Mr Aubrey Smith

Preliminary Matters
Application to amend the allegation.
1. Mr Jotangia on behalf of the HCPC applied to amend the allegation to better particularise the facts alleged based on the expert evidence obtained. The HCPC submitted that the proposed amendments are required for the allegation to more accurately reflect the evidence and that the Registrant has had adequate time to familiarise himself with the case against him. The Registrant did not oppose the application.

2. The Panel was referred to the HCPTS Practice Note on Case Management, Directions and Preliminary Hearings.

3. The Panel accepted the advice of the Legal Assessor that the HCPC’s rules are silent on amendments, but that it is within their jurisdiction to consider such applications. The principal factors the Panel must consider are whether any unfairness or prejudice to the Registrant arises should it permit the amendments.

4. The Panel was satisfied that each of the proposed amendments were fair and could be made without any unfairness or injustice to the Registrant as they better reflect the evidence. The Registrant has had adequate time to consider the proposed amendments and the Panel concludes that no prejudice is caused.

The Panel directed that the allegation against the Registrant shall be amended to read as follows: -

Amended Allegation

Whilst registered as a Hearing Aid Dispenser and employed at Leighton’s Opticians and Hearing Care you:-
1. Between around May 2017 and March 2018, did not complete and/or record a full audiological assessment for the patients identified in Schedule 1.
2. On or around 20 June 2017, did not adequately investigate Patient B’s hearing loss and/or refer Patient B to a general medical practitioner or any other appropriate medical professional despite your records of your assessment indicating unilateral hearing loss.
3. Between 12 January and 9 March 2018, did not adequately complete and/or record wax removals for:
a) Patient C, in that you:
i) did not perform adequate checks on Patient C’s ears prior to and/or following the wax removal procedure;
ii) did not record and/or obtain a full case history for Patient C prior to the wax removal procedure;
iii) recorded that both ears were cleared following the procedure, when that was not the case.
b) Patient D, in that you did not:
i) record and/or obtain a full case history for Patient D prior to the wax removal procedure;
(ii) record any and/or any adequate notes regarding the wax removal procedure;
iii) take adequate care when using the Bionix curette;
iv) immediately stop and/or reassess the wax removal procedure after Patient D began to experience pain;
v) perform any and/or any adequate checks on Patient D’s ears following the wax removal procedure.
c) Patient E, in that you did not:
i) record and/or obtain a full case history for Patient E prior to the wax removal procedure
(ii) record any and/or any adequate notes regarding the wax removal procedure;
(iii) take adequate care in monitoring the pressure and/or placement and/or duration of the irrigation in the left ear;
(iv) immediately stop and/or reassess the wax removal procedure after Patient E began to experience pain;
v) record that Patient E experienced discomfort and/or hearing loss during and/or following the wax removal procedure.
4. On or about 7 February 2018, in relation to Patient A, you:
a) did not refer Patient A to a general medical practitioner or any other appropriate medical professional despite your records of your assessment indicating asymmetrical hearing loss
b) recorded that there were “no GP referable contraindications” when this was not the case.
5. Your actions at particulars 1 - 4 constitute misconduct and/or lack of competence.
6. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.

Schedule 1
Patient Reference Date of appointment(s)
Patient G 26 October 2017
Patient H 4 May 2017, 11 May 2017, 14 June 2017
Patient I 17 November 2017, 5 March 2018
Patient J 25 May 2017, 6 June 2017
Patient K 12 June 2017

Facts proved: 1, 3a(iii), 3b(i), 3b(ii), 3b(iii), 3b(iv), 3b(v), 3c(ii), 3c(iii), 3c(iv), 3c(v) 4a and 4 b
Facts not proved: 2, 3a(i), 3a(ii) and 3c(i)
Ground: Misconduct
Fitness to Practise Impaired: Yes

Expert evidence

5. The Panel considered the issue of whether the hearing could proceed effectively and fairly without hearing live evidence from the expert witness. The Panel had sight of the expert report of CM, dated January 2022, and considered whether it was fair and in the interests of justice to proceed with the hearing without calling the expert to give live evidence. The Panel was aware that the absence of the witness would result in the Registrant and the Panel being unable to ask any questions to test that evidence or to clarify and challenge the same.

6. The Registrant did not raise any objection to the hearing proceeding without the expert in attendance and confirmed that he accepted the evidence and had no questions to put to that witness. The Panel was mindful that the Registrant is not represented.

7. The Panel received legal advice from the Legal Assessor that they must take account of whether the Registrant was able to fully advance his case, and if not the degree to which his ability to do so would be compromised.

