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HPCSA Optometry Rules – an overview

Practice as a health care professional is based on a relationship of mutual trust between patients and health care practitioners. The term “profession” means “a dedication, promise or commitment publicly made”. To be a good health care practitioner requires a life-long commitment to sound professional and ethical practices and an overriding dedication to the interests of one’s fellow human beings and society. All of us should live our lives guided by a moral compass, which is an internal awareness of what is fair, ethical and right, and most of it should be common sense. The word probity sums it up; the quality of having strong moral principles, honesty, and decency.

The following includes unprofessional conduct against which the HPCSA may take disciplinary steps. However, you don’t have to go to the rule book to learn these things. They are just wrong.

  • Unauthorised advertising
  • Over-servicing of patients
  • Criminal convictions
  • Improper relationships with patients
  • Improper conduct of practitioners
  • Operational procedure without the patient’s permission or consent
  • Disclosure of information regarding patient without his / her license. Incompetence regarding treatment of patients
  • Excessive fees charged/overcharging
  • Insufficient care towards patients
  • Racial discrimination
  • Rude behaviour towards patients
  • Prescriptions to already addicted patients
  • Perverse incentives and kickbacks

There are some professional rules which are more technical, and an overview may well stand us in good stead.

I have a particularly strong view against staff incentives. In my opinion, paying professional staff commissions for selling can be a perverse incentive. It may not always be in the patient’s best interest to push a particular product or clinical procedure. So, if you have a junior optometrist working for you, are you allowed to pay an incentive bonus based on the amount of turn overdone? According to the rules below, the answer is no, yet it appears to be common practice in the industry.

Fees and commission

  1. A practitioner shall not accept a commission or any material consideration, (monetary or otherwise) from a person or another practitioner or institution in return for the purchase, sale or supply of any goods, substances or materials used by him or her in the conduct of his or her professional practice.
  2. A practitioner shall not pay commission or offer any material consideration, (monetary or otherwise) to any person for recommending patients.
  3. A practitioner shall not offer or accept any payment, benefit or material consideration (monetary or otherwise) which is calculated to induce him or her to act or not to perform in a particular way not scientifically, professionally or medically indicated or to under- service, over-service or over-charge patients.
  4. A practitioner shall not share fees with any person or with another practitioner who has not taken an equal part in the services for which such fees are charged.
  5. A practitioner shall not charge or receive fees for services not personally rendered, except for services rendered by another practitioner in his or her employment or with whom he or she is associated as a partner, shareholder or locum tenens.

Partnership and juristic persons

A juristic person – a human being (natural person) or a group of human beings, a corporation, a partnership, an estate, or other legal entity (artificial person or juristic person) recognized by law as having rights and duties.

So can an optometrist be in partnership with an ophthalmologist? The answer is no and is substantiated by rule 3 below.

  1. A practitioner may practice in partnership or association with or employ only a practitioner who is registered under the Act. Who is not prohibited under any of the annexures to these rules or any ethical rulings from entering into such partnership or association or being so employed. Provided that, in the case of employment, the practitioner so employed either provides a supportive health care service to complete or supplement the employing practitioner’s healthcare or treatment intervention or is in the same professional category as the employing practitioner.
  2. A practitioner shall practice in or as a juristic person who is exempted from registration regarding section 54A of the Act only if such juristic person complies with the conditions of such exemption.
  3. A practitioner shall practice in a partnership, association or as a juristic person only within the scope of the profession in respect of which he or she is registered under the Act.
  4. A practitioner shall not practice in any other form of practice which has inherent requirements or conditions that violate or potentially may violate one or more of these rules or an annexure to these rules.

The naming of a practice

There appears to be much inconsistency when it comes to the names of optometric practices. In theory, the letter of the law says you must use the name of a registered practitioner, yet we all know there are all sorts of commercial practice names out there. It is interesting to note that if you buy a practice from a registered optometrist, you may continue to practice under his name provided you have his or her permission.

