Mr John Walton

Profession: Hearing aid dispenser

Registration Number: HAD01947

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 10/04/2017 End: 16:00 11/04/2017

Location: Crowne Plaza Glasgow, Congress Road, North West, Glasgow, G3 8QT

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Allegation (as amended)

During the course of your practice as a Hearing Aid Dispenser at Hidden Hearing, you:

 

1. did not perform and/or record Bone conduction testing:

 

a) on or around 10 December 2013 and/or 10 December 2014 for Patient A;

b) on or around 25 November 2014 and/or 9 December 2014 for Patient B;

c) on or around 9 December 2014 for Patient C;

d) on or around 9 December 2014 for Patient D;

e) on or around 9 December 2014 for Patient E;

f) on or around 10 December 2014 for Patient F;

g) on or around 11 December 2014 for Patient G;

h) on or around 11 December 2014 for Patient I;

i) on or around 11 December 2014 for Patient J;

j) on or around 11 December 2014 for Patient K;

k) on or around 13 December 2014 for Patient L;

l) on or around 16 December 2014 for Patient M;

m) on or around 17 December 2014 for Patient N;

n) on or around 17 December 2014 for Patient O.

 

2. Did not record any and/or adequate notes:

 

a) on or around 10 December 2014 for Patient A;

b) on or around 9 December for Patient B;

c) on or around 9 December 2014 for Patient C;

d) on or around 9 December 2014 for Patient D;

e) on or around 9 December 2014 for Patient E;

f) on or around 10 December 2014 and/or 18 December 2014 for Patient F;

g) on or around 11 December 2014 for Patient G;

h) on or around 11 December 2014 for Patient H;

i) on or around 11 December 2014 for I;

j) on or around 11 December 2014 for Patient J;

k) on or around 11 December 2014 for Patient K;

I) on or around 13 December 2014 for Patient L;

m) on or around 16 December 2014 for Patient M;

n) on or around 17 December 2014 and/or 20 December 2014 for Patient N;

o) on or around 17 December 2014 for Patient O;

 

3. Did not make medical referrals:

 

a) on or around 11 December for Patient J;

b) on or around 11 December 2014 for Patient K;

c) on or around 16 December 2014 for Patient M.

 

4. Following an appointment with Patient P On or around 1 April 2015,:

 

a) did not make a COSI record until 30 April 2015;

b) did not record a case history until 30 April 2015; 

c) did not record notes on the diagnostic testing screen until 30 April 2015;

 

d) did not record a NOAH audiogram.

 

5. The matters set out at paragraphs 1 - 4 constitute misconduct and / or a lack of competence.

 

6. By reason of your misconduct and / or lack of competence your fitness to practise is impaired.

 

Finding

Preliminary matters


Service of Notice of Hearing

1. The Panel was informed by the Hearings Officer that notice of this hearing was sent to the Registrant’s registered address by letter dated 13 January 2017. An email containing the Notice of Hearing was also sent to the Registrant’s email address on 13 January 2017.


2. The Panel was satisfied that the service of the letter of 13 January 2017 had satisfied compliance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules). This was signed for at a secondary address provided by the Registrant although he had not updated his registration details.

Proceeding in absence


3.  Ms Hastie for the HCPC applied for the hearing to proceed in the Registrant’s absence. Ms Hastie submitted that it was in the public interest to proceed and that she had a witness present today. The alleged events are now three years ago and memories fade.


4. The Panel received and accepted the advice of the Legal Assessor who advised that the Panel’s discretion to proceed in the Registrant’s absence should only be exercised with the utmost care and caution.


5. The Panel noted the history of this case and the lack of any request for an adjournment by the Registrant, so it was unlikely an adjournment would secure his attendance on a future date. Having given careful consideration to the Registrant’s interests, and the factors cited above, including public protection, the expeditious disposal of the case and the attendance of the witness today and the possible deterioration in his recollection of events which occurred three years ago, the Panel decided that the Registrant had voluntarily absented himself from today’s hearing, and it was in the interests of justice to proceed with the hearing in the absence of the Registrant and decided that in all the circumstances it was appropriate to proceed in the absence of the Registrant.


