

I am incensed that people I used to respect deeply could treat someone I love with such contempt and disdain. Rather than being prepared to face the fact that there may well be some corruption present within their “perfect” little school, they chose to kowtow to the board of governors   and dismiss a man who is only interested in protecting the children who attend the school. They don’t seem so interested in the welfare of the children, do they? So; why could this be, I ask you? And yes, this is an entirely rhetorical question, and one I hope you think seriously about. Robert – my Dad – is an advocate of fair practice for every child in that school. No; not just that school, but the whole of the United Kingdom. He is simply calling for an investigation into the way things are done. What is so unreasonable about that? We trust these people with the futures of our children – why shouldn’t they be audited? It simply smacks of corruption that he has been denied and defamed in such a juvenile way. I ask, if it was any other parent, would they have received the same treatment? What if you had concerns that there was something amiss at your child’s school? What if you questioned it, and suddenly the ranks closed and you were left helpless and voiceless? How would you feel? What kind of society are they perpetuating when a concerned parent can be treated this way?

I wanted to bring my children back to Wales to attend Builth Wells High School – I thought it was the best school in the whole country – but the thought of that fills me with dread now. I couldn’t trust these people to properly monitor and administer examinations, and I couldn’t trust them to take my concerns seriously. If they can’t listen to an adult, with experience of the world enough to stand up and make themselves heard, then how are they going to treat a child’s concerns? Someone who is vulnerable, and has little experience of the manipulative way in which educated adults think and speak?

And to treat a man of 70 years in this way – the man who has been Santa Claus for Ysgol Dolafon for the past decade and more – well. They should be ashamed of themselves.

Yours sincerely,



Megan Nicholson

                                                                                                                                       D(05)07

DISCIPLINARY COMMITTEE HEARING

MR STEPHEN GILES MARSHALL

(01-16392)

Monday, 7 March 2005

DISCIPLINARY HEARING:  MR STEPHEN GILES MARSHALL

Monday 7 March 2005

Disciplinary Committee:       Ms H Wilcox (Chair)

                                                Professor R Anderson (Optometrist)

                                                Professor N Efron (Optometrist)

                                                Dr G Harris

                                                Mr D Pyle

Legal Assessor:                    Mr C Kinch QC

Clerk:                                      Mr David Watt

For the GOC:             Mr B Albuery

For the Respondent: Mrs S Kapila

___________________________________________________________________

Ms Wilcox:  Good morning everyone.  I am the member nominated by the Privy Council and I will be chairing today’s hearing.  The Committee today is made up of two optometrists and three members nominated by the Privy Council.  I will ask each member to introduce themselves in turn.  [Introductions made]  To my right is Mr Kinch.  He is the Committee’s Legal Assessor and he will provide legal advice and assistance to the Committee and ensure that the proceedings are conducted in accordance with the rules of procedure so as to arrive at a result which is fair and just.  The Legal Assessor may accompany the Committee should it sit in private to deliberate.  In the event that any matter arises during the course of the Committee’s deliberations on which the Committee seeks advice, the parties will be invited to return to hear the matter which the Committee has raised and the advice given to the Committee.  Where advice on any issue is not accepted by the Committee this will be indicated in the course of its decision on that issue.

            At the desk in front of the Committee to my right is the transcriber who will be keeping an official record of all that is said today during the public sessions of the hearing.  Opposite the transcriber is the Clerk to the Committee, Mr Watt.  He will provide secretarial assistance to the Committee throughout the public parts of the hearing and may join the Committee in private to type up the Committee’s decisions.  The other people sitting in the hearing room other than in the public and press areas are members of the respective legal teams.

            Are there any applications before we begin?

Mr Albuery:  Yes, madam.  I act on behalf of the General Optical Council this morning and Mrs Kapila represents the respondent on behalf of the Association of Optometrists.  I make a joint application that you allow us time before you formally commence these proceedings to discuss further this case.  Although there is only one charge against Mr Marshall, there are 14 particulars of charge and some of them have sub-particulars.  Having taken Mr Marshall’s instructions, Mrs Kapila has been able to confirm Mr Marshall’s intentions to me in relation to all of the particulars.  I also have this morning been able to take further instructions from the witnesses I will call if this matter becomes contested. 

The position we have now reached is that agreement has been formed between myself and Mrs Kapila in relation to 10 of the 14 particulars.  That will, I hope, result in a substantial saving of your Committee’s time once the trial has begun.  I am still receiving from Mrs Kapila Mr Marshall’s representations in relation to the other four and I will then need to take instructions on those representations when I receive them.  If you allow us some time, I believe that will reduce your time later.  If you are prepared in principle to agree some time, a thought might be how long might we need to complete that process.  That is a very difficult question to answer, if indeed it were asked of me, but I would expect us to have concluded those discussions within 30 minutes.

Ms Wilcox:  We will adjourn until 11 o’clock.

- Proceedings adjourned -

- Proceedings reconvened -

Ms Wilcox:  Mr Albuery, Mrs Kapila, are we ready to proceed now?

Mr Albuery:  Madam, we are.  May I on behalf of both of us thank you and your fellow Committee members for your indulgence.  I hope it will mean that we will save time hereafter.  Madam, before the charge and particulars are read, there is an application by me to amend the Notice of Inquiry dated 3 February 2005.  This application is made on notice to the respondent and his legal representative, who consent, if you do, to the amendment.  The first amendment relates to particular 1(a) in relation to Patient 1.  On the last line of that particular it refers to a sum of £30.40.  That should be replaced with the figure £58.60.  The overclaim was £30.40 and not the greater sum that would have been the case had that figure gone unamended, so this is an amendment to the respondent’s advantage.

            The second and last amendment relates to particular 13.  I have agreed to make this amendment to clarify the mischief which is captured by this particular at the request of the Association of Optometrists.  I am happy to do so.  In 13(a) in the penultimate line would you make this amendment, please, so that the charge now reads, “whereas two pairs of distance vision spectacles were supplied” rather than what was there.  For the sake of clarity, that charge should now read:

            “on or about 3^rd August 2000, you submitted a claim for payment for the supply of a pair of distance vision spectacles and a pair of near vision spectacles, whereas two pairs of distance vision spectacles were supplied.”

            Can you make the same amendment, please, in relation to particular 13(b) so that the last part of that reads, “whereas two pairs of distance vision spectacles were supplied.”

            Madam, would you and your Committee be content to make those amendments?

Ms Wilcox:  You are content, Mrs Kapila?  [Yes]  Yes, make the amendments.  Can we now proceed?

Mr Albuery:  Yes, please.

Ms Wilcox:  Mr Marshall, would you please stand.  Mr Watt, would you read the charge please.

Mr Watt:  The charge is that you have been guilty of serious professional misconduct.

The basis of the charge is that, in relation to the patients identified in the Schedule:

1.         in relation to Patient 1 -

(a)               on or about 3^rd May 2000, you submitted a claim for payment of £89.00 for the supply of two pairs of spectacles containing a right lens with a cylindrical prescription of +2.25 dioptres, whereas two pairs of spectacles containing a right lens with a cylindrical prescription of +1.50 dioptres were supplied, for which only £58.60 could be claimed,

(b)               on or about 3^rd November 2000, you submitted a claim for payment of £44.50 for the supply of a pair of spectacles containing a right lens with a spherical prescription of +6.50 dioptres, whereas a pair of spectacles containing a right lens with a spherical prescription of +4.00 dioptres were supplied, for which only £29.30 could be claimed,

(c)               on or about 21^st March 2001, you submitted a claim for payment of £44.50 for the supply of a pair of spectacles containing a right lens with a cylindrical prescription of +2.50 dioptres, whereas a pair of spectacles containing a right lens with a cylindrical prescription of +1.50 dioptres were supplied, for which only £29.30 could be claimed;

2.         in relation to Patient 2 -

(a)       on or about 3^rd March 1999, you submitted a claim for payment of £61.40 for the supply of a pair of bifocal spectacles containing a left lens with a cylindrical prescription of +2.25 dioptres, whereas a pair of bifocal spectacles containing a left lens with a cylindrical prescription of +1.75 dioptres wee supplied, for which only £48.20 could be claimed,

(b)               on or about 28^th February 2001, you submitted a claim for payment of £64.30 for the supply of a pair of bifocal spectacles containing a left lens with a cylindrical prescription of +2.25 dioptres, whereas a pair of bifocal spectacles containing a left lens with a cylindrical prescription of +1.75 dioptres were supplied, for which only £50.50 could be claimed;

3.         in relation to Patient 3 -

(a)               on or about 1^st November 1999, you submitted a claim for payment of £43.60 for the supply of a pair of spectacles containing a left lens with a cylindrical prescription of –2.50 dioptres, whereas a pair of spectacles containing a left lens with a cylindrical prescription of +1.50 dioptres were supplied, for which only £28.70 could be claimed;

(b)               on or about 20^th August 2000, you submitted a claim for payment of £64.30 for the supply of a pair of spectacles containing a left lens with a cylindrical prescription of +2.50 dioptres, whereas a pair of spectacles containing a left lens with a cylindrical prescription of +1.50 dioptres were supplied, for which only £50.50 could be claimed,

(c)               on or about 29^th January 20001, you submitted a claim for payment of £44.50 for the supply of a pair of near vision spectacles containing a left lens with a cylindrical prescription of +2.50 dioptres, whereas a pair of near vision spectacles containing a left lens with a cylindrical prescription of +1.50 dioptres were supplied, for which only £29.30 could be claimed,

(d)               on or about 29^th January 2001, you submitted a claim for payment for the supply of a pair of distance vision spectacles which were not supplied;

4.         in relation to Patient 4, on or about 26^th June 2000, you submitted a claim for payment for the replacement of a pair of spectacles, which were not replaced;

5.         in relation to Patient 5 -

(a)               on or about 12^th April 1999, you submitted a claim for payment for the replacement of both lenses and a tint in a pair of spectacles, which were not replaced,

(b)               on or about 8^th March 2000, you submitted a claim for payment for the replacement of a pair of spectacles, which were not replaced;

6.         in relation to Patient 6 -

(a)               on or about 14^th March 2000, you submitted a claim for payment for the replacement of both lenses in a pair of spectacles, which were not replaced,

(b)               on or about 26^th September 2000, you submitted a claim for payment for the replacement of both lenses in a pair of spectacles, which were not replaced,

(c)               on or about 9^th April 2001, you submitted a claim for payment for the replacement of both lenses in a pair of spectacles, which were not replaced;

7.         in relation to Patient 7 -

(a)               on or about 6^th April 1999, you submitted a claim for payment for the supply of a pair of distance vision spectacles with a tint which were not supplied,

(b)               on or about 13^th April 2000, you submitted a claim for payment for the supply of a pair of distance vision spectacles with a tint which were not supplied;

8.         in relation to Patient 8, on or about 14^th December 1999, you submitted a claim for payment for the supply of two bifocal lenses which were not supplied;

9.         in relation to Patient 9, on or about 8^th March 2000, you submitted a claim for payment for the supply of a pair of spectacles which were not supplied;

10.       in relation to Patient 10, on or about 27^th July 2000, you submitted a claim for payment for the supply of a pair of bifocal spectacles, whereas a pair of single vision spectacles were supplied;

11.       in relation to Patient 11, on or about 13^th November 1999, you submitted a claim for payment for the supply of a pair of bifocal spectacles, whereas a pair of single vision spectacles were supplied;

12.       in relation to Patient 12, on or about 27^th March 1999, you submitted a claim for payment for the supply of a pair of bifocal spectacles, whereas a pair of single vision spectacles were supplied;

13.       in relation to Patient 13 -

(a)               on or about 3^rd August 2000, you submitted a claim for payment for the supply of a pair of distance vision spectacles and a pair of near vision spectacles, whereas two pairs of distance vision spectacles were supplied;

(b)               on or about 15^th February 2001, you submitted a claim for payment for the supply of a pair of distance vision spectacles and a pair of near vision spectacles, whereas two pairs of distance vision spectacles were supplied;

14.       in relation to Patient 14 -

(a)               on or about 15^th November 1999, you submitted a claim for payment for the supply of a pair of distance vision spectacles and a pair of near vision spectacles, whereas only a pair of near vision spectacles were supplied.

(b)               on or about 11^th December 2000, you submitted a claim for payment for the supply of a pair of distance vision spectacles and a pair of near vision spectacles, whereas only a pair of near vision spectacles were supplied.

Ms Wilcox:  Thank you, Mr Watt.  Sit down please, Mr Marshall.  Mrs Kapila, are there any objections on a point of law?

Mrs Kapila:  No, madam.

Ms Wilcox:  Any admissions?

Mrs Kapila:  Yes, there are.  Mr Marshall admits the charge of serious professional misconduct and he also admits the following charges.  He admits 1(a), (b) and (c); he admits 2(a) and (b); he admits 3(a) and (b), (c) and (d).

Ms Wilcox:  Can you repeat that?  He admits –

Mrs Kapila:  3(a), (b), (c) and (d); he admits 4 and 5; he admits 6; he denies 7(a) and (b).  We understand that the eighth charge is withdrawn.  He denies charge 9; he admits 10, 11, 12, 13(a) and (b) and 14(a) and (b).