8. The Panel concluded that an effective hearing was able to take place and that there would be no unfairness or prejudice to the Registrant as the Registrant had confirmed that he had no questions to put to the expert. The Panel will attach the weight they think fit to the expert report in assessing the evidence.

The hearing bundle:

9. The Panel became aware during the course of the Registrant being cross examined that he had not had sight of the exhibits contained within the final hearing bundle at Section E. Enquiries revealed that these had been sent to him through Intralinks (a document sharing portal which requires a username and password), however, he had not accessed them. Assistance was provided to the Registrant to ensure that he was able to access the documents that he had not seen in advance of the hearing.

10. Having allowed the Registrant some time to absorb and consider the new material the Panel determined whether it was fair and in the interests of justice to proceed with the hearing. The Panel heard representations from Mr Jotangia and from the Registrant and received advice from the Legal Assessor.

11. The Panel decided that it was fair and in the interests of justice to proceed having heard from the Registrant that he was happy with this course of action. He confirmed that he had been provided with adequate time to review the documents and would not have had any additional questions to put to the witnesses having had sight of the additional documents.

Background

12. The Registrant is a Hearing Aid Dispenser (HAD) who was previously employed by Leightons Hearing Care.

13. Following an audit conducted by his Line Manager, GG, it was noted that insufficient details and procedures were recorded by the Registrant in the online patient records. Following these concerns coming to light a number of review meetings were held between the Registrant and GG between Autumn 2017 and Spring 2018.

14. Further concerns were raised in November 2018 following a complaint sent to one of Leightons Opticians by Patient A which detailed a hearing test they had undergone on 7 February 2018 and the fact they should have been referred to their GP but instead were sold hearing aids by the Registrant. Following this complaint, a full internal investigation was opened by AB, Director of Professional Services of Leightons Limited, who sought advice from Internal Audiologists and from advisors at the Federation of Ophthalmic and Dispensing Opticians.

15. On 21 December 2018 AB referred the Registrant to the HCPC.

16. Following this referral in June 2019 further concerns came to light when an additional formal concern was raised in relation to the Registrant’s conduct following receipt of a letter from Unionline, dated 14 June 2019. The letter related to Patient E who had received wax removal from the Registrant in March 2018 following which he had apparent hearing loss and tinnitus. AB informed the HCPC of this further complaint in June 2019.

17. At its meeting on 7 February 2020 a Panel of the HCPC’s Investigating Committee determined that there was a case to answer in relation to the allegation of impairment of the Registrant’s fitness to practice.

Evidence

18. The Panel heard live evidence from AB, GG, Patient E, Patient C and Patient K on behalf of the HCPC. In addition, the Panel reviewed the bundle provided by the HCPC and the documents submitted by the Registrant.

19. AB gave evidence in relation to the organisational set up of Leightons and went on to describe the new staff induction process and the digital management systems utilised at Leightons. AB confirmed that in relation to all of the concerns surrounding the Registrant, he had only interacted with Patient A, the other concerns had come to light after the Registrant had left their employment and so were not able to be dealt with using the internal disciplinary process. It was confirmed that the complaint of Patient A was referred to the HCPC as this is what Patient A had requested.

20. AB clarified the circumstances in which hard copy records would be taken, the process for these being uploaded onto the digital management system and the retention of these for a period of 10 years. AB stated that Leighton’s primary record keeping was online and that it was the responsibility of the practitioner to ensure records were added to the online system later if they were unable to do so at the time of the appointment.

21. AB confirmed the training and orientation summary provided to the Registrant on the commencement of his employment with Leightons. AB stated that the Registrant did not have a continuous mentor and that he was aware that the Registrant struggled with some processes. AB stated that hard copy assessment records were created and uploaded to the system in 2011 and that the expectation was that all HAD’s are expected to store information electronically. He denied that it was the Registrant who had introduced the hard copy records.

22. AB confirmed that the complaint from Patient A came from an appointment with the Registrant which was held 10 months after the Registrant started employment with Leightons.

23. Patient E gave evidence and provided details of his appointment with the Registrant on 12 January 2018. He stated that he was shown a laminated card in the reception area and was asked to sign a form. He does not recall the specific details of the information given on the card. He does not recall any reference being made to a risk of permanent hearing loss.

24. Patient E stated that his GP had advised him that his ears were full of wax and the ear drops did not appear to be working after two days so he arranged an appointment at Leightons for wax removal. Patient E was an eye care client of Leightons and through this had become aware that they offered a wax removal service.