Decision on application to amend Particulars


7. Ms Hastie applied to amend particulars 1,1(a),1(b), to amend 1(h),1(l),2 , 2(a) ,2(b),2(f),2(n),4,4(a),4(b),4(c),4(d) of the allegation as detailed above.

8. Ms Hastie submitted that the amendments were necessary to clarify the case against the Registrant. The proposed amendments had been notified to the Registrant on 24 January 2017 and no observations in respect of the proposed amendments have been received from the Registrant.

9. The Panel received and accepted the advice of the Legal Assessor that an amendment to the allegation could be made, provided no injustice was caused. The Panel noted that the Registrant had been made aware of the proposed amendments and had made no observations.

10. The Panel considered that the proposed amendments did not alter the nature of the case against the Registrant but merely clarified the allegation and corrected some minor date errors.

11. Accordingly the Panel was satisfied that the amendments would not cause any prejudice to the Registrant and determined they should be allowed.

Proceeding in Private


12. Ms Hastie made an application under Rule 10(1)(a) of HCPC (Conduct & Competence) (Procedure) Rules 2003 for the hearing to proceed in private where any personal or private matters relating to the Registrant may be heard in evidence .

13. The Panel received advice from the Legal Assessor. The Panel considered the submission made by Ms Hastie and determined in the exercise of its discretion that the hearing would proceed in public except where the evidence related to health matters which would be heard in private.


Background


14. At the time of the concerns, the Registrant was employed as a Hearing Aid Dispenser. Hidden Hearing, the Registrant’s former employer, made a referral to the HCPC in April 2015.

15. Hidden Hearing expressed concerns relating to the Registrant making a decision not to perform bone conduction testing for a number of patients, failing to make adequate patient notes, and failing to make medical referrals.

Decision on Facts


Panel’s Approach


16. The Panel is mindful that the burden of proving the allegations rests throughout on the HCPC and the standard of proof is the civil standard based upon the balance of probabilities. There is no burden on the Registrant to prove anything and the Panel has drawn no adverse inference from the Registrant not attending this hearing. Individual particulars of the allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities. The Panel has given the words and phrases contained within the allegation their ordinary English meaning.


17. The Panel heard submissions on behalf of the HCPC from Ms Hastie. She also noted points in the Registrant’s favour, given that the Registrant was not there to make them. It has accepted the advice of the Legal Assessor.


18. The Panel had the benefit of oral evidence from one witness.


• M C - (Witness 1) The Registrant’s Area Manager at the relevant time


19. The Panel found this witness to be open, honest and credible in his evidence. The witness had been genuinely concerned at the Registrant’s standard of work and the effect of any personal difficulties the Registrant was experiencing and had been conscientious in acting on his concerns. Witness 1 had sought to assist the Registrant’s performance with the provision of counselling, reduced working hours, a suitable car and an adjusted threshold to attain for commission earnings.  The Panel found the witness’s account to be fair and balanced.


20. The Panel also had the benefit of seeing the written evidence including anonymised extract records and a copy of the Investigation Meeting notes. Although the Registrant was not in attendance, the Panel took account of and considered the documentation in the bundle giving his account of events which he had submitted to the HCPC Investigating Committee Panel in 2015.


Findings of Fact


During the course of your practice as a Hearing Aid Dispenser at Hidden Hearing, you:

1. did not perform and/or record Bone conduction testing:
a) on or around 10 December 2013 and/or 10 December 2014 for Patient A;
Particular 1(a) 
Found Proved

b) on or around 25 November 2014 and/or 9 December 2014 for Patient B;
Particular 1(b) 
Found Proved

