Mr Guy C Wolstencroft

Profession: Hearing aid dispenser

Registration Number: HAD01533

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 12/03/2018 End: 17:00 16/03/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Not well founded

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

While registered with the Health and Care Professions Council as a Hearing Aid Dispenser:

1. On or around 12 January 2016, whilst attending to Service User A:

(a) completed an incorrect audiogram for Service User A;

(b) relied on an incorrect audiogram;

(c) did not mask Service User A’s left ear;

(d) did not mask Service User A’s bone conduction testing;

(e) did not give adequate consideration to the possibility that Service User A may have had non-organic functional hearing loss.

2. On or around 12 January 2016 you:

(a) provided a hearing aid for Service User A’s right ear when it was not clinically justified;

(b) provided a hearing aid and/or aids for Service User A which had been programmed to provide too much amplification without giving due consideration as to whether the hearing thresholds were correct.

3. On an unknown date in April or May 2016, you attended to Service User B and you conducted a hearing test and did not identify that he had wax in his ears.

4. You provided misleading information on your website which stated that:

(a) you are the Chairman of the British Tinnitus Association IOM Support Group;

(b) you are the Chairman of the Island Tinnitus Association, whereas this organisation does not exist;

(c) “We are the Island’s most experienced team, “dedicated to caring for its clients for over 20 years””, when your practice was only established in 2013;

(d) a picture on your practice website indicates that your practice was “celebrating over 20 years of hearing care excellence” between 1995 and 2015” which was not the case as the practice was not established until 2013.

5. In various correspondence dated January 2016, you referred to yourself as a “Senior Audiologist” which is misleading as you are a Hearing Aid Dispenser and/or Hearing Aid Audiologist.

6. Your actions described in paragraphs 4 and 5 were dishonest.

7. The matters set out in paragraphs 1 – 6 constitute misconduct.

8. The matters set out in paragraphs 1 – 3 constitute misconduct and/or lack of competence.

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

Finding

Preliminary Matters

Conflict of interest

1. At the start of proceedings, the Registrant Panel Member declared that several of the professionals who had made statements concerning the Registrant’s character were known to her professionally. Her last contact with these individuals was some years ago.

2. A further person, named in correspondence regarding the case, was also known to the Registrant Panel Member in a professional capacity. She had been on the board of the British Academy of Audiology (BAA) with this person, and the Registrant Panel Member had last met her recently on a professional course, where that person was representing the BAA.

3. These contacts were a consequence of the relatively small size of the Hearing Aid Dispenser profession.

4. Both Ms Manning-Rees and Mr Grey did not object to the Registrant Panel Member continuing to hear this case.

5. The Panel accepted the advice of the Legal Assessor. He advised the Panel that in these matters the test is a two-fold test, and referred the Panel to the case of Magill v Porter (2001) UKHL 67.

6. The first question to be answered was whether the Registrant Panel Member herself felt that her independence was compromised. If so, then she must recuse herself.

7. If the Registrant Panel Member felt that her independence was not compromised, nevertheless the Panel must consider whether the fair-minded observer, having considered the facts and circumstances of the case, would conclude that there was a real possibility that the tribunal was biased.

8. The Panel considered the issues. The Registrant Panel Member was satisfied that her independence was not compromised as she did not know the people in question on a personal basis and her professional contact with them was limited and within the context of a small profession.

9. The Panel then considered whether the fair-minded observer, having considered the facts and circumstances of this case, would conclude that there was a real possibility that this Panel was biased. The Panel bore in mind the Legal Assessor’s advice that the fair-minded observer is neither complacent nor unduly sensitive or suspicious.

10. In coming to its decision, the Panel took into account the following factors, which a fair-minded observer would also take into account:

• the profession is a small profession and its members often come into contact with each other;

• the Registrant Panel Member had limited contact with the character witnesses she had identified. The Registrant Panel Member had not had contact with those professionals for several years;

• with regard to the individual identified in correspondence about the case with whom the Registrant Panel Member had had more recent contact, the Registrant Panel Member had been on the board of the BAA with her, and the Registrant Panel Member last saw her at a recent professional course; and

• the Registrant Panel Member’s connection with all of the individuals she had identified was of a professional nature.

