Mr Robert Gray

Profession: Hearing aid dispenser

Registration Number: HAD01585

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 18/11/2019 End: 17:00 22/11/2019

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

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst employed at Hidden Hearing in the capacity of a Hearing Aid
Dispenser, between January 2017 and May 2017:

1) You did not conduct, and/or falsified audiometry assessments, on or
around:

a) 13 January 2017 for Service User H;

b) 30 January 2017 for Service I;

c) 10 February 2017 for Service User F;

d) 30 March 2017 for Service User C;

e) 7 April 2017 for Service User B;

f) 21 April 2017

i) for Service User A;

ii) for service User G;

g) 4 May 2017;

i) For Service User D;

ii) For Service User E;

h) 5 June 2017 for Service User J.

2) Your conduct in paragraph 1 was dishonest.

3) The matters set out in paragraphs 1 – 2 constitute misconduct.

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

Finding

Preliminary Matters

Service of the Notice of hearing

1. The Notice of today’s hearing was sent to the Registrant at his address in the register on 30 August 2019 by first class post and by email. The Notice contained the date, time and venue of today’s hearing. The Panel had sight of a signed Proof of Service certificate confirming the sending of the Notice of Hearing on 30 August 2019 to the Registrant’s address held by the HCPC. The Panel was satisfied that service had been effected in accordance with the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).

Proceeding in the Absence of the Registrant

2. The Registrant was not present or represented at the hearing. However, an email communication dated 13 September 2019 from the Registrant to the HCPC was before the Panel which stated, “Further to your letter dated 30 August 2019 received on 31 August 2019…I am letting you know that 1) I shall not be attending the hearing; 2) I shall not be represented at the hearing; I shall not therefore be calling any witnesses at the hearing…” The Registrant had also submitted a signed statement dated 18 October 2019 which contained his response to the Allegation and was before the Panel. There had been no communication from the Registrant with the HCPC since that date.

3. The Presenting Officer, on behalf of the HCPC, submitted that the Registrant knew about the hearing, had waived his right to attend and that it was in the public interest to proceed in his absence.

4. The Panel accepted the advice of the Legal Assessor. The Panel referred to the HCPTS Practice Note of September 2018 on proceeding in absence and to the guidance that a hearing panel should consider as provided by the cases of R v Jones (Anthony) [2004] 1 AC 1HL and GMC v Adeogba [2016] EWCA Civ 162. Applying that guidance, the Panel was careful to remember that its discretion to proceed in absence is not unfettered and must be exercised with the utmost care and caution and with the fairness of the hearing at the forefront of its mind.

5. The Notice of Hearing dated 30 August 2019 informed the Registrant of the date and details of the Conduct and Competence Committee hearing, and of his right to attend and be represented. He was also advised of the Panel’s power to proceed with the hearing in his absence if he did not attend and of how he could apply for an adjournment of the hearing. The Registrant was informed of the sanction powers available to the Panel, should it find his fitness to practise to be currently impaired. The Registrant had indicated clearly that he would not be attending the hearing and had not requested a postponement or adjournment of it. The Panel took the view that the Registrant had voluntarily waived his right to attend and that adjourning this hearing would serve no purpose.

6. The Panel was mindful that it must also consider fairness to the HCPC, whose case was ready to proceed today. One of the HCPC’s witnesses was present and ready to give evidence, with another due to attend later today. The Panel took account of the public interest in the expeditious resolution of regulatory allegations, the fact that the allegations in this case are more than two years old and the impact of cost and delay caused by an adjournment. Following the guidance in the case of Adeogba, given that there was no good reason to adjourn the hearing, the Panel decided it was in the public interest to proceed in the Registrant’s absence.

7. The Panel considered that there was some disadvantage to the Registrant in proceeding in his absence as he would not be able to challenge the evidence put forward by the HCPC or give his own evidence. In the Panel’s judgment, however, this could be mitigated. The Registrant had addressed the allegations in his written statement of 18 October 2019 and the Panel would consider his representations carefully. The Panel was also mindful that it could explore any inconsistencies in the evidence which it identified and should ask questions and consider points which might be in the Registrant’s interests and were reasonably apparent from the evidence. Furthermore, the limited disadvantage was the consequence of the Registrant’s decision to absent himself from the hearing, waive his rights to attend and be represented.

8. In these circumstances, the Panel decided that it was fair, appropriate and proportionate to proceed in the absence of the Registrant. It would draw no adverse inference from his absence in its findings of fact.

Applications to admit hearsay evidence

Witness RB

9. At the outset of the hearing, and at the request of the Panel, the Presenting Officer applied for the signed witness statement of RB, the Finance Director of Hidden Hearing Ltd (Hidden Hearing) to be admitted into evidence. The Presenting Officer told the Panel that, in preparing this case for a hearing, the HCPC had considered that it was not necessary to call RB in light of the other witness evidence but that the HCPC intended to rely upon RB’s signed, written statement in so far as it referenced relevant exhibits.

10. The Panel accepted the advice of the Legal Assessor. She reminded the Panel that the Civil Evidence Rules govern the admissibility of evidence in these proceedings. Therefore, a piece of evidence should not be excluded solely on the ground that it is hearsay. The Legal Assessor drew the Panel’s attention to the following cases: Bonhoeffer v GMC [2011] EWHC 1585 (Admin); Thorneycroft v NMC [2014] EWHC 1565 (Admin); NMC v Ogbonna (2010) EWCA Civ 1216; and Razzaq v Financial Services Authority [2014] EWCA Civ 770. She advised that the relevant principles articulated by the above cases are as follows:


a) The decision to admit hearsay evidence is not to be regarded as a routine matter. The Panel must specifically consider the issue of ‘fairness’ before admitting the evidence. Considerations of what weight can be attributed to the evidence once it has been admitted is not relevant to the question of whether it would be fair for the evidence to be admitted in the first place.
b) The existence of a good and cogent reason for the non-attendance of the witness is an important factor. However, the absence of a good reason will not automatically result in the exclusion of the evidence.
c) The courts have been reluctant to uphold decisions to admit hearsay evidence where i) the evidence was not admitted, and ii) the hearsay evidence in question was the sole or decisive evidence in relation to an allegation. The courts have been far less reluctant to uphold such decisions where i) the hearsay evidence is ancillary to other evidence in the case, and ii) it is not challenged.
d) The Panel should balance the probative value and prejudicial effect of admitting the evidence
11. The Panel accepted the Legal Assessor’s advice. The Panel noted that there was no cogent reason for RB’s non-attendance at the hearing; the HCPC had simply decided not to call him. Although the Panel considered that RB’s evidence was not sole or decisive, the Registrant had challenged it, stating that RB’s statement “deliberately misleads and misinforms.” In the absence of RB’s appearance at the hearing, there would be no opportunity for his evidence to be tested. Having applied the principles set out in the cases referred to by the Legal Assessor, the Panel decided it would be unfair to the Registrant to allow RB’s evidence as hearsay. It considered that the exhibits could still be held in evidence by Witness RN. The Panel therefore refused the application.

Service User A

12. Service User A, whose complaint had prompted Hidden Hearing’s investigation into the Registrant’s practice, had been scheduled to attend the first day of the hearing to give evidence in relation to Particular 1(f)(i) only. Service User A had not, however, attended and had not answered any email or telephone communications from the HCPC. On the second day of the hearing, the Presenting Officer applied for the signed statement of Service User A, dated 18 March 2019, to be admitted into evidence as hearsay. She told the Panel that the HCPC had understood that Service User A would attend the hearing and that there had been nothing to indicate that he was unwilling to appear as a witness in support of his witness statement. The Presenting Officer acknowledged, however, that there was no information on the HCPC files to suggest that the HCPC had communicated with Service User A since 30 August 2019, when he had been sent notice of the date of this hearing. Service User A had not responded to the HCPC following the letter of 30 August 2019.

13. The Panel accepted the advice of the Legal Assessor. The Panel noted that the contents of Service User A’s witness statement were sole and decisive and were not corroborated by other evidence before the Panel. In the absence of his appearance at the hearing, there would be no opportunity for Service User A’s evidence to be tested. The Panel believed that the HCPC had not shown sufficient diligence in attempting to secure his attendance.  Having applied the principles set out in the cases referred to by the Legal Assessor (paragraph 10 above), the Panel decided it would be unfair to the Registrant to allow Service User A’s evidence as hearsay. The Panel therefore refused the application.

Documentation

14. The Panel received the HCPC hearing bundle, which included a witness statement from RN, the Compliance Manager at Hidden Hearing, an expert report from RR, a Hearing Aid Dispenser and Clinical Scientist and a number of exhibits.

15. The Registrant’s written representations of 18 October 2019 were before the Panel. No further written submissions or documents had been received from the Registrant for the purposes of the hearing.

Procedure

16. The Panel decided to consider the facts, misconduct and impairment as a single stage and then, if appropriate, to consider sanction separately.

Background

17. The Registrant is a registered Hearing Aid Dispenser who was employed by Hidden Hearing Limited as a Fitting and Service Specialist between June 2016 and December 2017. It is alleged that between January 2017 and June 2017, the Registrant either did not complete audiometry assessments for service users, and/or falsified records for service users with regard to audiometric assessments.

18. On 3 November 2017, a complaint was made by a member of the public, Service User A, that no full audiometry test was undertaken during his appointment with the Registrant on 21 April 2017. As a result, Hidden Hearing asked RN to conduct an investigation into the complaint. The investigation led to concerns being raised in relation to other records of audiometry results for service users that the Registrant had had involvement with. An audit took place and further concerns were raised regarding the Registrant’s practice.

19. A referral was made to the HCPC on 8 December 2017 by a Director of Hidden Hearing.

Evidence

20. The HCPC adduced oral evidence from one witness as to fact, RN, a registered Hearing Aid Dispenser, who conducted the employer’s investigation into this matter. He confirmed and adopted his witness statement as his evidence in chief and was asked a number of supplementary questions by the Presenting Officer and clarification questions by the Panel.

21. RN gave evidence in relation to each of the Particulars of the Allegation in this case and dealt with his investigation into the records and audiograms for each of the ten service users separately. The Panel had before it RN’s investigation report, redacted in parts. RN said that the audiogram graphs contained in his investigation report before the Panel were not screenshots. Rather, he had used the Noah software system to input the data from his investigation. He said that the notes in the investigation report purporting to be from the Registrant were lifted directly from the Registrant’s notes and copied into the report.

22. RN said that audiometry at Hidden Hearing Ltd is conducted in accordance with the relevant recommended procedures from the British Society of Audiology. RN told the Panel that although there is no policy at Hidden Hearing for the scheduling of service user visits and when to conduct audiometry testing, their policy is to carry out a full audiometry assessment when “interacting with a patient” and this would be on a 6-12 monthly basis. RN said that a hearing aid check would take around 15 minutes, whereas a full audiometry assessment would take around an hour and a half.

23. RN gave evidence to the Panel around Pure Tone Audiometry, Air Conduction (a-c) testing, Not-Masked and Masked Bone Conduction (b-c) testing, and Uncomfortable Loudness Levels testing. He explained that the results obtained from Air Conduction testing of the left and right ears would be represented in an audiogram and that the results from any masking process would also be shown. RN said that the Registrant was provided with a MEDRX Advent audiometer by Hidden Hearing to conduct audiometry. He explained that this is a computer-controlled audiometer that records and saves the results of audiometry automatically, although the testing would be done manually by the clinician. The results of the audiometry are saved in the service user management system, CMS, which also holds the results of a service user’s previous audiograms. RN told the Panel that the system allows for earlier audiograms to be opened at a later date and “a minor change can be made to a data point.” This change could be saved as a new test under a new date. When asked by the Panel why, in relation to Service User H’s records, the Registrant would have made manual entries in an audiometric test at 19.21 following his appointment with Service User H at 12.30 earlier that day, RN said that he could not think of any reason at all.

