Mrs Diane-Marie Banks

Preliminary Matters

Service

1. On 28 February 2020, the HCPC sent notice of this final hearing by email to the Registrant’s registered email address as previously notified to the HCPC as an address for correspondence. The notice contained the required information, including the time date and joining instructions for the final hearing.

2. Having heard and accepted the advice of the Legal Assessor, the Panel was satisfied on the documentary evidence provided that the Registrant had been served with the appropriate notice in accordance with the Rules.

Application to proceed in the absence of the Registrant

3. Mr Micklewright, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel heard and accepted the advice of the Legal Assessor, who advised that the discretion to proceed in a Registrant's absence should be exercised with great care and caution.

4. The Panel bore in mind that the last correspondence from the Registrant to the HCPC had been received by email, dated 25 January 2021, during the case examiner investigation. It appeared to the Panel that the Registrant had subsequently disengaged from the proceedings. The Panel was satisfied that the HCPC had fulfilled its obligations and taken all reasonable steps to serve the notice on the Registrant in accordance with the Rules. There had been no application for any adjournment by the Registrant, nor did the Panel consider that there was any good reason to adjourn or that such a step would secure the Registrant’s attendance on a future occasion.

5. The Panel was aware that there were two HCPC witnesses available to give evidence, who would be caused further inconvenience if the hearing were adjourned.

6. In all the circumstances, the Panel was satisfied that the Registrant had been provided with the means of knowledge as to when her hearing was taking place and the joining links to participate in the hearing. The Panel concluded that the Registrant had voluntarily waived her right to attend and there was no evidence to indicate that she would be likely to attend an adjourned hearing. The Panel also bore in mind that there was a public interest in the hearing going ahead to resolve the allegations, given that they date back to 2017. Accordingly, the Panel decided that it was appropriate and fair to proceed in the Registrant’s absence.
Application of parts of the Hearing to be heard in private

7. Mr Micklewright applied for parts of the hearing to be heard in private in order to protect the private life of the Registrant. He submitted that there was information relating to the Registrant’s health within the bundle which ought not to be ventilated in the public domain.

8. The Panel heard and accepted the advice of the Legal Assessor. It considered that those parts of the hearing which related to the Registrant’s health should be heard in private. The Panel was satisfied that this was justified in order to protect the private life of the Registrant.
Application to amend

9. At the outset of the hearing, Mr Micklewright applied to amend a number of the factual particulars. His application included a partial application to discontinue particular 2 in respect of Service User 10; particular 3 in respect of Service Users 8, 10 and 18; particular 5 in respect of Service Users 12, 13 and 14; and particular 6 in respect of Service User 10. He submitted that in light of the receipt of the expert report of Ms McKinney, dated 10 April 2024, there was no longer a realistic prospect of those particulars being found proved, but there nevertheless remained a viable allegation if the discontinuance were permitted.

10. Mr Micklewright submitted that if the application to discontinue particular 2 in respect of Service User 10 were successful, then the allegation should further be amended by way of a new Schedule 2 omitting Service User 10 from it. He also applied to amend particular 3 to add the words ‘and/or prescribed’ to cover the outcome that the Registrant had prescribed hearing aids, but they had not been provided to the respective Service User. Mr Micklewright submitted that none of the proposed amendments were unfair to the Registrant.

11. The Panel heard and accepted the advice of the Legal Assessor and decided to allow the proposed amendments in full. In relation to the application for partial discontinuance, the Panel was satisfied that there were proper grounds for discontinuing as there was no realistic prospect of the particulars in respect of those relevant Service Users being found proved, given the expert opinion in Ms McKinney’s report. The Panel was further satisfied that there remained a viable allegation. In relation to the proposed amendment to add the words ‘and/or prescribed’ to allegation 3, the Panel was satisfied that this was an appropriate amendment. Whilst it slightly widened the scope of the allegation, it more accurately captured the mischief alleged, and the Registrant had been on notice of the proposed amendments. Accordingly, the Panel was satisfied that it was not unfair to the Registrant to allow the partial discontinuance and proposed amendments.

12. At the close of the HCPC case, Mr Micklewright made a further application to discontinue particular 3 in respect of Service User 5. He submitted that in light of Ms McKinney’s oral evidence, there was no longer a realistic prospect of that allegation being found proved. Having heard and accepted the advice of the Legal Assessor the Panel agreed there was no realistic prospects of that allegation being found proved and therefore granted the application.

Background

13. The Registrant is a qualified Hearing Aid Dispenser, registered with the HCPC.

14. The Registrant was employed by Specsavers as a receptionist in November 2010, qualifying as a Hear Care Assistant (HCA) in July 2014. Specsavers sponsored the Registrant’s training at De Montfort University as a Hearing Aid Dispenser and she qualified in June 2016. Once qualified, she worked for Specsavers as a Registered Hearing Aid Dispenser until she was dismissed on 22 October 2020. Her job description included taking case histories, otoscopy (examining the structures of the ear), taking impressions, audiometry (testing the ability to hear sounds), fitting hearing aids, programming hearing aids and making medical referrals.

15. During her employment once she had qualified as a Hearing Aid Dispenser, the Registrant’s line manager, KC, was concerned regarding the Registrant’s ability to identify the need for and subsequently carry out ‘masking’, which is an essential component of some hearing tests, along with testing air conduction audiometry thresholds and bone conduction audiometry thresholds.

16. Hearing tests are conducted in accordance with the British Society of Audiology Recommended Procedure 2018 (the BSA Recommended Procedure).

17. Air conduction audiometry is measured using either headphones placed over the external ear, or insert earphones placed at the entrance to the ear canal. Air conduction audiometry measures the response of the entire hearing pathway, namely ear canal, middle ear, inner ear (cochlea) and more central auditory pathways. Air conduction thresholds are measured before bone conduction thresholds. If a hearing loss is recorded with air conduction thresholds, it could be due to a blockage in the ear canal, or middle ear, or due to damage to the inner ear (cochlea). The hearing loss is termed conductive if it is due to blockage in the ear canal or middle ear and sensorineural if it is due to damage to the inner ear or central auditory nerves. Sometimes conductive and sensorineural losses are present in the same person, in which case the hearing loss is termed mixed.

18. Bone conduction audiometry helps to determine whether a hearing loss is conductive or sensorineural. Therefore, whenever a hearing loss is identified by air conduction, bone conduction testing should be carried out. During bone conduction testing, a small bone vibrator is placed on the mastoid bone behind the ear. This sends sound directly to the inner ear (cochlea), bypassing both the ear canal and the inner ear. For this reason, bone conductor thresholds are always the same or slightly better than air conduction thresholds. Bone is an excellent transmitter of sound, and therefore, even though the bone vibrator is placed on one side of the head, the sound it transmits is sent to both cochleae simultaneously. The ear with the better hearing cochlea will respond. It is therefore not possible to be certain which cochlea is responding without bone conduction masking.

19. Masking is a method whereby a masking noise is presented to the better hearing ear to stop it from responding, which allows accurate testing of the worse hearing ear. Masking is not always necessary, for example if there is no significant difference between the air and bone conduction thresholds in either ear, or if both ears have a significant conductive hearing loss. The BSA Recommended Procedure sets out three Rules when masking is necessary to determine whether the hearing loss is conductive (due to a blockage in the ear canal, middle ear, or due to damage to the inner ear – cochlea) or sensorineural (due to damage to the inner ear or central auditory nerves), and to be sure that the thresholds belong to the correct ear. The BSA Recommended Procedure refers to these as the three masking rules.

20. Air conduction masking should be carried out if the difference between air conduction thresholds between the two ears is 40 decibels (dB) or more using headphones as it is possible that the sound presented to the worse ear is reaching the better ear by bone conduction. The thresholds shown for the worse ear may therefore be a ‘shadow’ of the thresholds of the better ear. This is Rule 1 of the BSA Recommended Procedure:

Rule 1 – Masking is needed at any frequency where the difference between the left and right not-masked a-c (air conduction) thresholds is 40 dB or more when using supra- or circum-aural earphones or 55 dB when using insert earphones.

21. Bone conduction masking should be carried out when Rules 2 and 3 of the BSA Recommended Procedure apply. When bone masking is performed, a masking noise is presented via a headphone or insert earphone to the opposite ear to the one tested by bone conduction testing. This stops the ear opposite to the one being tested by bone conduction testing from responding to the test signal. Rules 2 and 3 of the BSA Recommended Procedure are:

Rule 2 – Masking is needed at any frequency where the not-masked b-c (bone conduction) threshold is better that the air-conduction threshold of either ear by 10 dB or more. The worse ear (by air- conduction) would then be the test ear and the better ear would be the non-test ear to be masked.

Rule 3 – Masking will be needed additionally where Rule 1 has not been applied, but where the b-c threshold of one ear is more acute by 40 dB or more (if supra or circum-aural earphones have been used) or 55 dB or more (if insert headphones have been used) than the not-masked a-c threshold attributed to the other ear.

22. The British Academy of Audiology has issued guidance for when referrals should be made for a medical or other professional opinion. It is entitled ‘Guidance for Audiologists: Onward Referral of Adults with Hearing Difficulty Directly Referred to Audiology Services’, published in November 2021. The Guidelines list a number of conditions that indicate when onward referral should be made, including: sudden hearing loss or sudden deterioration of hearing in one or both ears; persistent tinnitus; conductive hearing loss; and unilateral or asymmetrical sensorineural hearing loss.

23. During the Registrant’s time at Specsavers, she was subject to three sets of disciplinary proceedings. The first disciplinary investigation led to a disciplinary hearing on 7 July 2017 and related to Service User 20 and Service User 21. The second disciplinary investigation led to a disciplinary hearing on 24 August 2017 and related to Service User 24.

