1. The Registrant was employed as a registered Hearing Aid Dispenser with Scrivens Opticians and Hearing Care from 19 December 2016 until 1 February 2017.
2. During the course of her employment, concerns were raised in relation to her ability to demonstrate the core competencies of her role.
3. Scrivens Opticians referred the Registrant to the HCPC on 17 February 2017.
4. At the substantive hearing on 29-30 January 2018, the Registrant did not attend and was not represented. The substantive panel found proved failings in her professional practice which were wide-ranging, relating to fundamental and basic skills. The substantive panel concluded that these constituted lack of competence.
5. In considering the issue of current impairment the substantive panel concluded that the Registrant’s fitness to practice was impaired, saying that:
“…the Registrant’s lack of competence had fallen seriously short of the Standards of Proficiency expected of a Registered Hearing Aid Dispenser, and was such as to put patients at unwarranted risk of harm and bring the profession into disrepute. In those circumstances the Panel had no doubt the Registrant’s fitness to practise had been impaired by reason of her lack of competence.
The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of her lack of competence. In addressing the personal component of impairment, the Panel asked itself whether the Registrant is liable, now or in the future, to repeat or persist in this lack of competence. In reaching its decision, the Panel had particular regard to the issues of insight and remediation…
The Registrant has not engaged with the proceedings and the Panel has not had the benefit of hearing from her, in person or in writing. As a consequence, the Panel is unable to conclude that the Registrant has demonstrated any meaningful insight into her failings.
The Panel recognised that clinical failings are usually easier to remedy than those, for example, which involve entrenched attitudinal problems. However, it has received no evidence of any steps which the Registrant may have taken since the time of the allegation, to remediate her failings. Accordingly, it had no choice but to conclude that the Registrant’s lack of competence is highly likely to persist. For these reasons, the Panel determined that a finding of personal impairment is required on the ground of public protection.
The Panel then went on to consider whether a finding of impairment is necessary on public interest grounds. In addressing this component of impairment, the Panel had careful regard to the critically important public issues identified by Silber J in the case of Cohen when he said:
“Any approach to the issue of whether fitness to practise should be regarded as ‘impaired’ must take account of ‘the need to protect the individual patient, and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.”
The Panel considered that maintaining competence to undertake safe and effective practice is a fundamental requirement of the profession of Hearing Aid Dispensers and that the public would be concerned to learn of the deficiencies in such fundamental and basic skills and competencies demonstrated by a Registered Hearing Aid Dispenser. The Panel had no doubt that the need to maintain public confidence in the profession, and to declare and uphold proper standards, would be undermined if a finding of impairment of fitness to practise were not made in the circumstances of this case.
For all the reasons set out above, the Panel determined that the Registrant’s fitness to practise is currently impaired, both on the grounds of public protection and in the public interest.
6. In considering sanction the substantive panel imposed a Suspension Order of 12 months, saying:
In reaching its decision, the Panel had regard to all the circumstances, including the following mitigating and aggravating features of the case:
• The Panel received no evidence to suggest that there were attitudinal failings or indifference to outcome;
• The Registrant had demonstrated very limited insight in recognising the need for more training;
• The Panel received no evidence that the Registrant had previously been brought before her regulator in respect of any other matters.
• The basic and fundamental nature of the deficiencies in respect of a wide range of core competencies;
• The persistence of the failings, even after assistance, training and advice had been provided;
• Errors occurring despite direct and close supervision;
• Patients were put at unwarranted risk of harm.
The Panel first considered whether it would be appropriate to impose no sanction in this case. It gave careful consideration to Paragraph 8 of the ISP. The Panel determined that in light of its findings the Registrant as demonstrated no insight or remediation and that there remains a high risk of repetition or persistence of her serious and wide-ranging lack of competence, the imposition of no sanction would neither protect the public nor serve the wider public interest in maintaining confidence and declaring and upholding proper standards.
The Panel next considered the imposition of a Caution Order. It gave careful consideration to the factors set out in ISP. The Panel determined that in light of its findings that the Registrant has demonstrated little insight or remediation and that there remains a high risk of repetition or persistence of her serious and wide-ranging lack of competence. The imposition of a Caution Order would be inappropriate as it would neither protect the public nor be sufficient to mark the wider public interest.