11. Taking all of the above into consideration, the Panel determined that the fair-minded observer, having considered the facts and circumstances of this case, would not conclude that there was a real possibility that this Panel was biased.

Application to exclude evidence

12. Mr Grey applied for parts of SG’s evidence to be excluded on the grounds that they constituted opinion evidence and that the witness was not called as an expert. Such evidence was contained within the following paragraphs of SG’s statement: 16, 17, 18, 19, 21, 22, 26, 27, and 29. Mr Grey further submitted that, in the light that the opinion evidence was given by the complainant in the case, it would be unfair that such evidence should be permitted into evidence, as SG was not independent and could not be objective, as an expert would be expected to be.

13. Ms Manning-Rees stated that SG was not being called as an expert. She submitted that most of the evidence objected to, on the basis it constituted opinion evidence, was not opinion evidence but factual evidence. She submitted that they were analogous to a social worker explaining how certain processes work within a local authority, and were not opinion evidence.

14. She also drew the Panel’s attention to the HCPTS Practice Note on “Opinion Evidence, Experts and Assessors”, which states that panels have discretion to admit opinion evidence by experts and others.

15. The Panel accepted the advice of the Legal Assessor, who reminded the Panel that the Civil Evidence Rules governed the admissibility of evidence in these proceedings. He advised the Panel about the admissibility of matters that might constitute speculation and opinion. He advised the Panel that it must first consider whether the evidence in question was relevant to the issues, and if so, it must go on to consider whether or not it was fair that such evidence be admitted into evidence. He advised that the nature of the evidence, its reliability and its cogency were matters that the Panel were entitled to take into account when considering whether it was fair that such evidence be admitted into evidence.

16. The Panel first considered whether the evidence in question was relevant to the allegation. It determined, on face value, that all of the evidence in question related to the allegation and therefore the evidence was relevant.

17. The Panel then went on to consider whether it would be fair to allow the evidence to be admitted. It considered each of the parts of SG’s statement subject to the application and determined that they each constituted assertions made without evidential foundation. At best, some elements comprised opinion evidence put forward without the safeguards associated with expert evidence. The Panel determined that, in that light, the evidence should be excluded. The parts of SG’s evidence to be excluded were as follows:

• paragraphs 16, 18, 19, 21 and 22 in their entirety;

• paragraph 17 – second and third sentences, and from the sixth sentence until the end of the paragraph;

• paragraph 26 – the final sentence;

• paragraph 27 – the final sentence;

• paragraph 29 – the final sentence.

18. Therefore the Registrant’s application to exclude parts of SG’s evidence was allowed in its entirety.

Application to admit hearsay evidence

19. Ms Manning-Rees applied for the witness statement of Service User B to be admitted into evidence as hearsay. She submitted that it was fair for the statement to be admitted into evidence as hearsay as the Registrant’s legal representatives had been put on notice of this application for some time, and they had indicated that there were no objections to the witness statement being tendered into evidence.

20. Mr Grey confirmed that there was no objection to the statement of Service User B being tendered into evidence as hearsay.

21. The Panel accepted the advice of the Legal Assessor. The Panel bore in mind that under the Civil Evidence Act 1995, evidence should not be excluded solely on the grounds that it was hearsay.

22. The Panel noted the contents of the witness statement of Service User B and the representations of both parties. The Panel determined that no injustice would be caused by permitting the statement of Service User B to be introduced into evidence as hearsay.

23. Therefore the Panel determined that the application to admit the statement of Service User B into evidence be permitted.

Background

24. The Registrant set up a practice, Isle of Man Hearing Solutions, where he works as a Hearing Aid Dispenser.

25. Service User A attended both Nobles Hospital and Isle of Man Hearing Solutions on a number of occasions in early 2016, suffering from hearing loss following a viral episode.

26. Service User B attended the Registrant’s practice in April 2016. Service User B had known for a long time that he needed hearing aids, as he had difficulty hearing. Following a consultation, Service User B was shown several hearing aids by the Registrant, but Service User B decided not to purchase them. That was the end of the Registrant’s contact with Service User B.