25. Patient E advised that during the appointment he chatted with the Registrant who he found to be very friendly, he was reassured by the Registrant that it was a straightforward procedure. Despite his hearing issues he stated that he was able to hear and understand the instructions given to him by the Registrant. He did not recall the Registrant asking him about any history with ear / hearing problems or any handwritten notes being taken.

26. Patient E stated that upon the tube going into his left ear he immediately felt pain as the Registrant pushed it in. Patient E advised the Registrant that he was in pain, but the procedure continued, and the pain became excruciating to the point he almost fell off his seat. Patient E stated that he told the Registrant to stop immediately, the tube was held in his ear, and he was told not to move. Patient E considered that the Registrant’s demeanour changed at this point with him becoming aggressive, placing force on Patient E’s shoulder. Patient E believed that there was some adjustment to the irrigation machine at this point with the Registrant making a comment that it was ‘too powerful’. He stated that a wax removal procedure then commenced on his right ear which was without issue and successful.

27. Patient E confirmed that no follow up appointment was offered to him by the Registrant, and he was given assurances that his ear would clear within 24 hours. Patient E was subsequently advised by his GP that his eardrum had retracted. When the symptoms did not abate, he sought further advice from a specialist and was prescribed steroids. His hearing in the left ear remains at around 75%.

28. The Panel heard evidence from GG who had been the Registrant’s line manager for part of his time at Leightons. She confirmed that she was aware that the Registrant struggled with the case management system and that support was offered to him by way of additional training, provision of standard templates and observations.

29. GG confirmed that all patient records are held digitally on Sycle (a patient management system) to enable access to up-to-date records across the different sites. GG did not believe paper records were kept as they should have been uploaded onto Sycle by the audiologist if they were not able to add the notes directly onto Sycle due to technical issues. It was confirmed that the occasions on which Sycle was down were rare as it is a web-based programme so was not dependent on being connected to Head Office.

30. GG advised that the Registrant’s record keeping improved as a result of the assistance she provided. She confirmed that the concerns raised regarding the Registrant were serious as it is necessary to see patient hearing test results to be able to effectively fit hearing aids and assess the levels of sound in each ear ensuring that the prescription meets the patient’s needs. The view of Leightons was that if it wasn’t recorded it didn’t happen.

31. GG stated that if asymmetry was found this would usually necessitate a referral to a GP or ENT. She stated with reference to the exhibited hearing test results, that Patient A was an obvious case for referral.

32. GG confirmed that blood and trauma through ear wax removal was very rare. She advised that it would be usual to gage the patient’s response by looking for signs of discomfort and to cease the procedure if there was any indication of pain being experienced.

33. GG confirmed that she was aware that the Registrant was able to undertake hearing tests but there was no evidence that he had in certain cases. GG considered the Registrant to be personable and friendly. It was confirmed that the Registrant had been given training in ear wax removal and she believed that he had completed 10 reflective accounts rather than the BSA-recommended 6.

34. Patient C stated that he had one appointment with the Registrant on 9 March 2018 during which he was assessed, and a wax removal treatment was undertaken. He indicated that nothing of significance occurred during this appointment and there was nothing which led him to believe he had not been dealt with in an appropriate manner. He did not recall blood coming out of his ears.

35. Patient C stated that the treatment did not completely clear the wax and he returned for further appointments which was not unusual, and he was happy with the decision made by the Registrant to stop the treatment when he did. Patient C confirmed that he did not initiate a complaint against the Registrant.

36. Patient K stated that he had visited Leightons on 12 June 2017 and was seen by the Registrant. He was persuaded by his wife to get his hearing aids checked as his daughter was getting married. Patient K advised that the test was as expected, and he was advised that there had been a slight deterioration in his hearing. He did not wish to commit to new hearing aids that day due to reluctance to accept that his hearing was failing and as he wished to discuss things with his wife due to the potential cost. Patient K confirmed he did not feel under any pressure to purchase new hearing aids. He confirmed that he was offered loan hearing aids by the Registrant.

37. The Registrant gave evidence advising that he no longer had access to Leightons records to be able to refute the suggestion that his notes were inadequate. However, he stated that he would always follow the same process in assessing, examining and testing a client, it just wasn’t documented. The Registrant confirmed that it is not possible to fit hearing aids without first testing the client and that it can be usual practice to ask clients to come back for retesting. The Registrant referred consistently in his evidence to undertaking ‘in situ’ hearing tests. The Registrant considers that his note taking did improve during his time at Leightons.