Mr Albuery:  Madam, my friend was kind enough to tell me that those would be the pleas to the particulars and I have had an opportunity to take instructions from the Council in relation to them.  I am instructed, bearing in mind the totality of the matters which have been admitted by the respondent, not to proceed in relation to particulars 7, 8 and 9.

Ms Wilcox:  So we have admissions for all the remaining charges.

Mrs Kapila:  Yes, madam.

Ms Wilcox:  Mr Albuery, are you seeking that we withdraw particulars 7, 8 and 9?

Mr Albuery:  Yes.

Ms Wilcox:  I have an admission on 14(a) and (b).  Is that right?

Mrs Kapila:  Yes madam, I can confirm that.

Ms Wilcox:  To be absolutely certain, in respect of this paper, everything that is not withdrawn is admitted.

Mrs Kapila:  Yes, madam.

Mr Albuery:  Yes, but only particulars 7, 8 and 9 are withdrawn.

Ms Wilcox:  Mr Kinch.

Mr Kinch:  You have had admissions on behalf of the respondent to all the outstanding particulars, 7, 8 and 9 having been withdrawn.  In relation to the first of your decisions, namely whether the factual particulars of the charge have been made out, an admission made on his behalf on legal advice having considered the material against him, you may consider is the best possible evidence that the admission is a proper admission of guilt.  In those circumstances you may consider you have sufficient material to find that those matters are proved.

            So far as I can see, there is no legal reason why you should not also, if that be your decision, consider at this stage whether the charge of serious professional misconduct has been made out.  That too has been admitted on legal advice with time for due consideration, and in those circumstances, unless either side is going to raise any reason why you should not do this, you can deal with that matter at the same time.

Ms Wilcox:  Mr Albuery and Mrs Kapila?

Mr Albuery:  Legally there is no reason why you should not proceed as suggested to you by your learned Legal Assessor.  Would it help you though if I just explain the basis upon which I would proceed because it may affect your decision whether to proceed straight away to a finding of serious professional misconduct or to wait to a later time?  Obviously now the facts have been admitted and the charges been admitted, I will be opening the facts to you but I will be calling, with the understanding and agreement of Mrs Kapila, Mr Lowery to take you through some documents which will be handed to you.  So that when you retire to consider (if it is all you are considering at that stage) sanctions, you will understand the basis upon which the prosecution case is put.  That does not prevent you, of course, from proceeding as suggested now.

Mrs Kapila:  Mr Marshall has made the admissions he has made and I have no legal objection to a finding being made at this stage.

Ms Wilcox:  Mr Watt, will you clear the room for a moment.

- Proceedings adjourned -

- Proceedings reconvened -

Ms Wilcox:  The Committee has not sought any additional legal advice.  The Committee has found particulars of the charge numbers 1, 2, 3, 4, 5, 6, 10, 11, 12, 13 and 14 admitted and proven.  The Committee has found the charge admitted and proven.  Mr Albuery.

Mr Albuery:  My task now is to address you as to the circumstances which lead up to those findings, and in the course of that I am going to rely on some documents and also call briefly Mr Lowery.  Madam, I wonder if I might ask your clerk to hand out some bundles now and perhaps these could be given the exhibit “C1”.  Sir, and I address this for the sake of the record to the learned legal adviser, the bundle slightly differs from that which may have been sent to you, and therefore may I ask that you be handed the same bundle as the Committee.

            Madam, I think it right, bearing in mind the fact that this bundle includes reference to documents in relation to particulars which are now not being pursued, that for the avoidance of any concern you remove from the bundle those documents less it be feared that you looked at them inappropriately.  Those are the papers that relate to Patients 7, 8 and 9 and you find those documents, unhelpfully, between dividers 8, 9 and 10 because the first divider is the Notice of Inquiry.  Patient 7 starts from page 128 and it is from page 128 to 155 inclusive, please. 

            The respondent is an optometrist who at the time of these allegations traded as SG Marshall Opticians.  He had three outlets in the Dyfed Powys Health Authority, which has now been replaced by the Powys Local Health Board.  His name was included in the ophthalmic list of registered opticians as an optician who both tested sight and supplied optical appliances arising from those tests.  In early 2001 the health authority contacted the Durham and Tees Audit Commission, commonly known by its acronym of DATAC.  Although DATAC principally provides a service to NHS bodies in Durham and Teeside, it offers also a forensic accounting service to NHS bodies throughout the country.  The health authority contacted DATAC because an analytical review of claims made by the respondent identified him as having unusual claim patterns not consistent with either national or local norms.

            Mr Lowery, from whom you will hear, is the head of audit at DATAC and he was instructed to carry out an investigation.  He is an accredited counter fraud specialist with over 30 years’ experience in public sector accountancy.  The last seven of those have seen him specialise in ophthalmic fraud.  He is, with the Audit Commission, the co-author of a booklet entitled “Fighting Ophthalmic Fraud”.  His investigation of the respondent was in conjunction with the district auditor and they looked at claims from 1994 to 2001, that is a seven-year period, although the Notice of Inquiry is limited to a shorter period 1999 to 2001.

            On 9^th June 2001 the district auditor and DATAC personnel visited the main practice of the respondent and there exercised powers which are given to the district auditor under the Audit Commission Act 1998.  Those powers included the ability, which they exercised, to seize relevant documents, which included patient records, order forms, diaries and other accounting documentation.  Similar records and documents were removed thereafter from the respondent’s two other practices. 

The investigation then undertaken sought to verify whether claims made by the respondent were justified by the regulations then in force.  The investigators examined each GOS1 form for eye tests undertaken, each GOS3 form for the issue of glasses and each GOS4 form for the repair or replacement of spectacles.  Madam, I am proceeding before this experienced Committee on the basis of an understanding of those forms but if at any stage you wish me to clarify any point I will.  Indeed, Mr Lowery will also be available if any question arises.

Each form, which represented a claim made by the respondent for payment from public funds, was considered in the context of the seized documentation and the audit revealed that over a number of years, using a number of methods, the respondent had made a number of inappropriate claims upon public funds.  It is agreed, and you will hear – bearing in mind these are specimen particulars of the charge – that a sum of £120,000 was repaid by this respondent to the local health board.  Although I should make it clear, and I have been asked to and I am happy to, £88,000 of that sum related to the cost of the audit process, so it would be wrong for you to infer that that total sum represented inappropriate claims.  Clearly it did not but no doubt you will hear more from Mrs Kapila about that in due course.

The categories of inappropriate claims, examples of which are set out in the Notice of Inquiry, are as follows and there are four upon which the Council proceeds.  As I give you the generic mischief which is alleged, I will take you to the particulars which set that out and then I will call Mr Lowery.

The first category of representing in a claim that an appliance of a certain value had been supplied when an appliance of a lesser value had been both prescribed and supplied.  Particulars 1, 2 and 3 are examples of this.  In each case the respondent claims lenses of a particular dioptre power had been supplied, whereas lenses of a lesser dioptre of strength had in fact been supplied.  This resulted in an overclaim by the respondent because the remuneration due to him increased as the dioptre power increased the band in which the voucher value could be claimed.  In relation to particulars 1, 2 and 3, the overclaim made by the respondent in relation to the particulars is as follows: 1(a) £30.40; 1(b) £15.20; 1(c) £15.20.  In relation to particular and Patient 2: 2(a) £13.20; 2(b) £13.80.  In relation to particular 3(a) £14.90.  Madam, would you like me to pause?

Ms Wilcox:  Yes please.  There is something I was going to raise later, Mr Albuery and Mrs Kapila.  I have realised as this case has progressed that this is a Welsh case and at the relevant time I was Director of Primary and Community Health for the National Assembly of Wales and I had a direct involvement in optometric matters.  I have not, as far as I am aware, previously met Mr Marshall.  I have no previous knowledge of this case and I come to it completely fresh.  Nevertheless, I feel you should be aware of this and I offer to withdraw, Mrs Kapila, if you or your client feel that appropriate.

Mrs Kapila:  We have no problem with that.

Ms Wilcox:  Thank you very much indeed.  I apologise for interrupting you, Mr Albuery, but you can understand the sensitivity. 

Mr Albuery:  Madam, where would you like me to restart my summary of the overclaims?

Ms Wilcox:  I was listening to you at the same time.

Mr Albuery:  I don’t doubt that, I just wanted to give you the opportunity to hear me again on any matters you were not able to write down.

Mr Kinch:  If it helps, Mr Albuery, my note stopped when you were going through the amounts of the overclaims and the last one I had down was 2(a) £13.20.

Mr Albuery:  May I continue from there?  2(b) £13.80; 3(a) £14.90; 3(b) £13.80; 3(c) £15.20.  In relation to 3(d), and we will come back to this later, the Council’s case and admitted by the respondent is that the distance vision spectacles mentioned there were not supplied at all so that whole claim in the sum of £44.50 was an overclaim and therefore an inappropriate claim.

            In relation to Patient 1, inappropriate claims of that category were made by the respondent on not just one occasion but repeatedly: on 3^rd May 2000, 3^rd November 2000 and then again on 21^st March 2001.  In relation to Patient 2, such inappropriate claims were made on 3^rd March 1999 and 28^th February 2001, and in relation to Patient 3 on 1^st November 1999, 20^th August 2000 and 29^th January 2001, an example which provides two areas of wrongdoing alleged and admitted as set out in particulars 3(c) and (d).

            The second category of inappropriate claim is shown in particulars 4, 5 and 6.  Here false claims suggesting that a patient had been supplied with a repair or replacement appliance were made some time after the original supply of an appliance, whereas the patient had, wrongly, been supplied with two appliances on or about the same date.  False GOS4 forms, which allow an optometrist to claim for repair and replacement appliances were generated to hide the reality of what was going on, which was that there was a supply on the same day of two spectacles, which was not allowed by the regulations.  This happened in relation to Patient 4 on 26^th June 2000, in relation to Patient 5 on two occasions, on 12^th April 1999 and on or about 8^th March 2000, and in relation to Patient 6 it happened on the three dates set out in the Notice of Inquiry, on 14^th March 2000, 26^th September 2000 and 9^th April 2001.

            The third category of inappropriate claim is demonstrated by particulars 10, 11 and 12.  In these cases the claim falsely represented that a pair of bifocal spectacles had been prescribed and supplied, whereas in fact only single vision spectacles were supplied, either distance or near vision, which would attract less remuneration and therefore makes the claim again false and inappropriate.  In relation to the patients examples of which are given in the notice of proceedings, such a claim was made in relation to Patient 10 on 27^th July 2000, in relation to Patient 11 on 13^th November 1999 and in relation to Patient 12 on 27^th March 1999. 

            The fourth and last category is demonstrated by particulars 13 and 14.  In relation to these patients the respondent submitted claims for the supply of both near vision and distance vision spectacles, whereas only either near vision or distance vision spectacles were supplied.  This claim therefore also was false and inappropriate.  The dates are set out for you in the Notice of Inquiry that in relation to Patient 13 they are 3^rd August 2000 and 15^th February 2001, and lastly in relation to Patient 14 on 15^th November 1999 and 11^th December 2000.

            In all these examples I have mentioned the respondent claims for things that he did not provide and he thereby made false claims from the public purse, and whatever you infer his intention or not to have been, he thereby increased his turnover and his profit.  He signed all the relevant claim forms which, as you will see from them as you look at them later, contain a declaration about their accuracy and what might occur if they are found not to be accurate.  When the General Optical Council was asked to investigate this matter and wrote to the respondent about it, he made certain comments which may be helpful for you to hear.

Mrs Kapila:  Madam, I have previously stated to my friend that we do object to the production of this letter in its entirety and it was my understanding that we would try and agree what part of it could be referred to.  We have not yet had an opportunity to do that but I do object to it being introduced in its entirety.

Mr Albuery:  I do not intend, and never did I, to introduce it in its entirety to you.  The matters which I intend to read from it are matters that I set out in a letter to the Association of Optometrists in which I make clear those parts I intend to rely upon.  However, if there is any concern or doubt about it we will need to resolve it.

Ms Wilcox:  Would you like two or three minutes to resolve it?

Mr Albuery:  It sounds as though that will be helpful, madam.  May we retire?

Ms Wilcox:  Yes, indeed.  I don’t think we need to clear the room.

Mr Albuery:  Thank you, madam.  In a letter dated 1^st June 2004, the respondent wrote to the Council for the Investigating Committee a letter which included these matters which I rely upon and to some extent they may be helpful to the respondent.  He states in it:

            “I had an almost non-existent system for processing claims.  Due to my overwhelming workload all forms were piled in a corner for weeks on end, some completed, some with little more than the name, address, patient signature and usually the voucher level entered.  When I could avoid it no longer I would go through the forms, finding them and filling in the blanks.  I approached the paperwork in a very naïve and admittedly cavalier fashion.”

            In another part of the letter he makes this comment:

           

            “I fully admit that I exaggerated some claims to increase patient entitlement.  With the great benefit of hindsight, I can see how foolish it was.  As I initially stated, I find it difficult now to place myself in that situation and explain my decision.  I think the nearest I can come is a sense running a private welfare system to help patients perceived as struggling to pay for their eye care.  I think I found it very difficult to ask patients to pay towards what they thought of as NHS spectacles.  I accept that this was a stupid and irresponsible action and can only assure all relevant bodies that no such discrepancies will ever occur again.”

