Mr David Colin Fisher

Profession: Hearing aid dispenser

Registration Number: HAD00383

Hearing Type: Restoration Hearing

Date and Time of hearing: 10:00 24/01/2020 End: 17:00 24/01/2020

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

Panel: Conduct and Competence Committee
Outcome: Restored

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Allegation

1. Entered a full audiogram on the system on 14 February 2012 for Service

User A even though you had not given him a full hearing test.

2. Asked Colleague A to pre-date a fitting receipt upon learning of Service

User B's death on 17 May 2012.

3. Asked Colleague B to store the unfitted aids belonging to Service User B

in a drawer rather than sending them back to Head Office within the refund

period.

4. On 22 May 2012 you sold two hearing aids to Service User C and you:

a) did not ask the service user about insurance;

b) did not check company records to see if the service user had insurance;

c) processed the sale as two replacements which would have earned you

commission of £1,222 at the rate of 30% on the price of both hearing aids

rather than as insurance claims which would have earned you 12.5% on

the price of the aids;

d) gave documents belonging to Service User C including valid insurance

certificates for hearing aids to Colleague B to shred.

5. On 22 May 2012 you sold two hearing aids to Service User D and you:

a) did not ask the service user about insurance;

b) did not check company records to see if the service user had insurance;

c) processed the sale as two replacements which would have earned you

commission of £1,540 at the rate of 30% on the price of both hearing aids,

rather than dealing with one of the hearing aids as an insurance claim

which would have earned you a commission of 12.5% on the price of that

aid;

d) gave documents belonging to Service User D including insurance

documents relevant to hearing aids to Colleague B to shred.

6. Your actions at paragraphs 1 –5 were dishonest.

7. The matters described in paragraphs 1 - 5 constitute misconduct.

8. By reason of your misconduct your fitness to practise is impaired.

 

Finding

Preliminary matters
Application for parts of the hearing to be in private
1. Ms Simpson indicated that, as was apparent from the papers before the Panel, reference would be made during the hearing to some very personal matters during this application and she suggested those matters be dealt with in private. Mr Bown agreed and asked that those matters be dealt with in private.

2. The Panel accepted the advice of the Legal Assessor and agreed that it was appropriate for all matters relating to Mr Fisher’s health and personal life be dealt with in private. All other matters would be heard in public in the normal way.

Background
3. The matter that has been considered by the Panel is an application made under Article 33 of the Health and Social Work Professions Order 2001 for restoration to the HCPC Register of Mr Fisher, who was struck off the Register as a result of an order made by another panel of this Committee on 23 April 2014.

4. Mr Fisher had been a Registered Hearing Aid Dispenser (“HAD”) since 2001. At the relevant time he was employed by Hidden Hearing Limited (HH) as the senior professional in the Rugby branch, between 29 January 2001 and 20 September 2012. He was remunerated by a combination of salary and commission. His job description included requirements to maintain audiometry, sales and procedural knowledge and skills. Concerns relating to Mr Fisher were initially raised with HH management on 24 May 2012, by a receptionist at the Rugby branch (referred to as “Colleague B” in the particulars). An internal investigation was conducted which commenced on 8 June 2012 and fact finding interviews were conducted with HH employees including Mr Fisher. A report was submitted on 21 July 2012, following the investigation. Disciplinary meetings were held between 31 July 2012 and the 5 September 2012. On 20 September 2012 Mr Fisher’s contract with HH was terminated by agreement.

