Mr Andrew P Uphill

Profession: Hearing aid dispenser

Registration Number: HAD01372

Interim Order: Imposed on 05 Jul 2018

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 30/11/2020 End: 17:00 08/12/2020

Location: This hearing will take place virtually

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst registered as a Hearing Aid Dispenser, between 1 April 2016 and 9 February 2018, you:


1) On or around 21 September 2017, in respect of Patient A:


a) Completed an inadequate and/or contradictory assessment in that you:


i) Recorded Patient A’s loss as slight, mild and no loss;
ii) Did not refer Patient A to her GP.


b) Did not prepare a Case History Record and/or Otoscopic Record.


2) On or around 18 December 2017, when assessing Patient E:


a) Did not adequately explore Patient E’s health when recording his/her history;
b) Did not assess and/or record your assessment of Patient E’s left ear;
c) Did not conduct and/or record masking and/or shadow reading;
d) Did not carry out further assessments and/or tests after Patient E told you his/her hearing was ‘equal’ in both ears, when the audiometry result showed an asymmetrical result in one ear.


3) On or around 9 February 2018, you failed to meet an adequate standard in the following assessments:


a) Clinical Assessment – NHS, in that you:


i) Did not adequately conduct an otoscopy;
ii) Did not adequately conduct an audiometry;
iii) Did not conduct adequate checks during a hearing aid fitting.


b) Clinical Assessment – Private, in that you:


i) Did not adequately conduct an otoscopy;
ii) Did not adequately conduct an audiometry;
iii) Did not conduct a demonstration of the hearing aid;


4) You failed to meet an adequate standard during NHS Assessment Peer Reviews on

a) 14 February 2017, in that you:


i) Did not adequately explore the patient’s medical history;
ii) Conducted the Glasgow Hearing Aid Benefit profile incorrectly;
iii) Prior to conducting an audiometry, did not deliver the correct instruction to a patient who had tinnitus;
iv) Did not consistently conduct the threshold determination procedure;
v) Did not attempt to carry out Real Ear Measurements;
vi) Did not conduct adequate checks during a hearing aid programming;
vii) Did not record and/or write a referral for a patient when required;


b) 26 September 2017, in that you:


i) Did not adequately explore the patient’s medical history;
ii) Did not conduct a Glasgow Hearing Aid Benefit Profile;
iii) Did not adequately conduct an otoscopy;
iv) Did not conduct adequate checks and/or a demonstration during a hearing aid programming.


5) On or around 1 April 2016, you failed to meet an adequate standard during the Private Assessment Peer review in that you:


a) Did not complete the case history prior to the otoscopy;
b) Did not adequately explore the patient’s health and/or the impact of their hearing loss.


6) The matters described in paragraphs 1 - 5 constitute a lack of competence and/or misconduct.


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

 

Finding

Preliminary Matters

Service:


1. Notice of the hearing was served by post on the Registrant’s registered address on 13 October 2020. On the same date, the notice of hearing was sent to the Registrant’s registered email address. The Panel, having heard and accepted the advice of the Legal Assessor, was satisfied that the Registrant had been given the required notice and that service had been effected in accordance with rules 3 and 6 of The Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (‘the Rules’).
Proceeding in absence:
2. The Registrant was neither present nor represented. The Panel heard a submission from Ms Manning-Rees to proceed with the hearing in his absence. She referred the Panel to a letter sent by the Registrant to the HCPC dated 5 February 2020. The Registrant had sent that letter in advance of the hearing which was then scheduled to take place in May 2020. That hearing had been cancelled owing to restrictions brought about by the pandemic. In the letter the Registrant stated, ‘This is to advise you that I will not be attending Monday 11 May + 18 May 2020.’
3. The Panel was told by Ms Manning-Rees that the Registrant’s position had not altered with respect to his attendance at this hearing. Further, in his letter dated 5 February 2020, the Registrant had requested voluntary removal from the Register. There was no request for a postponement or an adjournment so that the Registrant could attend at a later date or be represented. Ms Manning-Rees submitted that the Panel ought to proceed in the Registrant’s absence. He was anxious to draw the proceedings to a close and had voluntarily absented himself. Witnesses had been warned to attend at the hearing and the public interest was engaged.
4. The Panel heard and accepted the Legal Assessor’s advice and had regard to the HCPTS Practice Note, ‘Proceeding in the Absence of the Registrant’.
5. The Panel was satisfied that, in his letter dated 5 February 2020, the Registrant had made it plain that he did not intend to attend the hearing. Although he had written in anticipation of the May hearing which had been postponed owing to the pandemic, there was no evidence before the Panel to suggest that the Registrant’s position had changed. The Panel was satisfied that the Registrant had voluntarily absented himself and that adjourning the proceedings would serve no useful purpose.
6. The Panel noted that proceeding in the Registrant’s absence could cause some disadvantage to him. However, it was equally clear to the Panel that the Registrant was anxious to have the proceedings concluded. The Panel considered that it could attach such weight, as it considered appropriate, to the Registrant’s evidence as contained in the papers as the hearing unfolded.
7. The Panel also considered the other factors which weighed in favour of the hearing proceeding in the Registrant’s absence. The allegations were serious, and the Panel noted the HCPC intended to call live witnesses. The Panel was satisfied that it was necessary to decide the facts of the case while the memories of the witnesses were still relatively fresh.
8. For all the reasons advanced, the Panel considered that it was fair and appropriate to proceed in the Registrant’s absence. In so deciding, the Panel was careful not to draw any adverse inference against the Registrant in relation to his decision not to attend.
Allegation:
Whilst registered as a Hearing Aid Dispenser, between 20 September 2017 and 9
February 2018, you:

1) On or around 21 September 2017, in respect of Patient A:

a) Completed an inadequate and/or contradictory assessment in that you:

i) Recorded Patient A’s loss as slight, mild and no loss;
ii) Did not refer Patient A to her GP.

b) Did not prepare a Case History Record and/or Otoscopic Record.

2) On or around 18 December 2017, when assessing Patient E:

a) Did not adequately explore Patient E’s health when recording his/her history;
b) Did not assess and/or record your assessment of Patient E’s left ear;
c) Did not assess and/or record masking and/or shadow reading;
d) Did not carry out further assessments and/or tests after Patient E told you his/her hearing was ‘equal’ in both ears, when the audiometry result showed an asymmetrical result in one ear.


3) On or around 9 February 2018, did not pass the following assessments:
a) Clinical Assessment – NHS;
b) Clinical Assessment – Private;

4) On or around 26 September 2017, did not pass the NHS Assessment Peer Review.

5) The matters described in paragraphs 1 - 3 constitute a lack of competence and/or misconduct.

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

Application to amend the Allegation:

9. Ms Manning-Rees made an application to amend the Allegation. Ms Manning-Rees acknowledged that the proposed amendment sought to add two new particulars and further particularised the allegations, notably particular 3 in respect of NHS and private clinical assessments. The Registrant had been put on notice of the proposed amendment in a letter sent to him by the HCPC dated 28 November 2019. The Hearing bundle had been sent to the Registrant on 2 March 2020. Ms Manning-Rees submitted that the proposed amendment better reflected the evidence as contained in the witness statements which had been served on the Registrant well in advance of the hearing. No prejudice or injustice arose in Ms Manning-Rees’s submission.