24. RN told the Panel that it is “very common to overlay hearing tests for your own benefit rather than looking at separate graphs”, as overlaying makes it visually much more straightforward. He said that although Hidden Hearing’s guidance is to start with a clean sheet, it is not wrong for a practitioner to use a previous test as a basis. He said that his investigation, however, had identified that in relation to ten service users, there were such similarities between the audiograms apparently prepared by the Registrant and the previous audiograms undertaken by another practitioner. In certain cases, there were either no recorded changes or the smallest possible change that could be measured (5dB) at one or two frequencies between previous audiograms and those saved by the Registrant. RN said that as hearing is subjective and changes over time, “we would expect to see changes at different frequencies across the audiogram.” He said that it would be very unusual for there to be no change or just one data point of change and for this to be at the lowest extreme. RN told the Panel that the evidence gathered in his investigation strongly suggested that the Registrant had opened up old audiograms, changed one or two data or no data points and saved them as new audiograms without conducting a full audiometric test on the Service User.

25. During the Panel’s careful consideration of the documentary evidence and the audiograms contained therein, it became apparent that there were likely errors in the audiograms compiled by previous practitioners. RN told the Panel that he had not picked up on these likely errors during his own investigation but that even if others had made errors (for example, in relation to Service Users C, D and G) the Registrant should have picked up on them, completed audiometry testing in the proper way, and not carried the errors across.

26. RN told the Panel that, by the Registrant not undertaking full audiometry testing but recording that he had, there was a risk of missing conditions that required onward referral to other healthcare practitioners. If the Registrant had decided that it was not necessary to conduct full testing, he should have recorded that in the notes. He said that all of the service users in this matter had since been re-tested by Hidden Hearing as a consequence of the findings during the investigation.

27. The HCPC then called its expert witness, RR. He confirmed and adopted the content of his expert report dated 3 April 2019 and was asked a number of supplementary questions by the Presenting Officer and the Panel.

28. RR outlined the tests generally carried out by an audiologist and addressed “retest variability” in audiometry and the reasons for this variability. He stated, “In a full test, the tester will typically record thresholds at six frequencies in each ear by a-c, and at least 3 frequencies overall by b-c, a minimum of 15 thresholds. Many tests will require more than this. If a Service User is tested twice on the same day, given the test-retest variability [described above], then it is to be expected that some of the a-c results will differ by 5 dB between the two tests, and b-c results are likely to differ by a greater degree even though the patient’s hearing has not undergone any meaningful change. If the time interval between tests is longer, then differences between the two sets of thresholds are more likely as there will have been some physiological changes within the ears during the interval.”

29. In his report, having studied the audiograms supplied to him for the ten service users, in each case, the later audiogram having been performed by the Registrant, RR considered the variability between the audiograms taken on the same service user and set out his opinion in relation to each. As a summary of his conclusions, RR opined, “In summary there are ten instances of audiograms taken by [the Registrant], over a six month period, that show remarkably little change from previous test results. It is possible for there to be virtually no difference between a pair of legitimate audiograms on a patient, though very unlikely for the reasons given above. On ten occasions [the Registrant] has presented test results that are remarkably similar to the previous results on that patient. The chances of such a lack of variability occurring so often over such a short time are, in my opinion, vanishingly small to the point of unfeasibility, even if unconscious tester bias (as described above) is allowed for. In my opinion the audiograms presented are not the results of genuine assessments having been undertaken.” In oral evidence at the hearing, RR addressed the graphs in relation to each service user separately.

30. The Panel had careful regard to the Registrant’s written representations of 18 October 2019, submitted to the HCPC in response to the Notice of Allegation. Within his statement, the Registrant addressed the allegations he faced. He explained that he was disconcerted to find that in the autumn of 2016, electronic records, relating to service users he had met, were being checked and audited without his knowledge or consent by VC, another hearing aid dispenser at Hidden Hearing. The Registrant said, “If she found that I hadn’t conducted a hearing test she would challenge me, sometimes in front of support staff, as to why this was and I would be asked to give my reasons for not testing. I felt this open questioning of my abilities, and her overall confrontational and antagonistic approach to me, amounted to bullying in the workplace…Of course, the real reason for the constant testing of clients’ hearing was that this would help to pinpoint new hearing aid sales and upgrade opportunities…Following on from this open criticism of my work I did my best to comply with what was being asked of me. However there were times when, in my opinion, it was completely unnecessary to conduct a hearing test but I was obliged to do so… As I wanted to avoid any further unpleasantness at work I determined that if I had been told by a client that they were hearing well and were happy with the way their hearing aids were programmed then I may decide not to test their hearing - especially if they had been tested within the past couple of years or so…Over the past fourteen years my patients’ needs and wishes have been and remain of paramount importance to my practice. I have always respected my patients’ privacy and dignity. I make sure I work in partnership with all patients and involve them, where appropriate about decisions regarding the hearing care services to be provided in order to ensure that I am able to meet their ongoing needs. Therefore, if a Service User tells me that they are hearing well and experiencing no particular problem with their aided hearing, I am usually loathe performing a hearing test just for the sake of it. However, this is exactly what was demanded of me in Bath. It was made crystal clear to me that no matter how many times I saw a Service User they always had to have their hearing tested. This culture of constant testing seemed excessive and unwarranted to my way of thinking…The circumstances that led to this fitness to practise hearing have filled me with unease and regret. I accept that I was at fault, on a few occasions, in recording hearing tests that did not take place. I would like to add that I did not falsify any other aspect of the client management system. For the avoidance of any doubt I would like to make it clear that I have always conducted a pure tone hearing test when a Service User has told me that they are dissatisfied with their hearing. These events occurred more than two years ago and I have had lots of time to reflect on my actions. Indeed I have been so upset that I have not worked as a hearing aid dispenser since March 2018. If a similar situation ever arose again where I was feeling bullied, coerced and pressured into subjecting elderly, frail and vulnerable patients into having unnecessary hearing tests - with the constant underlying and implicit managerial narrative being exploitation, profiteering and personal financial gain - I would act in an entirely different way. My actions were predicated purely on the basis of avoiding further confrontation and conflict with [VC] in particular… I apologise for my errors of judgement and I further regret any inconvenience I may have caused to patients.”