            I have been asked to read this:

            “I realise my system of submitting claims was totally acceptable” – it is probably agreed he meant unacceptable – “and now have a very rigid system in place with several checks in place and specified responsibilities.  This has resulted in probably 15,000 or so forms being submitted in the past three years”  (this is a letter dated 1^st June 2004) “with no problems or concerns on the part of the local health board.  I am entirely confident that this system, combined with a policy of ‘if in doubt leave it out’, precludes completely any chance of future inappropriate claims.  I hope this explains how I got into this situation and reassures you of the measures taken to ensure it can never arise again.”

            Madam, that is all I want to say by way of summary of the allegations.  It does seem to me important, you having already found the respondent guilty of serious professional misconduct, that you are assisted as you look at the paperwork by Mr Lowery in determining – and it is a matter, of course, entirely for you – how serious you determine this case to be so that you can impose a sanction which is proportionate.  For that reason I propose to call Mr Lowery who will then be able to go through briefly the documents with you and be able to answer any questions you may have.  Before I do that I should say one more thing, which is that so far as the Council is concerned, the respondent has no previous adverse findings against him and you should treat him, therefore, in terms of credit you give him, as a man of good character.

Ms Wilcox:  Please call Mr Lowery.

Mr Albuery:  Mr Lowery has his own copy of the bundle, which is the same bundle you have, unmarked, and with your leave and with the leave of Mrs Kapila, he will have that in front of him so he can refresh his memory from the documents.

MR GERARD LOWERY called and sworn

Examined by MR ALBUERY

Q.        Mr Lowery, I am going to ask you some questions.  Could you address your answers to the Committee, please?  Mr Lowery, could you briefly state your experience in dealing with the investigation of alleged ophthalmic fraud.

A.        For the last 10 years I have been involved in forensic accounting for various health boards and health authorities up and down the country, specialising in ophthalmic fraud.  Something like 100 different contractors serve the entire islands of the UK.

Q.        I am going to ask you to take us through some documentation which relates to your investigation of Mr Marshall.  Would you be assisted by having in front of you the documents which were seized in the course of that investigation?

A.        Yes.

Q.        I propose to hand Mr Marshall exhibit C1.  Mr Lowery, in relation to the bundle, if I can ask you to familiarise yourself with it for a moment, you will see that the Notice of Inquiry is set out between pages 1 and 5 and thereafter documents relating to a number of patients are listed.  I am going to ignore pages 7, 8 and 9.  Can I ask you firstly about Patient 1?  Your summary you will find at page 6 of the bundle.  In relation to Patient 1, it is admitted that on 3^rd May and 3^rd November 2000 and 21^st March 2001 Mr Marshall in respect of this patient made inappropriate claims by pretending that the dioptre strength which he supplied was greater than it actually was.

A.        That is correct.

Q.        Could you by taking us briefly through the documentation show us at divider 2 how you came to that conclusion, which is now admitted by the respondent.

A.        If I could draw your attention to page 16, which is a GOS3 NHS optical voucher patient statement.  On the front of that statement you will see that the claimant has said that two B vouchers of distance and near vision have been supplied to the patient, that it has come to a B voucher value because the cylindrical power in the second column, if you look at the right lens, has been recorded as +2.25 and +2.25.  If I could refer you back to the patient’s notes at page 10 for 3^rd May, you will see the prescription has been 6.25 on spherical but only +1.50 on the cylindrical measure.  If I could refer you to page 12, which is the dispensing note, you will see that on 3^rd May the cylindrical value or power of glasses that were ordered was +1.50 power.  +1.50 on the cylindrical with this prescription is an A voucher value and so only two A voucher values should have been claimed for by the contractor.  Referring you back to GOS3, two B voucher values have been claimed for, which represents an overclaim of £30.40 on that voucher.

Q.        At that time what dioptre strength had to be supplied to get it into a B voucher band?

A.        Above 2 dioptres.

Q.        Can you help us with the documentation in relation to 3^rd November?

A.        I would refer you to page 20 in this section, a GOS3 NHS optical voucher patient statement for the same patient.  A voucher B has been claimed and you will see that the spherical power on this occasion has put at +6.50 and the cylindrical at  ‑1.50.  Again, if I take you back to page 10, the patient’s notes dated 3^rd November 2000 do not show a spherical power of 6.50.  Anything below 6 dioptres on the spherical in this case would mean only an A voucher value could be claimed, and therefore this voucher has been overstated by claiming a B when only A strength lenses have been submitted.

Q.        Lastly in relation to this patient, the claim on 21^st March 2001.  Could you help us with the documentation in relation to that, please?

A.        I would refer you to page 25 of this bundle.  You will see a B voucher has been claimed on the GOS3 voucher, which would appear to have been amended from an A voucher value.

Q.        Just pause there for the Committee to see that.  At the top half of the form, isn’t it?

A.        It is under the ‘NHS Optical Voucher’ section.  By putting 2.50 in the cylindrical, above 2 dioptres, if that is what was supplied, would be a B voucher value.  Perhaps I could take you on to page 27, which is the actual order to a company called Lenstec for the lenses.  As you will see, the cylindrical power of that was ordered for the patient as +1.50, which means the voucher should have been claimed at an A voucher value, and therefore it was overstated and overclaimed.

Q.        In relation to those three examples for Patient 1, is it the case that the patient records and the dispensing notes, and the order records where they are available, suggest one thing but a claim has been made from the NHS for something more:

A.        That is correct.

Q.        And in respect of each of those, Mr Marshall has made an overclaim.  Is that correct?

A.        That is correct.

Q.        Could we then look at Patient 2, which is particular 2.  You will find that at divider 3 of your bundle.  This is the same category of concern you had about something being claimed for which was more than was provided.  In relation to 3^rd March 1999, particular 2(a), can you take us through the relevant paperwork?

A.        I refer you to page 37, which is the GOS3 voucher claim.  You will see on that it has been claimed as an F voucher value.  It has F voucher value stated – these are bifocal lenses – because on the left lens the cylindrical power +2.25 has been recorded.  It would, of course, be an F voucher value if those were the lens powers that had been prescribed.  But if I take you back to the patient’s notes, which are on page 31, at the foot of those notes you will see the entry for 3^rd March 1999 and the cylindrical power is only +1.75, not +2.25.  On page 33 is the dispensing record of this patient and on 3^rd March 1999 it will be seen that the lens power given on the cylindrical was +1.75 and not +2.25 as recorded on the GOS3 voucher.  Therefore the lenses that were dispensed to this patient would only come into a band E, which is a lower value than band F, so this voucher has been overclaimed by one voucher band.

Q.        In relation to the particulars set out at 2(b), 28^th February 2001, could you assist us with the paperwork and what it means, please?

A.        I draw your attention to page 45 in this section, which is the GOS3 voucher application.  Again you will see it has been claimed as an F voucher value and if you look at the left lens cylindrical power, it has been recorded as +2.25 dioptres.  If that were the case it would be an F voucher value, but I refer you back now to the patient’s notes on page 32 of the bundle for 28^th February, and you will see that left lens cylindrical value is only +1.75.  On the next page, page 33, the dispensing record on 31^st May 2000, the dispensed lens on the left was +1.75, not 2.25 as recorded.  Therefore the glasses that were dispensed fell into an E voucher category for these bifocals, which would attract a lower remuneration than the F value voucher that was claimed.

Q.        Madam, is Mr Lowery going through this at a pace you are content with?

Ms Wilcox:  Yes.  My colleague was wondering whether we would be going through every single case or whether, as the circumstances are so similar, perhaps that may not be necessary.

Mr Albuery:  That is a very helpful comment.  I am here to assist the Committee in understanding this case, particularly at the stage we are now at, which is that you have already found serious professional misconduct proven.  If you would prefer only one example of each category to be established or shown to you by Mr Lowery, we could proceed on that basis.

Ms Wilcox:  It is for you to present the case.  What we would be concerned about is that we would wish to avoid needless repetition.  If, on the other hand, you feel you have to go through each and every case, do so.

Mr Albuery:  Thank you for that indication.  Mr Lowery, had you finished in relation to 2(b), 28^th February 2001?

A.        I have, yes.

Q.        Mr Lowery, if you look in your Notice of Inquiry at page 3, you will see there similar allegations set out in relation to Patient 3.  Without going through the documentation unnecessarily, did the documentation establish that same pattern of overclaiming by the respondent?

A.        The pattern that was found at audit on these particular patients’ voucher claims was normally that the cylindrical prescription powers had been inflated above what was actually given, so in relation to Patient 3 it was claimed that 2.50 dioptres when in fact it was only 1.50 dioptres given, which resulted in an overclaim.  Similarly, in 3(b) on 20^th August a cylindrical prescription was recorded on the voucher claim as 2.50 dioptres, when the lenses dispensed were only +1.50 dioptres and therefore a similar overclaim was made.

Q.        In relation to this patient I want to ask you about the matter set out at particular 3(d) because that is different to the concerns you have already assisted us with.  The allegation at 3(d), which is admitted, is that on 29^th January 2001 the respondent submitted a claim for payment for the supply of distance vision spectacles which were not supplied at all.  Could you assist us with the paperwork in relation to that, please?

A.        I would refer you to page 67 of this section, which is a GOS3 voucher dated 29^th January 2001.  You will see that two pairs of glasses to B voucher value have been claimed by the contractor.  However, if you go back to the patient notes at page 51 and 52 – I think it will be better to refer you straight to page 53.  Page 53 shows what was dispensed on 29^th January.  There is one pair of glasses to the distance vision prescription recorded of +1.50 and +1.00 on the right lens and +1.25 and +1.50 on the left lens.  What has happened here is that Mr Marshall has falsely claimed on the GOS3 that distance vision glasses were issued when the test notes and the dispense record shows only near vision lenses were issued.  Therefore two pairs of glasses have been claimed when in fact only one pair was issued.

Q.        We now look at a different category of overclaim and those which represent a claim by the respondent for repair or replacement when in fact two pairs were issued at the same time.  Madam, this is particulars 4, 5 and 6.  However, can I take you, Mr Lowery, to just one of them by way of example and perhaps particular 5 by way of illustration, which is at divider 6?  Could you help us both in relation to 12^th April 1999 and 8^th March 2000 as to what the respondent did here that he should not have done, and how he did it?

A.        First of all I will take you to page 88 in this section, which is an application for an NHS sight test fee, it is a GOS1 voucher.  On the back of that voucher, which is page 89, you will see the voucher type that was issued to the patient is a voucher B.  On the next page, page 90, you will see a GOS3 voucher to a B value issued to the patient.  This claim is not contested.  It bears up with the notes, but on page 91, which is the reverse of the GOS3, you see that the glasses were collected on 12^th April 1999.  On the next page, page 92, there was a document dated the same day as those glasses were collected, 12^th April 1999, and this is a GOS4 repair/replacement voucher, which has claimed that both lenses with a tint have been replaced on the day the glasses were collected.  If I take you to page 87, these are notes on the back of the envelope that shows there was only one clinical episode where a spare pair of glasses were given at the same time as the glasses claimed for on the GOS3.  In effect, that GOS4 voucher dated 12^th April 1999 was not a replacement pair of glasses but it was a spare or second pair of glasses, to which there is no entitlement to claim.

Q.        Is the same the position in relation to 8^th March 2000 in relation to this same patient?

A.        It is, yes.

Q.        Do you have any comment to make about the date of 8^th March 2000 as recorded in those GOS forms?

A.        There are one or two comments I could make.  If I go to page 94, this is a GOS1 application for NHS sight test.  At the foot of that page it is dated 18^th March 2000.  I would suggest the 18^th has been amended, perhaps from 6^th March.  If I take you to page 96, which is the GOS3 voucher, you will see that is dated 6^th March.  According to the recorded dates, the issue of glasses precedes the date of the sight test if that date of 18^th March was correct.

Q.        Pause there for that to sink in in terms of the ramification of it.  Is it the position that the supply of the glasses pre-date the eye test which should trigger the supply?

A.        That is correct.  At page 98 there is a GOS4 repair/replacement voucher dated 8^th March 2000 where it is claimed that both lenses and the whole frame were replaced.  I have to draw your attention back to the dispensing envelope, which is on page 87 and in the middle of that page on 18^th March there are two entries for that date.  One says “CR39 to Nikko frame and copy to an Allyn frame.”  We say that two pairs of glasses were given with one clinical episode and the GOS4 has been submitted on a predated date of 8^th March, when in fact it was for a spare or second pair of glasses.

Q.        Is there any basis upon which a spare or second pair of spectacles can be prescribed under the NHS?

A.        Only by prior approval from the local health board, local PCT or the local health authority at that time for special circumstances.  I have seen them being granted after correspondence if a patient has special needs or when there has been a special circumstance where another pair of glasses were required but not as a normal transaction.

Q.        If an optometrist took a clinical view that in a particular case, for exceptional reasons, such a pair should be provided, there is a route open to him or her to obtain prior approval.

A.        The prior approval route is to write in to the local health board, the PCT, the governing body and make a case for a second or spare pair to be given.  This would not be claimed on a GOS4 voucher, of course, it would simply come through on a GOS3 voucher to show there is no deceit or deception and that it has been given prior approval.