5. The matter was referred to the HCPC, with a final hearing taking place in April 2014. The matters found proved at the hearing were as follows:

1. Not proved
2. Asked Colleague A to pre-date a fitting receipt upon learning of Service User B’s death on 17 May 2012.
3. Asked Colleague B to store the unfitted aids belonging to Service User B in a drawer rather than sending them back to Head Office within the refund period.
4. On 22 May 2012 you sold two hearing aids to Service User C and you:
a) did not ask the service user about insurance;
b) did not check company records to see if the service user had insurance;
c) processed the sale as two replacements which would have earned you commission of £1,222 at the rate of 30% on the price of both hearing aids rather than as insurance claims which would have earned you 12.5% on the price of the aids;
d) gave documents belonging to Service User C including valid insurance certificates for hearing aids to Colleague B to shred.
5. On 22 May 2012 you sold two hearing aids to Service User D and you:
a) did not ask the service user about insurance;
b) did not check company records to see if the service user had insurance;
c) processed the sale as two replacements which would have earned you commission of £1,540 at the rate of 30% on the price of both hearing aids, rather than dealing with one of the hearing aids as an insurance claim which would have earned you a commission of 12.5% on the price of that aid;
d) gave documents belonging to Service User D including insurance documents relevant to hearing aids to Colleague B to shred.
6. Your actions at paragraphs 1 – 5 were dishonest.

6. The panel at the final hearing concluded that Mr Fisher’s conduct amounted to misconduct and that by reason of that misconduct his fitness to practise was impaired and that the appropriate sanction was one of strike-off. That panel explained its reasoning as follows:

“The Panel found that this was a serious case of misconduct, involving multiple incidents of dishonesty which involved elderly and vulnerable service users, on occasion in their own homes. Mr Fisher has shown no remorse save for the 4 factual particulars that he admitted. He does not accept that the admitted facts were motivated by dishonesty. In these circumstances he has shown no remorse or insight into his dishonesty. The Panel finds, in relation to the case of Sharma, there are no exceptional circumstances. The dishonesty occurred over a period of several months and without the intervention of LS would have been of financial benefit to Mr Fisher and there would have been financial loss to 3 separate elderly service users. A further aggravating feature in this case is Mr Fisher’s attempts to involve others in his dishonesty.

The Panel decided that a suspension order would not be appropriate in view of the lack of insight and remediation. The Panel reminds itself that honesty and integrity are core tenets of the profession. It found that in view of the serious nature of the misconduct which involved multiple acts of dishonesty for financial gain, requesting the destruction of 2 service users insurance documents, the abuse of trust in respect of 3 elderly vulnerable service users, the Panel has no confidence that Mr Fisher would be able to demonstrate that he has remedied his dishonesty, particularly in view of his lack of insight into his failings and his denials at the hearing.

The Panel went on to consider whether it was appropriate to strike Mr Fisher from the register. It reviewed the mitigating and aggravating features of this case and took note of the Indicative Sanctions Policy which states that striking off is the last resort and is appropriate in cases of deliberate acts of dishonesty, where there is no other way to protect the public particularly due to lack of insight. The Panel had regard for the need to protect the public and deter others. In these circumstances, it considered that striking off was the appropriate and necessary sanction particularly in view of the breach of trust in relation to vulnerable elderly service users.”

7. Mr Fisher, and two witnesses on his behalf, IF (his wife) and AH (a HAD registered with the HCPC), gave oral evidence at this restoration hearing. Mr Fisher also provided a further nine written testimonials.

8. Mr Fisher stated how, following his dismissal from HH, he had taken up a position at Bloom Hearing Specialists (“BHS”), who employed him as a Hearing Aid Dispenser in various locations in the UK. He said they supported him through the disciplinary proceedings and provided a testimonial. Then, when his name was removed from the Register, BHS employed him in their Irish company in Dublin, where he continues to work today, carrying out hearing tests and dispensing hearing aids. He said that his employers are fully aware that he was removed from the HCPC Register in the UK and the reasons for it. He has thus continued to work as a hearing aid dispenser without a break, albeit it not in the UK since his removal. Mr Fisher added that, whilst working in Dublin, he was approached by his former employer, HH, and offered a job in one of their Dublin branches, however he chose to stay with BHS.