Decision on Facts

31. The Panel carefully considered the evidence before it, the submissions of the Presenting Officer and the Registrant’s written representations. The Panel accepted the advice of the Legal Assessor. The standard of proof in HCPC proceedings is the civil standard, on the balance of probabilities, meaning that before finding a fact proved the Panel must be satisfied it is more likely than not that it occurred. The burden of proof was upon the HCPC which brought the allegation, it was not for the Registrant to prove his innocence. In his written representations, the Registrant appeared to accept that he did not carry out audiometry testing on some occasions but recorded that he had done so. However, the burden remained upon the HCPC to prove its case to the required standard. The Panel did not treat the Registrant's absence from the hearing and, accordingly, his failure to give evidence, as any support for the HCPC's case. The fact of his absence did, of course, mean that there was no oral evidence from him which was capable of contradicting, undermining, or explaining the evidence presented by the HCPC.

32. Dishonesty was alleged in respect of the factual particular in this case and the Panel was reminded of the test in respect of dishonesty set out in the case of Ivey (Appellant) v Genting Casinos (UK) Ltd. t/a Crockfords (Respondent) [2017] UKSC 67, where Lord Hughes, giving judgment, stated as follows:

“…The fact finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. 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".
33. The Panel found Witness RN to be credible and his evidence was helpful to the Panel. RN was clear in his mind about the working systems in place and around the expectations of hearing aid dispensers at Hidden Hearing. RN gave detailed evidence to the Panel about the CMS system. The Panel was of the view that RN’s investigation could have been more comprehensive; for example, he could have interviewed the Registrant and Service User A.

34. The Panel found expert witness RR to be knowledgeable and experienced. The clear drafting of his report, supported by RR’s clear oral evidence, assisted the Panel. RR recognised and understood his role as an expert witness and made concessions on the evidence where it was appropriate. The Panel considered that it was able to rely on his evidence in reaching its conclusions.

35. The Panel considered Particular 1 and each of its sub-particulars and made the following findings:


Particular 1(a) – found proved

36. The Panel had sight of the two audiograms for Service User H, dated 11 January 2016 and 13 January 2017.

37. The Panel accepted the evidence of RN that a total of 27 data points were tested and that there was only one point of difference between the audiogram recorded by the Registrant on 13 January 2017 and the previous audiogram dated 11 January 2016, 12 months earlier.

38. The Panel also accepted the evidence of RR who stated, “There are two audiograms for this Service User dated 11/1/16 and 13/1/17. The two audiograms are remarkably similar, the only difference being of 5 dB for the left a-c at 250 Hz. This would be an extremely unlikely occurrence.”

39. The Registrant did not specifically address Service User H in his written representations, but the Panel noted his apparent position that, “I am usually loathe performing a hearing test just for the sake of it. However, this is exactly what was demanded of me in Bath. It was made crystal clear to me that no matter how many times I saw a Service User they always had to have their hearing tested...I accept that I was at fault, on a few occasions, in recording hearing tests that did not take place. I would like to add that I did not falsify any other aspect of the client management system.” In this particular case, the Panel noted that, although the Registrant’s appointment with Service User H was timed at 12.30 on 13 January 2017, the audiogram was created by the Registrant in CMS at 19.21 and saved as a completed assessment one minute later, showing a wholly unrealistic timescale for completing a full audiometric assessment. 

40. The Panel was satisfied that it was more likely than not that the Registrant did not conduct an audiometry assessment on Service User H on 13 January 2017 and/or that he falsified the results. Accordingly, it found this sub-particular proved on the balance of probabilities.

Particular 1(b) – found proved

41. The Panel had sight of the two audiograms for Service User I, dated 4 July 2016 and 30 January 2017.

42. The Panel accepted the evidence of RN that a total of 17 data points were tested and that there was only one point of difference between the audiogram recorded by the Registrant on 30 January 2017 and the previous audiogram recorded 5 months earlier. The Panel accepted RB’s evidence that this one change is the minimum measurement of change that can be recorded on an audiogram.

43. The Panel also accepted the evidence of RR who stated, “The two audiograms are remarkably similar, the only difference being of 5 dB for the left a-c at 8kHz. This would be an extremely unlikely occurrence. The right ear appears to be totally deaf so a full set of data points is not available for that ear, this does not change my opinion about the validity of the results presented.”


44. The Registrant did not specifically address Service User I in his written representations, but the Panel noted that he appeared to accept that he was at fault in recording some hearing tests that did not take place.

45. The Panel was satisfied that it was more likely than not that the Registrant did not conduct an audiometry assessment on Service User I on 30 January 2017 and/or that he falsified the results. Accordingly, it found this sub-particular proved on the balance of probabilities.

Particular 1(c) – found proved

46. The Panel had sight of the two audiograms for Service User F, dated 15 June 2015 2015 and 10 February 2017.

47. The Panel accepted the evidence of RN that a total of 18 data points were tested and that there was only one point of difference between the audiogram recorded by the Registrant on 10 February 2017 and the previous audiogram recorded 20 months earlier. The Panel accepted RN’s evidence that this one change is the minimum measurement of change that can be recorded on an audiogram.

48. The Panel also accepted the evidence of Witness RR who stated, “The two audiograms are remarkably similar, with the only difference being a 5 dB change for the right a-c at 6 kHz. This would be an extremely unlikely occurrence.”

49. The Registrant did not specifically address Service User F in his written representations, but the Panel noted that he appeared to accept that he was at fault in recording some hearing tests that did not take place.