24. The third disciplinary investigation arose out of an audit by the Registrant’s line manager, KC, of the Registrant’s records. KC became concerned that the Registrant appeared not to be undertaking air conduction and bone conduction masking, or, when it had taken place, it did not appear to comply with the BSA Recommended Procedure and follow the masking rules. As part of her investigation, KC interviewed the Registrant on 24 June, 28 July, 18 August and 10 September 2020, seeking to explore the Registrant’s knowledge and clinical judgement. The third set of disciplinary proceedings led to the Registrant ultimately being dismissed from her employment on 22 October 2020. The Panel was not provided with the details of the disciplinary hearing and subsequent dismissal.

25. In December 2020, KC referred the Registrant to the HCPC. As part of its investigation, the HCPC instructed an expert in audiology, Ms McKinney, to consider the clinical allegations. The Registrant faces clinical allegations in respect of:

• Performing pure-tone audiometry which was not compliant with the Recommended Procedure in respect of 11 Service Users;

• Prescribing or providing inadequate or incorrect hearing aids in respect of 11 Service Users;

• Not managing earfittings for Service User 13 effectively;

• Not taking adequate aural impressions for new earmoulds for earplugs and hearing aids for Service User 20;

• Not making appropriate onward referrals for five Service Users in order for them to obtain further medical investigation, diagnosis and treatment.

26. The Registrant also faces allegations of fabricating audiograms in respect of 10 Service Users and doing so dishonestly.

27. On 25 January 2021, the Registrant sent an email to the HCPC in response to its enquiry about whether she was at that time working as a Hearing Aid Dispenser. In the email the Registrant stated that the allegations had been implemented as a malicious vendetta by KC and the supposed evidence had been gathered illegally as she had been on furlough the entire time.

Decision on Facts

28. The HCPC called the following witnesses:

• KC, a qualified Hearing Aid Dispenser, who at the material time, was a Hear Care Director based at Bradford Idle Specsavers. She was the Registrant’s manager;

• Ms McKinney, a qualified Audiological Scientist since 1989; a state registered Clinical Scientist in the field of audiology and a Hearing Aid Dispenser with over 20 years specialist knowledge, research and experience in the fields of hearing loss, tinnitus, sound sensitivity and their rehabilitation, including the field of Cochlear Implants. She was instructed as an expert by the HCPC and produced a report, dated 10 April 2024.

29. The HCPC provided a bundle of witness statements and exhibits, including:

• A copy of KC’s witness statement, dated 10 May 2023;

• Disciplinary investigation meeting minutes with the Registrant, dated 7 June 2017, 2 August 2017, and 24 August 2017,

• Correspondence sent to the Registrant regarding the disciplinary investigations;

• Spreadsheet of KC’s audit results conducted as part of the third disciplinary investigation;

• A copy of the BSA Recommended Procedure for pure-tone air and bone conduction threshold audiometry with and without masking;

• A copy of the BAA Guidance for Audiologists onward referral of adults;

• A copy of Ms McKinney’s expert report, dated 10 April 2024;

• Clinical notes of Service Users 1, 2, 3, 4, 5, 6, 7, 8, 10, 13, 16, 19, 20, 21 and 24;

• An email from the Registrant to the HCPC dated 25 January 2021.

30. The Panel heard and accepted the advice of the Legal Assessor. She advised that the burden of proof was on the HCPC and the standard of proof required was the civil standard, namely whether it was more likely than not that the alleged facts occurred. In relation to fabrication, the Legal Assessor advised that this allegation had a subjective element to it and the HCPC was required to prove not just that an audiogram was inaccurate, but also that it was created in order to deceive. In relation to dishonesty, she advised in accordance with the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. The Legal Assessor advised that the Registrant was of good character which was one of the factors the Panel may take into account in the Registrant’s favour when considering the likelihood or otherwise of her fabricating audiograms or acting dishonestly.

31. The Legal Assessor also advised on the expert opinion evidence, which was adduced by the HCPC to assist the Panel in respect of the clinical matters outside of the its own knowledge. She advised that an expert was permitted to give an opinion as to whether the Registrant had acted to an adequate or appropriate standard according to what would be expected of a reasonably competent practitioner in the circumstances.

32. The Panel considered all the evidence and the submissions of Mr Micklewright on behalf of the HCPC. The Panel’s approach to particulars 1, 2 and 3 was to consider the stem in respect of each individual service user listed in the respective schedule.

33. The Panel had regard to the evidence of KC, who had been the Registrant’s line manager at Specsavers whilst she was working there. KC had told the Panel that even after the Registrant had completed the audiology course and qualified, the Registrant required a lot of training, which KC had put in place. KC said that there were times when the Registrant was able to carry out the tests accurately, but she did not do so consistently.

34. The Panel also had regard to the expert evidence, recognising that many of the clinical matters were outside the knowledge of the Panel. It considered that the expert, Ms McKinney, was a credible witness. She had extensive experience as a State Registered Clinical Scientist in the field of Audiology and as a Hearing Aid Dispenser. The Panel noted that she had 20 years specialist knowledge, research and experience in the fields of hearing loss, tinnitus and sound sensitivity and their rehabilitation. The Panel considered that Ms McKinney had very high standards and on occasion came across as appearing to hold the Registrant to best practice standards as opposed to the standards expected of a reasonably competent Hearing Aid Dispenser. The Panel considered that Ms McKinney’s expertise could assist it with matters outside the Panel’s knowledge, for example whether audiograms generated by the Registrant were accurate or not, but not on the ultimate issue of whether or not the Registrant had fabricated them.

Particular 1:

Between 23 July 2017 and 17 August 2020 you performed pure-tone audiometry which was not compliant with the relevant British Society of Audiology recommended procedure in respect of Service Users in Schedule A.

Service User 1

35. The Panel finds particular 1 in respect of Service User 1 not proved.

36. The clinical notes recorded that the Registrant saw Service User 1 on 7 January 2020 for an initial assessment. No significant history factors or referable conditions were recorded on her initial questionnaire. On that date, the Registrant carried out a hearing test and recorded her findings on an audiogram, which recorded asymmetrical hearing loss and conductive hearing loss in the left ear. The Registrant saw Service User 1 again on 21 January 2020 and carried out a further hearing test, recording her findings on an audiogram.

37. It was Ms McKinney’s opinion that the Registrant’s hearing test of 21 January 2020 did not comply with the BSA Recommended Procedure for hearing tests because it appeared that the bone conduction audiometry of the 7 January 2020 was copied across to the test results shown on 21 January 2020. She said that the bone conduction thresholds for both dates were identical and her basis for this was that the values were the same and she had superimposed one test with the other. Ms McKinney stated that whilst it may have been reasonable to assume that the bone conduction thresholds had not changed between the testing dates, the Registrant should not have copied thresholds across without making it clear (in the clinical notes) that she had not tested them again on 21 January 2020.

38. The Panel noted that the BSA Recommended Procedure did not say that results could not be copied across from one date to another and Ms McKinney appeared to accept that there may be occasions where it was reasonable to copy across as long as the clinical notes recorded that that was what had happened. The Panel also bore in mind that in her oral evidence, Ms McKinney accepted that it was not impossible for results on different days to be the same, but it would be unusual. In light of Ms McKinney’s oral evidence, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had not complied with the BSA Recommended Procedure for conducting hearing tests on either 7 or 21 January 2021.

Particular 1:

Between 23 July 2017 and 17 August 2020 you performed pure-tone audiometry which was not compliant with the relevant British Society of Audiology recommended procedure in respect of Service Users in Schedule A.

Service User 2

39. The Panel finds particular 1 in respect of Service User 2 proved.

40. The clinical notes recorded that Service User 2 saw the Registrant on 8 January 2020 for an initial assessment. No significant history factors or referable conditions were recorded on the initial questionnaire beyond occlusive earwax bilaterally. A further hearing test, still with the wax in place, was carried out by a different member of staff on 17 August 2020. A further hearing test on 19 October 2020 following wax removal was carried out by a different member of staff. Results indicated that air conduction thresholds had deteriorated, particularly in the right ear, but that bone conduction thresholds had improved significantly.

41. It was Ms McKinney’s opinion that the Registrant’s audiometry from 8 January 2020 did not comply with BSA Recommended Procedure for a number of reasons, namely by not removing wax before her hearing test; obtaining results which were scientifically not-possible; and an unlikely level of deterioration between the Registrant’s test and a later test on 19 October 2020.

42. In relation to not removing the occluded wax before the hearing test, it was Ms McKinney’s view that the Registrant should not have attempted pure-tone audiometry with the wax present, although the Panel noted that the BSA Recommended Procedure did not require removal of earwax before conducting a hearing test, and another member of staff on 17 August 2020 had also not removed the wax before conducting their test.

43. In relation to obtaining results which were not scientifically possible, Ms McKinney noted that the Registrant’s results for 8 January 2020 showed better hearing for the right that the left ear and that non-masked bone conduction thresholds were similar to non-masked air conduction thresholds in the left ear, but significantly below air conduction thresholds for the better (right) ear. In her opinion, such a result was not scientifically possible as bone conduction thresholds will always be the same or better than air conduction thresholds.

44. In relation to the unlikely level of deterioration in hearing loss between January and October 2020, Ms McKinney identified that the Registrant’s results for 8 January 2020 showed significantly better hearing for the right than the left ear than those conducted on 19 October 2020 (by another member of staff after the wax had been removed). It was Ms McKinney’s opinion that the level of significant deterioration in hearing loss was unlikely and it was far more likely that the Registrant had not measured air conduction thresholds accurately on 8 January 2020.

