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Supreme Court of Qld hearing on glaucoma delayed until December

There has been a delay in the hearing of a judicial review in the Supreme Court of Queensland into the decision by the Optometry Board of Australia to extend the scope of practice for therapeutically-endorsed optometrists to diagnose and treat glaucoma without the need for oversight by ophthalmologists.

What was expected to be a four-five-day hearing was originally scheduled to commence on 4 August, however a directions hearing held in the Supreme Court on 30 July under the direction of Justice Anthe Philippides was advised by lawyers for both the Australian Society of Ophthalmologists, The Royal Australian and New Zealand College of Ophthalmologists and the Optometry Board of Australia that at least seven to eight sitting days would be needed to hear the exceptional volume of material and witnesses to be examined in the matter.

It is understood the OBA’s decision to produce 20 witnesses was the cause of abandonment of the 4-August start of proceedings and a new commencement date of 1 December.

Justice Philippides indicated she would be effectively unable to hear the matter in one sitting. There was a likelihood the matter could consequently be part heard this month with subsequent sitting(s) to be scheduled in the new court calendar late in the first quarter of 2015.

In consequence it was decided to seek another, longer sitting block at the earliest opportunity. The only available one commences on 1 December and the available judge is Justice Alan Wilson. Both parties have agreed to the new arrangement.

The claim by the OBA that ASO and RANZCO did not have legal standing in regard to the diagnosis and treatment of glaucoma was thrown out by the Supreme Court of Queensland, with costs awarded against the OBA, by Justice James Douglas on 19 December 2103. Justice Douglas heard the matter on 30 August 2013.

At issue was the standing of ASO and RANZCO to challenge changes to the role and responsibilities of optometrists, initiated by the OBA in early 2013. Justice Douglas rejected the claim by the OBA that the ASO and RANZCO have no special interest in the matter of glaucoma diagnosis and treatment beyond that of any other member of the public and that their position as professional bodies of ophthalmologists does not provide that standing.

ASO and RANZCO lodged a court challenge when the Australian Health Practitioner Regulation Agency (AHPRA) and the OBA would not resile from extending the scope of practice allowing optometrists to diagnose and treat glaucoma without oversight by ophthalmologists, as had been the case for about ten years.

“A legal victory for ophthalmologists in the Supreme Court of Queensland today has regrettably not alleviated concerns about patient safety,” RANZCO commented after Justice Douglas’ decision was handed down.

“This [decision of the OBA and AHPRA] overturned traditional medical practice in which ophthalmologists have overseen patient diagnosis and treatment for glaucoma.

“The concern is that optometrists have been approved to assess medical conditions that are beyond their learning and experience.

“By contrast, ophthalmologists study for seven years to become doctors and then spend another five years to become medical eye specialists. An ophthalmologist would acquire 12,000 hours of clinical training in treating eye disease before being authorised to responsibly initiate treatment for patients.”

Justice Douglas’ ruling was welcomed by ASO president, Dr Arthur Karagiannis, and RANZCO president, Dr Stephen Best, however, both stressed their concern at the delay occasioned by the OBA challenging standing.

Sadly, they said, a court hearing date cannot now be secured until May or June 2014 “with thousands of Australians potentially at risk of defective diagnosis in the interim”.

A spokesperson for the OBA said the board acknowledged the Supreme Court of Queensland’s ruling of 19 December 2013 in favour of ASO and RANZCO on the question of their standing to challenge changes to the role and responsibilities of optometrists under the board’s revised Guidelines for use of scheduled medicines which were released in March 2013.

Also, that the board will defend its position when the ASO and RANZCO legal challenge is next before the courts and will make no further comment in the interim, the spokesperson said.

The ASO and RANZCO initiative is fully supported by the Australian Medical Association, which has described the optometrists’ move as out of step with expert opinion on best patient care for those suffering glaucoma which is a serious eye disease affecting 300,000 Australians. The Medical Board, of Australia though, has taken no legal action to challenge the original decision.