50. The Panel was satisfied that it was more likely than not that the Registrant did not conduct an audiometry assessment on Service User F on 10 February 2017 and/or that he falsified the results. Accordingly, it found this sub-particular proved on the balance of probabilities.


Particular 1(d) – found proved

51. The Panel had sight of the two audiograms for Service User C, dated 9 June 2015 and 30 March 2017, a time gap of 1 year 9 months.

52. The Panel accepted the evidence of RN that there were no recorded differences in any data points for the two audiograms.

53. The Panel also accepted the evidence of Witness RR who stated, “All the thresholds are identical. This would be an extremely unlikely occurrence.”

54. The Registrant did not specifically address Service User C in his written representations, but the Panel noted that he appeared to accept that he was at fault in recording some hearing tests that did not take place.

55. The Panel was satisfied that it was more likely than not that the Registrant did not conduct an audiometry assessment on Service User C on 30 March 2017 and/or that he falsified the results. Accordingly, it found this sub-particular proved on the balance of probabilities.

Particular 1(e) – found proved

56. The Panel had sight of the two audiograms for Service User B, dated 25 March 2015 and 7 April 2017.

57. The Panel accepted the evidence of RN that a total of 20 data points were tested and that there was only one point of difference between the audiogram recorded by the Registrant on 10 February 2017 and the previous audiogram recorded almost 2 years earlier. The Panel accepted RN’s evidence that this one change is the minimum measurement of change that can be recorded on an audiogram.

58. The Panel also accepted the evidence of Witness RR who stated, “The two audiograms are remarkably similar, with only the left a-c threshold at 8kHz having changed by 5 dB. Such a minimal difference between two audiograms taken over two years apart would be extremely unlikely.”

59. The Registrant did not specifically address Service User B in his written representations, but the Panel noted that he appeared to accept that he was at fault in recording some hearing tests that did not take place.

60. The Panel was satisfied that it was more likely than not that the Registrant did not conduct an audiometry assessment on Service User B on 7 April 2017 and/or that he falsified the results. Accordingly, it found this sub-particular proved on the balance of probabilities.

Particular 1(f)(i) – found proved

61. The Panel had sight of the audiograms for Service User A, spanning a four year period. Service User A’s appointment with the Registrant was on 21 April 2017.

62. The Panel accepted the evidence of RN that that there were only two data points of difference between the audiogram recorded by the Registrant on 21 April 2017 and the previous audiogram recorded 17 months earlier.

63. The Panel also accepted the evidence of Witness RR who stated, “The audiograms show a typical degree of variability, except that the test on 21/4/17 is remarkably similar to the previous test on 10/9/15. The right ear 250 Hz and 8kHz a-c results only have changed by 5dB, all other results (left a-c, left b-c and initial not-masked b-c) are the same. This would be an extremely unlikely occurrence.”

64. The Panel had sight of a copy of the written complaint from Service User A, alleging that no audiometry test was undertaken during his appointment on 21 April 2017 and that he only had a tone test with his hearing aids in. The Registrant addressed Service User A’s complaint in his written representations, challenged Service A’s recollection of what occurred, but did not state that had in fact conducted an audiometry test. Rather, he made representations about the “unacceptable ambient noise levels” in the consulting room where he met Service User A on 21 April 2017 due to the noise from the road outside. He said, “In my opinion this room was never fit for the purpose of conducting any type of hearing tests during the time I worked there.” The Panel bore in mind the Registrant’s written representations in which he appeared to accept that he was at fault in recording some hearing tests that did not take place.

65. In light of all the evidence before it, the Panel was satisfied that it was more likely than not that the Registrant did not conduct an audiometry assessment on Service User A on 21 April 2017 and/or that he falsified the results. Accordingly, it found this sub-particular proved on the balance of probabilities.

Particular 1(f)(ii) – found proved

66. The Panel had sight of the two audiograms for Service User G, dated 3 July 2014 and 21 April 2017.

67. The Panel accepted the evidence of RN that a total of 22 data points were tested and that there were only two points of difference between the audiogram recorded by the Registrant on 21 April 2017 and the previous audiogram recorded 2 years and 10 months earlier. The Panel accepted RN’s evidence that these changes were the minimum measurement of change that can be recorded on an audiogram and that they were at the extreme end of the frequency test range for a-c and b-c.

68. The Panel also accepted the evidence of Witness RR who stated, “The two audiograms are remarkably similar, with the only differences being 5 dB change for the left a-c at 8kHz and a 5 dB change for the left not-masked b-c (the triangles on the graph) at 4kHz. This would be an extremely unlikely occurrence.”

69. The Registrant did not specifically address Service User G in his written representations, but the Panel noted that he appeared to accept that he was at fault in recording some hearing tests that did not take place.

70. The Panel was satisfied that it was more likely than not that the Registrant did not conduct an audiometry assessment on Service User G on 21 April 2017 and/or that he falsified the results. Accordingly, it found this sub-particular proved on the balance of probabilities.

Particular 1(g)(i) – found proved

71. The Panel had sight of the two audiograms for Service User D, dated 7 December 2015 and 4 May 2017.

72. The Panel accepted the evidence of RN that there was only one point of difference between the audiogram recorded by the Registrant on 4 May 2017 and the previous audiogram recorded 1 year and 5 months earlier.

73. The Panel also accepted the evidence of Witness RR who stated, “The two audiograms are remarkably similar, with only a 5 dB difference for left a-c at 8kHz, and the addition of a reading for the right a-c at 3kHz that was not present on the earlier audiogram. This would be an extremely unlikely occurrence.”

74. The Registrant did not specifically address Service User D in his written representations, but the Panel noted that he appeared to accept that he was at fault in recording some hearing tests that did not take place.

75. The Panel was satisfied that it was more likely than not that the Registrant did not conduct an audiometry assessment on Service User D on 4 May 2017 and/or that he falsified the results. Accordingly, it found this sub-particular proved on the balance of probabilities.