45. The Panel noted that the Registrant had, according to the expert, managed to obtain a set of results which were scientifically not-possible to achieve. The Panel noted that the BSA Recommended Procedure advised that if results were obtained which appeared to be inaccurate or the results were in doubt, then that should be clearly indicated on audiogram, but the Registrant had not recorded any concerns on the audiogram about the accuracy of the results.

46. The Panel had regard to the wording of particular 1, in that it alleged non- compliance with the BSA Recommended Procedure but did not identify specific steps alleged not to have been complied with when performing pure-toned audiometry. Whilst the Panel noted that Ms McKinney had also not identified in her report the specific steps allegedly not followed by the Registrant, it was her opinion that the Registrant had not complied with the BSA Recommended Procedure, given the scientifically not-possible and unlikely results the Registrant had recorded.

47. The Panel accepted the expert evidence of Ms McKinney. The Panel drew the inference that the Registrant could not have complied with the BSA Recommended Procedure, because if she had, she would not have obtained the scientifically not-possible and unlikely results. Accordingly, the Panel was satisfied that it was more likely than not that the Registrant had not complied with the BSA Recommended Procedure for pure-tone audiometry in respect of Service User 2.

Particular 1

Between 23 July 2017 and 17 August 2020 you performed pure-tone audiometry which was not compliant with the relevant British Society of Audiology recommended procedure in respect of Service Users in Schedule A.

Service User 3

48. The Panel finds particular 1 in respect of Service User 3 proved.

49. The clinical notes record that Service User 3 was initially assessed by the Registrant on 29 January 2020. No significant history, apart from long-standing tinnitus, which had worsened over the previous few weeks was recorded. The Registrant recorded that the GP was aware of this, and therefore did not make an onward medical referral. No other referable conditions were noted. The Registrant carried out pure-tone auditory on 29 January 2020 which indicated an asymmetrical hearing loss, with thresholds in the right ear significantly better than those in the left ear. The Registrant fitted bilateral hearing aids based on the audiometric results, however Service User 3 did not find them to be of sufficient benefit and she was reviewed by a different member of staff on 17 August 2020.

50. It was Ms McKinney’s opinion that the Registrant’s audiometry from 29 January 2020 did not comply with BSA Recommended Procedure for a number of reasons, namely obtaining results which were scientifically not-possible; and an unlikely level of deterioration between the Registrant’s test and a subsequent test by a different member of staff on 17 August 2020.

51. In relation to obtaining results which were not scientifically possible, Ms McKinney noted that the Registrant’s results for 29 January 2020 showed non-masked bone conduction thresholds as being worse than thresholds for the better ear. In her opinion, such a result was not scientifically possible as bone conduction thresholds will always be the same or better than air conduction thresholds.

52. In relation to the unlikely level of deterioration in hearing loss between the Registrant’s hearing test on 29 January 2020 and the subsequent hearing test on 17 August 2020 by a different member of staff, Ms McKinney’s opinion was that it was more likely that the Registrant did not measure air conduction thresholds accurately on 29 January 2020.

53. The Panel accepted the expert evidence of Ms McKinney. The Panel drew the inference that the Registrant could not have complied with the BSA Recommended Procedure, because if she had, she would not have obtained the scientifically not-possible and the unlikely results. Accordingly, the Panel was satisfied that it was more likely than not that the Registrant had not complied with the BSA Recommended Procedure for pure-tone audiometry in respect of Service User 3.

Particular 1

Between 23 July 2017 and 17 August 2020 you performed pure-tone audiometry which was not compliant with the relevant British Society of Audiology recommended procedure in respect of Service Users in Schedule A.

Service User 4

54. The Panel finds particular 1 in respect of Service User 4 proved.

55. The clinical notes record that Service User 4 was initially assessed by the Registrant on 4 February 2020. She recorded a history of pulsatile left-sided tinnitus of recent onset but recorded that the GP was aware and therefore did not refer for further medical assessment. The Registrant conducted pure-tone audiometry on 4 February 2020, which indicated a bilateral hearing loss, with left ear air conduction thresholds significantly worse than those in the right ear. On 20 February 2020, bilateral hearing aids were fitted on the basis of the results obtained by the Registrant on 4 February 2020. Service User 4 remarked on several subsequent occasions that the hearing aids were too loud so she did not wear them. On 17 August 2020, further testing was carried out by a different member of staff.

56. It was Ms McKinney’s opinion that the Registrant’s audiometry from 4 February 2020 did not comply with BSA Recommended Procedure for a number of reasons, including obtaining results which were scientifically not-possible; an unlikely level of change in the hearing measured by the Registrant to that measured at a subsequent hearing test on 17 August 2020 by a different member of staff; non-masked left ear bone conduction thresholds for the left ear were not measured at 2kHz and above; and right ear bone conduction thresholds were not measured even though air conduction thresholds indicated hearing loss.

57. In relation to obtaining results which were not scientifically possible, Ms McKinney noted that the Registrant’s results for 4 February 2020 showed non-masked bone conduction thresholds as being worse than thresholds for the better ear. In her opinion, such a result was not scientifically possible as bone conduction thresholds will always be the same or better than air conduction thresholds.

58. In relation to an unlikely change in the level of hearing between the February and August 2020 hearing tests, Ms McKinney was of the opinion that it was unlikely that Service User 4’s hearing changed significantly between the dates and it was far more likely that the Registrant had not measured the air conduction thresholds accurately on 4 February 2020.

59. In relation to not carrying out non-masked testing on the right ear it was Ms McKinney’s opinion that this was a required step under the rules of the BSA Recommended Procedure because hearing loss had been detected through measuring the air conduction thresholds. In relation to not carrying out masked testing on the left ear for frequencies at 2kHz and above, it was Ms McKinney’s opinion that this was also a required step, and it was not clear what the masking levels which had been recorded on the audiogram referred to.

60. The Panel accepted the expert evidence of Ms McKinney. The Panel drew the inference that the Registrant could not have complied with the BSA Recommended Procedure, because if she had, she would not have obtained the scientifically not-possible and unlikely results. In addition, had she followed the rules for masking, she would have carried out the required steps of measuring non-masked bone conduction thresholds in the right ear and masked thresholds in the left ear above 2kHz. Accordingly, the Panel was satisfied that it was more likely than not that the Registrant had not complied with the BSA Recommended Procedure for pure-tone audiometry in respect of Service User 4.

Particular 1

Between 23 July 2017 and 17 August 2020 you performed pure-tone audiometry which was not compliant with the relevant British Society of Audiology recommended procedure in respect of Service Users in Schedule A.

Service User 5

61. The Panel finds particular 1 in respect of Service User 5 proved.

62. The clinical notes record that Service User 5 was initially assessed by the Registrant on 3 February 2020. A history of a previous right sinus operation and otosclerosis (bone issues within the middle ear causing gradual hearing loss) in the right ear were noted. No referable conditions were noted. Pure-tone audiometry indicated a bilateral asymmetrical hearing loss with a conductive component in the left ear. Service User 5 was further reviewed on 12 March 2020 and 27 March 2020, on both occasions with a different member of staff.

63. It was Ms McKinney’s opinion that the Registrant’s audiometry from 3 March 2020 did not comply with BSA Recommended Procedure for a number of reasons, including obtaining results which were scientifically not-possible; right bone conduction thresholds were not measured, even though air conduction thresholds indicated hearing loss; and left hear masked bone conduction thresholds were not measured at 2 and 3kHz (the Panel worked on the basis that the 5kHz also mentioned by Ms McKinney was a typographical error as this was not an available measurement).

64. In relation to obtaining results which were not scientifically possible, Ms McKinney noted that the Registrant’s results for 3 March 2020 showed non-masked bone conduction thresholds as being worse than thresholds for the better ear. In her opinion, such a result was not scientifically possible as bone conduction thresholds will always be the same or better than air conduction thresholds.

65. In relation to not carrying out right bone conduction testing it was Ms McKinney’s opinion that this was a required step under the rules of the BSA Recommended Procedure because hearing loss had been indicated through measuring the air conduction thresholds. In relation to not measuring left ear masked thresholds for frequencies at 2kHz and 3kHz, it was Ms McKinney’s opinion that this was also a required step, and it was not clear what the masking levels which had been recorded on the audiogram referred to.

66. The Panel accepted the expert evidence of Ms McKinney. The Panel drew the inference that the Registrant could not have complied with the BSA Recommended Procedure, because if she had, she would not have obtained the scientifically not-possible results. In addition, she would have acted in accordance with the masking rules and carried out the required steps of measuring non-masked bone conduction thresholds in the right ear and masked thresholds in the left ear at 2kHz and 3kHz. Accordingly, the Panel was satisfied that it was more likely than not that the Registrant had not complied with the BSA Recommended Procedure for pure-tone audiometry in respect of Service User 5.

Particular 1

Between 23 July 2017 and 17 August 2020 you performed pure-tone audiometry which was not compliant with the relevant British Society of Audiology recommended procedure in respect of Service Users in Schedule A.

Service User 6

67. The Panel finds particular 1 in respect of Service User 6 proved.

68. The clinical notes record that Service User 6 attended for a privately funded hearing assessment with the Registrant on 13 March 2020. A history of perforated ear drums and management with a ventilation tune in the right ear was recorded. The Registrant noted that any asymmetry in Service User 6’s hearing had already been investigated and there was no other reason for onward referral.