27. Later that month, Service User B had a consultation with the complainant, SG, who is the Head of Audiology at Nobles Hospital. During the consultation, SG removed a large piece of wax from Service User B’s ear.

28. After meeting these service users and reviewing the Registrant’s website, SG referred the above matters to the HCPC.

No Case to Answer submission

29. Mr Grey, on behalf of the Registrant, submitted that there was no case to answer in relation to all the particulars. He referred the Panel to the case of R v Galbraith [1981] 1 WLR 1039 and he told the Panel that the main thrust of his argument was that SG’s evidence was so lacking in credibility that, on some of the particulars, there was no evidence upon which the Panel could find the particulars proved and, on others, the evidence of the witness was so tenuous that, even if taken at its highest, the Panel could not properly find those particulars proved.

30. Ms Manning-Rees drew the Panel’s attention to the HCPTS Practice Note on “Half-Time Submissions”. She reminded the Panel that at this stage it was concerned with whether a panel properly directed could find the factual particulars proved, as opposed to whether they would find the factual particulars proved.

31. The Legal Assessor advised the Panel that whilst there were no express provisions in the Rules for submissions of ‘No Case to Answer’, it was perfectly acceptable for a panel to consider and rule upon a half-time submission made by, or on behalf of, a registrant.

32. The Legal Assessor advised the Panel that the approach it should adopt was to consider each disputed particular and, firstly, address the following question: “Has the HCPC presented any evidence upon which the Panel could find that particular proved?” If the answer was no, then there was no case answer respecting that particular. If the Panel determined that the HCPC had presented some relevant evidence, then the Panel should consider the following question: “Is the evidence so unsatisfactory in nature that the Panel could not find that particular proved?”

33. The Legal Assessor advised that the Panel must bear in mind that it is for the HCPC to prove the fact alleged and that the requisite standard of proof is the balance of probabilities. If the answer to either of the above questions was in the affirmative in relation to any particular, then there was no case to answer in relation to that particular.

34. The Panel accepted the advice of the Legal Assessor and had regard to all the available evidence before it. It also had regard to the submissions of both parties.

35. In coming to its decision, the Panel considered each element of each particular subject to the half-time submission. Firstly, the Panel looked to see if there was any evidence to support the facts alleged. If there was, then the Panel would go on to consider whether the Panel could find the facts proved on that evidence.

36. The Panel was provided with various documentation, some of which lacked relevant and appropriate detail. The evidence provided by the HCPC was limited, with only one witness in attendance (SG), who was the complainant and not an expert witness. The Panel was provided with some evidence, including website screenshots, correspondence relating to the complaints, and some service user records, some of which lacked relevant details such as identification.

37. The Panel considered SG’s evidence as a whole. It found his evidence to be unreliable and of limited evidential value. The witness struggled to recall a number of key elements of his evidence. In some cases, his evidence was based on speculation and hearsay; on others, he had quoted passages from a webpage out of context. In answering questions put to him, he was not very forthcoming. Furthermore, the Panel noted that SG had accepted in his oral evidence that he had made complaints against all of the private Hearing Aid dispensers and audiologists on the Isle of Man (bar one), and as a result, the Panel could not be satisfied as to his motives for his complaint against the Registrant.

Particulars 1 and 2

1. On or around 12 January 2016, whilst attending to Service User A:

(a) completed an incorrect audiogram for Service User A;

(b) relied on an incorrect audiogram;

(c) did not mask Service User A’s left ear;

(d) did not mask Service User A’s bone conduction testing;

(e) did not give adequate consideration to the possibility that Service User A may have had non-organic functional hearing loss.

2. On or around 12 January 2016 you:

(a) provided a hearing aid for Service User A’s right ear when it was not clinically justified;

(b) provided a hearing aid and/or aids for Service User a which had been programmed to provide too much amplification without giving due consideration as to whether the hearing thresholds were correct.

38. Following the preliminary matters, Ms Manning-Rees offered no evidence in relation to Particulars 1 and 2 in their entirety. Some of the material that the Panel had before it could have related to Service User A. However, such material consisted entirely of hearsay and technical documents. It was for the HCPC to present a suitably qualified person to give evidence as to whom, and to what, those documents related. The Panel noted that SG’s statement contained evidence relating to Service User A, even after the exclusion of the parts mentioned above. However, those parts that remained consisted of comments, speculation and hearsay.

