Mr David Antony Emmett

Profession: Hearing aid dispenser

Registration Number: HAD00358

Interim Order: Imposed on 17 Nov 2019

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 16/12/2019 End: 17:00 17/12/2019

Location: Health and Care Professions Tribunal Service, 405 Kennington

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst registered as a Hearing Aid Dispenser and in your capacity as a Director and
employee of Truro Specsavers Hearcare Limited you:

1) Made unauthorised fund transfers to yourself, in the form of refunds:

a) On 17 April 2017, for £79;

b) On 4 September 2017, for £133.24;

c) On 7 September 2017 for £133.56;

d) On 9 October 2017 for £2495;

e) On 21 November 2017 for £1095;

f) On 12 December 2017 for £66.78

g) On 14 December 2017 for £1395.

2) Your conduct as described at paragraph 1 was dishonest.

3) The matters set out at paragraphs 1 – 2 amount to misconduct.

4) By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary matters

Service and Proceeding in Absence

1. The Panel was satisfied that the letter dated 2 October 2019 addressed to the Registrant at his registered address informing him of the date, time and location of the hearing, constituted good service of notice of hearing.

2. Ms Luscombe told the Panel that two emails had been received by the HCPC from the Registrant dated 17 August 2019 and 12 December 2019. Both emails clearly indicate that the Registrant will not be attending the final hearing.

3. Ms Luscombe told the Panel that the Registrant had chosen to absent himself and he had stated that he did not want to attend. She referred the Panel to the HCPTS Practice Note on Proceeding in Absence and reminded the Panel it should consider the public interest in the expediency of proceedings. She advised that two witnesses were ready to give evidence today and that it was appropriate to proceed.

4. The Panel considered that good service had been carried out and that reasonable steps taken to give notice to the Registrant. It accepted the advice of the Legal Assessor who referred it to the HCPTS Practice Note on Proceeding in Absence and to the guidance in GMC v Adeogba [2016] EWCA Civ 162 on balancing fairness to the Registrant with fairness to the HCPC and the public interest.

5. The Panel considered the written submissions sent by the Registrant to the HCPC in approximately November 2018 and again six months later, and the emails from the Registrant dated 17 August 2019 and 12 December 2019.  He makes clear he will not attend. No application to adjourn had been made by the Registrant and he is aware of, but will not be attending this hearing, nor will he be represented. The Registrant has chosen not to participate in this hearing. The Panel concluded there was a public interest in proceeding.  Further two witnesses were ready to give evidence today.  In all the circumstances the Panel decided that it was fair and appropriate to proceed in the absence of the Registrant.

6. Whilst the Registrant has made some informal admissions to the Allegation, the Panel proceeded on the basis that the Allegation is not admitted.

Background

7. The Registrant was employed at the relevant time as a Hearing Aid Dispenser (HAD) by Truro Specsavers Hearcare Limited (TSHL). He was also an “A” Director and shareholder of the TSHL.  On 31 July 2018 the HCPC received a referral about the Registrant’s alleged misconduct.

8. As part of the regular monthly review, the Financial Risk Support team (FRS) at Specsavers Optical Group Limited reviewed the refund credit card transactions processed at all Specsavers UK Optical, Hearcare and Healthcall businesses, including TSHL. A monthly analysis of TSHL’s refund data uncovered unusual transactions, namely seven refunds amounting to £5,397.58 processed between 17 April 2017 and 14 December 2017.  The FRS team discovered that the refunds were all processed on the same card number ending “2215” (“the Card”).

9. A full investigation was carried out by FRS undertaken by witness BW, a Senior Financial Risk Consultant.  A link was established between the Card and the Registrant, who confirmed that the Card was his.  The seven transactions were:

 a) On 17 April 2017, for £79;
 b) On 4 September 2017, for £133.24;
 c) On 7 September 2017 for £133.56;
 d) On 9 October 2017 for £2495;
 e) On 21 November 2017 for £1095;
 f) On 12 December 2017 for £66.78
 g) On 14 December 2017 for £1395.

10. The Registrant initially denied any involvement in the processing of the refunds and he stated that the refunds could have been done by another member of staff as he often left his bank card in the TSHL office. The Registrant later admitted that he had been aware of the money being credited to his account. 

11. The FRS internal investigation concluded that the Registrant was the only member of staff able to carry out refunds at the time the refunds were performed. Despite the Registrant initially denying the allegation, he later admitted the he had carried out the refunds as alleged.  He has repaid the refunds in full in the sum of £5,397.58.

 Witness 1 – Person 1

12. The Panel heard from Person 1. She stated that the contents of her witness statement were true to the best of her knowledge and belief. She is a registered HAD at Specsavers in Truro.  She has worked there since August 2014 and worked with the Registrant, who was her manager.