69. It was Ms McKinney’s opinion that the Registrant’s audiometry from 13 March 2020 did not comply with BSA Recommended Procedure for a number of reasons, including obtaining results which were scientifically not-possible; an unlikely level of change in the hearing measured by the Registrant to that measured at a subsequent hearing test on 5 February 2021 by a different member of staff; left bone conduction thresholds were not measured, even though air conduction thresholds indicated hearing loss; and it was likely that the right ear air conduction thresholds (recorded on 13 March 2020) were a ‘shadow’ of the left ear bone conduction thresholds (recorded on 5 February 2021).

70. The Panel accepted the expert evidence of Ms McKinney. The Panel drew the inference that the Registrant could not have complied with the BSA Recommended Procedure, because if she had, she would not have obtained the scientifically not-possible and unlikely results. In addition, she would have followed the masking rules and carried out the required steps of measuring non-masked bone conduction thresholds in the left ear when the air conduction thresholds indicated a hearing loss. Accordingly, the Panel was satisfied that it was more likely than not that the Registrant had not complied with the BSA Recommended Procedure for pure-tone audiometry in respect of Service User 6.

Particular 1

Between 23 July 2017 and 17 August 2020 you performed pure-tone audiometry which was not compliant with the relevant British Society of Audiology recommended procedure in respect of Service Users in Schedule A.

Service User 7

71. The Panel finds particular 1 in respect of Service User 7 proved.

72. The clinical notes record that the Registrant saw Service User 7 for a privately funded hearing test on 3 December 2019. A history of Meniere’s disease (an inner ear condition which can affect balance and hearing) in the right ear was recorded, with associated vertigo and tinnitus. The Registrant carried out pure-tone audiometry and results recorded showed essentially normal hearing in the left ear with a moderate to severe right-sided mixed hearing loss. Service User 7 purchased two identical hearing aids for the right ear which were fitted and reviewed by a different member of staff on 14 December 2019 and 9 January 2020. The Registrant saw Service User 7 again on 13 March 2020 when she recorded that she had increased the gain slightly in both hearing aids.

73. Service User 7 was re-assessed by a different member of staff on 1 July 2021 and reported that she could not hear well with one of her hearing aids and was experiencing feedback with the other. Further reviews were carried out by different members of staff on 24 July 2012 and 14 August 2021, and an annual review took place on 1 September 2021.

74. It was Ms McKinney’s opinion that the Registrant’s audiometry from 3 December 2019 did not comply with BSA Recommended Procedure because she had obtained results which were scientifically not-possible.

75. The Panel accepted the expert evidence of Ms McKinney. The Panel drew the inference that the Registrant could not have complied with the BSA Recommended Procedure, because if she had, she would not have obtained the scientifically not-possible results. Accordingly, the Panel was satisfied that it was more likely than not that the Registrant had not complied with the BSA Recommended Procedure for pure-tone audiometry in respect of Service User 6.

Particular 1

Between 23 July 2017 and 17 August 2020 you performed pure-tone audiometry which was not compliant with the relevant British Society of Audiology recommended procedure in respect of Service Users in Schedule A.

Service User 8

76. The Panel finds particular 1 in respect of Service User 8 proved.

77. The clinical notes record that the Registrant first saw Service User 8 for assessment on 20 March 2020. There was no significant otological history recorded and no referable conditions identified. Pure-tone audiometry indicated an asymmetrical moderate to severe hearing loss, which was worse in the left ear. A referral to Service User 8’s GP was made on 21 March 2020, but the records do not indicate who made the referral. On 10 April 2020 and 13 August 2020, KC, the Registrant’s manager contacted Service User 8 by telephone inviting him for a repeat hearing test following the audit to the Registrant’s audiograms, but Service User 8 declined.

78. It was Ms McKinney’s opinion that the Registrant’s audiometry from 20 March 2020 did not comply with BSA Recommended Procedure for a number of reasons, including obtaining results which were scientifically not-possible; non-masked left bone conduction thresholds were not measured, even though air conduction thresholds indicated hearing loss; and left masked bone conduction thresholds were not recorded.

79. The Panel accepted the expert evidence of Ms McKinney. The Panel drew the inference that the Registrant could not have complied with the BSA Recommended Procedure, because if she had, she would not have obtained the scientifically not-possible results. In addition, she would have followed the masking rules and carried out the required steps of measuring non-masked bone conduction thresholds for the right ear and recording masked bone conduction thresholds for the left ear. Accordingly, the Panel was satisfied that it was more likely than not that the Registrant had not complied with the BSA Recommended Procedure for pure-tone audiometry in respect of Service User 8.

Particular 1

Between 23 July 2017 and 17 August 2020 you performed pure-tone audiometry which was not compliant with the relevant British Society of Audiology recommended procedure in respect of Service Users in Schedule A.

Service User 10

80. The Panel finds particular 1 in respect of Service User 10 proved.

81. The clinical notes record that the Registrant first assessed Service User 10 on 3 January 2020. She noted that he had alcohol and cognitive issues. She referred him to his GP. Pure-tone audiometry showed a moderate right-sided conductive hearing loss and a moderate high-frequency left-sided hearing loss with a dip at 1kHz.

82. It was Ms McKinney’s opinion that the Registrant’s audiometry from 3 January 2020 did not comply with BSA Recommended Procedure because her finding of a drop at 1kHz should have led her to test the left-sided bone conduction at that frequency as well as test the air conduction frequencies at 750Hz and 1.5kHz.

83. The Panel accepted the expert evidence of Ms McKinney. The Panel drew the inference that the Registrant could not have complied with the BSA Recommended Procedure, because if she had, she would have carried out the required steps of testing the left-sided bone conduction thresholds at 1kHz and testing the air conduction frequencies at 750Hz and 1.5kHz. Accordingly, the Panel was satisfied that it was more likely than not that the Registrant had not complied with the BSA Recommended Procedure for pure-tone audiometry in respect of Service User 10.

Particular 1

Between 23 July 2017 and 17 August 2020 you performed pure-tone audiometry which was not compliant with the relevant British Society of Audiology recommended procedure in respect of Service Users in Schedule A.

Service User 16

84. The Panel finds particular 1 in respect of Service User 16 proved.

85. The clinical notes record that Service User 16 was referred by their GP on 4 October 2019 and the Registrant saw them for assessment on 7 October 2019. She noted a history of perforated ear drums and occlusive wax bilaterally. The Registrant advised the GP surgery that the wax would need to be removed before ear impressions could be made. No other significant history or referable conditions were recorded. Audiological evaluation indicated a bilateral moderate sensorineural hearing loss. Impressions were taken on 19 October 2020 by a different member of staff, which were fitted by KC on 30 November 2020. A further hearing test was carried out by KC on that date which gave different results to those obtained by the Registrant on 4 October 2019.

86. It was Ms McKinney’s opinion that the Registrant’s audiometry from 4 October 2019 did not comply with BSA Recommended Procedure. She reached this view because although it appeared to be complete in that all relevant air and bone conduction testing had been conducted, when compared to the subsequent hearing test carried out by KC on 30 November 2020, the results were very different. Ms McKinney’s basis for concluding that of the two audiograms, it was more likely that KC’s was accurate and the Registrant’s was inaccurate was because the Registrant’s audiogram did not fit with the recorded history given by Service User 16, whereas KC’s audiogram did.

87. The Panel accepted the expert evidence of Ms McKinney. The Panel drew the inference that the Registrant could not have complied with the BSA Recommended Procedure, because if she had, she would have obtained results which were consistent with Service User 16’s recorded history, and which were similar to those obtained in the subsequent hearing test conducted by KC. Accordingly, the Panel was satisfied that it was more likely than not that the Registrant had not complied with the BSA Recommended Procedure for pure-tone audiometry in respect of Service User 16.

Particular 1

Between 23 July 2017 and 17 August 2020 you performed pure-tone audiometry which was not compliant with the relevant British Society of Audiology recommended procedure in respect of Service Users in Schedule A.

Service User 24

88. The Panel finds particular 1 in respect of Service User 24 not proved.

89. The clinical notes record that Service User 24 was referred to Specsavers on 24 June 2017 and was assessed by the Registrant on 17 July 2017. The Registrant recorded a history of a mini stroke the previous year and that Service User 24 felt that their hearing had deteriorated over the previous 12 months. No other significant history factors or referable conditions were recorded. Pure-tone auditory showed a bilateral moderate sensorineural hearing loss. Service User 24 subsequently attended for a hearing aid fitting with KC on 31 July 2017. KC carried out pure-tone auditory on that occasion which recorded that both air conduction and bone conduction thresholds were significantly better than those recorded by the Registrant and that there was a conductive component to the hearing loss.

90. It was Ms McKinney’s opinion that the Registrant’s audiometry from 17 July 2017 did not comply with BSA Recommended Procedure. She reached this view on the basis of KC’s witness statement, which was to the effect that Service User 24 had told KC that the Registrant had not measured the bone conduction thresholds and subsequent testing on 31 July 2017. It was on this basis that Ms McKinney concluded that KC’s audiogram was accurate and the Registrant’s was inaccurate.

91. The Panel noted that in this case, the reported comments of Service User 24 to KC, that there had been no change of headset during the testing were relied upon by KC in concluding that the bone conduction thresholds had not been tested. Ms McKinney relied on KC’s conclusion in reaching her opinion that the Registrant’s results were inaccurate. The Panel noted that there was no statement from Service User 24, and KC accepted that service users may make mistakes as to which tests they had been subjected to.

92. The Panel did not consider that there was sufficient evidence from which to conclude that the Registrant’s audiogram results were, in and of themselves, inaccurate. In this instance, unlike for Service User 16, Ms McKinney had not pointed to any additional factors in support of her opinion as to why KC’s results were more likely to be accurate, such as consistency or inconsistency with patient history. In all the circumstances, the Panel was not satisfied that the HCPC had discharged the burden of proving it more likely than not that the Registrant had not complied with the BSA Recommended Procedure.