39. The Panel determined that SG’s evidence was unreliable in relation to the matters alleged in Particulars 1 and 2, such that it would be unsafe to rely upon that evidence.

40. Based on the above, and on the lack of relevant documentary and/or witness and/or expert evidence, the Panel determined that there is no case to answer in relation to Particulars 1 and 2.

Particular 3

3. On an unknown date in April or May 2016, you attended to Service User B and you conducted a hearing test and did not identify that he had wax in his ears.

41. The evidence in relation to this particular was provided by SG and by the witness statement of Service User B. The Panel found SG’s evidence pertaining to Service User B to be vague, and it was unsubstantiated due to the lack of documentary evidence. Furthermore, Service User B’s witness statement could not substantiate whether or not wax was present at the time of the Registrant’s examination.

42. SG stated that he “[could not] substantiate if the wax was present when Service User B saw [the Registrant], however, the wax was old and hard and Service User B was of the opinion that it was present at the time he had seen [the Registrant]”. However, Service User B did not say that it was his opinion that the wax was present at the time. Instead, Service User B stated, “[SG] commented that the wax should not have been missed…” and that suggested that SG may have played a role in Service User B concluding that the wax must have been present when the Registrant examined him.

43. In his oral evidence, SG resiled from his witness statement where he had stated that he found wax in both ears of Service User B; in oral evidence, he stated that he only found wax in one ear and he could not remember which one. The Panel determined that SG’s testimony as to his finding of wax in Service User B’s ears or ear was unreliable and it lacked credibility.

44. There was no evidence provided that Service User B had wax in his ears when the Registrant conducted the hearing test in April or May of 2016.

45. Therefore the Panel determined that there is no case to answer on Particular 3.

Particular 4(a)

4. You provided misleading information on your website which stated that:

(a) you are the Chairman of the British Tinnitus Association IOM Support Group;

46. The Panel first considered whether Particular 4(a) was capable of proof. SG gave the impression that he was surprised that the Registrant described himself as the Chairman of the British Tinnitus Association IOM Support Group, because it did not exist at the time when SG looked at the Registrant’s website. This must have been in 2016, because SG stated that this was after Service User A’s case had been brought to his attention.

47. However, in cross-examination, and when directed to copies of the relevant email correspondence between himself and the Registrant, SG accepted the following:

• The inaugural meeting of the British Tinnitus Association IOM Support Group took place in 2014;

• SG was involved in the organisation of that event;

• the Registrant was described as “Chairman of the British Tinnitus Association IOM Support Group” in all the leaflets and publicity literature for that event, and SG was aware of this and approved of it;

• SG played an active part in the inaugural meeting of the British Tinnitus Association IOM Support Group because he was one of the speakers at the event.

48. The evidence on this particular relied heavily on SG’s evidence and his assertion that the Registrant was not the Chair of the British Tinnitus Association IOM Support Group. The Panel was not provided with any corroborating evidence for this assertion. SG also accepted in his oral evidence that he had not drawn his concerns to the attention of the Registrant at the relevant time.

49. Therefore the Panel determined that there is no case to answer on Particular 4(a).

Particular 4(b)

4. You provided misleading information on your website which stated that:

(b) you are the Chairman of the Island Tinnitus Association, whereas this organisation does not exist;

50. The evidence on this particular relied heavily on the evidence of SG. He told the Panel that his assertion that such an organisation did not exist was because he “was aware of all the charitable organisations on the Isle of Man” and there was, he said, no such charitable organisation. He was unable to assert that a non-charitable organisation called the Island Tinnitus Association did not exist.

51. The Panel determined that there was no evidence to prove an organisation called the Island Tinnitus Association did not exist. Therefore, there is no case to answer on particular 4(b).

Particular 4(c)

4. You provided misleading information on your website which stated that:

(c) “We are the Island’s most experienced team, “dedicated to caring for its clients for over 20 years””, when your practice was only established in 2013;

52. The crux of the allegation was that the reference to “team” was synonymous with the practice itself, that the reader would not know that the practice was only established in 2013, and that they would therefore would be misled by this.