c) on or around 9 December 2014 for Patient C;
Particular 1(c) 
Found Proved

d) on or around 9 December 2014 for Patient D;
Particular1 (d) 
Found Proved
 
e) on or around 9 December 2014 for Patient E;
Particular 1(e) 
Found Proved
 
g) on or around 11 December 2014 for Patient G;
Particular 1(g) 
Found Proved

h) on or around 11 December 2014 for Patient I;
Particular 1(h) 
Found Proved
 
i) on or around 11 December 2014 for Patient J;
Particular 1(i)
Found Proved

j) on or around 11 December 2014 for Patient K;
Particular 1(j)
Found Proved

k) on or around 13 December 2014 for Patient L;
Particular1(k)
Found Proved

l) on or around 16 December 2014 for Patient M;
Particular 1(l)
Found Proved

m) on or around 17 December 2014 for Patient N;
Particular 1(m) 
Found Proved
 
n) on or around 17 December 2014 for Patient O.
Particular 1(n) 
Found Proved

21. In respect of Particulars 1(a) to 1(n) with the exception of Particular 1(f) the Panel accepted the evidence of Witness 1 and the written evidence contained within the Patient record notes .The Panel was satisfied having regard to all the documentary evidence, that the Registrant had not performed and/or had not recorded bone conduction testing.


During the course of your practice as a Hearing Aid Dispenser at Hidden Hearing, you:
1. did not perform and/or record bone conduction testing:
f) on or around 10 December 2014 for Patient F;
Particular 1(f) 
Not Proved

22. The Panel was satisfied that the Registrant did not carry out bone conduction testing on 10 December 2014 but the Panel had regard to the written evidence in this case and was satisfied that the Registrant did carry out  bone conduction testing on 26 November 2014  and correctly documented this.
 
2. Did not record any and/or adequate notes:
a) on or around 10 December 2014 for Patient A;
Particular 2(a)
Found Proved
 
b) on or around 9 December for Patient B;
Particular 2(b)
Found Proved

c) on or around 9 December 2014 for Patient C;
Particular 2(c) 
Found Proved

d) on or around 9 December 2014 for Patient D;
Particular 2(d)  
Found Proved

e) on or around 9 December 2014 for Patient E;
Particular 2(e) 
Found Proved

f) on or around 10 December 2014 and/or 18 December 2014 for Patient F;
Particular 2(f)
Found Proved - in relation to the date of 18 December 2014 only.

g) on or around 11 December 2014 for Patient G;
Particular 2(g)
Found Proved
 
h) on or around 11 December 2014 for Patient H;
Particular 2(h) 
Found Proved
 
i) on or around 11 December 2014 for I;
Particular 2(i)
Found Proved
 
j) on or around 11 December 2014 for Patient J;
Particular 2(j)
Found Proved

k) on or around 11 December 2014 for Patient K;
Particular 2(k)
Found Proved

I) on or around 13 December 2014 for Patient L;
Particular 2(l)
Found Proved
 
m) on or around 16 December 2014 for Patient M;
Particular 2(m)
Found Proved
 
n) on or around 17 December 2014 and/or 20 December 2014 for Patient N;
Particular 2(n)
Found Proved

23. In respect of Particulars 2(a) to 2(n) with the exception of Particular 2(f) and in addition Particular 2(o) the Panel accepted the evidence of Witness 1 and the written evidence contained within the Patient record notes .The Panel was satisfied, having regard to all the evidence that the Registrant did not record any / or any adequate notes on the dates in the Particulars noted as found proved.


2.Did not record any and/or adequate notes:
f) on or around 10 December 2014 and/or 18 December 2014 for Patient F;
Particular 2(f)
Not Proved - in relation to the date of 10 December 2014

24. In relation to Particular 2(f) in respect of 10 December 2014 the Panel had regard to the evidence and was satisfied that the recording software for the patient records had been utilised in connection with the patient record of 10 December 2014 and these were adequate.

o) on or around 17 December 2014 for Patient O
Particular 2(o)
Not Proved

25. In relation to Particular 2(o) the Panel was not satisfied that there was any evidence to support the allegation that there was an appointment in respect of this date, i.e. 17 December 2014 and accordingly finds this particular not proved.

3. Did not make medical referrals:
a) on or around 11 December for Patient J;
Particular 3(a)
Found Proved

b) on or around 11 December 2014 for Patient K;
Particular 3(b)
Found Proved

c) on or around 16 December 2014 for Patient M.
Particular 3(c)
Found Proved

26. In respect of Particulars 3(a) to 3(c) the Panel accepted the evidence of Witness 1 and the written evidence contained within the Patient record notes. The Panel was satisfied having regard to all the evidence that the Registrant did not make medical referrals as required.
 