Particular 2

Between 23 July 2017 and 17 August 2020 you fabricated audiograms for Service Users in Schedule B.

93. The Panel noted that the Registrant had no previous regulatory findings against her, so was of good character which counted in her favour in respect of propensity, namely that it was less likely that she behaved in the way alleged.

Service User 1

94. The Panel finds particular 2 in respect of Service User 1 not proved.

95. Ms McKinney’s opinion was that the non-masked and masked bone conduction threshold results for Service User 1 appeared to have been copied across from 7 January 2020 to 21 January 2020. She said that whilst it may have been reasonable to assume that the bone conduction thresholds had not changed between testing dates, the Registrant should not have copied thresholds across without making it clear that she had not tested them again on 21 January 2020.

96. The Panel bore in mind the evidence of KC to the effect that she had arranged a significant amount of training for the Registrant once she had qualified, and there were times that she was able to perform well, albeit she did not to do so consistently.

97. In all the circumstances, the Panel was not satisfied that the HCPC had discharged the burden of proving it more likely than not that the Registrant had deliberately created an inaccurate audiogram as opposed to either copying across, which in some circumstances the expert said would be reasonable, or by making mistakes in her recording of the bone conduction values on either or both of 7 and 21 January 2020.

Particular 2

Between 23 July 2017 and 17 August 2020 you fabricated audiograms for Service Users in Schedule B

Service User 2

98. The Panel finds particular 2 in respect of Service User 2 not proved.

99. The Panel accepted the expert evidence of Ms McKinney to the effect that the Registrant’s audiogram of 8 January 2020 was inaccurate, because the results recorded were scientifically not-possible.

100. However, the Panel noted that Ms McKinney had identified a number of reasons why the audiogram results might be inaccurate, which did not involve fabrication, namely the incorrect positioning of the bone vibrator; the possibility that the bone vibrator slipped; the bone conductor thresholds were recorded in a noisy environment; and the equipment was faulty.

101. Although Ms McKinney gave her opinion as to why these reasons were unlikely, the Panel recognised that no one had seen the Registrant carry out the hearing test. The Registrant denied that she recorded results for hearing tests which she had not carried out and the Panel bore in mind that she was of good character. KC had also given evidence to the effect that there were times when the Registrant was able to carry out accurate hearing tests, albeit she did not do so consistently. Whilst the Panel acknowledged there were a number of occasions on which the Registrant had recorded inaccurate audiograms, it did not consider that this was more likely to be indicative of fabricating audiograms as opposed to making repeated mistakes in respect of for example, placing the bone vibrator, interpreting the results or recording the results on an audiogram.

102. In all the circumstances, although the Panel was satisfied that the audiogram was inaccurate, it was not satisfied that the HCPC had discharged the burden of proving that it was fabricated.

Service User 3

103. The Panel finds particular 2 in respect of Service User 3 not proved for the same reasons as for Service User 2.

Service User 4

104. The Panel finds particular 2 in respect of Service User 4 not proved for the same reasons as for Service User 2.

Service User 5

105. The Panel finds particular 2 in respect of Service User 5 not proved for the same reasons as for Service User 2.

Service User 6

106. The Panel finds particular 2 in respect of Service User 6 not proved for the same reasons as for Service User 2.

Service User 7

107. The Panel finds particular 2 in respect of Service User 7 not proved for the same reasons as for Service User 2.

Service User 8

108. The Panel finds particular 2 in respect of Service User 8 not proved for the same reasons as for Service User 2.

Service User 16

109. The Panel finds particular 2 in respect of Service User 16 not proved.

110. Ms McKinney in her expert report stated that the audiogram recorded by the Registrant on 7 October 2019 and the one measured by KC on 30 November 2020 are completely different from each other. The Panel noted the conclusion of Ms McKinney that it was not possible to be certain that the differences were due to fabrication rather than inaccurate testing. Accordingly, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had fabricated the audiogram.

Service User 24

111. The Panel finds particular 2 in respect of Service User 24 not proved.

112. The Panel took account of its finding at particular 1 in respect of Service User 24 to the effect that it was not satisfied that the audiogram itself was inaccurate. Accordingly, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had fabricated the audiogram.

Particular 3

Between 17 July 2017 and 17 August 2020 you provided and/or prescribed inadequate or incorrect hearing aids to Service Users in Schedule C

Service User 1

113. The Panel finds particular 3 in respect of Service User 1 not proved.

114. The Panel noted the expert evidence of Ms McKinney, to the effect that she had not been provided with information regarding the hearing aid settings or real ear measurement data. Therefore, whilst she expressed an opinion that the choice of domes should have been semi-open in the left ear and open in the right ear, the Panel did not consider that this was sufficient evidence to satisfy it that the hearing aids provided were inadequate or incorrect.

Particular 3

Between 17 July 2017 and 17 August 2020 you provided and/or prescribed inadequate or incorrect hearing aids to Service Users in Schedule C

Service User 2

115. The Panel finds particular 3 in respect of Service User 2 proved.

116. Ms McKinney’s opinion was that although the Registrant did not fit hearing aids to Service User 2, she did prescribe them hearing aids on double domes on the basis of audiometric thresholds that were inaccurate. She said that the accurate thresholds recorded on 19 October 2020 indicate that double domes would have been too occlusive, which may have resulted in over-amplification of low frequencies, increased occlusion resulting in poor user voice quality and lack of hearing aid benefit.

117. The Panel accepted the expert evidence of Ms McKinney. The Panel considered that by prescribing hearing aids on the basis of inaccurate audiometric thresholds, the Registrant prescribed hearing aids which were both inadequate and incorrect.

Particular 3

Between 17 July 2017 and 17 August 2020 you provided and/or prescribed inadequate or incorrect hearing aids to Service Users in Schedule C

Service User 3

118. The Panel finds particular 3 in respect of Service User 3 proved.

119. Ms McKinney’s expert opinion was that the Registrant had fitted hearing aids for Service User 3 based on inaccurate test results recorded on 29 January 2020. This meant that the gain and output of the right hearing aid was below, what it should have been, and Service User 3 was unlikely to have received sufficient benefit. Ms McKinney opined that failure to fit accurate hearing thresholds could harm service users in that hearing aid gain and output would be set in correctly, the wrong model of hearing aids could be selected and an ear fitting chosen that was not appropriate to the degree of hearing loss.

120. The Panel accepted the expert evidence of Ms McKinney. The Panel considered that by prescribing hearing aids on the basis of inaccurate audiometric thresholds, the Registrant prescribed hearing aids which were both inadequate and incorrect.

Particular 3

Between 17 July 2017 and 17 August 2020 you provided and/or prescribed inadequate or incorrect hearing aids to Service Users in Schedule C

Service User 4

121. The Panel finds particular 3 in respect of Service User 4 proved.

122. Ms McKinney’s expert opinion was that the Registrant had fitted hearing aids for Service User 4 based on inaccurate audiometry from 4 February 2020. This resulted in a custom mould rather than a dome fitting being selected for the left ear and hearing aid gain and output being set incorrectly in both ears which resulted in the hearing aids being subjectively too loud to be worn.

123. The Panel accepted the expert evidence of Ms McKinney. The Panel considered that by prescribing hearing aids on the basis of inaccurate audiometric thresholds, the Registrant prescribed hearing aids which were both inadequate and incorrect.

Particular 3

Between 17 July 2017 and 17 August 2020 you provided and/or prescribed inadequate or incorrect hearing aids to Service Users in Schedule C

Service User 6

124. The Panel finds particular 3 in respect of Service User 6 not proved.

125. Ms McKinney’s expert report stated that the Registrant had prescribed, albeit not fitted, hearing aids for Service User 6 on 13 March 2020. In her report she opined that the prescription was inappropriate in light of the hearing thresholds recorded on 5 February 2021, as the left aid gain would have been insufficient and the right ear would not benefit from amplification. In her oral evidence, Ms McKinney said that in her opinion it would be appropriate to prescribe hearing aids but on a trial basis and with caution. She was of the view that the hearing aids which were inappropriate but she acknowledged that there would be some in the profession who would prescribe them in the circumstances.

126. In light of Ms McKinney’s concession in her oral evidence that some in the profession would prescribe the hearing aids, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had prescribed inadequate or inappropriate hearing aids to Service User 6.

Particular 3

Between 17 July 2017 and 17 August 2020 you provided and/or prescribed inadequate or incorrect hearing aids to Service Users in Schedule C

Service User 7

127. The Panel finds particular 3 in respect of Service User 7 not proved.

128. The Panel noted that Ms McKinney was not familiar with the model of hearing aid fitted and had not seen any data relating to the gain and output of the hearing aid. Therefore, she was unable to comment as to whether or not the hearing aid prescribed was appropriate or whether it was fitted and programmed correctly. In light of this, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had prescribed inadequate or inappropriate hearing aids to Service User 7.

Particular 3

Between 17 July 2017 and 17 August 2020 you provided and/or prescribed inadequate or incorrect hearing aids to Service Users in Schedule C

Service User 16

129. The Panel finds particular 3 in respect of Service User 16 proved.

130. Ms McKinney said that the Registrant had prescribed moderately occlusive earmoulds for Service User 16 on the basis of the hearing test she carried out on 7 October 2019. Ms McKinney’s expert opinion was that if Service User 16 had received the prescribed hearing aids and they had been programmed to the inaccurate hearing loss recorded by the Registrant, then they would have been significantly over-amplified causing discomfort, lack of acoustic benefit and potentially damage Service User 16’s hearing.