  1. A practitioner shall use his or her name or the name of a registered practitioner or practitioners with whom he or she is in a partnership or with whom he or she practices as a juristic person, as a name for his or her private practice.
  2. A practitioner referred to in sub-rule (1) may retain the name of such private practice even if another practitioner, partner of such partnership or member of such juristic person is no longer part of such private practice: Provided that the express consent of the past practitioner or, in the case of a deceased practitioner the permission of the executor of his or her estate or his or her next-of-kin, has been obtained.
  3. A practitioner shall not use, in the name of his or her private practice, the expression “hospital,” “clinic” or “institute” or any other expression which may give the impression that such private practice forms part of, or is in association with, a hospital, clinic or institute.

Sharing of Rooms

A practitioner shall not share his or her rooms with a person or entity not registered regarding the Act.

Covering

Should you decide to take a sabbatical or suffer a long illness, you can only allow a locum to run your practice for a maximum period of 6 months.

A practitioner shall employ as a professional assistant or locum tenens, or in any other contractual capacity and, in the case of locum tenens for a period not exceeding six months, only a person –

  1. who is registered under the Act to practice in independent practice;
  2. whose name currently appears on the register kept by the registrar regarding section 18 of the Act; and
  3. is suspended from practicing his or her profession.

[Sub-rule (1) substituted by GN R68/2009]

Impeding a patient

A practitioner shall not interfere with a patient, or in the case of a minor, the parent or guardian of such minor, from obtaining the opinion of another practitioner or from being treated by another practitioner.

To add to this, once the patient has paid for the consultation, she owns the prescription and is entitled to take it elsewhere to have the spectacles made up.

Professional reputation of colleagues

Irrelevant whether it is justified or not, you are not allowed to badmouth a colleague. It will only reflect poorly on your integrity in any case.

A practitioner shall not cast reflections on the probity, professional reputation or skill of another person registered under the Act or any other Health Act.

Professional confidentiality

It is interesting to note that there are instances when privacy is not broken. When you write a referral letter to an ophthalmologist, you are technically breaking this code, but it is commonly assumed that you will have the patient’s permission. In theory, one should inform the patient that this information will be shared with the ophthalmologist in their best interest and have them agree to that.

1. A practitioner shall divulge verbally or in writing information regarding a patient which he or she ought to disclose only –
(a)  regarding a statutory provision;
(b)  at the instruction of a court of law; or
(c) were justified in the public interest

 2. Any information other than the information referred to in subrule (1) shall be divulged by a practitioner only –
(a)  with the express consent of the patient;
(b)  in the case of a minor under the age of 12 years, with the written permission of his or her parent or guardian; or [Para. (b) substituted by GN R68/2009]
(c)  in the case of a deceased patient, with the written consent of his or her next-of-kin or the executor of such deceased patient’s estate.

Professional appointments

When you employ another optometrist, an employment agreement must be put in place, which is in the interest of the public and the profession.

  1. A practitioner shall accept a professional appointment or employment from employers approved by the council only by a written contract of appointment or employment which is drawn upon a basis which is in the interest of the public and the profession.
  2. A written contract of appointment or employment referred to in sub-rule (1) shall be made available to the council at its request.

Referral of patients to hospitals

A practitioner who has a direct or indirect financial interest or shares in a private clinic or hospital shall refer a patient to such clinic or hospital only if a conspicuous notice is displayed in his or her waiting room. The notice must indicate that he or she has a financial interest or shares in that clinic or hospital, and the patient is duly informed about the fact that the practitioner has an interest or shares in the clinic or hospital to which the patient is referred, and the patient’s informed written consent is obtained prior to such referral.

Reporting of impairment or unprofessional, illegal or unethical conduct

It is important to note that we all have a legal obligation to report any misconduct of any colleagues.

A student, intern or practitioner shall –

(a)  report impairment in another student, intern or practitioner to the board if he or she is convinced that such student, intern or practitioner is impaired;

(b)  report his or her own impairment or suspected impairment to the board concerned if he or she is aware of his or her impairment or has been publicly informed, or has been seriously advised by a colleague to act appropriately to obtain help in view of an alleged or established impairment, and

(c)  report any unprofessional, illegal or unethical conduct on the part of another student, intern or practitioner.