10. The Panel heard and accepted the Legal Assessor’s advice in relation to the correct approach to be adopted when considering applications by the HCPC to amend the Allegation.

11. The Registrant had been put on notice in advance of the Hearing by the HCPC in respect of the proposed amendment. He had not raised an objection. The Panel could identify no injustice or prejudice to the Registrant. The Panel agreed with Ms Manning-Rees’s submission that the amendment was designed to better reflect the evidence which the Panel was required to consider. The Panel granted the application to amend the Allegation.

Allegation as amended:
Whilst registered as a Hearing Aid Dispenser, between 20 September 20171 April 2016 and 9 February 2018, you:

1) On or around 21 September 2017, in respect of Patient A:

a) Completed an inadequate and/or contradictory assessment in that you:

i) Recorded Patient A’s loss as slight, mild and no loss;
ii) Did not refer Patient A to her GP.

b) Did not prepare a Case History Record and/or Otoscopic Record.

2) On or around 18 December 2017, when assessing Patient E:

a) Did not adequately explore Patient E’s health when recording his/her history;
b) Did not assess and/or record your assessment of Patient E’s left ear;
c) Did not assess conduct and/or record masking and/or shadow reading;
d) Did not carry out further assessments and/or tests after Patient E told you his/her hearing was ‘equal’ in both ears, when the audiometry result showed an asymmetrical result in one ear.

3) On or around 9 February 2018, you failed to meet an adequate standard in did not pass the following assessments:

a) Clinical Assessment – NHS, in that you;:

i) Did not adequately conduct an otoscopy
ii) Did not adequately conduct an audiometry
iii) Did not conduct adequate checks during a hearing aid fitting

b) Clinical Assessment – Private, in that you;:
i) Did not adequately conduct an otoscopy
ii) Did not adequately conduct an audiometry
iii) Did not conduct a demonstration of the hearing aid

4) On or around 26 September 2017, did not pass you failed to meet an adequate standard during the NHS Assessment Peer Reviews on

a) 14 February 2017, in that you:

i) Did not adequately explore the patient’s medical history
ii) Conducted the Glasgow Hearing Aid Benefit profile incorrectly
iii) Prior to conducting an audiometry, did not deliver the correct instruction to a patient who had tinnitus
iv) Did not consistently conduct the threshold determination procedure
v) Did not attempt to carry out Real Ear Measurements
vi) Did not conduct adequate checks during a hearing aid programming
vii) Did not record and/or write a referral for a patient when required

b) 26 September 2017, in that you:

i) Did not adequately explore the patient’s medical history
ii) Did not conduct a Glasgow Hearing Aid Benefit Profile
iii) Did not adequately conduct an otoscopy
iv) Did not conduct adequate checks and/or a demonstration during a hearing aid programming

5) On or around 1 April 2016, you failed to meet an adequate standard during the Private Assessment Peer review in that you:

a) Did not complete the case history prior to the otoscopy
b) Did not adequately explore the patient’s health and/or the impact of their hearing loss

6) The matters described in paragraphs 1 - 5 constitute a lack of competence and/or misconduct.

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

Application for part of the hearing to be held in private:

12. The Panel heard a submission by Ms Manning-Rees for parts of the proceedings to be conducted in private. The Panel, having heard and accepted the advice of the Legal Assessor and having regard to the HCPTS Practice Note, ‘Conducting Hearings in Private’, decided that it would convene in private when such matters were raised.
Declaration by the Panel in respect of Witness 3:

13. In his witness statement, Witness 3 declared that, for eight years between 2010 and 2018, he had sat as a Registrant panellist with the HCPC. The Registrant member of the Panel declared at the outset of the hearing that, given the relatively small number of professional hearing aid dispensers, Witness 3 was known to him in a professional capacity and that they would have had attended the same training events and conferences over the course of their careers. The Registrant member confirmed that, so far as he was aware, their paths had not crossed professionally in the last four years or so. They had not discussed the case at all. Further, the Registrant member considered the fact that Witness 3 was a professional acquaintance would not result in him acting out of prejudice or bias.

14. The other Panel members indicated that, so far as they were aware, Witness 3 was not familiar to them and neither could recall ever having sat with him during the time when the witness was a HCPC panellist.

15. The Panel accepted the advice of the Legal Assessor in respect of the test to be applied when considering the question of bias.

16. The Panel was satisfied, on the basis of the information available about Witness 3, that the fair-minded and informed observer would not conclude that there was a real possibility that the Panel was biased. In deciding the issue, the Panel indicated that it would keep the matter under review, particularly during the hearing of Witness 3’s evidence.

Background

17. The Registrant was employed by Scrivens Opticians and Hearing Care (‘Scrivens’) as a Hearing Aid Dispenser between 10 August 2015 and 16 February 2018.

18. On 25 September 2017, Patient A submitted a complaint to Scrivens regarding the Registrant’s conduct of her appointment. An investigation was subsequently conducted by Mr DA, Area Manager. During the course of the investigation, Scrivens received a further complaint from Patient E.

19. On 6 February 2018, Witness 2, South Group Regional Manager held a disciplinary hearing in respect of these matters. During the hearing, comments arising from the Registrant’s previous peer reviews were discussed. Prior to deciding on the outcome of the disciplinary process, Witness 2 arranged for clinical assessments of the Registrant to be conducted by Witness 1, Hearing Professional Services and Training Manager.

Evidence

20. The Panel heard evidence from the following witnesses who were employed by Scrivens at the material time:
· Witness 1: Hearing Professional Services and Training Manager;
· Witness 2: South Group Regional Manager;
· Witness 3: Clinical Lead for Hearing;
· Witness 4: Hearing Professional Services Training Manager.

21. The Panel also heard evidence from Patient E.

22. Witness 1 was asked by Witness 2 to conduct two clinical assessments – one an NHS assessment, the other a private assessment – on 9 February 2018. During the assessment, Witness 1 as the assessor, assumed the role of the patient to simulate an NHS and a private appointment. An NHS patient would be referred to Scrivens by their GP and would generally be aware that there was a hearing problem. By contrast, a private patient would likely be attending Scrivens for advice in relation to their hearing loss without a prior referral.

23. During NHS appointments, a formalised questionnaire, called a Glasgow Hearing Aid Benefit Profile (‘GHABP’), had to be read verbatim to the patient by the Hearing Aid Dispenser. This is because of the more limited range of options available for hearing aids at such an appointment. At a private appointment, a greater range of options is available and at such an appointment the Hearing Aid Dispenser is expected to be able to demonstrate and explain the options available.

24. During the NHS assessment, Witness 1 had concerns in respect of the otoscopy (examination of the outer ear) performed by the Registrant and the audiometry performed by him.

25. During the otoscopy, the Registrant failed to conduct a proper examination of the outer ear and failed to brace properly against Witness 1’s head to counteract an unexpected movement of the patient’s head.

26. During the audiometry, the Registrant conducted the wrong test. He completed air conduction masking instead of bone conduction masking. This was a fundamental error in the opinion of Witness 1. Afterwards, on questioning by Witness 1 the Registrant did not think that there were any issues in relation to the manner in which the assessment had been carried out. Some hours later the Registrant telephoned Witness 1 and explained that he now realised that he had conducted the wrong test.