Particular 1(g)(ii) – found proved

76. The Panel had sight of the two audiograms for Service User E, dated 4 September 2015 and 4 May 2017.

77. The Panel accepted the evidence of RN that there was only one point of difference between the audiogram recorded by the Registrant on 4 May 2017 and the previous audiogram recorded over 18 months earlier.

78. The Panel also accepted the evidence of Witness RR who stated, “The two audiograms are remarkably similar, with the only difference being a 5 dB change for the right a-c at 250 Hz, and the addition of a reading for the right a-c at 3kHz that was not present on the earlier audiogram. This would be an extremely unlikely occurrence.”

79. The Registrant did not specifically address Service User E in his written representations, but the Panel noted that he appeared to accept that he was at fault in recording some hearing tests that did not take place.

80. The Panel was satisfied that it was more likely than not that the Registrant did not conduct an audiometry assessment on Service User E on 4 May 2017 and/or that he falsified the results. Accordingly, it found this sub-particular proved on the balance of probabilities.

Particular 1(h) – found proved

81. The Panel had sight of the two audiograms for Service User J, dated 27 July 2016 and 5 June 2017.

82. The Panel accepted the evidence of RN that a total of 20 data points were tested and that there was only one point of difference in both ears between the audiogram recorded by the Registrant on 5 June 2017 and the previous audiogram recorded 11 months earlier. The Panel accepted RN’s evidence that these changes were the minimum measurement of change that can be recorded on an audiogram

83. The Panel also accepted the evidence of Witness RR who stated, “The two audiograms are remarkably similar, the only difference being a 5 dB change in a-c at 6 kHz for both ears. This would be extremely unlikely.”

84. The Registrant did not specifically address Service User J in his written representations, but the Panel noted that he appeared to accept that he was at fault in recording some hearing tests that did not take place.

85. The Panel was satisfied that it was more likely than not that the Registrant did not conduct an audiometry assessment on Service User J on 5 June 2017 and/or that he falsified the results. Accordingly, it found this sub-particular proved on the balance of probabilities.

Particular 2 – found proved

86. The Panel considered the guidance on dishonesty in Ivey. It was mindful that an allegation of dishonesty is serious and that it should look for cogent evidence before being satisfied on the balance of probabilities. The Panel considered its findings in respect of Particular 1. The Panel bore in mind that the Registrant was well-qualified in his profession and considered that he had a clear understanding of his job and role and knew what was expected of him. It also bore in mind the Registrant’s own representations around what he deemed to be the culture and management at Hidden Hearing. The Panel noted the Registrant’s statement that, “I am usually loathe performing a hearing test just for the sake of it. However, this is exactly what was demanded of me in Bath. It was made crystal clear to me that no matter how many times I saw a Service User they always had to have their hearing tested...I accept that I was at fault, on a few occasions, in recording hearing tests that did not take place. I would like to add that I did not falsify any other aspect of the client management system.” The Panel considered that the Registrant appeared to accept this allegation of dishonest conduct in this response and apologised what he considered to be his “errors of judgement.”

87. The Panel determined that the Registrant was aware of what he was doing and did not accept that these were errors or even an error of judgment on his part. The Panel found that these steps, repeated in relation to ten separate service users over a six-month period, indicated a pattern of conduct which, viewed objectively by an ordinary, decent person, was dishonest. Accordingly, on the balance of probabilities, the Panel found this Particular proved.
Decision on Grounds and Impairment
88. The Panel went on to consider, on the basis of the facts found proved, whether the ground of misconduct was established and if so, whether the Registrant’s fitness to practise is currently impaired. In reaching its decision, the Panel adopted a two-stage approach, first in considering whether the facts found proved constituted misconduct, then whether those findings led to the conclusion that his fitness to practise is currently impaired. The Legal Assessor referred to the Panel to the guidance on misconduct in Roylance v GMC (No 2) [2001] 1 AC 311. 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). She 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.

89. The Panel noted that there is no burden or standard of proof at this stage and exercised its own professional judgement, keeping at the forefront of its consideration the overarching objectives of the HCPC.

90. The Presenting Officer made submissions regarding the ground of misconduct and current impairment. She submitted that the facts proved were so serious as to amount to misconduct and that the Registrant’s fitness to practice was currently impaired. No submissions regarding misconduct or impairment had been received from the Registrant.

91. The Panel concluded that the Registrant’s actions breached the following paragraphs of the HCPC Standards of conduct, performance and ethics (2016):


• Standard 1 You must promote and protect the interests of service users.
• Standard 9 Registrants must be honest and trustworthy
• Standard 9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
• Standard 10.1 You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.

92. The Panel was aware that not every act falling short of what would be proper in the circumstances, and not every breach of the HCPC Standards, would be sufficiently serious that it could properly be described as misconduct. However, the Panel was in no doubt that the facts it had found proved in this case amounted to misconduct. It found that the Registrant's actions placed a number of service users at risk of harm, through their audiometry needs not being met (for example, not conducting an audiometry assessment 2 years and 10 months after the service user’s last assessment) and their records having been falsified. The Panel accepted the HCPC's case that there was a clear potential for service users not receiving the care that they needed.

93. The Panel considered that the Registrant’s conduct demonstrated behaviour that lacked professional integrity which fellow registrants would consider to be nothing short of deplorable. The Panel was in no doubt that the Registrant's behaviour had the clear potential to undermine public confidence in the profession and it found that to characterise it as other than misconduct would fail to uphold proper professional standards and would undermine public confidence in the profession and in the regulatory function of the HCPC.

94. Having reached its conclusions in respect of misconduct, the Panel went on to decide whether the Registrant’s fitness to practise is currently impaired. The Presenting Officer made submissions on impairment. The Panel was invited to assess the Registrant’s level of insight and what, if any, remediation had been undertaken. The Presenting Officer submitted that there was little evidence of insight or any remediation and that his fitness to practise was and remains impaired.