131. The Panel accepted the expert evidence of Ms McKinney. The Panel considered that by prescribing hearing aids on the basis of inaccurate audiometric thresholds, the Registrant prescribed hearing aids which were both inadequate and incorrect.

Particular 3

Between 17 July 2017 and 17 August 2020 you provided and/or prescribed inadequate or incorrect hearing aids to Service Users in Schedule C

Service User 19

132. The Panel finds particular 3 in respect of Service User 19 not proved.

133. Ms McKinney’s expert report stated that as a result of the Registrant’s inaccurate audiogram, the Registrant had informed Service User 19 that he would not benefit from a hearing in his right ear, despite the fact that he had previously worn a right-sided hearing aid. Her report stated that it was widely accepted within the audiological community that there were significant advantages to bilateral hearing aids and as Service User 19 had been used to bilateral hearing aids he was likely to have benefitted from a second hearing aid in his right ear. In her oral evidence, Ms McKinney accepted that there was an element of discretion. She said that the difference between the cases of Service User 6 and Service User 19, who had similar audiometry results, was that Service User 19 had previously worn a hearing aid in his right ear, so may benefit.

134. In light of the element of discretion, and therefore clinical judgement acknowledged by Ms McKinney, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had prescribed inadequate or inappropriate hearing aids to Service User 19 by prescribing a hearing aid for the left ear only rather than both ears.

Particular 3

Between 17 July 2017 and 17 August 2020 you provided and/or prescribed inadequate or incorrect hearing aids to Service Users in Schedule C

Service User 21

135. The Panel finds particular 3 in respect of Service User 21 not proved.

136. Ms McKinney in her expert report stated that the Registrant did not provide hearing aids to Service User 21, although she noted on 2 May 2017 that Service User 21’s hearing aids needed to be updated based on her hearing test results from that date. She stated that it the update to hearing aid settings had been based on the Registrant’s audiometry of 2 May 2017 then they were likely to be set at the wrong gain and output levels.

137. The Panel did not consider that the Registrant’s clinical note to the effect that the hearing aids needed to be updated based on new audiometry amounted to her prescribing hearing aids. The Panel considered that there was an additional stage required, and it was little more than speculation to conclude that if hearing aids were provided based on the Registrant’s audiometry then it was likely that they would be set at the wrong levels. Therefore, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had prescribed inadequate or inappropriate hearing aids to Service User 21.

Particular 3

Between 17 July 2017 and 17 August 2020 you provided and/or prescribed inadequate or incorrect hearing aids to Service Users in Schedule C

Service User 24

138. The Panel finds particular 3 in respect of Service User 24 not proved.

139. Ms McKinney in her expert report stated that the Registrant prescribed hearing aids for Service User 24 on 17 July 2017 based on the audiometry she had carried out on the same day, but she did not fit them. Ms McKinney’s opinion was that if the Registrant had fitted hearing aids to Service User 24 based on her audiometry of 17 July 2017, the hearing aid gain and output would have been too great.

140. However, the Panel noted that Ms McKinney’s expert opinion was based on the premise that the Registrant’s audiometry for 17 July 2017 was inaccurate. The Panel noted that it had not been satisfied that the Registrant’s audiogram for 17 July 2017 had been inaccurate. Therefore, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had prescribed inadequate or inappropriate hearing aids to Service User 24.

Particular 4

On or around 15 December 2019 you did not manage Service User 13’s earfittings effectively.

141. The Panel finds particular 4 not proved.

142. Ms McKinney in her expert report stated that on 15 December 2019 the Registrant saw Service User 13 to fit a new mould and told Service User 13 that the wrong mould had been sent, but that a smaller replacement mould that fitted had also been sent. Service User 13 retained the smaller replacement mould and the Registrant informed Service User 13 that she would have the wrong mould modified and would contact Service User 13 when this was ready. Ms McKinney noted that a colleague, an HCA had recorded in the clinical notes on 18 January 2020 that the ‘wrong’ mould was an ear impression.

143. The Panel considered that the Registrant would have known the difference between ear moulds and an impression, which had also been the view of Ms McKinney. Further, the Panel bore in mind that the member of staff who had recorded that the ‘wrong’ ear mould was an impression was less qualified than the Registrant. The Panel did not consider that there was sufficient evidence to support that it was the Registrant who had made a mistake or to rule out that the manufacturer had made a mistake and sent the wrong item. Therefore, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had not managed Service User 13’s ear fittings effectively.

Particular 5

Between 4 April 2017 and 14 May 2020 you did not take adequate aural impressions for new earmoulds for earplugs and/or hearing aids for Service User 20.

144. The Panel finds particular 5 not proved.

145. Ms McKinney stated that on 19 March 2017, impressions for earplugs were taken by a different member of staff. She said that the Registrant should have taken new impressions of Service User 20’s ears when she saw them to fit the earplugs on 4 April 2020 because Service User 20 reported a poor fit of the sleep plugs. Ms McKinney’s report considered that the Registrant had informed Service User 20 that the sleep plugs would be re-made whereas she in fact requested a coating of the original sleep plugs.

146. The Panel had regard to the records in the clinical notes. In relation to the appointment of 4 April 2017, the Registrant had recorded: ‘Fit sleep plugs, cx (customer) states that ther (sic) does not appear to be any reduction in b/g/n (background noise), if noise problems persist may need to take open jaw impressions, will call and book appointment if she deems it necessary’. In relation to 2 May 2017, the Registrant had recorded: ‘Have sleep plugs, we made from the scans at minerva (the manufacturer) with a noise filter, call cx with an appt once we have an idea how long they will be’. In relation to an entry made by KC on 23 May 2017, the Panel noted that it was recorded: ‘Spoke to Penelope at Minerva and she said send them in and possible they just need lacquer adding to make them tighter’.
147. Having looked at the contemporaneous source material of the clinical notes, the Panel did not consider that there was sufficient evidence to support the allegation that the Registrant had not taken adequate earmoulds for earplugs. Further, it was not satisfied that the premise for Ms McKinney’s opinion was supported by the clinical notes. Therefore, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had not taken adequate aural impressions for new earmoulds for earplugs for Service User 20.

Particular 6

Between 2 May 2017 and 20 March 2020, you did not make appropriate onward referrals for Service Users 1, 4, 8, 21 and 24 in order for them to obtain further medical investigation, diagnosis and/or treatment.

148. The Panel finds particular 6 in respect of Service User 1 proved.

149. Ms McKinney outlined for the Panel, the British Association of Audiologists (BAA) Guidance for audiologists for onward referral for adults and the presenting situations whereby an audiologist should consider making a referral. Ms McKinney was of the opinion that the Registrant should have referred Service User 1 for further medical opinion on 7 January 2021 or at the latest on 21 January 201 when her hearing thresholds remained unchanged. She said this should have been on the grounds of an asymmetrical hearing loss and a conductive element to the left hearing loss.

150. Ms McKinney stated that the configuration of Service User 1’s hearing loss in their left ear suggested middle ear disease, which, if left untreated carried a risk of increased hearing loss, infection, and permanent damage to the middle ear. Specifically, in relation to asymmetrical hearing loss, Ms McKinney advised that it was associated with a benign tumour called an acoustic neuroma which left untreated could grow in size affecting the hearing, balance and facial nerves.

151. The Panel accepted the expert opinion evidence of Ms McKinney to the effect that onward referral was required given the results of asymmetrical hearing loss. The Panel noted that the Registrant had recorded in the clinical notes on 7 January 2020 that she would recheck the thresholds before refitting/referring and if they stayed the same, she would refer for conductive gap. The audiogram for 21 January 2020 was very similar to that of 7 January 2020, but the Registrant made no reference of consideration for referral within the clinical notes and no referral was made. Accordingly, the Panel was satisfied that the Registrant had not made an appropriate onward referral for further medical investigation, diagnosis or treatment.

Between 2 May 2017 and 20 March 2020, you did not make appropriate onward referrals for Service Users 1, 4, 8, 21 and 24 in order for them to obtain further medical investigation, diagnosis and/or treatment.

152. The Panel finds particular 6 in respect of Service User 4 proved.

153. Ms McKinney outlined for the Panel, the British Association of Audiologists (BAA) Guidance for audiologists for onward referral for adults and the presenting situations whereby an audiologist should consider making a referral. Ms McKinney was of the opinion that the Registrant should have referred Service User 4 for further medical investigation on the grounds of unilateral pulsatile tinnitus of relatively recent onset, and asymmetrical hearing loss, given that they were associated with the type of benign acoustic neuroma tumour, which if left untreated could cause medical problems.

154. The Panel accepted the expert opinion evidence of Ms McKinney to the effect that onward referral was required given the results of asymmetrical hearing loss and tinnitus which was a potential symptom of a medical condition. Accordingly, the Panel was satisfied that the Registrant had not made an appropriate onward referral for further medical investigation, diagnosis or treatment.

Between 2 May 2017 and 20 March 2020, you did not make appropriate onward referrals for Service Users 1, 4, 8, 21 and 24 in order for them to obtain further medical investigation, diagnosis and/or treatment.

155. The Panel finds particular 6 in respect of Service User 8 proved.

156. Ms McKinney outlined for the Panel, the British Association of Audiologists (BAA) Guidance for audiologists for onward referral for adults and the presenting situations whereby an audiologist should consider making a referral. The clinical notes for 20 March 2020 that the Registrant made when she tested Service User recorded ‘nothing referable apparent’. Ms McKinney was of the opinion that the Registrant should have referred Service User 8 for further medical investigation on the grounds of having identified asymmetrical hearing loss, given that they were associated with the type of benign acoustic neuroma tumour, which if left untreated could cause medical problems.