27. The Registrant also had a private clinical assessment with Witness 1 on 9 February 2018. The same issues with regard to the otoscopy and audiometry were apparent in the private assessment as were apparent in the NHS assessment. Witness 1 described how, in relation to threshold determination, the Registrant had also made errors by recording thresholds incorrectly due to not using the fifty per cent rule from a minimum of three ascending presentations. She gave evidence that, in relation to audiometry, there was a fundamental lack of understanding on his part and described this not as a “won’t do” but as a “can’t do” and said he was doing the best he could but it was not good enough and created a risk of missing referable conditions. She reported to her superiors that the Registrant was not safe to see patients.

28. Witness 1 considered that the Registrant failed to give an adequately detailed account of the available hearing aid options. He did not provide a demonstration of the hearing aids available as he ought to have done during a private assessment.

29. Across the two clinical assessments, Witness 1 considered the Registrant’s errors were ‘consistent, multiple and repeated.’ The Registrant did not show awareness that he had done anything wrong. She did not believe this could be remedied by training or feedback and did not believe the Registrant was safe to practise. Ultimately, Hearing Aid Dispensers are autonomous professionals who predominantly work on their own with patients. They therefore need to have self-awareness of their own practice. She reported her findings to Witness 2.

30. Witness 2 had no direct clinical duties and, together with three Area Managers and a Hearing Business Development Manager, was responsible for managing Scrivens’ optical and hearing business.

31. Scrivens received a complaint about the Registrant from Patient A on 25 September 2017. An investigation was undertaken by Mr DA and the Registrant attended an investigatory meeting. Witness 3 was also in attendance along with Mr DA. A further investigation meeting with the Registrant and Mr DA took place on 11 January 2018, following which Witness 2 undertook a disciplinary investigation of the Registrant’s practice. She met with the Registrant on 29 January 2018 and advised him that a further complaint had been made against the Registrant by Patient E in December 2017. Witness 2 made the Registrant aware of the details of the complaints made by Patient A and Patient E. She also arranged for clinical assessments of the Registrant – in an NHS and private setting – to be undertaken by Witness 1.

32. Witness 3 is a Hearing Aid Dispenser. Part of his governance responsibilities within Scrivens included the carrying out of peer reviews of dispensers. Witness 3 was asked to peer review the Registrant, along with a number of other clinicians. Witness 3’s peer review of the Registrant took place in February 2017. Witness 3 stated that as a result of concerns which the February 2017 peer review had given rise to, Witness 3 conducted a further peer review of the Registrant in September 2017. Each peer review lasted half a day.

33. At the February 2017 peer review, Witness 3 noted the following areas of concern in respect of the Registrant’s practice:
a) Inadequate questioning in relation to the patient’s medical history;
b) Failure to conduct the GHABP correctly;
c) Failure to wipe the headphones before placing them on the patient’s head prior to audiometry and provide them with a response button;
d) Prior to the commencement of a test for a patient who had tinnitus, the Registrant failed to instruct the patient to ignore the ringing in their head and to let the dispenser know if they could distinguish between two sounds that were played during the test;
e) Failure to conduct the threshold determination procedure consistently;
f) Failure to carry out Real Ear Measurements (REMs);
g) Programming of the hearing aid on the desk and not in the patient’s ears;
h) Failure to make a written record of the Registrant’s advice to a patient to seek medical intervention to have ear wax removed.

34. After the peer review, Witness 3 discussed his concerns with the Registrant. Witness 3 considered that the Registrant either did not know about certain processes or that he was deliberately avoiding doing them during the assessment. Witness 3 described his conversation with the Registrant as ‘fruitful.’ At the conclusion of the peer review, Witness 3 considered that the Registrant was capable of addressing the concerns identified.

35. Arising out of the matters identified as being in need of remedying, a further peer review of the Registrant was conducted by Witness 3 in September 2017. Witness 3, at this review, identified the following areas of concern:
a) Failure to conduct checks at the outset on a patient already known to the Registrant who had attended for a three-yearly assessment;
b) Failure to conduct a GHABP;
c) That the Registrant appeared not to have obtained a full view of a patient’s ear canal when conducting an otoscopy;
d) That the Registrant programmed a patient’s hearing aids on a desk and then handed them to her rather than asking her to try the hearing aids and to check for their efficacy.

36. Overall, Witness 3 considered that the second peer review had seen no real improvement and that concerns about the standard and adequacy of the Registrant’s practice as a clinician persisted. The Registrant was industrious. He worked in a busy practice. He was not dismissive of those areas of concern that had been identified as needing immediate remedy in the peer review process. However, the Registrant’s approach had resulted in him taking shortcuts in the discharge of his professional duties. Witness 3 told the Panel that the standard of care which he had assessed at the peer reviews was inadequate and not simply a failure by the Registrant to adhere to ‘best practice’ or company policy.

37. Witness 4, on 1 April 2016, conducted a peer review of the Registrant in a private setting. The witness could not recall the circumstances in which the peer review had been arranged. During the review the following areas of concern were identified:
a) The Registrant conducted the otoscopy before the case history. The case history needed to be conducted beforehand to ensure there were no contra-indicators – like pain or discharge – that would have rendered the otoscopy inappropriate;
b) The Registrant explored current health with the patient when he ought to have taken a history of general health from the customer;
c) The Registrant explored only the current medicines that the customer was taking when he ought to have asked about their medicinal history;
d) The Registrant should have recorded thresholds following two out of three responses when ascending, not just one;
e) The Registrant did not wipe all of the equipment clean before it came into contact with the customer;
f) The Registrant asked about the customer’s most difficult hearing situations but did not ask them about the connected emotional difficulties.

38. Following the clinical assessments, Witness 2 made the Registrant aware of the determination from the disciplinary investigation.

Decision

39. Before retiring to consider its decision on the facts, grounds and impairment the Panel heard and accepted the Legal Assessor’s advice.

40. The Panel was reminded that the burden of proof required the HCPC to prove each element of the Allegation on the balance of probabilities. The Panel could only be satisfied that a fact was proved if it was satisfied that it was more likely than not to have occurred. The Panel also had due regard to the HCPTS Practice Note, ‘Finding that Fitness to Practise is “Impaired”’. The Panel exercised its independent judgement on whether the grounds were made out by the HCPC and, in consequence, whether the Registrant’s fitness to practise was currently impaired.

41. At the outset of its deliberations, the Panel undertook an assessment of the witnesses from whom it had heard evidence.

42. The Panel was impressed by Witness 1. She was helpful and gave her evidence in a straightforward and professional way. She was a reliable witness who took care to be fair to the Registrant.

43. The evidence from Witness 2 reflected her operational, non-clinical role within Scrivens. She was focussed on customer care and acted in response to complaints made about the Registrant and the level of care they received. She adduced a number of useful documents but, to the Panel’s mind, Witness 2’s evidence was of limited relevance to the issues which had to be decided.

44. The Panel considered that the peer review forms completed by Witness 3 in 2017 contained mixed messages as to the seriousness of the shortcomings he had observed in the Registrant’s practice. The Panel was of the view that Witness 3’s witness statement and his oral evidence were more critical of the Registrant’s clinical practice than the observations contained in the contemporaneous peer review documents. The Panel questioned Witness 3 about this and he agreed that it might be the case. The Panel, as a result, was not persuaded in every instance by the witness’ more critical opinions of the Registrant.