9. Mr Fisher said how the dishonesty which resulted in his removal from the Register occurred over a short period in 2012 and concerned three elderly patients. He said that, as a leading dispenser at HH he was earning in the region of £150,000 per annum and that the commission he earned for the three patients was a very small proportion of his total earnings. He said that he had been very conscious of sales target, but had lost sight of what was important.

10. With reference to insight, Mr Fisher said that he now understands and appreciates that “the panel had no alternative but to remove my name from the register given what I had done.” He said he made his situation worse by not having the courage to accept what he had done and to apologise to his patients, employers and colleagues. He said, not a day goes by when he does not think about how badly he behaved and how much he regretted what he had done and how he had treated everyone around him.

11. Mr Fisher said how much he regretted putting his colleagues in such a compromising position by involving them in his dishonesty and then by adding to their distress by disputing their accounts of what had happened. He said he profoundly regretted letting so many people down. He said that over the last seven years he had reflected on what he had done and had come to terms with the consequences of his actions and how badly he had handled the proceedings. He said he was genuinely full of remorse.

12. Mr Fisher said that whilst he could not turn the clock back, since 2012 he has done all he can to behave in an honest, straightforward and trustworthy manner with his employers, patients and colleagues, and this was borne out by the many positive testimonials he provided. He said there had been no issues about his integrity or honesty since 2012. Mr Fisher said he loved his job and his country and yearned to be able to once again practise in the UK, instead of having to be away from home every week from Monday to Thursday in Dublin. His aim would be to continue to work for BHS, but in the UK, if he were allowed to be restored to the Register. He asked the Panel to accept that his behaviour in 2012 was “utterly out of character and the result of me losing sight of what was right and wrong.” He said, “This has not and will not happen again.”

13. IF gave evidence on behalf of Mr Fisher. IF described Mr Fisher as a generous, caring man with a willingness to help others.

14. AH also gave oral evidence on behalf of Mr Fisher. He said he fully acknowledged and supported the HCPC’s paramount responsibility to safeguard the public and that it was with that in mind that he volunteered to provide a testimonial in support of Mr Fisher. He said he was aware of the reasons Mr Fisher was removed from the Register. He said he has known Mr Fisher for over 20 years and described him as “a loyal and conscientious colleague and friend, always willing to go the extra mile, in private and also in a professional capacity, to ensure his friends, colleagues and patients are supported and given every consideration.” AH spoke highly of Mr Fisher in both a professional and personal capacity. AH said the behaviour of Mr Fisher that brought him before his regulator was “shockingly” out of character and he was “not the man that we all knew and indeed this wasn’t the modus operandi of the empathic, selfless, generous man that I knew to be David Fisher.”

15. AH said that Mr Fisher is “a highly skilled dispenser with the empathy and compassion that I believe would be an asset to any hearing-impaired member of the UK public that could be fortunate to have him as their audiologist.” He added, “David has had a considerable time to reflect and very much accept culpability for his actions and I fully believe he has learned from this and would not allow himself to repeat anything similar.” He said he “totally believed in Mr Fisher as a human being and professionally” and described him as “a genuine caring person.” He urged the Panel to restore Mr Fisher to the Register.

16. As well as the live character evidence, the Panel also had the benefit of a number of testimonials and references from satisfied service users, together with friends and colleagues who were able to provide background and context to the difficulties Mr Fisher was experiencing in 2012. His current employer, BHS, is aware of the circumstances of this case and has employed him since September 2012. The Standards and Training Director of BHS spoke of Mr Fisher being candid and open to scrutiny when applying for work with them, as he wanted to ensure BHS was fully aware of the circumstances of his hearing before the HCPC. He said that as part of his work Mr Fisher handles cash and cheques on a daily basis and that the company has no concerns about this. He described Mr Fisher as a valued and trusted member of their flagship Dublin branch, both in terms of fellow staff and customers. The Director concluded by saying, “I believe Mr Fisher is trustworthy to uphold the integrity and title of Hearing Aid Dispenser.”