157. The Panel accepted the expert opinion evidence of Ms McKinney to the effect that onward referral was required given the results of asymmetrical hearing loss. Accordingly, the Panel was satisfied that the Registrant had not made an appropriate onward referral for further medical investigation, diagnosis or treatment.

Between 2 May 2017 and 20 March 2020, you did not make appropriate onward referrals for Service Users 1, 4, 8, 21 and 24 in order for them to obtain further medical investigation, diagnosis and/or treatment.

158. The Panel finds particular 6 in respect of Service User 21 proved.

159. Ms McKinney outlined for the Panel, the British Association of Audiologists (BAA) Guidance for audiologists for onward referral for adults and the presenting situations whereby an audiologist should consider making a referral. The clinical notes for 2 May 2020 that the Registrant made when she tested Service User recorded the presence of bilateral conductive hearing loss. Ms McKinney was of the opinion that the Registrant should have referred Service User 21 for further medical investigation on this basis.

160. Ms McKinney was of the opinion that the configuration of the hearing loss in both of Service User 21’s ears suggested middle ear disease, which if left untreated carried a risk of increased hearing loss, infection, permanent damage to the middle ear and, in rare cases, a growth of a middle ear mass causing harm to the inner ear, face, neck and (in rare cases) brain. Untreated middle ear infections could also, in rare cases, lead to meningitis or facial paralysis.

161. The Panel accepted the expert opinion evidence of Ms McKinney to the effect that onward referral was required given the results of bilateral conductive hearing loss. Accordingly, the Panel was satisfied that the Registrant had not made an appropriate onward referral for further medical investigation, diagnosis or treatment.

Between 2 May 2017 and 20 March 2020, you did not make appropriate onward referrals for Service Users 1, 4, 8, 21 and 24 in order for them to obtain further medical investigation, diagnosis and/or treatment.

162. The Panel finds particular 6 in respect of Service User 24 not proved.

163. Ms McKinney outlined for the Panel, the British Association of Audiologists (BAA) Guidance for audiologists for onward referral for adults and the presenting situations whereby an audiologist should consider making a referral. Ms McKinney was of the opinion that the Registrant’s audiometry for 17 July 2017 did not, in itself, indicate the need for onward referral.

164. The Panel bore in mind that it had not been satisfied that the Registrant had recorded inaccurate results on the audiogram of 17 July 2017. It also noted that the audiometry itself for that date had not indicated the need for onward referral. In all the circumstances, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had been required to make an onward referral for further medical investigation, diagnosis or treatment in respect of Service User 24.

Particular 7

Your conduct at particular 2 was dishonest.

165. Particular 7 falls away due to the whole of particular 2 being found not proved.
Decision on Statutory Grounds

166. Mr Micklewright submitted that the Registrant’s failures were sufficiently serious as to amount to misconduct, given the repeated failings in respect of multiple service users. In relation to lack of competence, he submitted that misconduct and impairment were not mutually exclusive, although they were conceptually different.

167. The Panel heard and accepted the advice of the Legal Assessor. In relation to misconduct, she advised the Panel in respect of a number of cases, including Roylance v GMC (No. 2) [2000] 1 AC 311 and Calhaem v GMC [2007] EWHC 2606 (Admin). She advised that for conduct to amount to professional misconduct, it must fall short of what was expected in the circumstances and such a falling short must be serious and fall far below the expected standards. In relation to lack of competence, the Legal Assessor advised the Panel that there may be some overlap with misconduct and advised in accordance with the cases of Calhaem and Holton v GMC [2006] EWHC 2960 (Admin). She advised that the question of whether the facts found proved amounted to one other of the statutory grounds alleged was a matter of for the Panel’s independent judgement.

168. In considering whether the facts found proved amounted to misconduct, the Panel first looked at particulars 1, 3 and 6 individually. In relation to particular 1, the Panel bore in mind that this related to nine service users whereby the Registrant had not complied with the BSA Recommended Procedure for hearing tests. The Panel considered that this was the profession’s procedure for ensuring that hearing test results would be comprehensive and accurate so as to provide the necessary relevant information. Such information was required to appropriately manage a service user’s hearing needs, as well as to identify potentially serious medical issues in need of onward referral for investigation, diagnosis and treatment. The Panel considered that this was an unexplained pattern of failure by the Registrant, which had the potential to place service users at significant risk of harm. The Panel was of the view that the Registrant’s acts and omissions in respect of particular 1 fell far below the standards expected.

169. In relation to particular 3, the Panel bore in mind that it related to four service users whereby the Registrant’s failure to obtain accurate results for the pure-tone audiometry had led to her prescribing or providing incorrect or inadequate hearing aids. The Panel considered that providing incorrect or inadequate hearing aids caused potential risks for service users. These ranged from inconvenience by not benefitting from sufficient amplification, through to potential hearing damage by over amplification, as was the case for Service User 16. The Panel was of the view that the Registrant’s acts and omissions in respect of particular 3 fell far below the standards expected.

170. In relation to particular 6, the Panel bore in mind that this related to four service users whereby the Registrant had failed to make appropriate referrals for medical investigation, diagnosis and treatment. The Panel noted that the British Academy of Audiology had issued guidance for Audiologists regarding the circumstances in which a referral should be considered, in particular when certain features were identified during a hearing test such as asymmetrical hearing loss. The Panel noted that in respect of Service User 1, the Registrant, on 7 January 2020, had identified in the clinical notes that there may need to be a referral, but had not made any referral and had made no mention of the prospect of a referral when she saw the service user again on 21 January 2020.

171. The Panel had regard to the expert evidence of Ms McKinney whose opinion was that the failure to make onward referrals for further medical investigation placed service users at risk of significant harm. The Panel noted that specifically in the case of asymmetrical hearing loss, Ms McKinney identified a small but very serious risk of harm, as it may be associated with a type of benign tumour called an acoustic neuroma, which, if left untreated, could grow in size to affect hearing, balance and facial nerves. The Panel was of the view that the Registrant’s acts and omissions in respect of particular 6 fell far below the standards expected.

172. The Panel considered that the Registrant had breached the following HCPC Standards of Conduct, Performance and Ethics (2016) the Standards in existence at the time:

1 – Promote and protect the interests of service users and carers;

3.2 – You must refer a service user to another practitioner if the care, treatment or other services they need are beyond your scope of practice;

3.3 – You must keep your knowledge and skills, up-to-date and relevant to your scope of practice through continuing professional development;

3.4 – You must keep up-to-date with and follow the law, our guidance and other requirements relevant to your practice;

6.1 – You must take all reasonable steps to reduce the risk of harm to service users… as far as possible.

173. The Panel considered that the facts found proved, both individually and collectively, fell far below the standards expected of a registered Hearing Aid Dispenser and were sufficiently serious as to amount to misconduct.

174. In considering whether the facts found proved amounted to a lack of competence, the Panel considered that it did have a fair sample of the Registrant’s work from which to assess her competence, given that the matters related to multiple service users, with repeated similar failings and occurred over a significant period of time. The Panel also took account of the expert report of Ms McKinney whose view was that the Registrant appeared to have little understanding of the physiological principles of air and bone conduction threshold testing or masking. Whilst the Panel agreed with this assessment, it also had regard to the evidence or KC, who confirmed that the Registrant had been given a significant amount of training once she had qualified such that she was able to carry out testing accurately, for both non-masked and masked testing, but she did not do so consistently.

175. The Panel acknowledged that there was some overlap between lack of competence and misconduct. In this case, the Panel considered that the Registrant appeared to have issues with her competence, in particular in not appearing to fully understand the principles underpinning audiology and pure-tone audiometry. However, given the seriousness of the facts found proved, and the consequent risk of harm to service users, in the Panel’s judgement, they were more properly characterised as misconduct.

Decision on Impairment

176. Having found that the facts found proved amount to misconduct, the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired as a consequence.

177. Mr Micklewright submitted that the Registrant’s fitness to practise is currently impaired on both the personal and the public components. He accepted that in principle the clinical failings were capable of remediation but submitted that there was no evidence that they had been remedied. He submitted that there was no evidence that the Registrant had developed insight or undertaken any remediation in the intervening period, for example through reflection or training. He further submitted that given the extent and seriousness of what were fundamental failings, and their impact on service users, the public interest required a finding of current impairment.

178. The Panel heard and accepted the advice of the Legal Assessor. It had regard to the HCPTS Practice Note on Impairment, and in particular the two elements of impairment, namely the personal component and the public component.

179. The Panel first considered whether the Registrant’s fitness to practise is currently impaired on the personal component, which looks at matters personal to the Registrant, such as current competence, behaviour, insight and remediation, all of which may inform in respect of the risk of repetition and any ongoing risk to service users.

180. The Panel was satisfied that the Registrant’s misconduct was, in principle, capable of remediation, as it related to clinical failings. However, given the Registrant’s lack of engagement, the Panel was mindful that it had not been provided with any information from her to demonstrate that she had developed any insight or undertaken any remediation since she left Specsavers in October 2020. The Panel noted that in her disciplinary meetings with KC before dismissal, the Registrant indicated that she would be willing to undertake further training, which demonstrated some insight, albeit limited. However, the Panel had no information regarding the Registrant’s current circumstances or whether she had undertaken any relevant training. Further, the Panel had not been provided with any evidence to demonstrate that the Registrant had developed any further insight into her failings, for example that she understood the potential risk they had on service users or the reputational damage they may have on public confidence in the profession.