45. Witness 4 was a straightforward witness who struck the Panel as doing her best to assist in her evidence. Her memory was hampered by the passage of time. Witness 4 made it clear when she could not recall information and endeavoured to be fair in her assessment of the Registrant.

46. Patient E was a persuasive witness who had a good recollection about the things that had upset him at the consultation he had had with the Registrant. He was honest about the matters that he could not recall.

The Panel then turned to consider the Allegation.

Particular 1

1) On or around 21 September 2017, in respect of Patient A:
a) Completed an inadequate and/or contradictory assessment in that you:
i) Recorded Patient A’s loss as slight, mild and no loss;
43. The Panel accepted the evidence of Witness 2. She stated in her witness statement that the record generated by the software categorised Patient A’s hearing loss in her left ear as ‘slight’ and ‘mild’ in her right ear. In the notes section of Patient A’s records, the Registrant himself recorded that there was ‘no loss’. The Panel accepted Witness 3’s evidence in respect of these notes. He told the Panel that the findings in respect of Patient A’s ears could not be reconciled with the comment recorded by the Registrant on the notes that there was ‘no loss’. The findings were inadequate and contradictory.

The Panel found Particular 1(a)(i) proved.
ii) Did not refer Patient A to her GP.

There was no referral to Patient A’s GP. This was confirmed by Witness 2. It was also confirmed by Patient A. In her letter of complaint to Scrivens dated 25 September 2017, Patient A stated, ‘[The Registrant] gave me no advice or suggestions what the problem might be, or even that I should go to my GP…’ The Panel accepted the evidence of Witness 3. He stated that the findings made by the Registrant identified a need for a medical referral to Patient A’s GP. This had not occurred. The Registrant’s assessment in not referring Patient A to her GP was inadequate.

The Panel found Particular 1(a)(ii) proved.

(b) Did not prepare a Case History Record and/or Otoscopic Record

47. Witness 2 in her evidence confirmed to the Panel that the case notes written by the Registrant, at Patient A’s appointment on 21 September 2017, did not contain a case history record or an otoscopic record. Such records usually appeared before the audiogram charts. There were no such records in respect of Patient A’s notes for 21 September 2017.

48. The Panel found Particular 1(b) proved.

Particular 2

2) On or around 18 December 2017, when assessing Patient E:
(a) Did not adequately explore Patient E’s health when recording his/her history;

49. The Panel considered the notes made by the Registrant in respect of Patient E’s clinical case history. The Registrant inputted relevant details in respect of Patient E’s history, including his general health, previous allergies and any previous treatment/investigation for the patient’s ears, nose or throat. In respect of whether Patient E had previously taken any medication, the Registrant recorded, ‘blood pressure gout’. The investigation notes provided by Scrivens’ employed Hearing Aid Dispenser dated 24 January 2018, recorded: ‘There are notable differences in the Case History details recorded by Andrew Uphill and the second Scrivens Hearing Aid Dispenser who saw Patient E. Andrew [the Registrant] records general health as “good” with medication for “blood pressure” and “gout”. The second Hearing Aid Dispenser records “diabetes” and “high blood pressure” in the general health section…’

50. The Panel noted that the focus of the investigation conducted by Scrivens on this point centred on discrepancies between what was recorded by the Registrant in respect of Patient E’s health and what was recorded by the second Hearing Aid Dispenser. It was clear that there were some matters recorded by the Registrant in respect of Patient E’s health which were not recorded by the second Hearing Aid Dispenser and vice versa. These discrepancies did not amount to a failure, on the Registrant’s part, to adequately explore Patient E’s health when recording the history.

51. The Panel found Particular 2(a) not proved.
(b) Did not assess and/or record your assessment of Patient E’s left ear;

52. The audiogram results for Patient E who was examined on 18 December 2017 document a test on the left ear. The Registrant’s records further document, on the same date, in respect of an incomplete audiogram, ‘no hearing in left ear’. In the investigation notes dated 24 January 2018, it is recorded: ‘From the audiogram viewer it is not possible to tell whether the Left ear was actually tested in [the Registrant’s] record or whether threshold readings were simply recorded at the limit of the audiometer…’

53. The Panel was satisfied that the Registrant had recorded an assessment of Patient E’s left ear. This was because of the evidence of the left ear audiogram that appeared in Patient E’s patient record. In addition, Patient E himself said “after conducting some tests, Andrew Uphill told me that I was completely deaf in my left ear. He told me that the machine confirmed that I had no hearing in my left ear … “.

54. The Panel found Particular 2(b) not proved.
c) Did not conduct and/or record masking and/or shadow reading;

55. The Panel noted the written evidence from an unnamed Hearing Aid Dispenser who was an employee of Scrivens and who reviewed Patient E’s records as part of Scrivens’ investigation. The Hearing Aid Dispenser concluded ‘Given the threshold readings for the Right ear, one would have expected at least some Left ear “shadow readings” caused by cross-hearing to have occurred at frequencies below 2 KHz in [the Registrant’s] audiogram had the Left ear been tested. There is no evidence of any “shadow readings” or of any masking that should have taken place had they been present… given the difference in the AC thresholds between the Right and Left ears masking should have been conducted.’ The Panel was mindful that this evidence was hearsay but was satisfied that it was a reliable analysis of the patient record that the Registrant had generated.

56. The Panel found Particular 2(c) proved.
d) Did not carry out further assessments and/or tests after Patient E told you his/her hearing was ‘equal’ in both ears, when the audiometry result showed an asymmetrical result in one ear.

57. The clinical case history records Patient E telling the Registrant that hearing in his ears was ‘Both Equal’. In his witness statement and in his oral evidence, Patient E told the Panel that after the Registrant had conducted some tests, he advised Patient E that he was completely deaf in his left ear and that nothing could be done to improve hearing in that ear. Patient E disagreed with what he had been told by the Registrant. Patient E stated to the Registrant that he could still hear the Registrant talking if he covered over his right ear. Patient E was prescribed a hearing aid for his right ear only.

58. When asked about this, Patient E stated, ‘I felt there may have been something wrong with the equipment but [the Registrant] was not willing to double check the result of the test. He just brushed off what I was telling him. I thought this was very unprofessional.’

59. The Panel noted that during the investigation meeting on 6 February 2018 with Witness 2, when informed that another Hearing Aid Dispenser had found the hearing to be symmetrical, the Registrant had been unable to provide an explanation. He said that he found this baffling and also denied that Patient E had questioned the result and asked him to re-do the test. The Panel was not persuaded that this was a truthful response. It was mindful that Patient E’s evidence (which it accepted) was that he had previously had a hearing test with a HAD from another business and had been told he had symmetrical hearing. The panel was therefore satisfied that he had good reason to question the Registrant’s assessment that he had total hearing loss in the left ear and that he had done so.
60. The Panel found Particular 2(d) proved.

Particular 3
3) On or around 9 February 2018, you failed to meet an adequate standard in the following assessments:
a) Clinical Assessment – NHS, in that you:
i) Did not adequately conduct an otoscopy

61. In her witness statement and in her oral evidence, Witness 1 told the Panel that the Registrant, during the NHS clinical assessment at which she assumed the role of the patient, did not conduct an adequate otoscopy of her ear. He failed to examine Witness 1’s pinna sufficiently and failed to brace against Witness 1’s head when her ear canals were being examined. Witness 1 told the Panel that the Registrant’s actions failed to meet the standards required by the British Society of Audiology (BSA). Witness 1’s evidence was that an inadequate otoscopy could lead to tumours or other abnormalities being missed.