38. The Registrant advised that he is aware of the circumstances in which it is appropriate to refer a client onto a GP or ENT, and that he would have referred, although he accepts that this does not appear to be noted on Sycle in relation to Patients A and B. The Registrant was referred to the hearing test graphs for these patients and accepted there were clear signs to suggest referral to a medical practitioner would be appropriate. The Registrant stated that he was not made aware of the complaints at the time to enable him to address them.

39. The Registrant confirmed that he had found his early days at Leightons challenging as he had a lot more administrative tasks to complete and was required to carry his equipment across the different sites. He stated that he would not continue to undertake a wax removal procedure if the client was showing signs of being in pain. The Registrant described the training process he underwent for wax removal procedures and that around 50% of participants had not passed the training.

40. The Registrant advised that he resigned from Leightons after he was advised he may be dismissed and that since leaving he had seen around 1500 clients in the last 5 years.

41. The Registrant maintained that he would have done full audiological assessments for Patients G, H, I, J and K but accepts that they were not documented on Sycle. He was referred to specific patient notes and was unable to give any acceptable explanation for this. The Registrant advised that he usually undertook 3 hours of administrative tasks on an evening to write up his notes. The Registrant indicated that he was not the only person with access to the notes and that they were capable of being deleted, and he considered there to be obvious problems with the software.

Decision on Facts

42. The Panel heard submissions from Mr Jotangia on behalf of the HCPC in which he referred to the expert report of CM in support of the facts of each allegation and he referred to the standards which would be expected of a registered HAD.

43. The Presenting Officer stated that the evidence supports the fact that the Registrant is unable to perform basic procedures such as wax removal, that his record keeping is incomplete and inadequate, and that the Registrant has failed to respond appropriately to red flags which would suggest onward referral to a medical practitioner is appropriate.

44. The Registrant accepted that in some cases the evidence supported the allegations and that the records did not show a full case history and/or assessment, however, he remained of the view that the expert and the HCPC had not been provided with all of the documents available from Leightons.

45. The Panel accepted the advice of the Legal Assessor that the standard of proof in deciding whether the facts are proved is ‘on the balance of probabilities’. In other words, the Panel must be satisfied that the act or omission alleged is more likely than not to have occurred before it can find it proved.

46. The Panel looked at each particular of the allegation independently and in reaching its decision considered whether the facts set out in the allegation are proved, assessing the oral and written evidence, the credibility of the witnesses and attaching such weight as they see fit to each piece of evidence.

Particular 1 is found proved:

47. In relation to Patients G, H, I, J and K the Panel considered the expert report of CM (D5-D9) which confirms that a full audiological assessment is required when hearing aids are being prescribed and fitted. There is no evidence that a full audiological assessment was conducted in relation to Patients G, H, J and K, as this has not been recorded on Sycle.

48. The Panel finds that this position is supported by the evidence from the Registrant’s meeting with GG on 13 December 2017 where it is stated ‘Discussed PTA as record audit showed this hasn’t been completed with many new and existing patients’. The notes from the meeting further state that the Registrant advised that he only added notes if there was something negative.

49. The Registrant referred throughout his evidence to a form being presented to patients to sign. The Panel finds that a consent form is not the same as a HAD undertaking a full case history. The Registrant referred in evidence to conducting ‘in situ’ hearing tests prior to the prescribing and fitting of hearing aids, which the expert report confirms is not sufficient.

50. In looking at Patient G the Panel considered the appointment summary at E56 within the bundle. There is no evidence to show that a full audiological assessment was completed, the expert report confirms that there were no audiometric results. The Registrant has failed to record a full audiological assessment being undertaken and the Panel cannot be satisfied that one was completed. The Panel finds this matter proved.

51. In relation to patient H, the Panel considered the appointment summaries at pages E57-E59 of the bundle. There were three appointments with Patient H and the records show in ‘outcome notes’ that an ‘in-situ’ test was completed. Further, in the section hearing tests it is recorded ‘no tests found’ which would be recorded differently had a full audiological assessment been undertaken. The Panel finds that no full audiological assessment has been completed or recorded.

52. The Panel considered Patient I with reference to the expert report at page D8 only as there was no appointment summary contained within the hearing bundle. The Panel is not satisfied on the balance of probabilities that there is sufficient evidence to support the allegation and this matter is found not proved.

53. The Panel considered the records for Patient J at E63 and E64. There is no evidence that a full audiological assessment was completed, and it is not recorded. This matter is proved.

54. The Panel then considered the appointment summary for Patient K at E65 which records ‘in situ’ test and reviewed the live evidence given by Patient K. The expert report confirms that a full audiological assessment was required. There is no evidence that this was completed, and it is not recorded so the Panel finds this allegation proved.