13. Person 1 said that she had known the Registrant for some time as he had been a sales representative before joining the branch at Truro. She said that her relationship with the Registrant had been difficult.

14. Person 1 told the Panel that the Registrant had told her on 8 January 2018, after he had attended a meeting with his fellow TSHL directors, that she had been processing refunds incorrectly and that he was being investigated.  She said that the Registrant had never clearly explained the position to her, and she never knew what she had been apparently doing wrong. She said that she never saw the Registrant’s card on the Registrant’s desk in the branch where she worked, despite the Registrant earlier claiming that was the position.

15. Person 1 explained her understanding of the refund process for bank cards. She said it was possible to enter a paragraph on the system to explain the reason for the refund.  A credit book was also kept to track any money returning from customers if they cancelled a sale under the “no quibble” guarantee. She also explained the recording of customer appointments on the “Sycle” system used at TSHL.  She said that when doing a card refund there was nothing that identified the person carrying out the refund as no individual code was required. Person 1 told the Panel that she was not in the TSHL branch on some of the dates listed when the refunds were alleged to have been carried out, and on other occasions she was with patients at the relevant time.  Person 1 said she had not carried out any of the refunds stated in the Allegation.

16. Person 1 told the Panel that the situation had been difficult at the time in TSHL. She said she had felt bullied by the Registrant and was visibly upset when referring to this in the course of her evidence. She said it was horrendous and vindictive that the Registrant had tried to blame her.  She said she had thought at the time that the issue around the refunds had been as a result of a mistake in the refund procedure, and she had not realised the Registrant’s position until she had seen the bundle for this hearing.  She said she was shocked to learn that the Registrant had tried to accuse her of making the refunds to his card.

Witness 2 - BW

17. BW confirmed that his witness statement was true to the best of his knowledge and belief. He is a Senior Financial Risk Support Consultant for Specsavers.  His role is to assist the business by looking for financial patterns or transactions which may seem unusual.

18. BW told the Panel about his investigation in respect of the refunds as alleged at TSHL. He said that it was very unusual for card refunds to be made to the same card more than twice, and so seven transactions on the card ending “2215” were flagged and investigated. He cross-referred the dates and amounts and found that the seven refunds as alleged were a matter of concern as all had been made on the same bank card. BW explained how he had then identified that the card used for the refunds was in the name of the Registrant.  The bank details for the Registrant were already known as they were in the payroll for TSHL and matched those for the card holder to whom the refunds had been paid. His further investigations had identified that Person 1 and other TSHL staff were absent or engaged with patients at the dates and times when there refunds were made.

19. As a result of his investigations, a report was sent to the board of TSHL and BW said that it was a matter for them to take matters forward. He told the Panel that the Registrant had been defensive and had suggested to him that a member of staff at TSHL may have carried out the refunds to his card to cause trouble for the Registrant. He said that the Registrant did not admit to him that he had carried out the refunds, nor did he admit to any wrongdoing. BW said that he learned that the Registrant had subsequently repaid the amount in full.

HCPC Closing Submissions on Facts, Grounds and Impairment

20. Ms Luscombe summarised the HCPC case. She reminded the Panel that the HCPC had the burden of proof, notwithstanding the Registrant’s informal admission and it must prove the allegation on the balance of probabilities. 

21. Ms Luscombe referred the Panel to the Registrant’s written representations submitted to the Panel, and his emails.  She submitted that the Registrant’s actions and his explanations indicated that he was aware his actions were dishonest, and that he had stated in his representations that his actions were dishonest.  She referred the Panel to the advice on dishonesty in Ivey v Genting Casino [2017] UKSC 67.

22. Ms Luscombe referred the Panel to the relevant case law and to the HCPTS guidance on misconduct and on impairment of fitness to practice. She submitted that the Registrant had breached the core value of honesty and had breached Standard 9 and 9.1 of the HCPC Standards of conduct, performance and ethics (2016). 

23. Ms Luscombe submitted that the Panel should find the allegations proved, find that the Registrant was dishonest and that his behaviour amounted to misconduct. Ms Luscombe submitted that on both the personal and public components of impairment the Registrant’s fitness to practise was impaired.

24. Ms Luscombe referred the Panel to the three testimonials received from the Registrant in 2018 which may be of assistance should the Panel require to consider the matter of impairment.  She noted that two of the testimonials were undated and unsigned.

Legal Advice

25. The Panel heard and accepted the advice of the Legal Assessor.  He reminded the Panel it must apply the balance of probabilities, and that the onus of proof rests on the HCPC and the Registrant need prove nothing. 