The Panel then considered the imposition of a Conditions of Practice Order. It gave careful consideration to Paragraphs 30-38 of the ISP. In considering the suitability of a Conditions of Practice Order, the Panel noted that, while clinical failings are, in principle, possible to remediate through a Conditions of Practice Order, the Registrant’s lack of competence is wide-ranging and at a fundamental level, and the Panel has received no evidence of meaningful insight or remediation. As a consequence, any conditions would need to be so onerous as to be unworkable and therefore tantamount to suspension. Further, the Registrant has not engaged with this hearing and the Panel can have no confidence that she would engage with a Conditions of Practice Order. In all the circumstances, the Panel concluded that such an option is neither workable nor appropriate at this time.
The Panel went on to consider the imposition of a Suspension Order. It gave careful consideration to Paragraphs 39-45 of the ISP. Such an order would protect the public while providing the Registrant with an opportunity to reflect on her failings and take the first steps towards remedying them by undertaking training in order to improve her English language proficiency and acquire the core competencies necessary for compliance with the HCPC Standards of Proficiency for Hearing Aid Dispensers. The Panel considered that a period of 12 months would be required for this purpose, but noted that it would be open to the Registrant to seek an early review if her progress was rapid.
The Panel recognised that a Striking-off Order is not available to it at this time.
For all the reasons set out above the Panel decided that a 12 month Suspension Order is the only appropriate and proportionate sanction in this case.
The Panel considered that a reviewing panel would be likely to be assisted by:
• The Registrant’s attendance;
• A reflective piece from the Registrant with regard to the failings found;
• Evidence from the Registrant as to any steps she may have taken in order to remediate her failings, including her lack of proficiency in the English language”.
7. At the first review hearing held on 21 January 2019 the first review panel concluded that the Registrant’s fitness to practice remained impaired both on public protection and public interest grounds. The first review panel stated:
“In the Panel’s view, the Registrant’s lack of competence was serious and involved breaches of her professional standards. There has been no evidence of change since the final hearing in January 2018 nor any evidence that the concerns underpinning the Registrant’s impaired fitness to practise have been overcome. The Panel considered the wide- ranging failings identified by the previous Panel and the evidence at the original hearing that the Registrant was unable to follow instructions effectively. It also bore in mind the Registrant’s own evidence today that, neither during her six-year career break nor during her period of suspension, had she undertaken CPD training. The Panel was also concerned that, in evidence today, the Registrant stated that she did not accept all of the failings identified by the panel at the substantive hearing.
The Panel has determined that, in light of all the evidence before it, the Registrant’s fitness to practise continues to be impaired. In the absence of any persuasive evidence of remediation, the Panel remained concerned that there was the risk of repetition of the failings identified. The Panel therefore concluded that the Registrant remained liable to put patients at unwarranted risk of harm in the future and that the Registrant remained impaired on public protection grounds.
The Panel also considered the wider public interest in the case. The Registrant has not worked as a Hearing Aid Dispenser since her dismissal in February 2017 and, in the absence of remediation, members of the public would be concerned if such a Registrant were able to practise without restriction. In those circumstances, the Panel was of the view that the need to uphold confidence in the profession and the regulator would be undermined if a finding of impairment were not made. The Registrant is not safe to practise unrestricted given her current impairment and the public interest requires that she should not be in a position to practise unrestricted”.
8. In considering sanction, the first reviewing panel decided to extend the suspension order imposed by the substantive panel for a further 12 months. It stated:
“The Panel first considered a Caution Order and decided that this would not be appropriate because it would not place any actual restriction on the Registrant’s practice which would address the public protection concerns. Further, the Panel was of the view that the lack of competence found proved was too serious and that the public interest would not be served by such a sanction.
The Panel next considered whether a Conditions of Practice Order would be appropriate, to enable the Registrant to proactively seek employment as a Hearing Aid Dispenser and demonstrate to a future panel that she is a safe practitioner. Despite the Registrant’s expressed commitment to return to work as a Hearing Aid Dispenser, the Panel considered that there has been a real lack of progress by the Registrant for the last year while she has been subject to a suspension order. The imposition of a conditions of practice order requires a registrant to engage fully with the fitness to practise process to protect the public and improve her professional practice, with a view to returning her to safe and unrestricted practice. In light of this Registrant’s failure to engage at all with the two key suggestions made to her by the previous panel, the length of time in which she has had to engage, and the nature and seriousness of the core failings identified, the Panel determined that the imposition of a Conditions of Practice Order would serve no useful purpose, either in relation to public protection or the public interest.
The Panel therefore determined that the appropriate and proportionate sanction is to extend the current Suspension Order by a period of 12 months. The panel was of the view that a further suspension order would provide sufficient public protection while leaving open the possibility of future training and remediation taking place. It was of the view that 12 months would allow the Registrant ample opportunity to reflect fully and to demonstrate her attempts to remediate her professional practice.