Particular 2 is found not proved:

55. The Panel has reviewed the written evidence and exhibits which relate to Patient B and cannot be satisfied that the audiogram provided to support the allegation (E35) relates to this patient and/or that it was carried out on the 20 June 2017 as the appointment summary for 20 June 2017 states ‘no tests found’. In addition, the complaint raised by Patient B relates to the Registrant attempting to ‘hard sell’ hearing aids. There is no evidence to support the fact that the Registrant missed unilateral hearing loss.

Particular 3 a) i) is found not proved:

56. Patient C gave live evidence during which he confirmed that both ears were examined by the Registrant both before and after the wax removal procedure. Patient C had no concerns about his appointment and indicated in his evidence that the appointment was what he had expected. On balance, the Panel is not satisfied that there is sufficient evidence to support the allegation that the Registrant did not perform adequate checks prior to and/or following the wax removal procedure.


Particular 3 a) ii) is found not proved:

57. There is evidence in the patient chart history of a case history being taken by the Registrant at that appointment. The record refers to there being a history of ear wax removal, with some issues due to the narrow ear canal, the client using oil and discussion of the options available. There is evidence that previous medical history is discussed with reference to eye surgery and type 2 diabetes. The Panel is not satisfied that there is sufficient evidence to support this allegation.

Particular 3 a) iii) is found proved:

58. The recorded outcome in the case notes at E85 of the bundle is inconsistent with the actual outcome as stated by both Patient C and the Registrant in their evidence. Patient C’s ears were not clear following his appointment with the Registrant.

Particular 3 b) i) is found proved:

59. The Panel reviewed the documentation provided in relation to Patient D and his appointment with the Registrant on 23 February 2018. The Panel is satisfied that the notes recorded by the Registrant are not full and accurate as the Registrant should have been aware of the levels of pain reported by Patient D in his complaint and ceased the procedure immediately. There is no evidence in the appointment summary of a full case history being obtained or recorded prior to the wax removal procedure.

Particular 3 b) ii) is found proved:

60. The Panel accepts the evidence in relation to Patient D’s complaint and finds that the notes recorded by the Registrant on the 23 February 2018 do not accurately reflect what Patient D reported to have occurred during the appointment. The record made by the Registrant of this appointment makes no reference of an attempt to remove wax, pain experienced by Patient D and the consequential harm reported.

Particular 3 b) iii) is found proved:

61. The Panel finds that the Registrant did not take adequate care when using the Bionix curette due to the levels of pain reported by Patient D, the subsequent hearing loss experienced, and the blood found in the right ear following the procedure.

Particular 3 b) iv) is found proved:

62. The Panel is satisfied that the Registrant should have been aware of the pain as reported by Patient D in his complaint and ceased the procedure immediately. The Registrant did not respond to signs of discomfort and/or pain appropriately.

Particular 3 b) v) is found proved:

63. The Panel finds that the Registrant could not have performed any, or any adequate checks to assess the ears following the wax removal procedure. The evidence shows that Patient D engaged the services of his GP following the wax removal procedure to assess the damage to the ear canals. The Panel would expect that if the Registrant had observed the damage caused that he would have given appropriate advice and that this would be recorded in the notes.

Particular 3 c) i) is found not proved:

64. The Panel reviewed the documents in relation to Patient E and its notes from the live evidence. In considering the evidence the Panel finds that there is some evidence to support the fact that the Registrant obtained a case history in the appointment on 12 January 2018. The Panel has not been provided with the appointment summary and cannot be satisfied on the evidence that the Registrant did not record and/or complete a full case history.

Particular 3 c) ii) is found proved:

65. The Panel accepted the evidence of Patient E and is satisfied that the Registrant has not recorded any, or any adequate, notes of the wax removal procedure as the notes do not correspond with the evidence of Patient E where he reported pain which he stated almost made him fall off his seat. The retraction of Patient E’s eardrum was observed by both his GP and an ENT specialist, this damage is not recorded by the Registrant. It is apparent that the notes of the appointment were added into Sycle after the complaint was raised.

Particular 3 c) iii) is found proved:

66. The Panel accepted the evidence of Patient E in relation to the wax removal procedure and concludes that the Registrant did not take adequate care in monitoring the pressure, placement and duration of the procedure which led to Patient E suffering retraction of his ear drum, hearing loss and tinnitus.

Particular 3 c) iv) is found proved:

67. The Panel accepted the evidence of Patient E and is satisfied that the Registrant should have been aware of the levels of pain as reported by Patient E and ceased the wax removal procedure immediately. The Registrant did not respond to signs of discomfort and/or pain appropriately or at all.