26. The Legal Assessor referred the Panel to the guidance on dishonesty in Ivey v Genting Casino [2017] UKSC 67: -

“When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest".

27. The Legal Assessor reminded the Panel that on misconduct, there was no burden of proof and that it was a matter for its own professional judgement. He referred to the guidance on misconduct in Roylance v GMC (No 2) [2001] 1 AC 311.

28. On the issue of impairment of fitness to practise, the Legal Assessor referred the Panel to the HCPTS Practice Note on Finding Fitness to Practise is Impaired, and to the guidance on the assessment of impairment and consideration of the public interest, in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin). He reminded the Panel that it should consider the Registrant’s insight, his remorse, any steps to remediate, and the risk of repetition of the behaviour leading to the facts found proved. The Panel should at all times keep in the forefront of its mind the central importance of the need to protect the public and the wider public interest.

Decision on Facts

Assessment of the witnesses

29. The Panel considered all the evidence, the submissions for the HCPC and the Registrant’s representations and emails.  It accepted the legal advice and was mindful that the onus rested on the HCPC to prove the allegation on the balance of probabilities. 

30. The Panel assessed witness BW. It found that he had conducted a thorough and comprehensive investigation of the alleged events.  There was no inconsistency in his evidence, and he was knowledgeable and experienced.  He explained his thorough investigation very clearly and compellingly to the Panel.  The Panel found BW credible and reliable and accepted his evidence.

31. The Panel found Person 1 to be helpful, open, clear and consistent. She had no axe to grind and was fair and balanced about the Registrant, despite it becoming clear in her evidence that she had felt bullied by the Registrant. Her oral evidence was consistent with her interviews during the internal FRS investigation, conducted within 2 weeks of the events alleged, and with her witness statement for the HCPC. The Panel found Person 1 to be a credible and reliable witness.

32. The Panel considered the notes of the 8 January 2018 meeting between the Registrant and the Directors of TSHL, the conference call with him on 12 January 2018 and the Registrant’s email on 14 January 2018.  It also considered his detailed written response to Specsavers on 21 February 2018 and his written representations submitted to the HCPC earlier in these proceedings.  

33. The Panel found that the Registrant’s position has not been consistent.  Whilst he accepted the money had been paid into his account, he initially denied any wrongdoing.  He initially sought to blame colleagues, particularly Person 1 but admitted the evidence against him was compelling. The Registrant subsequently admitted the money had been paid to his card and repaid the whole sum. Shortly before the HCPC interim hearing on 5 November 2018 the Registrant admitted he had been dishonest.  Such evidence as it has from the Registrant, the Panel found it to be inconsistent and lacking both credibility and reliability.

The Allegation

Particular 1 a) to 1 (g) - Proved

34. The Panel accepted BW’s evidence in his detailed and comprehensive witness statement.  This provides compelling evidence of the unauthorised refunds made by the Registrant to his own card. Person 1 clearly stated that she had not made those refunds and the Panel accepted her evidence.  There was no evidence to suggest any authorised or legitimate reason for the fund transfers to the Registrant.  

35. The Registrant stated in his representations that he “tried one transaction then another couple and as that all proceeded without any issue I assumed that I may be able to get the money I required….It should have been very obvious to anyone who was of logical mind that a company as large as Specsavers would have measures to detect any kind of financial irregularity”.  The Registrant appears in that statement to set out the planning and careful premeditation of his conduct. 

36. The Panel found that the evidence of BW, Person 1 and the Registrant’s own representations prove that on the balance of probabilities the Registrant made unauthorised fund transfers to himself in the form of refunds on the dates as alleged at Particular 1 a) to 1 g). 

Particular 2 Dishonesty - Proved

37. The Panel next considered the issue of dishonesty.  It was mindful of the advice in the case of Ivey. 

38. The Registrant has offered various explanations for the money being paid to himself.  He initially said that colleagues at TSHL must have used his card.  He also earlier suggested that he was “borrowing” the money as a Director of TSHL, although he accepted that his fellow Directors had refused to lend him money when he asked for a £13,000 loan at some point before April 2017. The Registrant appears now to admit that he was dishonest and that there was no authorised or legitimate reason for him to receive the refunds.

39. The Panel concluded that the Registrant knew there was no proper or legitimate reason to make these payments to himself.  He was not entitled to the money.  Given the evidence of BW and the Registrant’s position as quoted in his representations, the Panel found that the Registrant planned and premeditated the refunds and sought to misrepresent 5 of them as patient refunds.  There was no legitimate basis for the refunds and the Registrant knew he was being dishonest.