Q.        During your audit did you find any evidence of any prior approval authorities sought by this respondent?

A.        No, I didn’t.

Q.        The next category, which the respondent has admitted, relates to claims made by him for the supply of bifocal spectacles in circumstances where only single vision spectacles were supplied.  Can I ask you by way of an example of particulars 10, 11 and 12, which deal with that concern, to take us through the paperwork relating to Patient 11 at divider 12?

A.        If I take you first of all to page 172, which is a GOS1 application for an NHS sight test dated 13^th November 1999.  Page 173, which is the reverse of that document, shows in voucher type claimed or given type E, which is bifocal lenses.  Over the page at 174 is a GOS3 NHS optical voucher and patient statement and the voucher type recorded is an E voucher for bifocals.  You can see that bifocal prescription is written by filling the distance prescription in the top column and an added 1.75 to the reading segment of the bifocal.

Q.        Is it that figure which shows us, those of us who are lay, that these are bifocals?

A.        Not necessarily.  You would have to put down the voucher type because you could, for example, write that prescription but only issue a near vision or a distance vision prescription.  However, as a generality prescriptions written in that nature would have led you to believe that bifocals had been given.

Q.        But the putting of the voucher claim confirms it.

A.        Yes.  Certainly on the reverse of the voucher, which is page 175, the financial sum of £49.50 was applicable to an E voucher value for bifocals at that time.  I would then refer back to page 169, which are the patient’s notes for 13^th November 1999.  The prescription was down but the notes conclude, “Only wants reading glasses.”  On page 170, which is the dispense note, you will see for 13^th November 1999 that single vision lenses had been put down as being dispensed.  There is no add for reading on that prescription.

Q.        Is it the case that both the patient record and the dispensing notes suggest that what is needed and what was supplied was single vision spectacles but a claim was made for bifocals?

A.        That is correct.  Reading glasses were required, reading glasses were recorded on the dispense note but the prescription on the GOS3 has been recorded and claimed as a bifocal.

Q.        Lastly, in relation to the category where a claim was made for the provision of near and distance vision spectacles but two sets of the same spectacles were supplied, could you help us with the paperwork relating to Patient 14, which you will find at divider 15?  Although it covers two dates, perhaps you could deal just with the allegation at 14(a) on 15^th November 1999.

A.        If I take you to page 208, which is a GOS3 voucher, you will see on that GOS3 voucher a voucher type ‘Ax2’ has been claimed, whereas a distance vision prescription and a near vision prescription is recorded.  On the next page, 209, at the ‘Supplier’s Declaration’ a claim has been made for a first pair and a second pair, that is distance vision and near vision, both in the sum of £28.70.  However, at the head of that page at ‘Patient’s Declaration’, the patient has confirmed they received one pair of glasses only.  I take you to page 203, which are the patient’s notes and page 204, which is the dispense record.  At page 204 for 15^th November 1999 you will see only one pair of glasses have been dispensed, which relate to the near vision glasses only.  So a claim has been made for distance vision and near vision when in fact only near vision glasses were dispensed.

Q.        Are you aware of the circumstances of a settlement entered into between the respondent and the local health board?

A.        I am.

Q.        How much did he repay to the local health board?

A.        The local health board, through negotiation through lawyers, received a settlement of £120,000.

Q.        Can you tell the Committee how much of that was accounted for by way of audit costs?

A.        When we reach quantum settlements like that they are not broken down into every constituent part but the audit costs from the district auditor and the Audit Commission at that time had run to £88,000.

Q.        Thank you very much.  I have no further questions for you, Mr Lowery, but could you wait there for a moment, please.

 

Cross-examined by MRS KAPILA

Q.        I only have one or two questions, Mr Lowery.  We are talking here obviously about your investigations regarding Mr Marshall in the period 1999 to 2001.

A.        Correct.

Q.        Would I be correct in saying that along with the charges or the matters where you did find problems, there were also many other matters where you did not find any problem?

A.        That is correct.

Q.        Am I also correct in saying that in respect of the claims that you have discussed in evidence, you would not know why Mr Marshall might have put the claim in as he has done?

A.        No, I would not know his reason for doing that.

Q.        Finally, and you may not be able to answer this, would you know what the advice given by any particular health authority would be in a query, for instance, relating to vouchers for children?

A.        Yes.  There is quite clear guidance gone out over the years, not just from the health authority but from the Association of Optometrists themselves, about making accurate claims.  There are various statutory documents about what you can and cannot claim and there are local documents, depending on each health board or each health authority, then, of course, it is the profession’s own advice to the contractors.

Q.        I am sorry.  I should perhaps make myself clearer.  I am talking in respect of spare pairs of spectacles for children.

A.        There is nothing in the regulatory framework which provides for spare pairs of glasses, and the Association of Optometrists say in their document there has never been entitlement to spare pairs of glasses.

Q.        I think in evidence you stated that there could have been a means of obtaining approval for those spare pairs.  Would you accept that there may not be an accepted method or that advice could vary within different health authorities?

A.        My experience on committees up and down the country is that there is a standard, although a laissez faire attitude to spare pairs being requested only by prior approval through correspondence.  Even though this is not enshrined in statute, it is certainly the common practice that I have identified throughout the United Kingdom.

Q.        I have no further questions.

Mr Albuery:  Madam, do you or your Committee have any questions for Mr Lowery?

Dr Harris:  I have just one question.  Could you tell me how many cases you came across which had resulted in an underpayment to Mr Marshall?

A.        None.

Ms Wilcox:  Mr Lowery, have you come across any case where a health authority or the equivalent has issued guidance to the effect that they would rely on the discretion of the practitioner to issue second pairs of glasses in appropriate cases?

A.        I have never seen that.

Q.        How familiar are you with the regulations in Wales?

A.        As a forensic accountant and not as a lawyer, I am familiar with the framework and rely on internal audit work.

Q.        When you did your audit did you look at the relevant guidance that had been issued in Wales at that time?

A.        Yes.

Q.        Thank you, Mr Lowery.

Mr Albuery:  Madam, may Mr Lowery be discharged?

Ms Wilcox:  Indeed, yes.  Thank you, Mr Lowery.

Mr Albuery:  Madam, the Council’s case is that the NHS has a right to expect that all those who may claim from public funds do so accurately, fairly and honestly.  In this case you have heard, and I suggest these are aggravating features, that inappropriate claims made by this respondent were made over a number of years in relation to a number of patients, which resulted in a sum of in excess of £30,000 being repaid by him for inappropriate claims to his local health board.  You have heard, and it has just been given in evidence, that not one of the forms examined by Mr Lowery and his team revealed an underclaim.  All these aggravating features, the Council say, are matters which you can properly take into account as well as any mitigating factors you will hear, in determining what sanction, if any, to impose.  At the appropriate stage I can, if you or your Legal Adviser wanted me to, remind you of what your powers are.

Ms Wilcox:  Remind us if you wish but I think we know them.

Mr Albuery:  Then I won’t.  Thank you.

Mr Kinch:  Mr Albuery, you have referred to them being specimen charges and I have a note of the breakdown between the audit costs and the amount that therefore represented inappropriate claims, which is just over £30,000 in round figures.  Council’s case then is that the specimens that have been admitted represent courses of conduct following the various categories that have been outlined, which resulted in, for the purposes of these proceedings, no less than £30,000-odd being claimed inappropriately.  Is that the way the case is put?

Mr Albuery:  Exactly that, sir.

Ms Wilcox:  Thank you.  It is time now to adjourn until two o’clock.  Mrs Kapila, one of the sanctions, as you know, could be to impose a financial penalty.  If you have not already done so, and if your client wished to make any representations by way of a statement of means, perhaps you could consider that in the adjournment.  Adjourned until two o’clock.

- Proceedings adjourned -

- Proceedings reconvened -

Ms Wilcox:  Before I call on you Mrs Kapila, Mr Kinch has a few words.

Mr Kinch:  Mrs Kapila, I wanted to follow on from the question I put to Mr Albuery about the specimen charges and the way in which the case could be opened to the Committee.  Is it accepted that the particulars to which the respondent has pleaded guilty to which he has admitted are representative of further inappropriate claims totally somewhere in the region of £30,000 to £32,000?

Mrs Kapila:  Yes, it is.

Ms Wilcox:  Mrs Kapila?

Mrs Kapila:  Madam, Mr Marshall has obviously already pleaded guilty to the charges but he would like to explain matters to the Committee and therefore I will ask him to give his explanation to you now.

MR STEPHEN GILES MARSHALL called and sworn

Examined by MRS KAPILA

Q.        If there is an agreement, I will lead Mr Marshall so far as agreed on dealing with aspects on the disputed facts and you may interrupt.  Mr Marshall, could you give the Committee your full name and address?

A.        Stephen Giles Marshall [address supplied].

Q.        You have been in practice as an optometrist for 25 years?

A.        Yes.

Q.        Could you tell us where you practise at the moment?

A.        I practise in three towns: in Rhayader at a community health centre, in Llandrindod Wells and in Builth Wells, all in a triangle in a rural part of mid-Wales.

Q.        Can you tell us the type of patient you see within these areas?

A.        It is a very mixed bag.  There is quite an elderly population.  A very high percentage of my work is not specifically related to spectacles but referral work from doctors from the hospital.  The catchment area, apart from Llandrindod Wells, which is a county town, the other areas are very depressed, farming communities, the people still living in conditions which are perhaps hard to imagine for some people in towns.  Very sparsely populated, no public transport at all.  There is a post-box.  It is an area which a lot of people can’t imagine how it still works and in cases it doesn’t work and people are disappearing from it.

Q.        Can I take you to the charges?  There should be a bundle there for you.  That bundle includes the Notice of Inquiry where the charges are set out.  If I take you to the first charge, which is in respect of Patient 1, there are three sections to that charge and they state that you submitted a claim for payment of £89 on 3^rd May, there were supplied two pairs of spectacles containing a right lens with a cylindrical prescription of +2.25 dioptres, whereas two pairs of spectacles containing a right lens with a cylindrical prescription of +1.50 dioptres was supplied for which only £30.40 could be claimed.  Without going once again into the details of (b) and (c), similar charges in respect of the same patient for 3^rd November and 21^st March 2001.  Would you like to comment on this matter?

A.        As to the factual basis of it, it is absolutely right and I admitted that at the very beginning.  Patient 1 is a lady living on her own, a very elderly lady in what can only be described as an abject situation.  She has a condition, she was essentially monocular, she was very anxious about her eyes –

Q.        Sorry, can I stop you for a minute?  Monocular meaning –

A.        She only had one eye functioning following secondary glaucoma.  She felt very precarious in her vision, she was very photophobic.  I felt the best way forward was to give her some sort of tinted lens for outside, which I did, which was expensive, which I knew she really could not afford and I exaggerated the voucher.  The alternative would be that she just could not have them.  On similar occasions I notice I have given her the same sort of thing.  In fact, on one occasion I have not charged her for her spectacles at all.  I have taken a holistic view that within the overall context of my practice I could not charge her for that one and I didn’t.  She was just a lady who could not afford her eye care, it is as simple as that.  It was an awful thing to do but I did it and it allows her to function.

Q.        May I take you to the second charge?  This is in respect of Patient 2, whose name you will see in the schedule.  This is that on 3^rd March 1999 you submitted a claim for payment of £61.40 for the supply of a pair of bifocal spectacles containing a left lens with a cylindrical prescription of +2.25, whereas a pair of bifocal spectacles containing a left lens with a cylindrical prescription of +1.75 dioptres was supplied, for which only £48.20 could be claimed, and a similar charge in (b).  Would you like to give the Committee your comments on that?

A.        Patient 2 is an unemployed man who again had some neoplasia.  He had cancer in one eye and it left him very light sensitive.  Again we decided he needed some sort of light protection and, apart from the pair you have heard about there, I have also given him a completely separate pair of his distance prescription in Reactolite at a cost of £35, which is probably not even the material costs from the lab.  I exaggerated his voucher to allow him to have this treatment.  On 1^st June when he needed something else his voucher was sufficient to cover what he needed because he was using his own frame and therefore I did not exaggerate his voucher.  Again, it was exaggerating people’s entitlements when I knew they could not have what they needed to have done.

Q.        Could I take you to Patient 3?  Could you tell us why you overclaimed for this patient?

A.        This is a lady in sheltered housing.  When she first came to me she had lost all tolerance to wearing a bifocal.  [Finds records]  I beg your pardon, she had bifocals initially.  She came in with her daughter and she could no longer wear bifocals.  We changed her to separate distance and near.  They came back not very long later to say that it was not working.  She was pretty much immobile by this stage and I would go and see her at home.  If she put one pair down she could not get the other pair.  We knew bifocals would not work and the only alternative was a varifocal.  Again, this was a very expensive lens and I exaggerated her voucher to allow her to have a varifocal.  The next year she came to see me having lost one pair and having reverted to trying to wear separate pairs, so again we changed her over to separate pairs. 