Particular 3 c) v) is found proved:

68. The Panel finds that the notes recorded by the Registrant do not accurately record the situation as stated by Patient E. The Panel finds this allegation proved.

Particular 4 a) is found proved:

69. The Panel reviewed the documents to support the allegation and the evidence of the Registrant. It was accepted by the Registrant that the audiogram for Patient A shows significant asymmetry, and that no referral was made by him. The Registrant accepted that there were no notes made by him to support a decision for onwards referral to a general medical practitioner or other appropriate medical professional. This allegation is proved.

Particular 4 b) is found proved:

70. In his evidence the Registrant accepted that there were three GP referrable conditions present, and which have been recorded by him in the notes. This is inconsistent with the additional comment that there were ‘no GP referable contraindications’. The Panel finds this allegation proved.

Decision on Grounds

71. The Panel next went on to consider whether or not the facts found proved amounted to one or both of the statutory grounds alleged - misconduct and /or lack of competence which is a matter of judgment for the panel.

72. It was submitted on behalf of the HCPC that the facts alleged are serious, as injury has been caused to some patients, and if found proved will demonstrate misconduct and/or lack of competence. The HCPC argue that the findings of fact establish that the Registrant acted in such a way which fell far short of what would be proper in the circumstances and what the public would expect of a HCPC registered Hearing Aid Dispenser. The alleged failures span a large number of service users/core principles of the Hearing Aid Dispenser profession and put service users at risk.

73. The HCPC submitted that the Registrant had breached standards 1, 2, 6, 7, 8, 9 and 10 of the HCPC Standards of Conduct, Performance and Ethics and Standards.

74. The Panel was referred to Roylance v General Medical Council (No 2) [2000] 1 A.C. 311 where the Privy Council defined “misconduct” as “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 a medical practitioner in the particular circumstances”.

75. The Panel accepted the advice of the Legal Assessor. It determined that the facts found proved did not amount to lack of competence on the Registrant’s part. The Panel received evidence that the Registrant was a competent Hearing Aid Dispenser, in particular, there was some evidence that he was able to perform audiological assessments, undertake wax removal procedures, complete full and adequate notes and that he recognised the signs which would suggest onward referral was required.

76. The Panel finds that the Registrant has the appropriate skills and ability to undertake his role as a Hearing Aid Dispenser. However, in relation to the matters which are found proved, the Panel is of the view that the Registrant’s actions did not meet the standards of patient care expected of an HCPC registered Hearing Aid Dispenser.

77. The Panel finds that the acts and omissions found proved amount to misconduct, as the Registrant has acted in a way in which he has not ensured the safety of his patients. The Registrant has a duty of care towards service users and the matters found proved demonstrate that he has failed to take adequate care in dealing with his patients. Whilst the Panel accept that the Registrant was trying to do his best for the patients, he was unable to acknowledge or accept when things went wrong and act on them appropriately.

78. The Panel finds that the Registrant is equipped with the knowledge and skills to undertake his role properly had he taken the necessary time and care in dealing with these patients. In choosing to act in the way he did the Registrant has put these patients at risk of harm. For example, by choosing to conduct ‘in situ’ hearing assessments rather than full audiological assessments and by not recording full and adequate notes of each appointment.

79. In evidence the Registrant accepted the audiology report for Patient A as showing a referrable condition, the consequences of which were potentially life threatening, yet he did not refer or record details of any findings in his notes. The Registrant tried to excuse the situation in evidence when questioned about the lack of onward referral but could not explain his omission.

80. The Registrant was aware that he was required to complete full and adequate notes in relation to each patient, this was identified in his training plan with his line manager, and whilst the record keeping did improve it was still inadequate in the cases before the Panel. There are examples within the hearing bundle of occasions on which the Registrant did complete full notes, he clearly knew what was required of him and chose not to complete full notes. By his own admission, the Registrant would only record matters that were negative. However, the Panel has found that the Registrant failed to do this contemporaneously in relation to Patient D.

81. In relation to wax removal procedures, there is some evidence to suggest that the Registrant is able to undertake these competently. In relation to the matters found proved, the Panel considers that the Registrant was not sufficiently careful in his treatment of the patients concerned and did not respond to the levels of discomfort / pain notified to him by the patients or demonstrated through their demeanour.

82. The Panel considered the HCPC Standards of Conduct, Performance and Ethics and Standards and found that the facts found proved amounted to breaches of standards 1.2, 2.2, 3.2, 6.1, 6.2, 7.6, 8.1, 9.1, 10.1 and 10.2.