The ASO-RANZCO legal challenge seeks a return to the collaborative co-management regime of treating glaucoma that was in place before OBA amended the optometrical scope of practice.

The applicants argued that that it is generally inappropriate to dismiss judicial review proceedings on the ground of standing, Justice Douglas said.

Furthermore, the focus of the applicants’ concerns was on the standards of professional care to be applied to patients rather than their individual members’ financial interests.

In his view, Justice Douglas said, in this case it would have been preferable to deal with the [standing] issue at trial.

The Optometry Board of Australia’s case was that ASO and RANZCO have no special interest in the matter of glaucoma diagnosis and treatment beyond that of any other member of the public and that their position as professional bodies of ophthalmologists does not provide that standing.

Justice Douglas, in his judgment, said his conclusion was that the applicants [ASO and RANZCO] have shown that they have standing to bring the application, with the result that the respondent’s [OBA’s] application should be dismissed.

Justice Douglas said that in determining standing, regard must be had to the public interest in the observance by statutory authorities of the limitations upon their activities which the legislature has imposed.

The code of conduct of RANZCO requires its 788 members to treat the interests of their patients as paramount and RANZCO requires its members to enter an oath in which they must swear or affirm that patients are their first concern, Justice Douglas said.

Ophthalmology is the specialty of medicine concerned with the diagnosis and management of disorders of the eye and visual systems and the diagnosis and treatment of glaucoma is within the specialty of ophthalmology, he said.

Furthermore, the guidelines approved by the board and ministerial approval permit optometrists to treat glaucoma patients in circumstances without the supervision of the members of ASO to ensure that treatment is in the best interests of those patients.

Also, RANZCO is responsible for determining standards of care by its members in the practice of ophthalmology, however the combined effects of the guidelines and ministerial approval is that it permits optometrists to treat glaucoma in circumstances where that treatment is not subject to the standards of RANZCO.

And Justice Douglas pointed out that no individual ophthalmologist elected to be an applicant in the court proceedings, i.e. the focus of the applicants’ concerns was on the standards of professional care to be applied to patients rather than to individual members’ financial interests.

Justice Douglas said the OBA’s “abandonment of the shared care arrangement” between ophthalmologists and optometrists in issuing the guidelines deprive RANZCO its capacity to determine the standards of care of the patients concerned and, accordingly, gives it a special interest in challenging.

Counsel for OBA and RANZCO had said that what they brought to the subject matter of the litigation was informed concern that went beyond that of general members of the public, with each organisation having a special interest in patient safety in that area of ophthalmology greater than that of a member of the general public, Justice Douglas said.

However, counsel for the OBA maintained that responsibility for determination of standards of treatment by optometrists now rests with the Medical Board and there was no need for a role to be accorded to OBA and RANZCO to challenge the legality of the instruments.

In his conclusion and orders, Justice Douglas said the evidence established to his satisfaction that the OBA’s and RANZCO’s roles in setting and advocating standards of patient care for the treatment of glaucoma by ophthalmologists over many years gave them standing to challenge the validity if instruments which, although directed to the conduct of optometrists, have the effect of roving ophthalmologists from their previous role in the process.

Also, that the applicants have an interest in the treatment of glaucoma which may be non-material but which is very different indeed from that of a diverse group of ordinary Australians associated by some common opinion on a matter of social policy which might equally concern any other Australian.

“Their functions as organisations, historical roles in the regulation and advocacy for standards of patient care and the specialised knowledge derived from their membership set them quite apart from other members of the public,” Justice Douglas said.

“In my view, their standing is clear and certainly not so obviously untenable that their application should be dismissed at this stage.”

OBA’s response

A spokesperson for the Optometry Board of Australia said the board acknowledged the Supreme Court of Queensland ruling on 19 December 2013 in favour of ASO and RANZCO on the question of their standing to challenge changes to the role and responsibilities of optometrists under the board’s revised Guidelines for use of scheduled medicines which were released in March 2013.

The board will defend its position when the ASO and RANZCO legal challenge is next before the courts [now commencing 1 December] and will make no further comment in the interim, the spokesperson said.

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