53. However, in the paragraph above those words, on the same page of the website, it was stated “[the Registrant] set up the Isle of Man Hearing Solutions as an independent hearing clinic in 2013 after more than 20 years working in the industry.”

54. Furthermore, the entire paragraph from which the quote was taken stated: “We are an independent award-winning hearing clinic that always puts you and your hearing needs first. We are the Island’s most experienced team, “dedicated to caring for its clients for over 20 years”.”

55. There was a distinction made between the practice and the team. In the light of the full and proper context given to the quote, the Panel determined that a reasonable panel, properly directed, could not find that the quote was misleading. Therefore, there is no case to answer on Particular 4(c).

Particular 4(d)

4. You provided misleading information on your website which stated that:

(d) a picture on your practice website indicates that your practice was “celebrating over 20 years of hearing care excellence between 1995 and 2015” which was not the case as the practice was not established until 2013.

56. The Panel noted that the words ‘‘celebrating over 20 years of hearing care excellence between 1995 and 2015” were present. However, there was no assertion that it was referring to the practice itself. In fact, the words were in juxtaposition with a paragraph that clearly referred to the team, stating, “We are the Island’s most experienced team, “dedicated to caring for its clients for over 20 years”.”

57. Furthermore, the crux of this Particular was that a reader would be misled by those words because they would not be aware that the practice itself was not established until 2013. However, in the paragraph above those words, on the same page of the website, it stated “[the Registrant] set up the Isle of Man Hearing Solutions as an independent hearing clinic in 2013 after more than 20 years working in the industry.”

58. The Panel determined that there was no evidence that the information was misleading. All the relevant information was contained on the same webpage, and a reasonable panel, properly directed, could not find the information contained on that page to be misleading. Therefore, there is no case to answer on Particular 4(d).

Particular 5

5. In various correspondence dated January 2016, you referred to yourself as a “Senior Audiologist” which is misleading as you are a Hearing Aid Dispenser and/or Hearing Aid Audiologist.

59. SG told the Panel in his oral evidence that the Registrant should only be using the protected title of “Hearing Aid Dispenser” or “Hearing Aid Audiologist”. The Panel noted that the protected title is “Hearing Aid Dispenser”. SG said that the term “Senior Audiologist” might lead to “confusion” as to what kind of practitioner was being referred to. The Panel noted that in some of the correspondence before it, SG himself referred to the Registrant as an “Audiologist”, despite SG’s professed concern at the use of the title.

60. SG also stated that he was concerned that the Registrant used the word “senior” when describing himself. The Panel determined that this was a minor concern. The Registrant has been a Hearing Aid Dispenser for over 20 years and, if he wished to describe himself as “senior” based on his number of years of experience, the Panel considered that this was a matter for him.

61. “Senior Audiologist” and “Audiologist” are not protected titles and the Registrant is not prohibited from describing himself as such. “Hearing Aid Dispenser” is a protected title, and only those professionals who meet the criteria for HCPC registration are permitted to use it. However, such professionals are not obliged to use the protected title that applies to them.

62. Furthermore, “confusing” is not the same as “misleading”. The former causes the inability to reach a conclusion, and the latter causes one to reach a wrong conclusion. At its highest, the description “Senior Audiologist” could be confusing, but it would not be misleading. However, the Panel determined that a reasonable panel, properly directed, could not find that it was misleading in the circumstances.

63. Therefore, there is no case to answer on Particular 5.

Particular 6

6. Your actions described in paragraphs 4 and 5 were dishonest.

64. As this Particular is dependent on Particulars 4 and 5, of which the Panel has determined there is no case to answer, there is also no case to answer in relation to Particular 6.

Decision

65. Accordingly, the Panel determined that the Allegation as a whole is not well founded, and the case is dismissed.

Order

No Case To Answer

Notes

No notes available

Hearing History

History of Hearings for Mr Guy C Wolstencroft

Date Panel Hearing type Outcomes / Status
12/03/2018 Conduct and Competence Committee Final Hearing Not well founded