62. The Panel found Particular 3(a)(i) proved.
ii) Did not adequately conduct an audiometry
63. Witness 1 told the Panel, in her witness statement and oral evidence, that the Registrant did not adequately conduct an audiometry on her during the assessment. The Registrant conducted air conduction masking instead of bone conduction masking. Conducting the wrong test resulted in the Registrant not verifying the type of hearing loss. Witness 1 described the Registrant’s actions as being of ‘significant concern’ and in breach of the BSA standards. At the end of the assessment, when asked by Witness 1, the Registrant stated that he considered that there had been no issue with the audiometry that had been carried out. The witness’ evidence, which was confirmed in a note at the end of the assessment document, was that the Registrant called Witness 1 a few hours after the assessment to state that he had realised that he had conducted the wrong test.

64. The Panel found Particular 3(a)(ii) proved.
iii) Did not conduct adequate checks during a hearing aid fitting

65. Witness 1, in her witness statement and in her oral evidence told the panel that, at the assessment, the Registrant programmed the hearing aids on a desk. He did not put them into her ears to verify the fitting. This was not acceptable practice. The Registrant ought to have fitted the hearing aids into the patient’s ears to ensure a proper fit and that there was no feedback. This process also allowed for specific adjustments after they had been fitted. The Registrant was noted in the record of the assessment made by Witness 1 not to have followed the correct procedure.

66. The Panel found Particular 3(a)(iii) proved.

b) Clinical Assessment – Private, in that you:
i) Did not adequately conduct an otoscopy

67. The Panel found this particular proved on the evidence of Witness 1 as contained in her witness statement and oral evidence to the Panel. The Registrant failed to examine Witness 1’s pinna sufficiently, during the private assessment and failed to securely brace against Witness 1’s head when her ear canals were being examined. Witness 1 told the Panel that the Registrant’s actions failed to meet the standards required by the BSA. Witness 1’s evidence was that an inadequate otoscopy could lead to tumours or other abnormalities being missed.

68. The Panel found Particular 3(b)(i) proved.
ii) Did not adequately conduct an audiometry
69. The Panel found this particular proved on the evidence of Witness 1 as contained in her witness statement and oral evidence to the Panel and for the same reasons as those set out in respect of Particular 3(a)(ii).

70. The Panel found Particular 3(b)(ii) proved.
iii) Did not conduct a demonstration of the hearing aid

71. In her witness statement, Witness 1 stated that private patients ‘need to be informed that they have the option to go down the NHS route or the private route and the Hearing Aid Dispenser must ensure that the patient is making an informed decision, whatever they decide. A demonstration of hearing aids is also required. All of these aspects of the appointment were missing from [the Registrant’s] clinical assessment.’ Witness 1 reiterated this position in her oral evidence and the notes for the clinical assessment completed by Witness 1 confirmed the evidence which she gave to the Panel.

72. The Panel found Particular 3(b)(iii) proved.

Particular 4

4) You failed to meet an adequate standard during NHS Assessment Peer Reviews on
a) 14 February 2017, in that you:
i) Did not adequately explore the patient’s medical history

73. In his evidence, Witness 3 told the Panel that he was concerned that the Registrant, during a peer review, did not explore further with a patient such matters as whether the patient had hearing problems in childhood or the type of work undertaken by the patient, both in the present and in the past. In the contemporaneous record of the assessment, in response to the question ‘Understand the customer’s medical history keeping accurate notes’, Witness 3 responded in the affirmative by typing ‘Y’. In the comments section, Witness 3 recorded, ‘Full medical history taken, but I think [the Registrant] could have asked more supplementary questions (EG about childhood hearing problems…or type of work undertaken…’

74. The Panel noted that Witness 3 was satisfied that a full medical history had been taken and had answered in the affirmative to the question posed about the Registrant understanding the patient’s full medical history. The fact that some additional information would have been desirable, in Witness 3’s view, did not render the Registrant’s actions inadequate.

75. The Panel found Particular 4(a)(i) not proved.
ii) Conducted the Glasgow Hearing Aid Benefit profile incorrectly

76. In his evidence, Witness 3 told the Panel that the Registrant adopted a conversational style when reading the GHABP to a patient. Witness 3 stated that the GHABP was widely used and that it ought to have been read verbatim to the patient. Reading the GHABP without deviation from the wording, Witness 3 told the Panel, ensured the consistency required of the profile. He accepted, however, that some practitioners – like the Registrant – deviated from the strict wording of the GHABP.

77. In his notes of the assessment, under the heading ‘Details of agreed Improvement Actions’, it is recorded that Witness 3 discussed with the Registrant ‘the need for greater consistency in the wording of GHABP.’ It was not recorded that the more conversational manner of delivering the GHABP was inadequate. There was evidence that the Registrant had delivered the GHABP incorrectly by not reciting it verbatim. The stem of the Allegation required the HCPC to prove that in so acting the Registrant had failed to meet an adequate standard. There was evidence to demonstrate that the Registrant’s actions were sub-optimal. However, there was no evidence that his approach – in keeping with other colleagues who, on Witness 3’s evidence, adopted a similar position – failed to meet an adequate standard when not reading the GHABP word for word.

78. The Panel found Particular 4(a)(ii) not proved.
iii) Prior to conducting an audiometry, did not deliver the correct instruction to a patient who had tinnitus

79. In his evidence, Witness 3 told the Panel, ‘If a patient has tinnitus, there is a specific instruction which should be delivered before the test commences asking them to ignore the ringing in their head and focus on the stimuli in the test. The patient should be told to let the hearing aid dispenser know if they cannot distinguish between the two sounds. [the Registrant] did not deliver this instruction to the patient.’ The notes of the assessment recorded by Witness 3 confirmed that the Registrant explained to the customer to respond to the quietest sound they could hear. However, in the comments section of the question, Witness 3 stated with respect to the patient who had tinnitus, ‘the pre-audiometry instruction…gave no advice regarding how to deal with the tinnitus.’

80. The Panel found Particular 4(a)(iii) proved.
iv) Did not consistently conduct the threshold determination procedure

81. In his evidence, Witness 3 told the Panel that the Registrant during the assessment did not conduct the threshold determination procedure consistently. A failure to follow the procedure correctly could result in an inaccurate audiogram which, in turn, could have detrimental patient outcomes including a failure to make a medical referral or having hearing aids set wrongly. In the contemporaneous record of the assessment made by Witness 3, he confirmed affirmatively by typing ‘Y’ to confirm that the Registrant had completed the audiometric test by adopting BSA procedures. However, Witness 3 recorded in the relevant comments section: ‘Good threshold technique but [the Registrant] did not always cross the threshold twice to ensure accurate results.’

82. The Panel found Particular 4(a)(iv) proved.
v) Did not attempt to carry out Real Ear Measurements

83. In his evidence, Witness 3 told the Panel that, at the assessment, the Registrant did not carry out any REMs. Owing to a lack of the necessary equipment to conduct REMs on display, Witness 3 formed the impression that not carrying out REMs was the Registrant’s routine practice. This was confirmed in the contemporaneous notes of the assessment made by Witness 3. In an investigation meeting with Scrivens on 5 December 2017, the Registrant confirmed that ‘he wanted more training with REMs.’