95. No specific submissions regarding impairment had been received from the Registrant but he stated in his representations of October 2019, “The circumstances that led to this fitness to practise hearing have filled me with unease and regret…These events occurred more than two years ago and I have had lots of time to reflect on may actions. Indeed I have been so upset that I have not worked as a hearing aid dispenser since March 2018. If a similar situation ever arose again where I was feeling bullied, coerced and pressured into subjecting elderly, frail and vulnerable patients into having unnecessary hearing tests - with the constant underlying and implicit managerial narrative being exploitation, profiteering and personal financial gain - I would act in an entirely different way...I apologize for my errors of judgement and I further regret any inconvenience I may have caused to patients.”

96. The Panel considered the test set out by Dame Janet Smith in her Fifth Shipman Report. In all these circumstances, the Panel found that the Registrant has in the past acted, and is liable in the future to act, so as to put service users at unwarranted risk of harm; that he has in the past brought, and that he is liable in the future to bring the profession into disrepute; and that he has in the past breached, and is liable in the future to breach fundamental tenets of the profession, namely to promote and protect the interests of service users and carers and to manage risk; that he has in the past acted and is liable in the future to act dishonestly.

97. The Panel carefully considered the personal component of impairment and considered the Registrant's level of insight, whether his misconduct was capable of remediation, whether it had been remedied and the risk of repetition. The Panel considered that although dishonesty is often said to be difficult to remedy, in theory, such misconduct was capable of remediation through meaningful reflection. The Registrant has not explained why, as an autonomous practitioner he did not honestly explain why if he judged, a full audiometry test to be unnecessary, he did not accurately record his decision. If he felt he was being bullied, he could have raised a grievance or left the organisation rather than falsify records. He has not explained how he would avoid dishonesty in the future. The Registrant has not fully accepted his failings and has not completed any re-training on the fundamental importance of adherence to the principles set out in the Standards detailed above, the ethics of his profession and his responsibilities to service users. The Panel was of the view that it had no evidence of deep reflection on the Registrant’s part.

98. The Panel found that the focus of the Registrant’s evidence was on his position and his difficulties at Hidden Hearing, rather than the impact of his actions and omissions upon those in his care. Although he mentioned regret in his written statement, this was in relation to “any inconvenience I may have caused to patients.” The Panel considered that his written statement failed to show a well-developed level of insight and reflection on the impact of those serious actions on service users, colleagues and on public confidence in the profession. There was no evidence before the Panel that the Registrant understood the gravity of the actions that had led to the finding of misconduct or the potential consequences of his actions. In the Panel’s view, the Registrant’s level of insight is far from fully developed. The information before the Panel was that the Registrant has not worked as a Hearing Aid Dispenser since March 2018. It had no evidence of any re-training or continuing professional development undertaken by him. In light of all the information before it, the Panel found no evidence of remediation of the Registrant's misconduct. The Panel could not exclude the risk of repetition of such misconduct by the Registrant and, accordingly, the Panel found the Registrant’s fitness to practise to be currently impaired on the personal component.

99. Turning to the public interest component of impairment, the Panel was mindful of its finding of dishonesty and was satisfied that the Registrant's misconduct would substantially undermine the trust and confidence the public could have in the profession. The Registrant was a trusted employee and was specifically tasked with conducting hearing tests. Although the Panel took into account RN’s evidence that no actual harm was caused to service users in the Registrant’s care, the Panel was concerned that, for example, matters were not progressed in a timely manner and considered that this had the potential for harm. Accordingly, 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, to be in a position to practise on an unrestricted basis. The Panel concluded that a finding of impairment is therefore required in order to uphold and declare proper standards of behaviour and to maintain public confidence in the profession, and in the Regulator.

100. Accordingly, the Panel determined that the Registrant's current fitness to practise is impaired by reason of his misconduct, both on the grounds of public protection and in order to meet the wider public interest.


Decision on Sanction

101. The Presenting Officer stated that the HCPC remained neutral on the question of sanction and referred the Panel to the HCPC Sanctions Policy, revised in March 2019. She referred the Panel, however, to the case of Burrows v General Pharmaceutical Council [2016] ] EWHC 1050 (Admin) in which the Court stated that a registrant’s failure to attend their hearing, particularly in circumstances where they faced an allegation of dishonesty, essentially amounts to “courting removal” from the regulator.

102. The Panel heard and accepted the advice of the Legal Assessor who reminded it that the purpose of sanction was not to be punitive. Rather, the primary function of a sanction is to address public safety issues although there will also be secondary considerations in the form of a deterrent effect on other professionals and in maintaining the reputation of the profession and public confidence in the regulatory process. She advised the Panel to firstly consider whether any sanction was necessary and, if it was, to consider sanctions in ascending order, settling with the least restrictive that met the Panel’s concerns. The Legal Assessor advised the Panel to bear in mind the principle of proportionality, at all times balancing the Registrant’s interests with the public interest.

103. No submissions in relation to sanction or any references or testimonials had been submitted by the Registrant.


104. The starting point for the Panel was that the Registrant’s misconduct was serious; his dishonest actions placed a number of vulnerable service users at risk of harm, through their needs not being met and this had a potential to adversely impact upon them. The Panel had no information to indicate that the concerns about the Registrant’s practice had been addressed and it concluded that he continued to pose a current risk of harm to the public and to the wider public interest.

105. The Panel considered that there were a number of mitigating factors in this case:

• the Registrant admitted falsifying service users’ records;
• the Panel considered that he has given a qualified apology;
• the Registrant has no previous regulatory history.

106. The Panel also identified the following aggravating factors:

• the misconduct found proved in this case was deliberate and involved a breach of trust;
• ten service users were placed at risk of harm as a result of the Registrant’s dishonest actions and inactions;
• the misconduct identified in this case was repeated and spanned a 6 month period;
• the Registrant has not evidenced any steps taken by him to address his conduct;
• the Registrant has provided no evidence of any meaningful reflection and lacks insight, especially in relation to the impact of his actions on service users and the wider public.