The Panel considered that a future reviewing panel would be assisted by:
• A diary of continuous learning and reading undertaken by the Registrant in relation to her professional practice, including but not limited to evidence of any continuing professional training or refresher courses;
• Documentary evidence of any continuing professional training or refresher courses undertaken by the Registrant;
• Evidence that she has read the: British Academy of Audiology Guidelines for Audiologists; British Society of Audiology Recommended Procedure Ear Examination; British Society of Audiology Recommended Procedure Pure – tone air-conduction and bone-conduction threshold audiometry with and without masking; British Society of Audiology Recommended Procedure Determination of uncomfortable loudness levels; British Society of Audiology Recommended Procedure Taking an aural impression;
• A written reflective piece addressing each of the core competencies that the Registrant was found to have failed in in relation to allegations 1(a)-(e) and by reference to the Standards of Proficiency expected of a registered Hearing Aid Dispenser.
• References and testimonials from the Registrant’s employer, in
relation to any paid or voluntary role;
• Evidence that the Registrant has undertaken a course which demonstrates her effective verbal communication in English;
• Evidence that the Registrant has experience in a role as an assistant or technician to a Hearing Care or Audiology professional (where registration is not required) in the NHS or private sector”.
Evidence and submissions
9. The Panel was provided with a bundle of documentation, comprising previous written determinations and email correspondence with the Registrant. The Registrant had provided no documentary evidence. She gave evidence by telephone.
10. In evidence the Registrant accepted that she had not actioned any of the suggestions made by the previous panels. She said that it remained her intention to so do. She said that she intended to reduce her current employment to a part-time role to release more time in which to address these issues. She said that it remained her desire to return to the profession.
11. Ms Ktisti submitted that the Registrant’s fitness to practice remained impaired on both grounds of pubic protection and pubic interest in light of the lack of remediation demonstrated by the Registrant. She submitted that a Striking-Off order was not yet available to the Panel because two full years had not yet passed since the imposition of the original Suspension Order. In those circumstances she suggested a 6 months Suspension Order would be the appropriate sanction.
12. The Registrant submitted that she would be happy to be given the opportunity to get on with what she knew she ought to do.
13. The Panel accepted the advice of the Legal Assessor, who advised on the meaning of current impairment, including the criteria set out in the cases of Cohen v GMC  EWHC 581 and Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Paula Grant  EWHC 927. She advised on the factors to be taken into account when considering sanction, including the fact that the purpose of sanction is not to be punitive, but is to protect the public, maintain standards of professional conduct and uphold public confidence in the profession and the regulatory process. She urged the Panel to consult the HCPC’s Sanctions Policy.
14. The Panel concluded that the Registrant’s fitness to practise remains impaired as at today’s date. She had shown no remediation or insight. On her own admission she had done nothing since the last review hearing. In the absence of insight or remediation the Panel had no hesitation in concluding that the Registrant presented a very real risk to the public, and that a finding of impairment was required on the personal component. The Panel also concluded that in light of the lack of competence finding, and the current lack of insight and remediation, a finding of impairment was also required on the public component to maintain standards of professional conduct and uphold public confidence in the profession and the regulatory process.
15. In considering sanction, the Panel started by considering the least serious sanction first.
16. The Panel agreed with the reasoning set out by both the substantive panel and the first review panel in their conclusion that taking no action or imposing a caution would be insufficient and inappropriate for the reasons set out in their determinations.
17. The Panel concluded that a period of suspension for six months was the appropriate and proportionate sanction in the circumstances. The Registrant had shown no insight or remediation. She had done nothing since the last hearing to address the relevant issues. A Suspension Order was the only appropriate order to protect the public and the wider public interest in the circumstances of this case. In so concluding the Panel looked at the next level of sanction, namely a Striking Off order, but accepted the submission made by the presenting officer that a Striking Off order was not available as at today’s date. A Suspension Order will provide the Registrant with a further opportunity to action the suggested remedial measures specified by previous panels, which the Registrant has expressed a desire to see through.
18. The Panel wishes the Registrant to be aware that whilst this Panel is unable to tie the hands of any future reviewing panel, the option of a Striking off Order will be available on the next occasion, which may be of particular relevance if the Registrant is still unable to provide evidence of remediation. If the required remediation demands a reduction in her current employment to part time work, as the Registrant claims, this Panel would expect that to have been done.
19. In those circumstances the Panel imposes a Suspension Order for a period of six months, which should be sufficient for the Registrant to achieve this objective.