84. The Panel found Particular 4(a)(v) proved.
vi) Did not conduct adequate checks during a hearing aid programming

85. In his evidence, Witness 3 told the Panel that, during the assessment, the Registrant programmed the hearing aid on a desk and not in the patient’s ears. The Registrant failed to discuss with patients certain facilities of the hearing aid such as volume control. In addition, because he did not conduct checks of the hearing aid when it was fitted into the patient’s ears, the Registrant did not demonstrate certain indicator tones to the patient.

86. The Panel found Particular 4(a)(vi) proved.
vii) Did not record and/or write a referral for a patient when required

87. In his evidence, Witness 3 told the Panel that, during the peer review, the Registrant saw an unscheduled patient. The Registrant observed ear wax in the patient’s ears. He verbally advised the patient to get the wax removed but no written record of this advice was made by the Registrant. Unless a specific instruction to the contrary is provided by the patient – which should be recorded by the clinician – Witness 3’s evidence was that a medical referral letter should be printed and sent to the patient’s GP. Such a step was required by the applicable BAA guidelines. The evidence of Witness 3 was supported by the contemporaneous notes of the peer review written by him.

88. The Panel found Particular 4(a)(vii) proved.
b) 26 September 2017, in that you:
i) Did not adequately explore the patient’s medical history

89. In his evidence, Witness 3 told the Panel that the clinical case history taken by the Registrant was not as detailed as it could have been. While the box ‘Understand the customer’s medical history keeping accurate notes’ was ticked affirmatively, Witness 3 recorded, ‘Medical history updated but could have been more detailed EG px reported having been in hospital but reason for this was not investigated.’ In the space on the form for additional comments, Witness 3 recorded, ‘The consultation itself left much to be desired. Considering the px’s self-reported health issues and hospitalisation this should have been more deeply investigated as underlying health issues and treatments can, in some cases, have an effect on hearing.’

90. The Panel found Particular 4(b)(i) proved.
ii) Did not conduct a Glasgow Hearing Aid Benefit Profile

91. Witness 3 told the Panel that, at the peer review, the Registrant did not conduct a GHABP. This was a ‘major omission.’ This failing was also noted in the contemporaneous notes recorded by Witness 3. The GHABP ought to have been undertaken to assess whether the patient’s hearing aid remained appropriate for their hearing loss and to establish whether there were any other clinical issues which required intervention.

92. The Panel found Particular 4(b)(ii) proved.
iii) Did not adequately conduct an otoscopy

93. In the contemporaneous record of the peer review, Witness 3 stated, ‘Otoscope suitably braced but pinna not pulled back – did this impede [the Registrant’s] view down the ear?’ In his evidence to the Panel, Witness 3 accepted that, from his standpoint, the Registrant might have been able to see into the patient’s ear canal. In his witness statement, Witness 3 stated, ‘…it did not appear to me that [the Registrant] got a full view of the patient’s ears’ during the otoscopy. The Panel was not satisfied, to the requisite standard, on the evidence available that the otoscopy conducted by the Registrant was inadequate.

94. The Panel found Particular 4(b)(iii) not proved.
iv) Did not conduct adequate checks and/or a demonstration during a hearing aid programming

95. In his contemporaneous record of the peer review, Witness 3 recorded that the patient’s hearing aids were ‘programmed on the desk so patient was not able to experience improved hearing.’ Further, Witness 3 recorded, ‘Aids simply fitted after programming off (sic) the ear – no opportunity to try VC, loop or comfort setting.’ Witness 3’s evidence to the Panel was consistent with these entries.

96. The Panel found Particular 4(b)(iv) proved.

Particular 5
5) On or around 1 April 2016, you failed to meet an adequate standard during the Private Assessment Peer review in that you:

a) Did not complete the case history prior to the otoscopy

97. Witness 4, in her evidence, told the Panel that during her peer review of the Registrant, he completed a patient’s otoscopy before the case history. This was supported by the contemporaneous note she had written. This was clinically unacceptable. There was a need to conduct the case history first to establish whether there were any reasons identified not to proceed with otoscopy.

98. The Panel found Particular 5(a) proved.

b) Did not adequately explore the patient’s health and/or the impact of their hearing loss
99. Witness 4, in her evidence, told the Panel that during her peer review of the Registrant, he only explored the patient’s current general health when he ought to have taken a general health history. He also asked about the patient’s most difficult hearing situations. He should also have asked about the broader, emotional impact of the patient’s hearing loss. The Registrant did not do that. Witness 4’s evidence was supported by the contemporaneous note she had written. This was not acceptable practice by the Registrant because it could lead to an inappropriate recommendation.
100. The Panel found Particular 5(b) proved.

Decision on grounds

101. The Panel heard submissions from Ms Manning-Rees. She outlined that the question of whether, by reason of the facts found proved, the Registrant’s actions amounted to misconduct and/or lack of competence were a matter for the Panel’s professional judgement.

102. Ms Manning-Rees submitted that the Allegation contained powerful evidence of an independent, autonomous practitioner who lacked self-awareness as to his errors. The errors seemed to get worse over time rather than better, beginning with errors in 2016 and building to patient complaints at the end of 2017. Ms Manning-Rees submitted that, given that issues were raised with the Registrant in February 2017, it would have been prudent for the Registrant to recognise and undertake training of his own volition then rather than allow concerns about his practice to escalate.

103. Ms Manning-Rees submitted that the Registrant’s errors related to the fundamental basics of safe and effective practice as a Hearing Aid Dispenser. They led to risks in patient care. Witness 1, in her evidence, considered that the Registrant’s errors were such that they could not be rectified by training. The criteria against which the Registrant was being assessed was available on Scrivens’ intranet. The Registrant, as an employee of Scrivens, would have been expected to have been familiar with the content of assessments conducted by Scrivens as they were broadly similar from peer review to peer review. Ms Manning-Rees submitted that on each of the occasions of peer review, an opportunity presented itself to the Registrant for reflection and learning. On the face of it, Ms Manning-Rees submitted, it appeared that the Registrant chose not to have taken up the opportunity presented.

104. Ms Manning-Rees submitted that, in respect of the personal and public components, a finding of current impairment of fitness to practise could be established.

105. In addressing the question of whether the facts found proved amounted to lack of competence and/or misconduct, the Panel accepted the Legal Assessor’s advice. The Panel exercised its independent judgement and reminded itself that in deciding on the statutory grounds and current impairment of fitness to practise, the burden and standard of proof had no part to play. The Panel also had regard to the HCPTS Practice Note, ‘Fitness to Practise Impairment’.

Lack of Competence

106. The Panel first considered whether any of the matters found proved constituted a lack of competence.

107. The Panel was assisted by the guidance in R(Vali) v General Optical Council [2011] EWHC (Admin) 310, in which it was stated: ‘It is important that “deficient professional performance” should not be contorted so that it is a mere synonym for “misconduct” in practice, and that the essence of “deficient professional performance” is more in contrast to than coterminous with misconduct. It is intended at least to be different in that one would often, if not normally, expect to find a pattern of conduct underlying the allegation of deficient professional performance.’

108. In this case, the Panel considered that the Registrant had demonstrated a fundamental gap in his knowledge and understanding in how to properly conduct the threshold determination procedure. The Panel’s findings of fact in respect of the procedure are found in Particulars 3(a)(ii), 3(b)(ii) and 4(a)(iv).