40. The Panel considered the objective test for dishonesty that is what an ordinary, decent person would make of the Registrant’s behaviour.  Having considered all the evidence including that of BW and the various positions adopted by the Registrant, the Panel concluded that the Registrant’s actions were, when viewed objectively, clearly dishonest.

Finding on Misconduct

41. The Panel considered that the Registrant’s conduct breached Standard 9, 9.1 and 9.4 of the HCPC Standards of conduct, performance and ethics. His conduct was dishonest and strikes at the heart of core professional values; those of honesty and integrity.  The breaches were serious.  The Panel concluded that the Registrant’s conduct fell far below what would have been proper in the circumstances and amounts to misconduct.

Finding on Impairment

42. The Panel considered the HCPTS Practice Note on Impairment and was mindful of the guidance in Grant. It kept in the forefront of its mind the importance of the public interest.

43. The Panel found that the Registrant has shown very limited insight. He initially sought to blame others and seemed to view his conduct as one that was victimless.  He stated in his representations “the only people impacted and at risk from my dishonesty were the business and myself”.  Person 1, his colleague, said she was shocked disgusted that the Registrant had initially tried to blame her. The Registrant also at various points, blamed Specsavers for a lack of support and for having an effective procedures. He has altered his version of events several times.

44. The Registrant has demonstrated only limited insight into the impact of his conduct on colleagues, and no insight into the impact on the public confidence in, and the reputation of, the profession. He stated that his conduct had no impact on patients, whereas he had amended their Sycle record to show a refund which had not in fact had been given to them which could have impacted on their future care. He has demonstrated a limited view of the seriousness of his actions, which he has sought to minimise and deflect responsibility for.  It is only after the thorough FRS investigation, and almost two years from the events, that the Registrant has admitted that he was dishonest. The Panel was of the view that the Registrant’s responsibility was to admit his wrong doing fully and at the earliest opportunity and he did not do that.

45. The Panel considered the issue of remediation. It accepts that dishonesty is difficult to remediate.  The Registrant has repaid the sums, but the Panel saw little evidence of any steps taken to remediate his behaviour. The Registrant’s first reaction to the investigation was to deflect blame on to colleagues and to blame Person 1. He states in his representations that he ‘borrowed’ the money from TSHL, notably the Registrant himself used inverted commas around that word.  He has not apologised to Person 1 and there is no evidence of any remorse. He has not acknowledged his breach of fiduciary duties as a Director of TSHL.

46. The Panel noted that the Registrant has stated that he had difficult personal circumstances at the time of the Allegation, but it has no further evidence of those circumstances. It has no evidence of the possible impact of those circumstances on the Registrant’s conduct. The Panel has no evidence on whether the Registrant has sufficiently reflected on and taken any steps to address his dishonest conduct. It has no evidence on how he would behave in the future should similar pressures and circumstances arise. 

47. The Panel concluded that given the lack of meaningful insight, and lack of evidence of remediation, that there is a real risk of repetition.  It concluded that the Registrant has in the past, and is liable in the future, to breach fundamental tenets of the profession and to act dishonestly. 

48. The Panel considered the public component of impairment of fitness to practise.  It was mindful of its findings as to dishonesty and misconduct.  On the public component, the Panel concluded that a well informed and reasonable member of the public would rightly be concerned were a Hearing Aid Dispenser who had been found to have been dishonest, be in a position to practice on an unrestricted basis. The Panel found that in all the circumstances the Registrant has in the past, and is liable in the future, to bring the profession in to disrepute.  The Panel concluded that a finding of impairment is required in order to uphold and declare proper standards of behaviour and to maintain public confidence in the profession, and in the Regulator.

49. The Panel considered the three testimonials submitted by the Registrant. It noted that two of the testimonials provided by the Registrant are undated and unsigned and are addressed “To whom it may concern”.  The third is dated 30 October 2018 and is in generic terms and relates to an earlier HCPC interim order hearing. These testimonials are all untested and there is no indication that the authors are aware of the specific and serious nature of the Allegation.   The Panel attached limited weight to them.  

50. The Panel accordingly determined that on both the personal and the public component that the Registrant’s fitness to practise is currently impaired.

HCPC submissions on Sanction

51. Ms Luscombe submitted that the Panel are now required to consider sanction and to be mindful of proportionality.  She referred to the HCPC Sanctions Guidance and submitted that Sanction was a matter for the Panel.  She referred the Panel to the guidance on dishonesty.

52. Ms Luscombe submitted that this was a serious case of dishonesty as it was repeated and planned.  She suggested that in mitigation the Registrant had made admissions and had experienced some difficult, personal circumstances.  She referred to case law on cases of dishonesty where the Registrant had not engaged with the Regulator.