Patient 3 is one where I have no explanation as to why her voucher was filled in for distant and near but only reading was dispensed.  When I say I have no explanation, I can only surmise things.  I don’t know if we intended doing distance later, but I know this lady was someone I have supplied with many quite sophisticated magnifiers, I have supplied her with angle poise lights, I have supplied her with daylight lights, and I cannot remember if I had decided to dispense one of those appliances and yet claimed for it as a pair of distance spectacles.  I am not going to pretend I can remember accurately.  I know I have given her many appliances which are not written down there and are not charged for because a lot of the time I try to recycle them when people start to lose the use of them.

Q.        We have already heard Mr Albuery read from a letter you wrote to the Council at the time about the state of untidiness, for want of a better word, of your practice.  Can you move on to Patient 4?  On or about 26^th June 2000 you submitted a claim for payment for the replacement of a pair of spectacles which were not replaced.  Could you explain that or comment on it?

A.        I think a lot of these where it says they were not replaced, I never made any bones about it, that these were not intended as repair and replacement.  These were spare pairs.  I make absolutely no bones about it.  This boy was from a single parent home.  He was a particularly small boy for his age, he was teased a lot and from nothing he virtually went to this prescription.  Without wanting to be condescending, madam, it is a very high prescription from nothing, and he was being teased for a lot of reasons.  He could not possibly play sport without this prescription.  We tried him with contact lenses and he could not wear contact lenses on a permanent basis, and the best we could come up with was to give him contact lenses for his sport and spectacles for his everyday wear.  I would consider both ways of doing it to be equally important for him.  I never intended that I was replacing spectacles in one particular pair.  They were quite specifically to allow him to have contact lenses and spectacles to do both his functions.

Q.        If I take you then to Patient 5.  You submitted claims for payments in (a) for the replacement of both lenses and a tint and a pair of spectacles which were not replaced, and you submitted a claim for payment for the replacement of a pair of spectacles which were not replaced.  Could you explain that to the Committee?

A.        I did not really understand this one, where it says I submitted a claim for replacement of both lenses and a tint and a pair of spectacles which were not replaced.  As far as I can see from my records, they absolutely were.  On 13^th April 1999 I have written on my record the CR39, which is a type of lens, into his own spectacles and matched the tint existing to them.  It is ticked as having been done, it was telephoned to the patient three days later to inform her it is done.  I did it.  I think the wrongdoing – and I am not sure if that is what the intention of this charge is – is that again it was a spare pair and I make no bones about it.  I did what I said I had done.

Q.        Can I take you to Patient 6?  These are three charges, (a), (b) and (c), in relation to payments for replacement of both lenses in a pair of spectacles which were not replaced.  Could you comment on that?

A.        These again are straightforward, they are spare pairs.  It says on it “second pair”, there is no pretence on the record that I was doing anything to one particular pair.  It says on it “second pair”, and again I make no bones about it.  I felt this boy needed a spare pair and I would have given him a spare pair.

Q.        I will come back to the issue of spare pairs in a moment.  Particulars 7, 8 and 9 having been withdrawn, could I take you to particular 10?  This is in relation to Patient 10.  On or about 27^th July 2000 you submitted a claim for payment for the supply of a pair of bifocal spectacles, whereas a pair of single vision spectacles were supplied.  Could you comment on that?

A.        This lady is a severe depressive who lives in a caravan somewhere just outside Llandrindod.  She increasingly could not go out at all, would not go out at all, had no spectacles on one occasion, had no money on any occasion.  Again, I exaggerated her voucher to allow her to have her spectacles.  I would visit her quite often on the way home to see how she was and she increasingly became convinced that she could not see because of the sun and she could not sit next to the window and she could not possibly go to the doctor because of the light.  I note that the following year again I gave her a voucher sufficient to cover the cost of a pair of very dark tinted prescription spectacles to allow her – they didn’t allow her – to try and placate her concern.

Q.        Could I move you on to Patient 11?  Again this is payment claimed for the supply of a pair of bifocal spectacles, whereas only a pair of single vision spectacles were supplied.  Could you comment on that?

A.        Patient 11, I cannot remember this gentleman in particular.  I am going from my records now.  I have written on his record a note, “Only wants reading Rx”, which is a very unusual thing for me to write; it is not a comment I would normally make.  I notice prior to this he has had bifocals and for the first time he wanted to change.  I suspect me writing that is indicative of the fact that I have tried to persuade him to have bifocals or at least a distance prescription as I note his vision is very close to the driving limit and previously I had always exhorted him to wear glasses no doubt for driving.  He may well have changed his mind.  We may have discussed it and he said, ‘Yes, okay, I accept I’ll wear them for driving’ and the voucher may have been filled in as a bifocal.  As you have already heard, I would fill a voucher in and put it in a corner in a pile.  He may well have changed his mind later that day and said, ‘No, I’m not wearing bifocals’ and somehow single vision ones have been dispensed.  That is reading between the lines on the record from a very unusual thing I have written on it, but I do not remember that man in particular.

Q.        Could I take you to Patient 12?  Could you tell us why you submitted a claim in the manner you did for Patient 12?

A.        This lady, I am reasonably sure, looking at her dispensing records, has had reading glasses.  I note on the back of the dispensing record I have put the letters “NCF”, which stands for not chosen frame when we are expecting them to come back in with an adviser, a daughter or someone to help them choose their frame.  Very often for reading glasses people don’t mind, they will choose anything, but they say, ‘I would like to bring someone in to help me choose my outside ones.’  I put “NCF” on her record at the time, which means we were waiting for her to come back in to choose a distance spectacles.  She has not done so, and the way my organisation was, a voucher may well have gone through a month or two months later.  I would not have picked up that she had not been back in to choose her frame.  That is what those initials stand for on the back of the record; it means we are waiting for someone to come in and choose their frame.

Q.        Can we move to Patient 13?  This is a claim that has been amended in the fact that you supplied two pairs of distance spectacles.  Could you comment on that?

A.        This patient was a gentleman with, I think it was emphysema.  He was confined to a wheelchair.  He was in sheltered housing and I would go and see him at home for various reasons.  He is obviously not somebody who could just pop down to see me when he broke his spectacles.  His vision is of a degree that he would be incredibly compromised if he did not have his spectacles and I would just pop up there to do them.  Where it says I have done reading and distance spectacles, I am not sure I have done.  I think it is far more likely that I have done two pairs of distance spectacles rather than distance and reading.  He painted after a fashion but he did not really read a lot and I suspect he would have been the sort of person who would have read better by taking his spectacles off altogether.  I am pretty certain I gave him two distance pairs of spectacles from a safety point of view, and would have done so again at his next check-up.

Q.        Can I take you to the last patient on our list, for whom you submitted a claim as set out in 14(a) and (b), the supply of a pair of distance vision spectacles and a pair of near vision spectacles, whereas only a pair of near vision spectacles were supplied.  Could you explain that to the Committee, please?

A.        Patient 14 was a very elderly lady who lives in a cottage by the church and I would visit her quite often at home.  I am pretty positive in this case that the extra voucher would have been to cover the cost of various lighting and magnifying arrangements in the house.  She has quite a lot of different types of lighting.  She would sit in the corner of her house with one 60-watt bulb somewhere over there and really could not afford to do anything about it.  I am pretty positive I gave her, amongst other things, a large stand lit magnifier and I am pretty certain in this case I have issued an extra voucher for reading spectacles to cover the cost of those appliances.

Q.        In any of the cases we have looked at, Mr Marshall, did you act as you did for personal gain?

A.        I am adamant that throughout all of this, it is not part of my psyche, I never sought to put money in my own pocket.  This is not something I do.

Q.        Can I take you to specific matters that came out in the evidence of Mr Lowery?  With regard to the pre-dating of forms, he took us to two forms that were pre-dated as examples.  Could you explain that?

A.        The pre-dating of forms - the boy involved has educational difficulties.  He had a spare pair, which I made sure he had.  He was going to be 16 and after the age of 16 you needed to send in a GOS4 to be approved.  It just seemed that for ease of paperwork, when I was sure it would be approved, it seemed an easier way to knock two weeks off the date and give him his spare pair.  It is as simple as that.

Q.        Mr Lowery also made some comments regarding obtaining approval in respect of spare pairs, specifically for children.  Could you comment on what the local health authority did in respect of that in your area at the time?

A.        There were no formal arrangements for spare pairs, certainly not in Powys, I don’t know about the rest of Wales.  In Powys there was a very informal system and you would ring up – we had no optometric adviser, I’m not even sure the term was coined at that stage.  We would ring up the health authority and whoever answered the phone, their response would be, ‘If you think it’s clinically necessary you can give him some.’  That was their response.  They made no decision on it, they gave you the choice.  I said to them on several occasions, ‘My view is that any child who wears spectacles constantly clinically needs a spare pair.’  That was the situation at the time.  There was no formal application for spare pairs.  There was nobody knowledgeable in the health authority to help with this.  That was the response we had, ‘If you think it’s clinically necessary you dispense them.’

Q.        Mr Marshall, how is your practice run now?

A.        It is now four years since the district auditors came into my practice and I have had ample opportunity to think very carefully about my actions.  I have searched my heart and I am adamant that I have never deliberately made a false claim to put money in my pocket.  I look back on my actions now with amazement that I could be so stupid and I acknowledge that I was utterly wrong and no motives justify what I did.  At the time I had no sense of being dishonest, it was just out of an intuitive desire to give people their optical needs and when they could not afford it, it seemed a painless way to help them.  When I think about it, it was absolutely inevitable that it would come to light.  There was no sophisticated fraud, there was no doctoring of records to hide it, which I suppose would have been fairly easy.  I now realise that optometry and the GOS budget are neither the arena nor perhaps the tool to address any perceived erosion of the welfare system.

            I have completely overhauled our procedures and we now work absolutely to the letter of the regulations.  Stupidly, I now realise the regulations, far from restricting my practice and making it difficult, make it far easier.  They take away all personal responsibility for assessing any patient’s entitlement.  I still find it very difficult to say to struggling patients when they come in expecting to find their National Health needs met through the Health Service, to say to them, ‘I’m sorry, on top of that voucher you have to pay £9, £10 or £11’ and watch them wrap their specs up with Sellotape and go out of the door.  It does happen a lot in our area.

            You heard earlier that I have submitted 15,000 forms.  We checked it and it is somewhat over 20,000 forms now, with absolutely no concerns at all from the health authority.  There is no chance whatsoever of any further transgression, I am absolutely certain about that.  That is the state we are at now.

Q.        I have no further questions for Mr Marshall.  He has just answered the one I was going to ask him.

Cross-examined by MR ALBUERY

Q.        Mr Marshall, may I ask you some questions on behalf of the Council?  Do you agree with me that the NHS should be able, in professionals like you, to place a high degree of trust?

A.        Yes.

Q.        Do you agree with me that on each and every one of these occasions, as set out in the Notice of Inquiry, you breached that trust?

A.        Yes.

Q.        Do you agree with me that your breach of trust continued over a number of years and stopped only when your premises were inspected by the district auditor in 2001?

A.        Yes.  If I may add a rider to that.  It coincided in 2001 with the change from the old authority to the LHB.  It coincided with a far more professional approach to clinical governance and it coincided with an increase in our professional support mechanisms in terms of an optometric adviser.  At that stage already we were attending a series of seminars to improve our mechanisms and our failing within the practice for dealing with patient entitlement and their eligibility for these things.  There were already changes in my own practice whereby people would be given certain responsibilities for certain things.  I am not confident, that would be wrong, but I am pretty certain that we were evolving out of this chaos anyway to a method of doing things which would have precluded these things happening.

Q.        But do you accept, because it appears to me that it is clear from the Notice of Inquiry, that right up to that time when DATAC and the district auditor visited your premises, you were still putting in claims which you knew to be false?

A.        Yes, I was.

Q.        This Committee has heard that a sum just in excess of £30,000 has been repaid by you to the local health board in connection with inappropriate claims made by you.  Is that correct?

A.        Yes, it is.

Q.        Is that the extent of your repayment in relation to inappropriate claims to the local health board?

A.        It is in direct payment.  There is a quite extraordinary payment to the auditors for auditing my books of £88,000, but that is the extent.

Q.        Was that for a period between 1999 and 2001?

A.        I am not sure.

Q.        You paid the money to the local health board.  Did you not know for which period you were paying it?

A.        My solicitor handled the final payment but I would assume you are right.

Q.        In that period of between two and three years, can you help the Committee with an understanding of how many claims you accepted were inappropriate which resulted in that repayment of £32,000?

A.        I can’t.  I am not being coy but I don’t think I have ever seen a number.  I know a very large percentage of the figure was children’s spare pairs.

Q.        Do you accept also, as I think has been accepted on your behalf, that each of the four categories of overclaim exampled in the Notice of Inquiry were found during the course of the investigation at the practice for those years?

A.        Yes.

Q.        You said in your letter, part of which was read out, that in a sense you were operating a private welfare system for those who could not afford eye care which you determined they should be given.

A.        I think I have just said that again.

Q.        Do you accept from me that you financed that private welfare system, as you call it, not from your own pocket but from the NHS?

A.        Absolutely.

Q.        Do you accept also, therefore, that you wrongly and unlawfully depleted the NHS of resources which would otherwise have been used for other patient entitlements?

A.        Yes.  I am sure in a lot of the cases I was doing things which, if I had not done them, would have had to be done 80 miles away or 40 miles away in a hospital and would have cost money there instead.