Main responsibilities of health practitioners

A practitioner shall at all times –

(a)  act in the best interests of his or her patients;
(b) respect patient confidentiality, privacy, choices, and dignity;
(c)  maintain the highest standards of personal conduct and integrity;
(d) provide adequate information about the patient’s diagnosis, treatment options and alternatives, costs associated with each such alternative and any other pertinent information to enable the patient to exercise choice regarding treatment and informed decision-making about his or her health and that of others;
(e)  keep his or her professional knowledge and skills up to date;
(f)  maintain proper and effective communication with his or her patients and other professionals;
(g) except in an emergency, obtain informed consent from a patient or, if the patient is unable to provide approval for treatment himself or herself, from his or her next of kin; and
(h)  keep accurate patient records.

Record Keeping

Keeping accurate patient records is a serious matter. The law assumes that if you did not write it down, the procedure was not done. The HPCSA offers the following guidance on the retention of medical records: Records should be kept for at least six years after they become dormant. The records of minors should be maintained until their 21st birthday. The records of patients who are mentally impaired should be kept until the patient’s death.

Visual screening

Subject to the provisions of generic rule 6, an optometrist may conduct vision screening at an industrial, corporate, community or school centre: Provided that-

(a)  the screening is done as an entry investigative procedure to identify individuals in need of a referral for a comprehensive eye examination;
(b)  no definitive diagnosis is made, management is prescribed, or prescription is given at the screening centre;
(c)  the outcomes of the screening process, including referral notes for the individuals identified as requiring further eye examination and statistical reports for the centre concerned, are recorded;
(d)  no canvassing of or touting for patients is done by or on behalf of the screening practitioner; and
(e)  patients are not misled into believing that the screening is compulsory. [Sub-rule (3) inserted by GN R68/2009]

Itinerant practice or part-time practice

A practitioner may conduct a regularly recurring itinerant practice at a place where another practitioner is established if, in such itinerant practice, such practitioner renders the same level of service to patients, at the same fee as the service which he or she would render in the area in which he or she is conducting a resident practice.

The bottom line is, you cannot set up a low-cost clinic and undercut fees in an area where another practitioner has a full-time location.

Mobile Clinic

Subject to the provision of generic rules 6 and 10, an optometrist may conduct a mobile practice in areas where optometric services are not readily available: Provided that-

  1. the practice operates in a defined area only;
  2. the equipment used for a comprehensive visual examination in that practice is as defined in the guidelines issued by the board from time to time;
  3. optical appliance dispensing is conducted by the practitioner at the site visited;
  4. the practitioner operating the practice also has an established practice from which the mobile practice is operated;
  5. patients are informed of the contact details of the established practice and of the nearest health facility with which the practitioner has made arrangements for emergency ocular health care; and
  6. prior written approval to conduct such mobile practice is obtained from the board.

 Ready Readers – Traders’ obligation

It is worth noting the following obligation that all sellers of ready readers have regarding the Health Professions Act, 1974 (Act No. 56 of 1974).

Ready readers: must only be supplied with the following warning attached to them and also displayed near where the glasses are offered for sale, to make the public aware of “silent” pathology:

Warning: “Diseases causing blindness can be detected only by having a regular, professional eye examination. These reading glasses are only for short- term use by persons over the age of 40 years and are not suitable for driving purposes.”

Practice Entity

Optometrists may not practice in a private company because it has limited liability. This means that the shareholders of the company cannot be held liable for any business practice of the company. If this were allowed, practitioners would have been protected against professional indemnity claims. Optometrists are permitted to trade as an Incorporated Company.

An incorporated company, or corporation, is a separate legal entity from the person or people forming it. Directors and officers purchase shares in the business and have responsibility for its operation. Incorporation limits an individual’s liability in case of a lawsuit.

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