83. The facts found proved are serious in nature and demonstrate a series of acts and omissions on the part of the Registrant where his practice falls short of what would be expected of an HCPC registered professional in that he has not demonstrated sufficient care in dealing with these patients to ensure their safety.

84. Having found the ground of misconduct, the hearing, when it reconvenes between 6 – 8 November 2023, will move on to hear any further evidence and submissions from both parties as to whether the Registrant’s fitness to practise is currently impaired by reason of the found misconduct. The HCPTS Practice Note on Fitness to Practise Impairment will be of assistance in preparing any further evidence and submissions. The Registrant is to provide to the HCPC any documentation that he would like the panel to consider by 30 October 2023.

Decision on Impairment

85. Mr Jotangia on behalf of the HCPC submitted that the Registrant’s current fitness to practise is impaired. He referred the Panel to their findings and stated that the Registrant’s actions did not meet the standard expected of a registered HAD, and as a result the Registrant has failed to ensure patient safety. It was stated that the Registrant has failed to acknowledge or accept when things have gone wrong and act appropriately which has in turn put patients at risk and has caused harm.

86. In relation to the personal component Mr Jotangia stated that the Registrant’s denials demonstrate a continuing lack of insight which result in there being an ongoing risk of repetition. He stated that there is no tangible evidence that the failures have been addressed and as the Registrant has not demonstrated a full awareness of his failings through reflection, there is a risk of repetition.

87. Mr Jotangia further submitted that the public component of impaired fitness to practice is met due to the ongoing risk of harm from the lack of insight and risk of repetition.

88. The Registrant addressed the Panel and responded to questions from the Panel. The Panel had sight of the 39 pages submitted by the Registrant which included details of CPD, client reviews and survey results, as well as his template consent form and case history record.

89. The Panel heard from the HCPC and the Registrant on the issue of impairment, accepted legal advice and was referred to the Practice Note on ‘Fitness to Practise Impairment’. In reaching its decision the Panel considered both the personal and the public component and whether the Registrant’s fitness to practise is impaired at the current time.

90. In considering the personal component the Panel found that the acts which led to the allegation are remediable.

91. The Panel considered each of the areas of concern separately to assess whether the Registrant has taken remedial action and whether the acts or omissions are likely to be repeated.

92. The Panel firstly looked at the record keeping concerns. The Panel accepted the oral evidence of the Registrant on his record keeping system.

93. The Panel recognises that, for various reasons, these matters have regrettably gone on for a very long time. The Registrant has described how, because of this uncertainty over his registration, he has not invested in a digital patient management system (although this is imminent), which would enable him to comply with the expected standard. Such a system would also ensure compliance with patient confidentiality and GDPR. In describing his current system, there did appear to be inconsistency in how he keeps patient records, and these are not in line with professional standards of record keeping. The Panel accepts the Registrant’s evidence that there have been improvements in his record-keeping, but there are no (appropriately anonymised) examples of his current records or any external verification of the quality of his record-keeping.

94. Further, the Panel was concerned that the Registrant, in his evidence, gave an example of a patient interaction where he had cleaned the patient’s hearing aid at their home, which he did not consider required recording. There was no evidence of a uniform system of all patient interactions being recorded contemporaneously. The Registrant gave evidence of some notes being kept on Google Diaries, some on NOAH and some on other electronic devices, as well as handwritten notes on (and on the back of) the Hearing Assessment forms.

95. The Panel in considering the hearing assessment form submitted by the Registrant was concerned that there was no evidence of the form being used to record the Registrant’s clinical assessment, dealing with the factors identified as being present, how these have been considered in conjunction with one another and providing some rationale for the recommendations. The Panel concluded that there has been no appreciation or understanding of where the risks lie and until the Registrant has fully developed his insight in this area there is a risk of repetition.

96. The Panel accepted that there are signs of improvements in the manner in which the Registrant records his patient notes. However, the Registrant has failed to provide any evidence to show that his notes meet the required standard. Each patient interaction, including cleaning hearing aids, should be recorded, and to this extent his note keeping is inadequate. Accordingly, the Panel finds that full remediation has not taken place in relation to adequate note keeping and this leads the Panel to conclude that there is a risk of repetition. The Registrant’s insight in this area is not fully developed.

97. The Panel next considered the wax removal procedures undertaken by the Registrant and whether they were carried out with adequate care. The Panel heard from the Registrant that he has undertaken additional training on wax removal procedures which has assisted him in learning to slow down his procedure, heed signs of discomfort experienced by patients and respond accordingly. The Panel also took account of his subsequently developed consent form.

