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New Clause 15

Volume 131: debated on Wednesday 13 April 1988

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Sight-Testing

'The following section shall be inserted after section 20A of the Opticians Act 1958—

" Duties to be performed on sight-testing

20B.—(1) The Secretary of State may by regulations provide that, subject to any exceptions specified in the regulations, when a registered medical practitioner or registered ophthalmic optician tests the sight of another person, it shall be his duty—

  • (a) to perform such examinations of the eye for the purpose of detecting injury, disease or abnormality in the eye or elsewhere as the regulations may require, and
  • (b) immediately following the test to give the person whose sight he has tested a written statement?—
  • (i) that he has carried out the examination that the regulations require, and
  • (ii) that he is or (as the case may be) is not referring him to a registered medical practitioner.
  • (2) Except in circumstances specified in regulations under subsection (3)(b) of this section, it shall also be his duty to give the person whose sight he has tested, immediately following the test, either a signed, written prescription for an optical appliance or a signed, written statement that he does not need to wear or use an optical appliance.

    (3) The Secretary of State may by regulations specifiy—

  • (a) particulars to be included in a prescription or statement provided in fulfilment of the duty imposed by subsection (2) of this section; and
  • (b) circumstances in which that duty does not arise.
  • (4) A person shall not be required as a condition of having his sight tested—

  • (a) to undertake to purchase from a specified person any optical appliance the testing of his sight may show he requires to wear or use; or
  • (b) to pay a fee before the testing is carried out.
  • (5) A fee shall be payable in a case where a duty arises under this section only if that duty has been fulfilled.

    (6) Any term of an agreement for a testing of sight which is inconsistent with this section shall be unenforceable, and any sum paid in respect of a fee otherwise than in pursuance of this section shall be recoverable.

    (7) In this section "fee" means any payment in connection—

  • (a) with testing sight in accordance with regulations under this section;
  • (b) with fulfilling any duty imposed by this section; or
  • (c) with the supply of optical appliances.
  • (8) Any power to make regulations conferred by this section includes power to make different provision for different classes of case and shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

    (9) In the application of this section to Northern Ireland—

  • (a) for any reference to the Secretary of State there shall be substituted a reference to the Department of Health and Social Services for Northern Ireland;
  • (b) in subsection (8) of this section, for the words from "statutory instrument" onwards, there shall be substituted the words "statutory rule, which shall be subject to negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954".'.—[Mr. Newton.]
  • Brought up, and read the First time.

    I beg to move, That the clause be read a Second time.

    With this it will be convenient to consider Government amendments Nos. 35 to 37.

    New clause 15 replaces and, as we believe, improves upon, the existing clause 11. It is essentially a consumer protection provision, which commands support quite independently of the proposals in clause 10, which we shall come to at a later stage, concerning eligibility for NHS sight tests.

    For the most part, the new clause repeats the requirement of the original clause—principally that, following any sight test, the practitioner must give the patient a written prescription or a written statement that there is no need for glasses; that it must not be a condition of carrying out the test that any spectacles required must be bought from any particular person; and that in any case where a fee is to be charged it must not be levied in advance of the test being performed and will not be enforceable if the duties laid on the practitioner have not been properly carried out.

    There are two differences from the present clause 11. First, new clause 15 incorporates an additional requirement for the patient to be told in writing whether he is being referred to a doctor. The second difference, which is the reason we have a new. clause, rather than merely an amendment, is that we have decided that it is right to take the power, which curiously does not exist at present, to specify clearly in regulations what duties a practitioner must perform as part of a sight test.

    As the House is aware, the sight test is generally understood and expected to include a test to establish whether spectacles are required, and an eye examination in which signs of injury, disease or abnormality can be detected, leading perhaps to a need for onward referral. However, that does not rest on any specific statutory requirement. A current service committee case—concerning an NHS test, of course—has raised doubts about whether a practitioner is under any obligation to carry out an eye examination, as distinct from simply determining whether spectacles are needed. Therefore, subsection 1(a) is intended to provide the regulation-making powers to enable us to put the matter beyond doubt.

    It is our intention that, under whatever arrangements people receive a sight test, there should be certainty about what they are getting and that it should include a proper eye examination. Of course we shall consult the professions when we come to draw up the relevant regulations. However, I can assure them that our general aim will not be to create so rigid a set of rules as to constrain the proper exercise of their professional judgment, but simply to maintain the existing arrangements, which have generally worked satisfactorily for patients and practitioners under the NHS.

    I believe that the proposals to legislate in this way will be welcomed by the optical professions. They will put beyond doubt the requirements on them in relation to the sight test. Moreover, they will confirm the practitioners' primary care role in carrying out the eye examination on patients who present themselves and referring for further medical investigation or treatment cases where an abnormality is detected.

    The associated Government amendments No. 35 to 37 do no more than eliminate the existing clause 11 to allow for the replacement and make a couple of consequential drafting changes.

    I hope that on that basis the House will agree that the new clause is desirable and beneficial, and will agree to its incorporation into the Bill.

    7.30 pm

    Perhaps I may mention at this stage that obviously we are not dealing here with the highly contentious abolition of the free sight test under the National Health Service, which we shall reach later.

    The professional organisations have asked me to raise with the Minister some technical points. If he does not feel that they have been covered by what he has said, perhaps he will add something about them. The British Medical Association ophthalmic group committee thinks that the present arrangements are satisfactory because they require opticians to refer patients to their general practitioners if there are any signs of injury, disease or any other abnormality in the eye, or if a satisfactory standard of vision is not attained, even with corrective lenses. The committee says:
    "These regulations have been and remain adequate to protect the public. The wording of paragraph 20B(1)(a) may be contrary to its intent and undermine that protection."

