Did you completely disconnect the diode of the opto?

Yep disconnected completed nothing on the diode of the opto. I've made an updated circuit in case that helps the diagrams are represented in a weird way:

I think it is TSV621
http://www.st.com/en/amplifiers-and-comparators/tsv621.html

yes that's correct it's that operational amplifier

 

Does it get better when you remove R162? Do you have this on a pcb, or a breadboard?

 

Does it get better when you remove R162? Do you have this on a pcb, or a breadboard?

unfortunately pcb would be so much easier if this was on a breadboard

 

Does it get better when you remove R162? Do you have this on a pcb, or a breadboard?

May I ask what effect that would have because it's 0ohms?

 

Does it get better when you remove R162? Do you have this on a pcb, or a breadboard?

do you think the current transfer ratio of the opto has any effect?

 

0 Ohms is a short, removing it make it open circuit and allows you to verify that the circuit behaves correctly with the opto effectively turned off.
If that checks out, then the problem is in the opto. If it does not, then you have a problem in the rest of the circuit somewhere, possibly an error on the pcb as from the schematic it seems to be working fine.

If the diode of the opto is truly disconnected, then CTR doesn´t have anything to do with the issue.

 

0 Ohms is a short, removing it make it open circuit and allows you to verify that the circuit behaves correctly with the opto effectively turned off.
If that checks out, then the problem is in the opto. If it does not, then you have a problem in the rest of the circuit somewhere, possibly an error on the pcb as from the schematic it seems to be working fine.

If the diode of the opto is truly disconnected, then CTR doesn´t have anything to do with the issue.

ok great I will try that then, I have carried out some simulations in LTSpice and that problem is still apparent would you mind looking at it and perhaps explain why the circuit on top is still turning on the op-amp? and why I am measuring a voltage at the emitter:

 

I am not sure what you mean. Of course the emitter of the top transistor has 3.7V on it (relative to ground) when it is almost directly connected to the positive terminal of the lower cell.
The difference between the v+ and v- power pins of the top opamp is -0.4V so it surely is not turned on.
You draw the acs file wrong, the feedback is not connected the same as in the eagle schematic. Also, the gate resistor should be around 50 ohm, the 1k makes the circuit very unstable. Also delete that RC that is connected to the gate, it only makes things worse still.

 

I am not sure what you mean. Of course the emitter of the top transistor has 3.7V on it (relative to ground) when it is almost directly connected to the positive terminal of the lower cell.
The difference between the v+ and v- power pins of the top opamp is -0.4V so it surely is not turned on.
You draw the acs file wrong, the feedback is not connected the same as in the eagle schematic. Also, the gate resistor should be around 50 ohm, the 1k makes the circuit very unstable. Also delete that RC that is connected to the gate, it only makes things worse still.

Figured out what was wrong in the end and it was interpretation although there was a voltage present at the emitter and collector there was no current flowing between the two points