4. Following an appointment with Patient P On or around 1 April 2015:
 
a) did not make a COSI record before leaving Hidden Hearing on  21 April 2015;
Particular 4(a)
Found Proved as amended

b) did not record a case history before leaving Hidden Hearing on  21 April 2015;
Particular 4(b)
Found Proved as amended

 
c) did not record notes on the diagnostic testing screen before leaving Hidden Hearing on  21 April 2015;
Particular 4(c)
Found Proved as amended

d) did not  record a NOAH audiogram.
Particular 4(d)
Found Proved

27. In respect of Particulars 4(a) to 4(d) the Panel accepted the evidence of Witness 1 and the written evidence contained within the Patient record notes. The Panel was satisfied having regard to all the evidence that the Registrant did not make a COSI record as required, before his date of departure from Hidden Hearing on 21 April 2015.

28. The Panel accepted the advice of the Legal Assessor and amended the date in the particular to 21 April 2015.This was the date the Registrant left the employ of Hidden Hearing and he was therefore not in post on 30 April 2015.

 
Decision on Grounds


29. The Panel heard submissions on behalf of the HCPC from Ms Hastie. It has accepted the advice of the Legal Assessor.

30. The Panel noted that these incidents all arose in the course of the Registrant’s employment with Hidden Hearing mainly during the period 9-17 December 2014, although there was an incident in April 2015 shortly before the Registrant left employment at Hidden Hearing. The incident occurred at a time when the Registrant complained of difficulties in his personal life.


31. The Panel reminded itself that misconduct is a matter for its judgment. The Panel considered all the facts and circumstances giving rise to the facts found proved. No adverse inference was drawn from the absence of the Registrant from the hearing and account was taken of the information available that the Registrant was under pressure due to some serious personal issues he was suffering from at the relevant time. On the other hand, the Registrant’s failings occurred on multiple occasions despite the ongoing assistance and support provided by his employer.


32. The Panel considered the Registrant’s submission in his response to the Investigation Committee Hearing in 2015 and in particular his account that he was suffering ill health and as a result his fitness to practice was impaired at the time of the conduct which is the subject of consideration. The Registrant has not produced any medical evidence supporting his submission of ill health nor was any medical evidence supplied to his employer at the time of his employment.


33. In any event even if the Registrant had been diagnosed with a health condition and was on medication he has a duty in terms of Standard 12 of the HCPC Standards of conduct, performance and ethics.


34. The Panel considered the Registrant’s behaviour in relation to the facts found proved in Particulars 1, 2, 3 and 4 on 10 December 2014. In relation to these particulars, on the dates referred to, in the course of the Registrant’s practice as a Hearing Aid Dispenser at Hidden Hearing, he did not (i) perform and/or record bone conduction testing, (ii) record any and/or adequate notes (iii) did not make medical referrals and did not make a COSI record or record a NOAH audiogram as was necessary. The Panel was satisfied that this behaviour reached the threshold, and amounted to misconduct, rather than lack of competence as there was evidence that the Registrant was able to work at the required standard prior to these dates.


35. In relation to Particular 1 the Registrant continued to carry out appointments after 24 November 2014, in circumstances where the patients required bone conduction testing. This was  despite the headband on the bone conduction testing equipment breaking on the 24 November 2014, as was noted by the Registrant, and his knowing that he could no longer test patients as required. A new piece of equipment could have been available to the Registrant within 48 hours if he had arranged for it to be ordered. The Registrant put   patients at risk by not performing and/or recording bone conduction testing, The Panel decided that this action was sufficiently serious to amount to misconduct.


36. In relation to Particulars 2, 3 and 4 the Registrant carried out appointments and did not record any and/or adequate notes, did not make medical referrals and did not make a COSI record or record a NOAH audiogram as was necessary. The Registrant demonstrated at other times in the course of his practice that he was familiar with the computerised recording equipment and could properly use it. Therefore the Panel considered the Registrant had not made records as required and this was a deliberate act. The Registrant put patients at risk by these actions and failings. The Panel decided that this action was sufficiently serious to amount to misconduct.


37. The Panel considered the behaviour in each of the particulars 1, 2, 3 &4 to fall seriously short of the standards expected of Hearing Aid Dispensers Practitioners. The Registrant was putting patients’ health at risk of harm by failing to properly asses them and record their medical condition.