107. The Panel considered what sanction, if any, should be applied, and considered its powers in ascending order of seriousness. The Panel had in mind the HCPC Sanctions Policy and the principle of proportionality when considering sanctions.

108. The Panel concluded that the misconduct in this case was too serious to refer for mediation or to take no action. There is a risk of repetition and taking no action would fail to protect the public or meet the public interest in declaring and upholding proper professional standards and maintaining confidence in the profession and the regulatory process.


109. The Panel next considered whether to make a Caution Order. A Caution Order is appropriate in cases where the failing is isolated, relatively minor in nature or where the risk of recurrence is low. This was not an isolated lapse, nor minor in nature, as the proved Allegation involved dishonesty and falsifying patient records. The Panel considered the conduct to be serious and there had been no appreciable insight or any remediation. In the absence of evidence of remediation, the Panel considered that the Registrant would still pose a risk to service users. On the very brief written representations from the Registrant before the Panel, he does not appear to have any understanding of why, only testing service users if they complain of a change in their hearing, is not sufficient. Service users may fail to realise that their hearing has altered unless tested regularly. In light of there being a risk of repetition of the misconduct found proved, a Caution Order would not be appropriate or sufficient to protect either the public or the public interest.

110. The Panel next considered a Conditions of Practice Order. The Panel noted the guidance in the Sanctions Policy that Conditions “will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so.” The Sanctions Policy also provides that Conditions are “less likely to be appropriate in more serious cases, for example those involving dishonesty.” In this case there has been limited engagement from the Registrant and and little insight; the Panel has minimal information about the Registrant’s current circumstances, save for the fact that he has informed the HCPC that he has not worked as a Hearing Aid Dispenser since March 2018. Accordingly, the Panel concluded that even if appropriate conditions could be formulated to address the misconduct and the ongoing risk presented by the Registrant, in the absence of further information from him, it could not be satisfied that those conditions would be workable, or that the Registrant would comply with them. It was clear to the Panel that Conditions of Practice were therefore not an appropriate or sufficient sanction to protect the public or the public interest.

111. The Panel next considered a Suspension Order. It noted the guidance at paragraph 121 of the Sanctions Policy that such an order may be appropriate “where 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.” The Panel has found that the Registrant’s actions were serious and deliberate, involving an abuse of trust and serious breaches of professional standards. In addition, the dishonesty found proved requires a more serious sanction as a matter of principle. The Panel has found that the Registrant has shown no meaningful insight and no evidence of remediation. The Panel was mindful that sanction is primarily about public safety, that the public interest is important and that suspension is not an appropriate sanction merely to allow a Registrant more time to develop insight. Given its findings as to the repeated nature and gravity of the misconduct in this case, coupled with the Registrant’s lack of insight and understanding of its seriousness, together with the lack of evidence as to remediation, the Panel determined that a Suspension Order would not be appropriate or proportionate. Suspension would fail to adequately address the public interest and the need to send an appropriate deterrent message to the profession.

112. The Panel considered paragraph 130 of the Sanctions Policy and noted that a Striking-Off Order “is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive): dishonesty…abuse of professional position, including vulnerability…” The Panel determined that any lesser sanction than a striking off order would fail to reflect the nature and gravity of the misconduct, it would lack the necessary deterrent effect on the profession and would not provide the necessary protection for the public in its broadest sense. The Panel accordingly determined to impose a striking off order.


113. The Panel was mindful of the significant impact that such an order may have on the Registrant in terms of financial, personal and professional hardship. In any event, the Panel determined that the protection of the public and the wider public interest outweigh those of the Registrant in this regard.

Order

That the Registrar is directed to strike the name of Mr Robert Gray from the register on the date this order comes into effect.

Notes

Interim Order

Proceeding in Absence/Application for an Interim Order

1. The Panel heard an application from the Presenting Officer to cover the appeal period by imposing an interim order on the Registrant’s registration. She submitted that such an order is necessary to protect the public and is otherwise in the public interest.


2. The Panel heard and accepted the advice of the Legal Assessor. It had careful regard to Paragraphs 133-135 of the Sanctions Policy and to Paragraph 7 of the HCPTS Practice Note on Interim Orders, which offers guidance on interim orders imposed at final hearings after a sanction has been imposed. This makes clear that registrants should be made aware of the potential for an interim order to be imposed on their registration after the panel has made a substantive order and should be given an opportunity to make representations in respect of an interim order.


3. The Panel noted that the Registrant had been informed by the Notice of Hearing letter dated 30 August 2019 that if this Panel found proved the Allegation against him and imposed a conditions of practice order, a suspension order or a striking-off order, the HCPC may make an application to the Panel to impose an interim order to cover any appeal period. For the reasons set out in its earlier decision to commence the hearing in the absence of the Registrant, the Panel determined that it would also be fair, proportionate and in the interests of justice to consider the Presenting Officer’s application.

Decision on Interim Order

4. The Panel recognised that its power to impose an Interim Order is discretionary and that the imposition of such an order is not an automatic outcome of fitness to practise proceedings in which a Striking-off Order has been imposed and that the Panel must take into consideration the impact of such an order the Registrant. The Panel was, however, mindful of its findings in relation to the misconduct in this case and the risk of repetition.


5. The Panel decided to impose an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001. The Panel was satisfied that an Interim Suspension Order is necessary for the protection of the public and is otherwise in the public interest to maintain confidence in this regulatory process. The Panel has had regard to the misconduct found proved and the resulting public protection concerns and the full reasons set out in its decision for the substantive order in reaching the decision to impose an Interim Suspension Order. In the circumstances, it also considered that public confidence in the profession and the regulatory process would be seriously undermined were the Registrant allowed to remain in practice during the appeal period.


6. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined.


7. If no appeal is made, then the Interim Suspension Order will be replaced by the Striking-off Order 28 days after the Registrant is sent the decision of this hearing in writing.

Hearing History

History of Hearings for Mr Robert Gray

Date Panel Hearing type Outcomes / Status
18/11/2019 Conduct and Competence Committee Final Hearing Struck off