Q.        In relation to the provision of spare pairs, why did you, if you felt you had an implicit authority from the authority to prescribe that which was clinically appropriate, hide the reality behind GOS4 forms?

A.        I think you are referring to one in particular that I pre-dated.

Q.        No.  I am referring to all of those cases in which you pretended to claim for a repair or replacement when in fact you provided a second pair.

A.        I am sorry, I was not pretending to do a repair or replacement.  I thought at the time that was the mechanism by which to do a spare pair.  I thought it was the form to use.  It was not a pretence at all.  Half the time the form is issued on the same day as the voucher and it is impossible to change the lenses on the same day as you issue the spectacles.  I am sorry, it was not a pretence, it was the form I used of choice for doing a spare pair.

Q.        We need to be clear about your position in this regard.  Is it your case that you were told by your local health authority that you should justify the clinical judgment you had made on a GOS4 form?

A.        No, because they never mentioned a GOS4 form.  They said, ‘Issue a spare pair if you feel it is clinically necessary.’

Q.        But they were not repair or replacements, were they?

A.        Sometimes it would be.  In the majority of cases it would be replacing the lenses in their spare pair.  I would say in the vast majority of cases what I would do is upgrade their previous pair to their new prescription, which absolutely is replacement lenses.

Q.        In each of the cases that this Committee is dealing with you have wrongly claimed for a repair or replacement lens, have you not?

A.        I am sorry, I don’t quite know what you are getting at.  I have already told you that my mechanism for giving spare pairs was to use a replacement form.  If it was the wrong form to use, whatever your question is, the answer is yes.

Q.        Let me make the question clearer.  Will you turn in your bundle to the Notice of Inquiry and the relevant part is at page 4.  The numbers are in the bottom right-hand corner.  In relation to Patient 4 you did not for that particular patient repair or replace his spectacles, did you?

A.        [Finds page]  Which patient are we talking about, please?

Q.        The same patient, Patient 4.  You did not replace those spectacles, did you?  You did not replace the original spectacles, you simply, I think you said you provided a spare pair.

A.        Yes.

Q.        And that is so in relation to all those patients, isn’t it?

A.        Yes.

Q.        When you filled in the GOS4 form, you knew, did you not, that you were claiming for something you had not done?

A.        No.

Q.        Why is that?

A.        I don’t think I gave any thought as to the semantics at the top of the form “Repair/replacement”.  I just thought that was the form to use to give them a spare pair.

Q.        Why do you say semantics?  Is repair or replacement not clear to you?

A.        I say semantics because I am not denying what I have done, it is that I am not sure I am explaining properly.  When somebody comes in and I take a second pair, their old pair, and put new lenses to the new prescription into that old pair, I consider I have replaced those lenses.

Q.        So why, before this Committee, do you accept that those three particulars amount to serious professional misconduct?

A.        I don’t actually.  I think it is exaggerating vouchers and things that I feel far more amount to serious professional misconduct.  I feel the mechanism by which I gave children spare pairs, I suspect I would not have felt I had behaved so badly professionally.

Q.        While we are dealing with that same category of allegations, let me ask you about Patient 5 in relation to particular 5(b).  This is pre-dating or changing the date on the form.  Did you do that or was that done under your direction?

A.        Either I did it or it would have been done under my direction.

Q.        Why were you dishonest in relation to that form?

A.        To save paperwork.  After the age of 16 it became more onerous.  The GOS4 has to be pre-approved over the age of 16, and we send them in up to the age of 16.  It takes longer and it is more paperwork.  You send it in, it is approved, it comes back stamped and we do it.

Q.        Most of the answers you have given in relation to explanations for your behaviour have related to patient benefit.  Do you concede that in respect at least to some of these matters you are the beneficiary of the inappropriate claims?

A.        I have yet to see anywhere on any of my records that I have not allocated the full increased level I have given people towards their optical needs.  I have assessed their needs first and then found my own misguided way to try and fund them for them.

Q.        Let us just deal with that.  Do you accept that you have provided to your patients optical appliances which would not have been provided to them under the NHS?

A.        Yes.

Q.        Do you accept, therefore, that you have increased your turnover and profit as a result?

A.        I think anyone looking at the level of charges I am making for spectacles on my records would realise that under NHS work we do not make a realistic profit.  It is pence.

Q.        Can I repeat the question and ask you this time to answer it?  In relation to the claims you made which were inappropriate, do you accept that you increased your turnover and thereby your profit?

A.        Yes, it would increase my turnover, not automatically my profit.

Q.        Do the optical devices you supply not have a profit element in them?

A.        No.  Sometimes they do.  We went through one particular case there where I supplied someone with a pair of photochromic prescription spectacles at £35 with a frame.  That is virtually cost price.  Yes, somewhere along the line there will have been a small profit margin but not a relevant profit margin.  It was certainly not a motivating factor.

Q.        What do you do now in relation to those patients who you determine should have a spare pair in circumstances where such a pair cannot be justified?

A.        We do not give them a spare pair.

Q.        Do you accept now that that is what you should have done between 1999 and 2001?

A.        Yes.  Actually that is not true.  We apply for a spare pair to the optometric adviser, whose advice now is that any child up to a –6.00 – I apologise if this is condescending but for lay people this means they cannot see further than there.   Any child up to that is deemed not to need a spare pair because they can walk into an optical outlet and have a pair made in the same day.  That maybe so in London.  On the top of the Brecon Beacons it means a child cannot go to school for three days.  No, I don’t do them spare pairs.  The much vaunted spare pair route does not work in our area but I don’t give them spare pairs, end of story.

Q.        In relation to a number of the matters before the Committee today you have said that although you may not have supplied that which you said on the forms you did, you provided something else which you determined was necessary.  Where is the documentary proof of that?

A.        I suspect on some of those dates, for instance if the one lady we talked about, if I had given her a daylight lamp – if I had access to my invoices, to my order book, I suspect we could probably find something.  I cannot challenge.  When it says there is no order in a record, I have no idea if there is or not.  I cannot challenge that because I have no order books, I have no evidence with which to refute these claims.  If I say I supplied something else, it may have been from stock, it may well be there is an order in my invoices for a daylight bulb or a daylight magnifying lamp on that particular day or that particular week.  I don’t know.

Q.        You are surmising what the position might be, aren’t you?

A.        Absolutely.

Q.        In relation to Patient 3 and in relation to particular 3(d), you have admitted that on 29^th January 2001 you submitted a claim for payment for the supply to her of a pair of distant vision spectacles which simply were not supplied.  What is the benefit for that patient by you making that false claim?

A.        You will have to let me catch-up with that.  I think that is one I addressed earlier.  This lady was swapped back from varifocals.  She came in, she had reverted to wearing separate distance and near.  I said then, and I would say now, I have no idea if I intended to make her distance spectacles again and the voucher was submitted wrongly, or if it was to cover some other appliance she had, because I know this lady had many appliances, even up to a closed circuit TV recorder costing £1800 which I lent her.  I obviously could not cover that, but this lady had many, many appliances and I don’t know if I did that voucher to cover one of her appliances or whether I intended to do a distance pair of spectacles for her.

Q.        Do you accept, on the evidence available, nothing was supplied on that day to that lady, despite the claim?

A.        On the evidence available, it was no more than me saying I think I would have given her something. 

Q.        Thank you very much.

Mrs Kapila:  I have no questions.

Professor Anderson:  Just one or two questions.  In the operation of your private benefit system for the patients, do you always try to pass this benefit back to the patient?

A.        Always.

Q.        How did it work?  Was it that at the time you did not charge for what they gave them in the anticipation that you would be remunerated for it by the health authority?

A.        Indeed.  It would be knocked off anything we would normally charge them.

Q.        This is typically something like a frame I am thinking of because you are talking about these patients having very little money.  However, the idea of a voucher is to cover the cost of lenses for people who are in exactly that situation if they cannot afford to pay for their own spectacles.

A.        Or didn’t understand it, yes.

Q.        What additional charge were you trying to cover?  Their eye examination would be paid for, the prescription would be paid for.

A.        For instance, in some of these cases I notice I have given some people tinted spectacles.  Even in a lot of cases now just straightforward spectacles cost more than the voucher level, they don’t need to be anything more.  Most of my patients pay the balance.  If they just want straightforward spectacles – National Health spectacles, if you like, although there is no such thing now – the cost of those spectacles in my practice is £44, that’s it.  They get a voucher worth, at varying times, £29, £30 or whatever, which means for a basic pair of spectacles nobody can have it on the National Health any more.  They cannot have a pair of spectacles for that.  In those cases if I felt they could not even afford that extra bit and it would mean the difference between them not having them or having them, I would exaggerate their voucher to cover that cost.

Q.        Sometimes the exaggeration can be £20, £30 or more over and above.

A.        Indeed.  The one particular lady, for instance, who had varifocals because she could not get on with bifocals, yes, they were expensive lenses and I think it was £20-odd or £30.

Ms Wilcox:  I have a couple of questions.  If I have understood this situation correctly, of the £32,000 you repaid to the health authority, I believe you said a substantial percentage of that was in respect of giving a second pair to children.

A.        Yes.

Q.        How did you choose the children?  Did you give a second pair to every child who came in?

A.        Every child who wore them constantly and was above about –3.00 dioptres, so who needed them to see the blackboard, I would give them.

Q.        More or less automatically.

A.        Yes.

Q.        Irrespective of parents’ income, because you would not know that, of course.

A.        No.  Irrespective of parents’ income at that point.

Q.        Did you advertise on the basis of two for the price of one or second pair half price?

A.        No.  I never advertised anywhere, even to the extent of refusing to have a box in Yellow Pages, because I could not cope with any more work.

Q.        Presumably, given the size of these communities – they are, as you say, tiny communities except for Llandrindod – the word would get around that if they went to your practice the probability is their child would get a second pair.

A.        The vast majority of children, if one pair was on their face the other pair would be – children constantly have them in to be repaired.  There is no limit to how often they can have them repaired.  To have two pairs or to have one pair repaired twice as often costs absolutely no more, and parents do not think like that.  They could not conceive why when their little Johnny broke his spectacles he should not have a spare pair to wear in the meantime.  I do not think it influenced them one way or another whether they came to me or not, because they had no choice where they went.

Q.        Irrespective of what the parents said or what you thought, there were rules within the NHS.

A.        I know that now.

Q.        You knew that then really, didn’t you?  You told us you phoned up the health authority and asked for permission in some cases and you were told effectively, ‘If that is your clinical judgment, go ahead and do it.’

A.        Yes.

Q.        The NHS is a pretty bureaucratic organisation.  If I were in your position I would then think, fine, so I go and supply the second pair of spectacles but how do I get paid for it.  Did you not ask the health authority at that point, ‘If I do this, how do I get my money?’

A.        No, I didn’t.  I just assumed a replacement or repair form, or replacement more to the point.  I felt I was replacing the lenses into their spare pair.

Q.        In a system where you have goodness knows how many forms asking for a great deal of information, you thought that something which was done because of your clinical judgment – I am not questioning that – the reimbursement should be obtained by some rather peculiar underhand, inappropriate kind of way.

A.        I don’t think I thought about it.  I don’t think it occurred to me.  Having initially thought the pink form is the way to do it, I probably did not think about it for several years.  I am sorry.

Q.        When you spoke to the health authority who did you speak to?  I am not talking about names, what kind of level?

A.        I don’t know.  They were not particularly allied to optometric matters.  There were very few people who specialised in optometric matters at Powys Health Authority, apart from the fact that she sent out the opticians’ cheques.  I know specifically the names I spoke to.

Q.        I don’t know whether it would be appropriate to ask you for the names.

A.        That is why I am not –

Q.        I was just wondering whether you had asked to speak to the chief executive or whether you had made any further enquiries of the Assembly, perhaps.

A.        I felt that they said I could do it on my clinical judgment and that was good enough for me.

Q.        Mr Albuery talked to you about diverting expenditure away from other parts of the NHS and you made the point that if you did not treat somebody they would go to the hospital.  The point surely is this.  If you are taking out of the NHS money for services which the NHS does not normally choose to provide, your actions effectively took away from other patients, perhaps in a field far divorced from yours, the possibility of treatment because it is not a bottomless pit.

A.        I agree with you entirely now.  What can I say?

Q.        Why put yourself in a position where you were putting your judgment against the policies of the NHS?

A.        I started in optics at a time when National Health treatment was National Health treatment and I just felt, and do feel still, desperately uncomfortable at saying to people that the National Health treatment does not mean free treatment. 

Q.        Thank you. 

Mrs Kapila:  Madam, at this stage perhaps it would be appropriate for me to pass to you an agreed bundle of references.  [Passed up] 

Mr Kinch:  Is it the same one you were kind enough to send to me direct?

Mrs Kapila:  Yes.  Three of the referees whose references you will find in this bundle have chosen to come down personally and are waiting outside.  Their evidence will, of course, be very brief and I would wish to call them before I touch on one in here.

Ms Wilcox:  Mrs Kapila, I suggest you get your three witnesses out of the way so they can be released.  Then I imagine it will take you a little time to read through this, so perhaps a short comfort break.

Mrs Kapila:  Thank you.