53. The Panel took the advice of the Legal Assessor.  He advised it to consider the HCPC Sanctions Policy and reminded it to consider each sanction in ascending order and to apply the least restrictive sanction necessary to protect the public. It must act proportionally and should consider any aggravating and mitigating factors.  It should be mindful of the public interest and that the primary purpose of sanction was the protection of the public. 

Decision on Sanction

Mitigating and Aggravating Factors

54. The Panel first identified what it considered to be mitigating and aggravating factors in this case. The mitigating factors identified were: -

• The eventual admissions
• The Registrant’s difficult personal circumstances

55. The aggravating features identified were: -

• The misconduct was dishonest and was serious and repeated over 8 months
• The dishonesty was premeditated and planned
• Limited insight and remorse
• Sustained deflection of blame that caused distress
• No evidence of remediation

56. The Panel considered its finding of dishonesty.  It has found that the dishonesty was active not passive, sustained, planned and premeditated.  There was no early admission of wrongdoing and limited insight, and indeed no insight demonstrated in respect of any damage that could be caused to the reputation of the profession.

57. The Panel approached the ladder of sanction, beginning with the least restrictive first, bearing in mind the need for proportionality. Taking no further action and the sanction of a Caution Order would not reflect the seriousness of the allegation found proved and the lack of insight and remediation. The lapses found proved are not isolated, limited or minor in nature. Further, these orders would not be adequate or proportionate given the wider public interest of maintaining confidence in both the profession and the regulatory process.  The Panel concluded that neither order is appropriate or proportionate in the circumstances of this case.

58. The Panel next considered a Conditions of Practice Order. The Panel has made a finding of dishonesty which does not lend itself to conditions of practice.  Given its findings and the risk of repetition identified, the Panel decided that it was not able to devise realistic, workable, appropriate or proportionate conditions. Further, the Panel concluded that conditions would not sufficiently protect the public or the wider public interest.

59. The Panel next considered a Suspension Order.  It has identified a risk of repetition. The Registrant abused his professional position for financial gain. He has engaged with the proceedings to a limited extent through his written representations, but he has demonstrated a serious lack of insight, no remorse and provided no evidence of steps to reflect or remediate. He has failed to demonstrate any evidence of insight into the impact of his conduct on colleagues or on public confidence in the profession.

60. In these circumstances, the Panel concluded that a Suspension Order would not be a sufficient or proportionate sanction and would fail to uphold and declare proper standards and would undermine public confidence in the profession and the HCPC.

61. The Panel has found that this misconduct was serious and involved an abuse of trust for financial gain. The dishonesty found proved is at the higher end of the scale given that it was premeditated and sustained. The Panel considered paragraph 131 of the HCPC Sanctions Guidance.  The Registrant lacks insight and there is no evidence that he is willing to resolve matters.   Indeed, he has told the HCPC in his representations that he does not want to further practise in the profession.

62. The Panel concluded that in light of its findings a Striking Off Order is the appropriate and proportionate sanction.   

Order

That the Registrar is directed to strike the name of David Antony Emmett from the Register on the date this order comes into effect.

Notes

Interim Order

Decision on Interim Order


In light of its findings on Sanction, the Panel next considered proceeding in absence to consider an interim order to cover the appeal period before the Sanction becomes operative. The Panel heard and accepted the advice of the Legal Assessor who referred it to the HCPTS Practice Notes on Proceeding in Absence and on Interim Orders and reminded the Panel that the primary purpose of an interim order is protection of the public and that it is necessary to balance the interests of the Registrant with the need to protect the public. 

The Panel took account of the fact that the Registrant had been put on notice in the HCPC letter of 2 October 2019 of the Panel’s power to impose an interim order at this stage. There has been no change in circumstances since the Panel decided to proceed in the absence of the Registrant and it determined to do so in respect of the interim order application.
The Panel was mindful of its earlier findings and it decided that that it would be wholly incompatible with those findings and with the sanction imposed, to conclude that an Interim Order is not necessary for protection of the public or in the public interest during the appeal period. The Panel accordingly find that an Interim Order is necessary on both public protection and public interest grounds. Given its findings, the Panel determined that it is appropriate that an Interim Suspension Order is imposed for a period of 18 months to cover any appeal period.  When the appeal period expires this interim order will come to an end unless there has been an application to appeal.  If there is no appeal the Striking Off Order shall apply when the period for appeal expires.
 

Hearing History

History of Hearings for Mr David Antony Emmett

Date Panel Hearing type Outcomes / Status
16/12/2019 Conduct and Competence Committee Final Hearing Struck off