    There is also concern in the Association of Optometrists. Echoing the BMA view, it says:
    "there is a clear legal duty, which is not disputed by the Government, to refer any patient in whose eyes a practitioner sees signs of injury or disease. That duty is apparent as a consequence of Rules made by the General Optical Council under the provisions of the Opticians Act 1958.
    We would, therefore, very much like to know why the Secretary of State feels it is necessary to have the provisions in (1)(b)(i) and (ii)."

    Perhaps the Minister could address himself in more detail to why he thinks that the current regulations do not satisfactorily protect the consumer so that there may be wider understanding about the matter.

    I wish to commend my right hon. Friend on the changes that he has proposed. It is important that the person who is carrying out the test shall be reminded not only of his obligation in conditions which may in future be much more competitive but that it is his job to test not just for glasses, but for the eye health of the patient.

    Secondly, it is important that the patient should also be reminded that when he or she goes to have his or her eyes tested, the test is not merely to determine whether the person needs a pair of spectacles or stronger lenses but that, as a result of the test, the optician should give the patient a statement on any eye condition that is present. The patient must be aware of his or her rights.

    There is an interesting principle involved in what is inherent in subsection (1)(a), namely, beginning to define the necessary obligations and form of practice for a doctor or other professional. It is a principle which is becoming more and more dominant in specifying how a patient is examined and what is involved in an ophthalmological or ophthalmoscopic examination. That is a principle on which I have as yet undetermined views, unusually for me.

    Subsection (3)(a) deals with the prescription. Subsection (3)(b) refers to the
    "circumstances in which that duty does not arise."
    Can the Minister say in what circumstances he envisages that it would not arise that a patient who had had an eye examination, a sight test or whatever we wish to call it, would not necessarily be given a prescription?

    I want to draw the Minister's attention to an issue which we shall not be able to debate today. When I saw the new clause, it seemed to be an improvement on the previous clause, but I thought that it might be improved further. One improvement would be to provide that a patient or, where appropriate, a parent or other representative understands the contents of the written statement, because some people might not understand what they were being offered.

    Unfortunately, a gremlin appears to have attacked the administrative works and an amendment in these terms has been printed as though it applied to the original clause 11 and not to the new clause. This will be raised in another place but I trust that the Government will take note of the point.

    I observe, in passing, the inaccuracy of the initial remarks of the hon. Member for Peckham (Ms. Harman) about the abolition of the free NHS sight test. Under any proposal that we have put forward there will continue to be a substantial number of free sight tests. Indeed, about one third of the population will continue to be entitled to free NHS sight tests under the proposals that the Government have put forward. That falls a long way short of abolition. I do not wish to make an issue of the point, but I did not think that the hon. Lady should be allowed to get away with slipping the reference in as an aside at the beginning of her remarks.

    As to the points which were brought to the hon. Lady's attention by the BMA ophthalmic group committee and the Association of Optometrists, the point at issue is not whether there is a duty to refer patients to their GP—the point on which her comments seemed to concentrate—but whether there is a duty to conduct an eye examination of the kind that might lead to referral to a GP.

    I am more than prepared to consider any further representations that the hon. Lady or those bodies make if they have genuine concerns about the import of the proposals that we have brought forward. I can only repeat that the reason for the proposal, whatever views might be held about the nature of the existing law by those bodies, is that a service committee case concerning the carrying out of a sight test under the existing provisions has raised real doubts about whether there is a duty to carry out an eye examination. We do not want that doubt to continue. Therefore, we are seeking powers to eliminate the doubt by means of regulations.

    I can only acknowledge and welcome what my hon. Friend the Member for Portsmouth, North (Mr. Griffiths) has said. Our purpose is to reinforce these important aspects of the sight test. Of course, the interests of the customer are at one with the interests of the practitioner and what the general body of practitioners will welcome.

    I do not care to engage in the debate on grand principle offered to me by the hon. Member for Strathkelvin and Bearsden (Mr. Galbraith), not because I am fearful of principle or debates about principle. On the contrary, they are sometimes easier. However, this has been brought forward by the Government in the best possible pragmatic spirit to achieve what everybody agrees is desirable. It is on that pragmatic principle, if I may put it that way, that I stand.

    The answer to the hon. Gentleman's point about the purpose of subsection (3)(b) is that a prescription as such is inappropriate when a patient is referred to a general practitioner or when a sight test is carried out not to establish a need for spectacles but, say, as part of a general health check to establish whether the person needs spectacles for occupational requirements, for example. The subsection is intended to cover a limited number of circumstances. At any rate, I can certainly assure the hon. Gentleman that there is no sinister intent.

    The hon. Member for Southport (Mr. Fearn) raised some issues which, in studying some papers at an earlier stage today, or yesterday, I noted he had sought to raise in an amendment, seeking to establish that a practitioner should have a duty to make the meaning of a piece of paper clear to the person to whom he hands it. There is limited scope for misunderstanding a piece of paper that contains a prescription for spectacles, a statement that spectacles are not required, or a statement that somebody is or is not to be referred to a general practitioner.

    I do not find it easy to understand how such a piece of paper can be misunderstood or how there can be some further need to impose on a practitioner a duty to explain such a piece of paper to the ordinary citizen. But if I can be persuaded that there is a genuine problem, of course I shall look at it. On the face of it, there can be few simpler pieces of paper that the citizen is likely to be handed, save only, of course, that he may not understand all the technicalities of a prescription and the way in which it is expressed.

    I hope that I have dealt sufficiently with the points that have been raised and that the House will proceed to adopt the new clause.

    Question put and agreed to.

    Clause read a Second time, and added to the Bill.