17. Ms Simpson, on behalf of the HCPC, informed the Panel that the HCPC took a neutral stance on the application.

Decision
18. Throughout its deliberations, the Panel remained conscious that the burden of proving that Mr Fisher is a fit and proper person to be restored to the Register was on the Applicant and that the applicable standard of proof is the civil one, namely on the balance of probabilities.

19. The Panel accepted the advice of the Legal Assessor and reminded itself of the contents the HCPTS Practice Note entitled, “Restoration to the Register”.

20. In considering this application, the Panel paid due regard to all the documents in this case, the oral evidence and the submissions made by both parties.

21. The Panel noted the stance taken by the HCPC and that the Council did not oppose, but rather was neutral on the application.

22. The Panel heard oral evidence from Mr Fisher, his wife and AH, an HCPC HAD Registrant. The Panel considered all three to be very credible witnesses, whose accounts corroborated each other and provided very helpful background and context to the behaviour exhibited by Mr Fisher back in 2012.

23. There was no doubt, in the view of the Panel, that the proved behaviour of Mr Fisher was very serious involving, as it did, dishonest behaviour that impacted upon vulnerable, elderly service users, his employers and the profession as a whole.

24. However, this misconduct took place over seven and a half years ago and much has happened since. The Panel noted at the final hearing, that panel felt unable to suspend rather than remove Mr Fisher from the Register because of his lack of insight and remediation, following his denials during the hearing. This Panel was satisfied that Mr Fisher has now demonstrated genuine remorse and that he has significant insight into his offending behaviour and why it was that he allowed himself to lose sight of what was right and wrong.  It was clear from the evidence of all three witnesses that not long after Mr Fisher was removed from the HCPC Register, he began to open up and take ownership and responsibility for his actions which, hitherto he had been too ashamed and embarrassed to admit. It was also clear to the Panel that there were forces at work in his personal life that influenced his behaviour at that time and that those forces were no longer in place. Mr Fisher has assured and indeed persuaded the Panel that he would not repeat such behaviour. Furthermore, he has shown that he now has coping mechanisms in place should he ever find himself in a similar situation.

25. The Panel was prepared to accept that this appalling behaviour was very much out of character, as shown by Mr Fisher’s behaviour both before and after this event, and that he was indeed in a “very dark place” at the time. By working in Ireland he has been able to continue to work as a HAD and has done so without incident. His professional colleagues, friends and current service users speak highly of him and it is clear he has maintained his skills and knowledge since the time of his removal. By working in Ireland he has been able to do the same job and abide by the same rules as he would have done had he been working in the UK.

26. In all the circumstances, the Panel is satisfied that Mr Fisher has shown, through his insight, remorse, reflection and remediation, that he has very much learned his lesson and is now a fit and proper person to return to practice as a HAD registered with the HCPC. He has shown over the last seven years that he does not have a propensity to act dishonestly and the Panel is satisfied that he no longer represents a risk to the public. Indeed, the Panel considers the public would benefit from the return to the Register of a practitioner who, this case aside, would appear to be an asset to the profession.

27. The Panel therefore decided to grant Mr Fisher’s application.

Order

The Registrar is directed to restore the name of David Colin Fisher (the Applicant) to the Hearing Aid Dispenser Part of the Register, but restoration is only to take effect once the Applicant has:


(a) provided the Registrar with any information and declarations required for admission to the Register;


(b) paid the prescribed restoration fee; and


(c) satisfied the Registrar that, in relation to the Applicant, there is or will be in force appropriate cover under an indemnity arrangement.

Notes

No notes available

Hearing History

History of Hearings for Mr David Colin Fisher

Date Panel Hearing type Outcomes / Status
24/01/2020 Conduct and Competence Committee Restoration Hearing Restored
05/12/2019 Conduct and Competence Committee Restoration Hearing Adjourned