109. In her peer review assessment conducted in April 2016, Witness 4 noted deficiencies in the manner in which the threshold procedure was carried out by the Registrant. In the peer review conducted by Witness 3 in February 2017, while noting his technique was good, the Registrant was noted to have failed to conduct the procedure properly to ensure accurate results. In spite of addressing specific areas of concern with the Registrant, Witness 3 considered that at the peer review in September 2017 there was no notable improvement in the Registrant’s practice. In her peer review of the Registrant in an NHS setting, in February 2018, Witness 1 observed that the Registrant conducted the threshold procedure wrongly. Witness 1’s impression was that the Registrant’s deficiencies could not be remedied by training. Her evidence to the Panel was that the Registrant demonstrated a lack of understanding in respect of the conduct of the threshold procedure.

110. The Panel was mindful of the guidance given in Holton v General Medical Council [2006] EWHC (Admin) 2960: ‘Deficiency is to be judged against the standard of [the] professional work that is reasonably to be expected of the practitioner.’ The Panel was therefore careful, when reaching its decision, that the Registrant should be judged by the standards of a reasonably competent Hearing Aid Dispenser which were applicable to the post to which the Registrant was appointed. The Panel also had in mind the guidance provided in Calhaem v General Medical Council [2007] EWHC 2606 (Admin) which stated, in the context of assessing deficient professional performance, ‘It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by a fair sample of the doctor’s work.’

111. As an experienced Hearing Aid Dispenser, the Panel considered that the evidence given by Witness 1, Witness 3 and Witness 4 established that the Registrant had failed to demonstrate the knowledge and skills required of a reasonably competent practitioner in the conduct of the threshold procedure. The Panel was further satisfied that assessments of the Registrant in a clinical setting by the witnesses over three years, from 2016 to 2018, demonstrated a lack of proficiency based on a fair sample of the Registrant’s work.

112. The Panel was satisfied that the Registrant had breached the following 'Standards of Proficiency’ for Hearing Aid Dispensers (September 2014):

13 understand the key concepts of the knowledge base relevant to their profession

13.7 understand, in the context of hearing aid audiology:

the measurement of hearing and of other auditory system functions

14 be able to draw on appropriate knowledge and skills to inform practice

14.2 be able to conduct appropriate diagnostic or monitoring procedures, treatment, therapy, or other actions safely and effectively

14.3 be able to safely use appropriate techniques and equipment to assess hearing loss and the physical condition of the ear.

113. The Panel therefore was satisfied that the statutory ground of lack of competence was made out in relation to 3 (a) (ii), 3 (b) (ii) and 4 (a) (iv).

Misconduct

114. The Panel then considered whether the remainder of the Particulars which it had found proved amounted to misconduct.

115. The Panel was guided by Roylance v General Medical Council [2000] 1 AC 311 in which it was observed, ‘Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by the medical practitioner…’.

116. The findings in respect of the Registrant were serious. He had omitted to carry out basic and fundamental tasks in his role as a Hearing Aid Dispenser. These omissions occurred repeatedly over a number of years. Despite them being discussed with him in formal peer reviews and him assuring that he would carry out all required procedures in future (including case history, otoscopy, hearing aid fitting and verification) and that he would do so to the appropriate standard, he failed to do so. In addition, he failed to appropriately respond to Patient E when he raised concerns. When questioned about the complaint from Patient E by his employer, the failed to give an acceptable explanation and denied the truth of Patient E’s account of what took place.

117. The Panel considered that, by his actions, the Registrant had breached the following standards of the HCPC Standards of Conduct, Performance and Ethics (January 2016):

1. Promote and protect the interests of service users;
8.1 You must be open and honest when something has gone wrong with the care, treatment or other services that you provide

8.2 You must support service users who want to raise concerns about the care, treatment or other services received

8.3 You must give a helpful and honest response to anyone received who complains about the care, treatment or other services received

9 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

10. Keep records of your work

118. The Panel was satisfied that the Registrant’s actions, which were serious, and repeated over a prolonged period, fell significantly below the proper standards required of a Hearing Aid Dispenser. The Panel was also satisfied that other members of the profession would consider his actions to be deplorable. The Panel accordingly found that Particulars 1(a), 1(b) ,2(c), 2(d), 3(a)(i), 3(a)(iii), 3(b)(i), 3(b)(iii), 4(a)(iii), 4(a)(v), 4(a)(vi), 4(a)(vii), 4(b)(i), 4(b)(ii), 4(b)(iv), 5(a) and 5(b) amounted to misconduct.

Impairment

119. Following its findings in respect of lack of competence and misconduct, the Panel proceeded to consider whether, by reason of his lack of competence and misconduct, the Registrant’s fitness to practise was currently impaired.

120. In approaching the question of impairment, the Committee reminded itself that the test is expressed in the present tense: ‘is impaired’. The Committee derived assistance from the guidance provided by the Court of Appeal in GMC v Meadow [2006] EWCA Civ 1319:

‘…the purpose of FTP procedures is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The [Panel] thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.’

121. As for the factors to be taken into account at the impairment stage, the Panel also had regard, in particular, to the remarks of Silber J in Cohen v GMC [2008] EWHC 581 (Admin) and the guidance provided by Cox J in CHRE v NMC and Grant [2011] EWHC 927 (Admin).

122. The Panel considered the conduct which underpinned the Allegation.

123. The Panel first considered the personal component.

124. The Registrant’s lack of competence and his misconduct had taken place over a number of years. His actions had the potential to cause harm and may well have done so. The failings related to fundamental areas of practice and were capable of remedy through training, self-reflection and behaviour modification.

 

125. The Panel next considered whether, in fact, the Registrant had remedied the actions which had resulted in the Allegation. There was evidence that Witness 1, Witness 3 and Witness 4 had spoken to the Registrant and offered advice and guidance in respect of those areas of the Registrant’s practice which had given rise to concern. After his peer review assessments, Witness 3’s evidence was that he was concerned about what he had observed. Witness 3 stated that he was not clear about whether the Registrant did not know about certain processes or whether the Registrant deliberately avoided doing them in front of him. Witness 1’s evidence was that she considered that the Registrant was not safe to practise and that training would not rectify the deficiencies which she had observed.

126. At an investigation meeting with the Registrant on 5 December 2017, the Registrant was asked by Mr DA if he had any problems with shortage of time or whether he needed help with how to operate the computer systems. The Registrant responded that he did not. Additional support was offered to the Registrant at that meeting. In a further investigation meeting on 11 January 2018, Mr DA stated that he wanted to help and support the Registrant but he did not feel the Registrant was explaining why there were so many procedural issues and complaints. The minutes of the meeting recorded that the Registrant did not respond to direct questions. The Panel considered that this showed that the Registrant’s insight into the extent and seriousness of his failings and his willingness to deal with them was limited to a significant degree.

127. In light of its assessment in respect of the Registrant’s lack of insight and remedial action, the Panel considered that there was a high risk of repetition of the actions which had given rise to the Allegation.

128. The Panel was satisfied that, applying the personal component, the Registrant’s fitness to practise is currently impaired.