MR J DAVIS called and sworn

Examined by MRS KAPILA

Q.        Can a copy of the bundle just handed up be given to Mr Davis, please.  Your reference for Mr Marshall appears on page 17 of that bundle and I understand you have chosen to come down to read it personally.  Could you read it for the Committee, please?

A.        It is addressed to Ms Mitchell and refers to Mr Marshall.

            “I am a retired senior Education Officer and I have known Mr Marshall for some twenty years now.  He has been my Optometrist and I have also known him through the Church in Wales (I am a Lay Reader) and our local Rotary Club.  I have been sorry to learn that he is facing the possibility of serious legal and professional problems.  I hope the following information may be of assistance to you.

           

I have every confidence in Mr Marshall professionally.  I have rather unusual eyesight and he has been diligent in diagnosing, caring and prescribing for my difficulties.  I know I can trust him as my daughter, now a Consultant Ophthalmologist, acts as an informal “second opinion”.  I am very grateful for the service he has provided for me.

           

This is a very rural area with a distinctly elderly population.  Public transport is quite limited so I am sure you will appreciate that Mr Marshall’s willingness to provide a service not only in Llandrindod Wells but also in Builth Wells land Rhayader is very important.  In Builth Wells and Rhayader his is the only practice.

           

Mr Marshall is a well-known and respected member of the community.  I suspect his troubles probably arise from his concern for the patients he serves.  I hope that those who will make decisions about him will take all aspects of the situation carefully into account.

           

Please let me know if you require further information.”

            I signed that and it is dated 29^th November.

Q.        Thank you, Mr Davis.  I have no questions.

Ms Wilcox:  Thank you, Mr Davis.

COLONEL T J VAN REES called and sworn

Examined by MRS KAPILA

Q.        Colonel Van Rees, could you give the Committee your occupation and any positions you hold, please?

A.        I am a solicitor of the Supreme Court; I am a military member of the Order of the British Empire; I hold the Colonial Services decoration; I am also one of Her Majesty’s Deputy Lieutenants in and for the County of Powys.  I have for 24 years represented the area in which Mr Marshall lives on Powys County Council.  I have for 25 years been a member of Llanwrtyd Wells Town Council and twice Mayor of the town, and I am the immediate past Chairman of Powys County Council.

Q.        I know you have chosen to come down personally.  Could I ask you to read the letter you sent on behalf of Mr Marshall.

A.                                “I have known Mr Giles Marshall for over twenty years.

            During that time I have represented this area, including the area in which Mr Marshall lives, on Powys County Council and as such have had dealings with him as a Community Counsellor, School Governor, Church Warden and as a leader in his village generally.

            I consider him to be a man of total integrity, committed to the life of the community and dedicated to the interests of others.  As a practising solicitor for over forty years…”

           

I qualify that, ma’am, to say that while I have been a solicitor for over 40 years, a certain portion of that time has been in the army as an officer.

“…I have acted on numerous occasions for his patients, all of whom have spoken of him in the warmest terms.  As an optician and sole practitioner in many of the small local towns he has given a professional service second to none.

He has rendered a massive service to this community both professionally and in public life and I have a sincere regard to what he has achieved.”

I can say that in my view, as you are possibly aware, Powys is a very rural county.  It occupies between a quarter and a third of the land area of Wales with a very scattered population.  It is difficult, to say the least of it, to attract people with professional qualifications to the area and Mr Marshall has practised, in my view, in a way which has benefited the community enormously.  To my knowledge, during the period of time he has been in practice he has been involved with a number of projects for which the county council was responsible where he assisted.  As I say, he is a person for whom I have the highest regard.

Q.        Thank you, Colonel.

Ms Wilcox:  Thank you, Colonel.

REVEREND CATHERINE HAYNES called and sworn

Examined by MRS KAPILA

Q.        Reverend Haynes, can I ask you to look into the bundle by your side?  If we turn to page 12 that is a letter you have written on behalf of Mr Marshall.  I know you have chosen to come down personally, but I understand you have a statement you wish to read out to the Committee.  Could I ask you to do that?

A.        The statement is an embellishment of my reference. 

           

“In my capacity as Priest-in-Charge of the Parish of the Irfon Valley, I have known Mr Marshall, as a parishioner and Churchwarden for almost four years (43 months).  During that time I have found him to be a reliable, hardworking man who acts at all times with honesty and integrity.  I know that these views were shared by my predecessor, the Rev’d Jonathan Smith, who recommended him to me warmly.”

            As a churchwarden I rely on him heavily to assist me in the day-to-day running of the church and in doing so I trust him absolutely in handling money, the keys to the church safe and, where necessary, the keys to the rectory.  I value his judgment on matters of business and his complete discretion on issues of confidentiality.  Mr Marshall is a man with a strong Christian faith and morality, which is reflected in the integrity with which he conducts both his professional and his private life.

            “Mr Marshall has a kind and generous (if occasionally impulsive) nature and a good reputation, not only amongst his patients, who value his professional expertise, but also amongst the local community, which he has served diligently as a community councillor and as a member of the governing body of the local primary school.”

            I have known him on many occasions to go out of his way to provide practical help and support to those in any kind of need or trouble.  In the course of my own professional life, I have cause to visit a large number of Mr Marshall’s patients, who without exception have nothing but praise for his work and who in many cases are unable to go out themselves and rely upon his visits to ensure that their eyesight gives them the best quality of life possible.  Mr Marshall’s contribution to the life of our community has meant dedicating a great deal of his time to meetings, fund-raising – he is currently instrumental in helping us to raise funds for a community space within our church building – and practical assistance at local events.

            “In the life of the Church, as in the life of the local community, I know Mr Marshall to be consistently trustworthy, discreet, truthful, and of exemplary character.”

            I have never at any time known any occasion upon which Mr Marshall’s character might be called into question.  In all my dealings with him he has been scrupulously honest and has given generously of his time, his talents and his own private resources in the service of others. 

“If you require any further details or recommendations as to Mr Marshall’s character, shall be only too happy to supply them.”

Q.        Thank you, Reverend Haynes.  I have no questions.

Ms Wilcox:  Thank you, Ms Haynes.  Shall we break now or would you prefer to continue?

Mrs Kapila:  I would welcome a short break.

Ms Wilcox:  It is now twenty past three.  Shall we try and get back by half-past three?

- Proceedings adjourned -

- Proceedings reconvened -

Mrs Kapila:  Madam, I now propose, as the Committee knows, to go through the references, three of which you have already dealt with.  At page 1, the first one is from Mr Aldridge and it states:

           

“My son Neil, due to his medical condition and medication, has always been extremely photophobic and on medical advice Neil was given tinted spectacles by Mr Marshall following his examination.  Neil found these invaluable and, although I cannot remember exact dates, these were renewed on several occasions during Neil’s teenage years (between 1998 and 2001) when necessary by Mr Marshall.  At no time were we charged for these spectacles.”

            Then on page 2 from Mr Deutsch, who is a consultant ophthalmologist at The County Hospital.  He states:

            “I write this letter to you in support of your impending Hearing next week.  It describes my understanding of your practise and how it interacts with my practise and our mutual patients.

           

            We have a long standing and mutually supportive professional relationship.  I am very grateful to you for your professional enthusiasm, support of your patient group, whether young or old, and the extraordinary lengths that you go to to provide a service to your patients and your community.

            I often have to prescribe spectacles and will ask for a spare pair on the HES(P) prescription to you and to other optometrists as otherwise these children would be without a pair of spectacles very rapidly and often, and therefore the effort that ourselves as professionals have gone to, would be entirely wasted.

            In addition we have recently developed a cataract post operative process within which you have taken a very major part.  This has incurred no small amount of work, reviewing post operative cataract patients and providing ourselves with a report.  Your participation in this has been entirely appropriate and very helpful indeed to my patients.  This has significantly reduced the need for patient review at the hospital and allowed me to see more new patients and improve the overall service to our patients.  In addition it has given me very valuable information which assists me in the evaluation of my cataract surgery outcomes.  There was an agreement that this would be funded but unfortunately funding as yet has not materialised.  You have (as have many other optometrists locally, although you seem to see most of our post operative patients) continued to provide a service with enthusiasm and vigour.  We, as a health community, and patients, benefit greatly from your part in the provision of this service.  For that I am very grateful.

            You also see quite a number of emergency eye patients referred to you by our local general practitioners.  In many cases you therefore reduce the need of those patients to travel to Hereford which is at least one hour distant and that, once again, provides a very valuable, and in my opinion, a very effective emergency eye review service in Powys. In many cases you have identified an urgent problem which then requires review in Hereford or, on the other hand, saved the patient a lengthy journey.  I am very grateful for this assistance as well and it is certainly a service which you are not obliged to provide.

            I have never once heard of a complaint from a patient as to having been treated unfairly or having been charged unfairly in terms of spectacle prescription or dispensing.  On the contrary, you have a large number of patients who are very grateful to you and praise your dedication and service.

            If I can be of any further help please let me know.  With very best wishes.”

            Then from Mr Morgan Lloyd, Mayor of Rhayader:

           

“I write to you on behalf of the residents of Rhayader and District to register our concern regarding the problems Mr S G Marshall is currently experiencing.

            Mr Marshall is a highly thought of Ophthalmic Optician and member of our community whose honesty and integrity is above reproach.  He provides a vital service for patients in the Rhayader and Builth Wells areas as well as practicing in Llandrindod Wells.

            I do hope this problem can be resolved quickly and amicably and to everyones satisfaction.”

            Then from Dr Warrick:

            “I am writing to give my wholehearted support to Giles Marshall who works as an Optometrist at Llandrindod Wells where I have been a General Practitioner for the last 23 years.  He has always demonstrated very high professional standards and he has approached his work with great enthusiasm and a desire to help patients.  I have on numerous occasions been grateful for his specialist medical knowledge with regard to ophthalmology and have always trusted his wise counsel on the management of ophthalmological problems.  For many years he devoted a great deal of his personal time and with little remuneration, in support of a diabetic retinopathy screening programme.  This was typical of his unselfish professional behaviour contributing greatly to the care of local patients.”

            Then he says he is willing to provide further information.

            Then from Mr Joy:

            “Mr Marshall is a fellow Churchwarden….  In this capacity he often begins a service when the Rector is delayed elsewhere and sometimes conducts a whole Family Service when the Rector is otherwise engaged.  These services always show evidence of careful preparation usually resulting in memorable visual aids and enjoyable participation by the children.”

           

He then talks about all the numerous things he has done in respect of church activity.  He says:

            “I am Chairman of the Community Council and have always appreciated his sound judgement as a Councillor and his ability to foresee the results of Council decisions.  Here again he has often spent his own time and money doing odd repairs, etc.

            As a customer of his business I appreciate the lack of pressure to change lenses unless optically advisable and a willingness to repair frames where other opticians might have taken the opportunity to sell new frames.

            To sum up he spends much time and his own money serving the Church and community and usually brightens the day of most people he meets.”

            From Reverend Chancellor Nigel Hall:

            “I have been acquainted with Giles Marshall and his ophthalmic practice….for almost ten years.  During that time I have found him to be a person of faultless integrity.  He is scrupulously honest in his personal and business affairs and he is regarded in the community as having an extremely high moral standing.

            In the parish of Llangammarch where he lives he exercises a Christian ministry as worship leader and is very highly respected by the congregation and parishioners.

            His ophthalmic practice….is considered to be an extremely valuable asset in the life of the community.  It is recognised that the small population of Builth Wells is unable to support a high business turnover and therefore the presence of the practice is regarded as an invaluable public service.

            In conclusion his contribution to the life of the community is greatly appreciated and his personal standing in the community is of the highest order.”

            Then on page 7 from County Councillor Lil Jarman-Harris.  She says:

            “I have the greatest respect for this young man, not only in his professional life but as a true Christian.  His quiet manner is an asset, particularly with children, he has a natural gift, and can take away any concerns…

            As a client of his, I have every faith in him, and his advice is invaluable, and as we get a little older we need someone like Giles to keep us on our toes.

            I do hope he will be in practice in Builth Well for many years, bearing in mind we live in a rural area and his clients come from far and wide.”

            Then a character reference from Mr Marc Hughes.  He says he is a fully qualified teacher with a degree in Accounting & Finance.  He has known Mr Marshall for 17 years and says he has:

“come to know him as one of life’s most genuine and honest persons, motivated as he is, by the most pure and honourable intention.”

He then talks about his rare chronic eye condition, which requires frequent and expert medical attention.  He says:

“I have been fortunate enough to have received expert care and unstinting kindness from Mr Marshall on innumerable occasions.  I have always been impressed by his professional integrity and his moral and ethical propriety.  Indeed, the care and attention I have received from Mr Marshall has been constant and has often been well beyond the call of mere common duty.  In this regard I should like you to note that he has very often deputised for the Consultant eye specialist.  I understand that Mr Marshall carries a large workload on behalf of the various eye hospitals and clinics in Hereford and locally in Llandrindod.  This without doubt must save the NHS considerable sums of money and considerably contributes to its resources.  Mr Marshall undertakes this work without personal gain or recognition.