181. The Panel considered that the consequences of the Registrant’s failures were that service users had been exposed to risk of harm. By failing to follow the BSA Recommended Procedures, particularly in relation to the masking rules, the Registrant obtained inaccurate results. The Panel noted the expert opinion of Ms McKinney that as a consequence of the Registrant’s inaccurate audiometry the Registrant had missed onward referrals for further medical opinion with potentially serious risk of harm to the service users involved. It had also resulted in inappropriate and inaccurate hearing aid fittings, which either did not provide sufficient amplification or too much amplification to service users.

182. In the absence of any engagement by or information from the Registrant, the Panel was unable to conclude anything other than that the Registrant had not remedied her practice and that the consequent ongoing risk of harm to patients was, therefore, high.

183. In respect of the public component, the Panel was mindful of its responsibility to protect service users, maintain public confidence in the profession and uphold professional standards. The Panel was of the view that public confidence in the profession would be undermined if no finding of current impairment were made in respect of a Hearing Aid Dispenser who repeatedly failed to comply with the profession’s recommended procedures for conducting hearing tests, prescribe appropriate hearing aids and make appropriate onward referrals, given the potential risk of significant harm to service users as a result of such failures. In all the circumstances, the Panel concluded that the Registrant’s fitness to practise is currently impaired on the public component.

184. Accordingly, in the Panel’s judgement, the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

185. Having determined that the Registrant’s fitness to practise is currently impaired by reason of misconduct, the Panel went on to consider whether it was impaired to a degree which required action to be taken on her registration. The Panel took account of the submissions of Mr Micklewright on behalf of the HCPC and had regard to all the evidence it had heard and all of the material previously before it.

186. The Panel accepted the advice of the Legal Assessor and it exercised its independent judgement. It had regard to the Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the public interest which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

187. Before considering the individual options open to the Panel in respect of sanction, it considered the relevant aggravating and mitigating features in this case.

188. The Panel considered the following to be the relevant mitigating factors:

• The Registrant was of previous good character with no fitness to practise history;

• The Registrant had, during the investigation meetings with KC, demonstrated some understanding of her deficiencies in masking and willingness to undertake further training.

189. The Panel noted that the Registrant had also raised the prospect of difficulties with her health to KC, but the Panel was able to give this no weight, as the Panel had no objective evidence from the Registrant to support it.

190. The Panel considered the following to be the relevant aggravating factors:

• There had been a repetition of the clinical failings over a significant period of time, involving multiple service users;

• The Registrant had demonstrated only limited insight back in 2020 and had not demonstrated any development of insight subsequently;

• The Registrant had not demonstrated any remediation;

• The Registrant’s clinical failures had placed service users at risk of harm and there was an ongoing risk of harm, given that the Panel had found that the risk of repetition was high.

191. The Panel noted that none of the ‘serious cases’ identified in the Policy were engaged in the Registrant’s case.

192. The Panel acknowledged that the option of mediation was available to the Panel but did not consider that this case was suitable for such an outcome. It noted the criteria set out in the Policy indicating where such an outcome may be appropriate and did not consider that any were engaged in this case. In particular, the Panel did not consider that the impairment was minor, isolated in nature and unlikely to recur. Further, it did not consider that the Registrant had ‘displayed sound insight’ or ‘undertaken significant remediation’.

193. The Panel next considered whether a sanction was required, or whether the case could be concluded with no further action. The Panel was of the view that this case was too serious to take no action. Such a course would not address the ongoing risk to service users identified by the Panel and would send the wrong message to the public. Accordingly, the Panel was not satisfied that taking no action was the appropriate or proportionate response.

194. The Panel next considered whether to impose a Caution Order. The Panel was mindful that such a sanction would not restrict the Registrant’s practice. The Panel did not consider that a Caution Order was sufficient to protect the public, given it had found the risk of repetition to be high, and if there were repetition, service users may be placed at risk of significant harm. Furthermore, the Panel did not consider that the criteria set out in the Policy were met for when a Caution Order may be appropriate. In particular, the Panel did not consider that the issues were isolated, limited or relatively minor in nature; that the risk of repetition was low; or that the Registrant had shown good insight and undertaken appropriate remediation. Accordingly, the Panel was not satisfied that a Caution Order was the appropriate or proportionate response.

195. The Panel next considered whether a Conditions of Practice Order may be the appropriate and proportionate response. It noted that at the impairment stage, it had considered that the Registrant’s misconduct was capable of remediation. The Panel had regard to the factors set out in the Policy which may make a Conditions of Practice Order appropriate, namely:

• The registrant has insight;

• The failure or deficiency is capable of being remedied;

• There are no persistent or general failures, which would prevent the registrant from remediating;

• Appropriate, proportionate, realistic and verifiable conditions can be formulated;

• The panel is confident, the registrant will comply with the conditions;

• A reviewing panel will be able to determine whether or not those conditions have or are being met; and

• The registrant does not pose a risk of harm by being in restricted practice.

196. The Panel considered that many of the factors set out in the Policy were engaged in this case. In particular it had concluded that the misconduct was, in principle, capable of remediation; it had not identified any specific factors which might prevent the Registrant from remediating; it was satisfied that appropriate conditions could be formulated which would protect the public while the Registrant was remediating her clinical practice, and a future reviewing panel would be able to determine compliance. The Panel also noted that the Registrant was not one of the serious cases identified in the Policy which might make conditions less likely to be appropriate.

197. However, the Panel was mindful that it had identified only limited insight on the Registrant’s part, and further, given her lack of engagement, the Panel could not be confident that the Registrant would be willing to comply with any conditions imposed. In the absence of any information to reassure the Panel that the Registrant would comply with conditions, the Panel was not satisfied that a Conditions of Practice Order would be sufficient to protect the public at this time.

198. The Panel next considered a Suspension Order. The Panel had regard to the factors set out in the Policy which may make a Suspension Order appropriate, namely:

• The concerns represent a serious breach of the Standards of conduct, performance and ethics;

• The registrant has insight;

• The issues are unlikely to be repeated; and

• There is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.

199. The Panel was satisfied that the concerns represented serious breaches of the Standards, as had been identified at the statutory ground stage. However, the Panel did not consider that any of the other three factors which may indicate that Suspension was appropriate were present. As identified, the Panel considered that the Registrant had demonstrated only limited insight, and that dated back to 2020; the risk of repetition was high and there was no evidence one way or the other to suggest that the Registrant may be able to remedy their failings as there had been no engagement. The Panel considered that on its face, a Suspension Order might not be the appropriate sanction.

200. The Panel therefore looked at the criteria set out in the Policy which may make a Striking-Off Order the appropriate sanction. It noted that a Striking-Off Order is a sanction of last resort, for serious, persistent, deliberate or reckless acts where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession and the regulatory process. The Panel also noted the Registrant’s case did not fall into the category of serious cases listed in the Policy which might indicate a Striking-Off Order was appropriate.

201. The Panel considered that this was not a case where a lesser sanction would be insufficient to protect the public. It was satisfied that a Suspension Order would be sufficient to protect the public for the period that it was in place and would meet the public interest considerations in this case of maintaining public confidence and upholding professional standards. The Panel was mindful that it must act proportionately. In all the circumstances, the Panel was satisfied that a Suspension Order was the appropriate and proportionate sanction.

202. The Panel determined to impose a sanction of 12 months. In deciding this length, the Panel considered that such a length was necessary to achieve the appropriate level of public protection and meet the public interest considerations. It also considered that it would afford the Registrant the opportunity, if she wished to take it, to engage with the HCPC and start to remediate her misconduct.

203. The Panel did not seek to bind a future reviewing panel, but it was of the view that the following matters may assist it:

• Evidence of engagement with the HCPC;

• Any plan to return to safe practice including;

• Evidence of Reflection on the Panel’s findings, the impact of her actions on Service Users and the reputation of the profession;

• Evidence of training;

• Testimonials;

• Evidence of any relevant Health matters.

 

 

ORDER: The Registrar is directed to suspend Mrs Diane-Marie Banks from the Register for a period of 12 months.

 

Interim Order

Application

1. In light of the sanction imposed, Mr Micklewright applied for an Interim Suspension Order to cover the appeal period before the sanction takes effect, or if the Registrant were to appeal, the period before the appeal was determined or otherwise disposed of. He submitted that given the findings of the Panel that there was an ongoing risk to the public an Interim Order was necessary to protect the public and was otherwise in the public interest.

Decision

2. The Panel heard and accepted the advice of the Legal Assessor.

3. The Panel was satisfied that an Interim Order was necessary to protect the public, given its findings that the risk of repetition was high and there was a consequent risk of significant harm to service users. It was also satisfied that an Interim Order was required in the public interest to maintain public confidence in the profession and to uphold professional standards, being of the view the public would be troubled if no Interim Order were imposed.

4. The Panel decided the Interim Order should be for 18 months, as if the Registrant were to appeal it may take a significant period of time to resolve.

5. The Panel makes an Interim Suspension under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest to cover the period before the substantive Suspension Order takes effect.

6. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

 

History of Hearings for Mrs Diane-Marie Banks

Date	Panel	Hearing type	Outcomes / Status
15/04/2024	Conduct and Competence Committee	Final Hearing	Suspended
11/09/2023	Conduct and Competence Committee	Interim Order Review	Interim Suspension
09/06/2023	Conduct and Competence Committee	Interim Order Review	Interim Suspension
06/03/2023	Conduct and Competence Committee	Interim Order Review	Interim Suspension
01/08/2022	Investigating Committee	Interim Order Review	Interim Suspension
28/04/2022	Investigating Committee	Interim Order Review	Interim Suspension
28/01/2022	Investigating Committee	Interim Order Review	Interim Suspension
02/11/2021	Investigating Committee	Interim Order Review	Interim Suspension