98. Through his evidence the Registrant was able to demonstrate to the Panel that he has remediated fully in relation to wax removal procedures and as a consequence the Panel concludes that there is a very low risk of repetition, and that the Registrant’s insight is developed in this area. This is supported by his evidence that he has undertaken many wax removal procedures subsequent to the incidents found proved, without complaint or referral to his regulator.

99. The Panel then considered the concerns around full audiological assessments not being completed. The Registrant gave evidence that ‘as a general rule’ he would undertake a full audiological assessment prior to prescribing and fitting hearing aids. The Registrant gave evidence of circumstances in which he would conduct in situ tests if he did not have time to undertake a full audiological assessment. The Panel was concerned that this shows a lack of understanding by the Registrant as to why this is not an acceptable practice. The Registrant has not shown an awareness of the risk factors involved in such a practice including safety of amplification and potentially unidentified medical pathologies. The Panel is concerned that a subjective patient response is inadequate to alleviate the risks and make such a determination. A patient would expect a level of expertise in a HCPC registered HAD and the Registrant has failed to demonstrate a full audiological assessment to identify the need for prescribing and fitting hearing aids without a full audiometric assessment.

100. The Panel concluded in relation to this area that the Registrant has not remediated, his insight has not developed and therefore there is a risk of repetition and an ongoing risk of harm to patients as a consequence.

101. The Panel finally considered the issue of onward patient referral. The Panel heard from the Registrant who is clearly aware of the criteria which would suggest onward referral to a GP or emergency medical professional. However, the Panel was concerned that the Registrant, in his evidence, stated that he would not make a referral where a patient has been previously prescribed NHS hearing aids, even where the audiometric criteria for referral have been met. Therefore, the Panel cannot be satisfied that if the Registrant saw a patient at this time who was presenting with asymmetrical hearing loss that a referral would take place. Accordingly, the Panel concluded that the Registrant’s reflection and insight has not fully developed which poses an ongoing risk of repetition and risk of harm.

102. The Panel had regard to the CPD records provided by the Registrant and the patient reviews. Whilst there has been some development in the Registrant’s knowledge the Panel considers that the courses attended are nothing over and above what would be expected of a Registrant and that they do not specifically address the areas of concern highlighted in the facts found proved. There is no reflective statement provided which may assist the Panel in finding that the Registrant shows insight into the failings identified.

103. The Panel was of the view that, to his credit, the Registrant was honest and fulsome in his evidence. It seemed to the Panel that he did not have pre-prepared answers that might be expected to meet each point that the Panel had raised. However, the Registrant provided evidence as to his current practice which revealed that in some limited areas he had not understood and remedied the Panel’s concerns. Therefore, in spite of his competence in other areas of his profession, there remain areas where the Panel is not confident that there is no risk of repetition or that the Registrant’s practice would not put patients at risk of harm. The Panel is of the view that the Registrant cares for his patients and is a compassionate person.

104. The Panel has serious concerns about the extent to which the Registrant has sought to address the deficiencies in areas of his practice, summarised as record keeping, referrals and undertaking full audiological assessments. Although generally the Registrant accepts that he made errors, his responses to the Panel’s questions revealed that he was unable to demonstrate an awareness his behaviour fell below the standards expected of a HCPC registered HAD and recognises the consequences for patient care. Thus, the Registrant has been unable to take action to address the failures which inevitably presents a risk of repetition and a risk of harm to patients.

105. The Panel is of the view that until such time as the Registrant is able to fully acknowledge and understand the shortcomings of his habitual practices (by comparing them with current professional practice) and the potential consequences for patients, he will be unable to remediate.

106. The Panel concluded that on the personal component the Registrant is currently impaired.

107. The Panel next considered the public component and looked at the critically important public policy issues.

108. The Panel acknowledges the need to protect service users and concludes that due to the lack of fully developed insight by the Registrant there is a risk of repetition which places service users at risk of harm.

109. The Panel found that the Registrant’s behaviour amounted to serious professional misconduct and fell short, in these limited but important areas, of what would be expected of a professional. The misconduct found proved is sufficiently serious that a finding that the Registrant’s fitness to practise is not impaired would undermine public confidence in the profession and the regulatory process.

110. The Panel is satisfied on the public component that the Registrant’s fitness to practise is currently impaired.

Right of Appeal

You may appeal to the High Court in England and Wales against the decision of the Panel and the order it has made against you.
Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order
The Panel makes an Interim Conditions of Practice Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and is otherwise in the public interest.
This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Mr Aubrey Smith