From a personal point of view I can say that he is something of a local hero, whose expert knowledge and professional integrity are indispensable to myself and the local community.  As one of Mr Marshall’s most frequently treated patients I feel I can speak on behalf of many who have been fortunate to receive expert and professional attention under the auspices of Mr Marshall himself, in his professional capacity as an Ophthalmic Optician and Contact Lens Practitioner.  His devotion to his profession, patients and clients are nothing short of a rare phenomenon, especially in these uncertain and rapidly changing modern times.  His contribution to the local community and wider society is incalculable.  Further, I think it is true to say that Mr Marshall is single-handedly responsible for saving my eye-sight.  ….

It is therefore with great pleasure, and without hesitation that I am able to provide a character reference for Mr Marshall.”

He then talks again about his ethical, moral and professional integrity and the fact that he considers him an outstanding person.

I then take you to page 10.  This is from Councillor Bill Higginson, Mayor of Llandrindod Wells.  He says:

“I have known Giles for some eighteen years both in a social and professional capacity.

            His expertise in his field is, I know, much valued in our community where he is noted for his considerate and caring approach in all matters.

            As a friend he is loyal and engaging with a splendid sense of humour.

            In addition he is a dedicated family man.

            His overall personality is both honest and refreshing.”

            Then we go to page 11.  This is Dr Riley from the Builth and Llanwrtyd Wells Group Medical Practice.

“It has come to my attention that Mr Marshall….is shortly to appear before a disciplinary hearing in London. ….

            I would like to point out on behalf of my partners how highly we regard the excellent and highly professional service that Mr Marshall has provided in the town for a considerable period of time.  Under the Welsh Eye Care Initiative he has seen many medical ophthalmic problems and we have become very reliant on this service which obviates the need for patients to have to travel a round journey of 80 miles to the nearest district general hospital.  We have also been very grateful to him for helping us to train medical students and the feedback has always been extremely positive from the students as this is often a neglected area in medical training.

            Any loss of these services in our rural community would place a great hardship on a considerable number of patients.  Many of the population over the years owe a deep debt of gratitude to Mr Marshall’s expertise.

            I hope that your committee when weighing the evidence will take into account the fuller picture and the many years of expert help and dedication Mr Marshall has given my practice and the community patients.”

            We have already heard from Reverend Catherine Haynes whose reference is here on page 12.  Then we have a reference from Russell Harris.  He is a school teacher and a community council member.  He has served on the town council as deputy chair and chair in the time he has been in Builth Wells.  He has lived there for 21 years, he has worked in a nearby high school.  He says:

            “I am writing to you as someone who has lived, served and worked in this community for a significant amount of time and who has known Giles Marshall as a professional and a community member for almost as long as I have been here.

            Giles is our National Health Optician at a time when in this area particularly, such people are increasingly rare.  Most local practitioners appear to have succumbed to the lure of private practice.  As our local optician all members of the community young and old alike rely on him and trust him with the care of their eyes.  He has earned the respect of the community because he is very much a part of our community, because he is trusted and because he is a man of great faith, integrity and probity.  In this day and age of designer glasses and the maximisation of profits Giles can be relied upon to do his very best for the people in his care, indeed he will put himself out for the young the elderly and the infirm, visiting them if necessary to make sure they have the treatment they need to make their lives more comfortable.

            I am aware of the difficulties that Mr Marshall is currently experiencing with the local health board.  In fact in this very rural area of Wales where National Health Services seem to becoming more and more tenuous I can safely say as a community member that we ourselves have difficulties with the local area health board and their managers.  There is a lot to be resolved.  I would very respectfully like to bring to your attention that anything that in any way prevented Giles Marshall from carrying on with the service that he has been giving this community and the surrounding area for the past 20 years or so would be a very sad loss for this town.  Giles has never sought to deceive, he has always behaved honourably and honestly and nothing should prevent him from carrying on.  We need a man such as Giles Marshall in this town and community to supply some of the services that we have paid our national insurance for for so long.

            If I can be of any assistance in any way at all in support of Mr Marshall with the view to ensuring that his practice in this area is not diminished then please do not hesitate to contact me.”

            I have a reference here from Mr Deutsch.  This says very much what the reference I have already read to you says.  The other was sent afterwards to give a picture of the community work in respect of the cataract patients Mr Marshall is now dealing with.  However, as we know, Mr Deutsch has already told us how he regards Mr Marshall.

            Then from Dr Evans in the Rhayader Group Practice.  It is from Dr Evans and Dr Joy:

            “We have known Giles professionally for over 16 years and have had an exceptionally good working relationship with him.

            Prior to the All Wales Diabetic Retinopathy Screening, Giles screened all our diabetic patients annually.  He has been very helpful over the years seeing, at very short notice, any patients who concern us and has particular expertise with very small children.

            In all the time we have known him Giles has always acted in a most professional manner.”

            Then from Councillor Bill Higginson.  He has known Mr Marshall for over 17 years.  He has

“grown to respect his honesty, integrity and professionalism which, accompanied by his positive attitude to life in general and infectious sense of humour, has endeared Giles to those who know him.

I therefore have no hesitation in confirming that his character is of the highest standard.”

We have heard from Mr Davis himself, we have heard from Colonel Van Rees.  Finally, there is a reference from Mr John Blake:

            “I confirm that in December 1999, after prolonged discussion, Mr Marshall made me a pair of spectacles, by hand, which were extensively modified and then glazed.  This was so that I could see my artwork at arm’s length and my subject at distance.

            This proved to be a very satisfactory and clever arrangement of my distance and middle vision requirements.

            I hope this information is useful to your enquiries.”

            I have taken you through those references and the evidence we have about Mr Marshall’s character because, in my submission, it is against that evidence that you need to see the actions of Mr Marshall.  He has admitted to you openly and freely, and has always done so right from the beginning of these proceedings, that what he has done was wrong.  That if he wished to have patients have something they could not have, this was not, whatever he felt at the time, the way to go about giving them that advantage. 

We see here, and we have heard from three witnesses who have come all the way from Wales to tell us about Mr Marshall.  We see a man who clearly serves his community and for whom his profession is much more than just a means of earning a living.  All the evidence that you have in terms of his character shows him to be a person who is not out to get financial gain at all costs, but instead is a person to whom financial gain is not as important as it might be to others.  We see evidence in what I have just read to you of work being undertaken over and above the call of duty and sometimes without personal gain.  In my submission, when Mr Marshall tells you that it was not personal gain he sought out of what he did, it is a matter to which you should give very serious weight. 

This matter has been ongoing for four years and during those four years, we have heard from Mr Marshall, he has had plenty of opportunity to reflect on what he did.  He has told us that he has put his house in order.  He has told us that the audit carried out recently in respect of the 20,000 forms have been paid by the NHS without any problems whatsoever.  In my submission, four years is a long time for a matter to be hanging over the head of someone who is coming before you to answer these charges.  Four years is punishment enough, in my submission, in the circumstances of Mr Marshall’s case.  Punishment enough because, as I have already stated, he has not, from the evidence you have heard of his character, done this for personal financial gain.  And any personal gain or financial gain there might have been was nominal in the context of what he set out to achieve for his patients.

He has told you he was misguided but you have no evidence at all of any fraudulent intent of any dishonesty.  He has told you he accepts that what he did was not the way to go about obtaining the best things for his patients.  We have seen clear evidence of what an important service he gives to the small, sometimes economically deprived, community he serves.  We have evidence that he goes out of his way, sometimes at financial loss to himself, to assist patients.  In those circumstances, in my submission, there is nothing to be gained by further punishing Mr Marshall for his conduct in respect of this matter.  It would not be in the public interest to take him out of service to a community that he clearly serves very well. 

In my submission, these last four years in which he has clearly suffered great personal anguish, the fact that he has paid the £30,000 back, the fact that there is no evidence of personal profit or the claims being dealt with as they were for any dishonest reason.  All those matters should lead the Committee to consider that the four years in which he has suffered – and of course he has to suffer for the fact that he did not conduct himself correctly in filling in the forms as he did – but nevertheless he has suffered.  He has paid a price, he has had to come before you today, he has had to accept the charges and plead guilty to serious professional misconduct.  All of that, in my submission, for a person such as him who is widely regarded as a respectable person in this community, all of that is punishment enough. 

Therefore, in my submission, further punishment in this particular case in these particular circumstances, with the background you see before you, further punishment is completely unnecessary.  He has learned his lesson.  He has clearly indicated to you that he no longer functions in this way, that the disorganisation and the private welfare scheme he was trying to operate on behalf of his patients, has been rectified, that he has had his claims paid recently without any question.  All of that indicates to you someone who, in my submission, very much chastened, should be allowed to continue working for this community to the best of his ability and providing a much needed service. 

In my submission, therefore, Mr Marshall has been punished by the whole process, which has taken four years in all, and no further penalty should be applied against him.

Ms Wilcox:  Thank you, Mrs Kapila.  Could I ask, through you, your client to confirm something I think I heard from the references?  Mr Marshall, are you a participant in the Welsh Eye Care Initiative? 

Mr Marshall:  I am.

Mr Kinch:  Mr Albuery has a final matter of law but I do not know whether he wishes to exercise it.

Mr Albuery:  No.  I got to my feet because I anticipated you asking me a question, madam.  While I am on my feet, it is a matter of law.  I do not wish to trespass on the province of your learned Legal Assessor and I am sure he will deal with it.  Much, quite understandably, has been said in mitigation about punishment and the fact that perhaps this respondent has been punished enough.  You will bear in mind I am sure what the purpose of regulatory proceedings is, which is not punitive but to uphold the reputation of the profession and to protect the public, which you can extend in these circumstances to public funds.  However, those are matters which I am sure your learned Legal Assessor will deal with and I therefore won’t.

Mr Kinch:  The charge that is before you of serious professional misconduct is based, as you know, on a series of factual particulars.  They relate to inappropriate claims for funds falling into the different categories which Mr Albuery outlined.  It is common ground in this case that the particulars set out in the notice of charge are specimen charges.  That is to say, they reflect a course of conduct over the years that were examined in which the respondent claimed something over £30,000 by means of these inappropriate claims.  As that figure is agreed by the respondent, and it is agreed that is the scale of the misconduct, you are entitled to view the matter on the basis that the misconduct is not just restricted to the instances set out in the notice of charge but is extended in that way. 

            You have had set before you aggravating features and mitigating features and you are invited to take those into account.  The aggravating features were underlined in cross-examination of Mr Marshall: the length of time over which his conduct endured, the number of occasions on which it must have been repeated and the fact that these were accepted to be deliberate claims against public funds, which must at the very least have inflated the turnover of his business.  On the other side, the mitigating features include the fact that he has admitted his misconduct, and a plea of guilt always in any court entitles someone to some reduction in penalty, especially if it is accompanied in your findings by remorse.  The fact also that he has repaid the amount of in excess of £30,000 and in addition has made a substantial financial contribution to the costs of the investigation against him. 

Further, his previous good character and the evidence from the witnesses you have heard and read about, which will help you judge the nature of this man before, at the time and since the commission of these matters.  You are entitled to take into account the evidence he himself has given of lack of personal gain, if you accept it.  You are entitled to take into account the fact that there has been, since the matters were the subject of investigation, some lapse of time and that inevitably the respondent has, as everyone has, moved on.  And he would say he has demonstrated his ability to behave in a proper and professional fashion since then. 

In short, you should have regard to all the evidence you have heard and all the material put before you, including the evidence given by the respondent himself, and decide then whether a disciplinary order should be made and, if so, what form it should take.  Whether it should be a penalty order, an order of suspension or erasure, accompanied or unaccompanied by penalty order.  Your touchstone should be, as Mr Albuery began to remind you, the need for the public to be protected, including public funds.  Also the need to maintain high standards in the profession and the need to maintain public confidence in the profession.  When you announce your decision you should please remember that it is helpful if you explain in general terms the reasons why your decision has been reached so that the parties may understand the way in which you have come to your decision.

Unless either party wishes to raise any matter, that is my advice.

Ms Wilcox:  Clear the room, please.

- Proceedings adjourned -

- Proceedings reconvened -

Ms Wilcox:  We have not sought any additional legal advice during the last adjournment.  Mr Marshall, would you stand, please.  The Committee found particulars 1, 2, 3, 4, 5, 6, 10, 11, 12, 13 and 14 of the charge admitted and proven.  Particulars 7, 8 and 9 of the charge were withdrawn.  The Committee found the charge admitted and proven.

           

            We have noted your evidence that the activities complained of took place over four years ago and that there have been no complaints since then. We have also given credit for the admissions you have made, the references affirming your good character, the services you are providing to remote rural communities and to the fact that there has been no suggestion that your clinical practice has been less than satisfactory.

Against that, you deliberately and systematically diverted a large amount of NHS funds over a considerable period of time while you were in a position of trust. We cannot condone such misuse of public funds. Had it not been for the mitigating factors mentioned above we would have expected to have imposed an erasure order but, in all the circumstances we have determined to impose a suspension order of three months and a financial penalty of £1600.”

Thank you, Mr Marshall.  That concludes this afternoon’s hearing.

Mr Albuery:  Madam, would it be appropriate to indicate the time by which the penalty would be paid?

Ms Wilcox:  I am sorry.  It is in the order.  Since no statement of means was produced, we have put in the standard 28 days.  Thank you