129. The Panel next considered the public component. The Registrant had failed, as a Hearing Aid Dispenser, to demonstrate proficiency in basic and fundamental skills in the discharge of his professional duties. His actions had the potential to cause harm to patients in his care and may have done so. The Panel was satisfied that public trust and confidence would be undermined, and it would fail to uphold and declare proper standards of performance, if a finding of impairment were not made on public interest grounds.

130. The Panel is accordingly satisfied that, applying the personal and public component, by reason of his lack of competence and misconduct, the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

131. The Panel heard a submission from Ms Manning-Rees on the question of what, if any, sanction to apply. Ms Manning-Rees addressed the aggravating and mitigating factors in the case. She reminded the Panel of the need to impose a suitable sanction that would uphold and protect the public interest. However, the question of the appropriate and proportionate sanction was left to the Panel in the exercise of its independent judgement.

132. The Panel heard and accepted the advice of the Legal Assessor. The Panel, he advised, should exercise its judgement to arrive at a proportionate sanction that would adequately protect the public and be in the public interest. The Panel also had regard to the Sanctions Policy issued by the HCPC (updated March 2019).

133. The Panel first addressed the mitigating factors. These were:

• The Registrant had, until this point, an unblemished professional career and was a person of good character;

134. The Panel then addressed the aggravating factors. These were:

• The Registrant had demonstrated only very limited insight. On 15 May 2020, the Registrant signed a Notice to Admit Facts sent to him by the HCPC. The Registrant admitted the Particulars set out in the Allegation but stated at the end of the Notice that he wished to make the admissions in furtherance of his desire to resign from the Register. He also indicated in the document, while making admissions, that he had no recollection of the cases that had given rise to the referral in the first place;

• The Registrant had failed to offer an apology or remorse for his actions and their impact on patients;

• The Registrant had taken no effective steps to remedy basic and fundamental deficiencies in his clinical practice. The Registrant’s employer and professional colleagues, in assessments and peer reviews over a three-year period, had provided guidance and support aimed at bringing about an improvement in the Registrant’s practice. In spite of these well documented attempts, the evidence clearly demonstrated that the Registrant continued to lack fundamental skills and knowledge in some areas of practice and carried out some other tasks to an unacceptably low standard. While the Registrant signalled his willingness to improve, and seemed not to be resistant to the efforts of others to assist him in his practice, he proved unwilling or incapable of bringing about an improvement in his clinical proficiency;

• The Registrant’s actions had the potential to cause harm, for example, in medical referrals not being made when they ought to have been and the deficiencies in the carrying out of necessary assessment procedures leading to the wrong audiometric data and associated actions.

135. The Panel first considered whether it was fair and appropriate to conclude the proceedings by referring the matter for mediation, taking no action or imposing a caution order. It looked at each of these in turn. In light of its findings and the seriousness of the conduct identified, the Panel considered that taking any of these steps would be inadequate to protect the public and uphold the public interest.

136. The Panel next considered whether it would be proportionate to impose a conditions of practice order. The Panel reminded itself in its decision on impairment that, in principle, the actions which had given rise to the Registrant’s referral were capable of remedy. However, the Panel noted the very limited nature of the Registrant’s insight and his inability - or unwillingness, as documented in the past, to remedy his failings when these had been identified. The Panel also noted the persistent nature of the failings identified and the prolonged period over which they were raised, without effective steps being taken by the Registrant to address them. As a result, the Panel had no confidence that the Registrant would comply with conditions. In addition, given the wide ranging nature of the failings identified in the Registrant’s practice and the prolonged period over which they had taken place, the Panel considered that such an order would fail to adequately protect the public.

137. The Panel next turned to consider whether it would be appropriate to conclude the proceedings by making a suspension order. The Panel noted that, with regard to its findings in respect of the Allegation, the Panel had determined that the Registrant’s actions amounted to misconduct as well as a lack of competence.

138. The Registrant had acted in a manner which had breached some of the fundamental standards expected of him as a Hearing Aid Dispenser. His actions were serious and had the potential to cause harm to patients in his care. The Registrant’s insight was limited to a significant degree and there was a high risk of repetition of the behaviour complained of. There was also an absence of evidence to suggest that the Registrant was able or willing to remedy his past failings. Having addressed the matter very carefully, the Panel considered, that a suspension order was not a proportionate sanction to apply in all the circumstances.

139. Accordingly – and bearing in mind that the Registrant’s actions had been found to amount to misconduct as well as lack of competence — the Panel decided that the only proportionate sanction that would protect the public and uphold the public interest was a striking off order. The Registrant’s actions were serious and represented a fundamental departure from the standards expected of a Hearing Aid Dispenser. There was no evidence that the Registrant was willing or capable of remedying the conduct which had resulted in his referral. His actions had the potential to cause harm and there was a high risk of those actions being repeated in a clinical setting.

140. In addition, the Panel considered, in light of its findings, that a failure to make a striking off order would undermine the public’s trust and confidence in the Hearing Aid Dispensers’ profession. In addition, the Panel considered that a failure to make such an order would fail to declare and uphold proper standards of conduct and performance.

 

Order

ORDER: The Registrar is directed to strike the name of Mr Andrew P Uphill from the Register on the date this order comes into effect.

Notes

Application for an interim order to cover the appeal period

141. The Panel heard an application from Ms Manning-Rees for an 18-month interim suspension order to cover the appeal period. She submitted that such an order was necessary to protect the public and is in the public interest.

142. The Panel considered the HCPTS Practice Note entitled ‘Interim Orders’ as well as paragraphs 133-135 of the Sanctions Policy. The Panel heard and accepted the advice of the Legal Assessor.

143. The Panel decided whether or not to hear the application for an interim order in the absence of the Registrant. In deciding this issue, the Panel took into account that the Registrant had been informed, in the Notice of Hearing dated 13 October 2020, that if the Panel found that the case against him was well founded and it imposed a sanction which removed, suspended or restricted his right to practise, the Panel may impose an interim order. In addition, the Panel took into account the reasons set out in its earlier decision to commence the hearing in the absence of the Registrant. In the circumstances, and for the same reasons, the Panel determined that it would also be fair, proportionate and in the interests of justice to grant Ms Manning-Rees’ application.

144. The Panel took into account its previous findings, and adopting its reasons, the Panel came to the conclusion that an interim order is necessary to protect the public. Further, an interim order is in the wider public interest to maintain public confidence in the profession and to uphold proper standards.

145. The Panel was mindful of its decision at the sanction stage that conditions were not appropriate. The Panel considered that not to impose an interim suspension order would be inconsistent with its finding that a striking off order is required.

146. The Panel recognised that the Panel must take into consideration the impact of such an interim order on the Registrant as part of the principle of proportionality, and must balance the impact on the Registrant with the need to protect the public and uphold the public interest. In the circumstances of the case, the Panel was satisfied that the need to protect the public and uphold the public interest outweighed the Registrant’s interests in this regard.

147. The Panel decided to impose an Interim Suspension Order for a period of 18 months, a duration which is appropriate and proportionate to allow any appeal which the Registrant may bring, to be concluded.

 

 

Hearing History

History of Hearings for Mr Andrew P Uphill

Date Panel Hearing type Outcomes / Status
30/11/2020 Conduct and Competence Committee Final Hearing Struck off
01/10/2020 Conduct and Competence Committee Interim Order Review Interim Suspension
11/06/2019 Investigating Committee Interim Order Review Interim Suspension
05/07/2018 Investigating committee Interim Order Application Interim Suspension