38. The Panel identified a breach of: the following provisions of the HCPC Standards of conduct, performance and ethics (2012 version)


1 - You must act in the best interests of service users
10 - You must keep accurate records
12 - You must limit your work or stop practising if your performance or judgement is affected by your health.


39. The Panel identified a breach of the following provision of the Standards of proficiency: for Hearing Aid Dispensers (September 2014).


1.2 - recognise the need to manage their own workload and resources effectively and be able to practice accordingly.
10 - Be able to maintain records appropriately
14 - Be able to draw on appropriate knowledge and skills to maintain practice
The Panel was satisfied the proven facts do amount to the statutory ground of misconduct.


Decision on Impairment


40. The Panel found that the Registrant’s fitness to practise is currently impaired.


41. The Panel has heard submissions from Ms Hastie, on behalf of the HCPC. She submitted there was no evidence that the Registrant has developed any insight or remediated any of the concerns in respect of his practice. He has not submitted any information as regards his current practice although he had previously submitted two references dated 30 October 2015 and 4 November 2015.One of these referees was aware of the HCPC proceedings whist the other was not. Ms Hastie drew attention to the length of time that has elapsed since the references were prepared .She also referred to the new pending proceedings against the Registrant in relation to a non-clinical matter. There was no evidence by the Registrant of a recognition of the seriousness of what had occurred and what might have occurred. In these circumstances, there remained a risk of repetition


42. Ms Hastie submitted that a finding of impairment was necessary to maintain confidence in the profession, to protect the public and was in the wider public interest.


43. In reaching its decision on current impairment, the Panel has considered both the personal component and the public component and has accepted the advice of the Legal Assessor. The Panel has also had regard to the HCPC Practice Note “Finding that Fitness to Practise is Impaired”.
44. The Panel reminded itself that a finding of impairment was a matter for its judgment and that it must consider whether the Registrant’s fitness to practise is currently impaired.


45. The Panel has also considered the critically important public policy issues which include the collective need to maintain public confidence in the profession and in the regulatory process, the protection of service users and the declaring and upholding of proper standards of behaviour.


46. The Panel noted that the Registrant accepted that his fitness to practise was impaired at the relevant time as a result of his health. The Registrant’s stated that this was because he had been experiencing some personal issues during the time of these incidents. The Panel had limited information on the Registrant’s health at the time and there was no medical evidence to support the Registrant’s position or the impact that these personal issues may have had upon the Registrant.

 
47. In terms of the personal component, the Panel has found serious failings in the Registrant’s conduct which left patients at risk of harm. The Panel was concerned that it had no current information from the Registrant demonstrating any training or development activity undertaken by him, any reflection on the incidents or any development of insight or remorse, nor was there any full explanation of the circumstances which led to the this conduct.


48. In respect of particulars 1, 2, 3 & 4 and the misconduct found by the Panel in relation to these, the Panel found no evidence of the Registrant’s recognition of his culpability and the potential consequences for patients, colleagues and the profession. While accepting that these failings may be remediable, in the Registrant’s case, the Panel did not find evidence that he has taken sufficient steps to address those failings. Taking these matters into account, the Panel has concluded that there is a real risk of repetition.


49. Having considered the seriousness of the incident, the risk to the public and the reputation of the profession, the need to declare and uphold public standards and the wider public interest, the Panel found the Registrant’s fitness to practice to be currently impaired.


Decision on sanction


50. The Panel heard submissions from Ms Hastie, who submitted that a sanction was necessary for public protection and in the public interest. She reminded the Panel of the mitigating and aggravating factors relevant to sanction including the Registrant being a risk to patients as a result of his conduct and his failure to demonstrate the fundamental aspects required of his role as a Hearing Aid Dispenser. The Panel accepted the advice of the Legal Assessor and took account of the Indicative Sanctions Policy. It was conscious of the need to apply the principle of proportionality in balancing the Registrant’s rights against the need to protect the public and the wider public interest.


51. The Panel is aware that the purpose of sanction is not to be punitive and that it must consider the risk the Registrant may pose to those using or needing his services in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.


52. The Panel considered both the mitigating and the aggravating circumstances surrounding this case at the time of the misconduct. The Registrant reported his ill health and personal circumstances had adversely affected him .However there was an ongoing risk to patients, and no evidence of remorse or engagement with the regulator. When the Registrant had received his employer’s assistance including reduced hours and therapy this still had not resulted in an improvement and the misconduct continued.

53. The Panel noted that the Registrant accepted that his fitness to practise was impaired at the relevant time as a result of his reported ill health .The Registrant’s reason for this was that he had been experiencing some serious personal issues during the time of these incidents.


54. The Panel considered the available sanctions in ascending order starting with the least restrictive sanction. The Panel has found that the Registrant’s fitness to practise is currently impaired due to his misconduct and that he has failed to demonstrate sufficient insight or to remediate his fundamental failings.  Taking no action or imposing a caution would therefore be inadequate, given the seriousness of the misconduct and the real risk of repetition. 


55. There are no workable conditions of practice that might be imposed, as there are no conditions which would sufficiently address the Registrant’s misconduct, the need to protect the public and the wider public interest. Workable conditions could not be drafted to address the risks arising from the Registrant’s failure to adhere to the standards in the profession as the Panel has in any case received no information from the Registrant as to any current employment, nor whether he is currently practising as a Hearing Aid Dispenser.


56. The Panel considered whether suspension might be the least restrictive means of adequately protecting the public from any repetition of the Registrant’s misconduct found in this case.  The Panel considered, in the context of sanction, whether the Registrant’s conduct was capable of remediation and decided that it was. It would require the Registrant to reflect, engage with the HCPC and take steps to improve his skills.


57. The Panel then went on to consider a Suspension Order. It is satisfied that a period of suspension would protect the public to the extent that the Registrant would be temporarily removed from the Register.  The Panel is satisfied that a Suspension Order would be the proportionate and appropriate sanction in this case.  It has decided on a period of 12 months as this would protect patients and would otherwise be in the public interest, maintain confidence in the profession and trust in the regulatory process. A Suspension Order would provide an opportunity for the Registrant to demonstrate to a reviewing Panel whether he has developed understanding and insight into his actions. It would also allow the Registrant time to reflect on the findings of this Panel, take practical steps to remediate his practice and remediate his misconduct.


58. At any Review it would assist the Panel reviewing this suspension before the end of the twelve month period to see evidence that the Registrant is engaging with the process.


59. Any reviewing Panel would be assisted by the following:

a. The Registrant’s attendance at any Review Hearing. This would allow him to give evidence in person if he so chooses.
b. A reflective statement demonstrating how the Registrant now perceives his actions and their impact, insight into the risks his conduct posed to patients and colleagues and how the Registrant proposes to avoid the repetition of such conduct in the future.
c. Documentary evidence and information on how he is keeping his practice up-to-date through CPD courses or other relevant training.
d. Current references and testimonials from and information about any work he has undertaken, paid or voluntary, since the events forming the subject of these proceedings.

60. The Panel did go on to give consideration to a Striking Off Order, in light of its findings. However, in the particular circumstances of this case, the Panel is satisfied that a Striking Off Order would be disproportionate. In light of the    Registrant’s stated personal issues and the fact that this conduct could be remediated. It is the Panel’s view that an otherwise competent Hearing Aid    Dispenser should be allowed the ability to demonstrate insight and remediation.

61. In the circumstances the Panel is satisfied that the only appropriate and proportionate order that it can make is one of suspension for a period of 12 months.

Order

ORDER: That the Registrar is directed to suspend the registration of John Walton for a period of 12 months from the date this order comes into effect.

Notes

The order imposed today will apply from 09 May 2017 (the Operative Date).

This order will be reviewed by the Committee no later than 09 May 2018 or earlier if evidence which is relevant to the order becomes available after it was made.

Hearing History

History of Hearings for Mr John Walton

Date Panel Hearing type Outcomes / Status
27/07/2017 Conduct and Competence Committee Final Hearing Struck off
13/04/2017 Conduct and Competence Committee Final Hearing Interim Suspension
10/04/2017 Conduct and Competence Committee Final Hearing Suspended
04/08/2016 Investigating committee Interim Order Application Interim Suspension