Mr Graham J Small

Preliminary Matters

Service

1. The Panel was satisfied by the documents in the service bundle that notice of today’s hearing had been properly served on the Registrant in accordance with the Health and Care Professions (Conduct and Competence Committee) (Procedure) Rules 2003, as amended (the Rules), by email dated 12 September 2023.The Registrant had acknowledged receipt of the notice of hearing in that he had previously made an application to adjourn the hearing. That application had been refused by the Panel Chair on 28 September 2023.

Hearing in private

2. Mr Foxsmith made an application for any reference to the health and private life of the Registrant and members of his family to be heard in private.
3. The Panel took into account the HCPTS Practice Note on “Conducting Hearings in Private” and accepted the advice of the Legal Assessor. The Panel granted Mr Foxsmith’s application on the grounds advanced by him.

Proceeding in the absence of the Registrant

4. Mr Foxsmith made an application under Rule 11 of the Rules for the hearing to proceed in the Registrant’s absence. He informed the Panel that the Registrant had not renewed his application for an adjournment. He submitted that the Registrant had voluntarily absented himself from the hearing and waived his right to attend. Mr Foxsmith submitted that it was in the public interest that the proceedings should be determined without further delay.
5. In considering whether to proceed in the Registrant’s absence, the Panel took into account the following documents:
• A statement from the Registrant dated 20 September 2023 in which he applied for the hearing to be adjourned for 12 months and set out his reasons;
• A statement from the Registrant’s wife dated 20 September 2023 supporting the Registrant’s application on similar grounds;
• Information contained in letters dated 27 September 2022 and 12 May 2023;
• The HCPC’s written response dated 25 September 2023 to the Registrant’s application in which they set out their grounds for opposing his application.

6. The Panel had regard to the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel took into account fairness to the Registrant and the public interest in determining the proceedings without undue delay and had regard, in particular, to the following:
• The allegations related to matters which had taken place between October 2016 and May 2019, so that a period of 4 years had already elapsed since the latest particular of the allegation. In the Panel’s judgement it would be undesirable for there to be a further significant delay before concluding proceedings which concerned the need to protect potential service users and concerned the wider public interest;
• the Registrant had sought an adjournment for at least 12 months. He did not offer to make himself available to attend the hearing at any time within that period and did not provide any independent evidence that he was effectively prevented from taking part in a hearing during that period;
• Prior to arranging dates for the final hearing, the HCPC had liaised with the Registrant and listed the hearing to take place in three separate sections and offered to provide him with expedited transcripts so that, if he was unable to attend any part of the hearing, he would have transcripts of the proceedings before the next part of the hearing took place. In the Panel’s judgement the HCPC had taken all reasonable steps to accommodate the Registrant’s convenience.

7. The Panel was satisfied that the Registrant had voluntarily absented himself from the hearing. Whilst there was a risk that the Registrant would be prejudiced by his absence, he had made that choice and had taken steps to provide the Panel with his submissions, which the Panel would take into account.
8. In all the circumstances, the Panel decided to proceed with the hearing in the absence of the Registrant.

Background

9. The Registrant is registered with the HCPC as a Speech and Language Therapist. At the relevant time he provided a service in the capacity of an independent Speech and Language Therapist in various schools in Herefordshire.
10. On 23 April 2019 the HCPC received a referral from SC, the Head of Audiology at Wye Valley NHS Trust (the Trust), in relation to a number of child service users who had initially been seen by the Registrant within the school environment. SC stated that the Registrant had informed the parents of these children that their children had various hearing problems and suggested that they should have their children’s hearing checked. However, when reviewed by the Trust, the issues were found to have been incorrectly identified by the Registrant and the majority of the children had no hearing problems. SC was concerned that not only had the Registrant misdiagnosed the children but in doing so he was acting outside the scope of his practice because some of the referrals were based on matters that were beyond his remit as a Speech and Language Therapist and went into areas that needed different skills or qualifications.
11. Separately from SC’s referral, the HCPC received a referral from EJ about concerns of service managers at the Children’s Speech and Language Therapy Service at Worcestershire Health and Care NHS Trust that the Registrant had made misdiagnoses in relation to a number of children and was acting outside the scope of his practice.

The hearing

12. The Panel was provided with a bundle of documents including the following:
• the witness statement of SC dated 15 February 2021 with exhibits;
• the witness statement of EJ dated 8 February 2021 with exhibits;
• the expert report dated 16 August 2022 of Robert Rendell.

13. Each of these witnesses gave oral evidence on affirmation to the Panel.
14. The Panel received a number of written submissions from the Registrant – in particular submissions dated 10 September 2021 in response to the allegation and submissions dated 15 October 2023 following the Registrant’s receipt of the transcript of the HCPC’s evidence on 10 and 11 October 2023. The Registrant also provided other documents by way of appendices to his written submissions.

The evidence of SC

15. SC is and was at the material time employed as the Head of Audiology at Wye Valley NHS Trust (the Trust). The Trust’s Paediatric Audiology department was and is based at the Children’s Hearing Centre (CHC) in Hereford. It provides early identification, assessment and intervention of children (0-19 years old) with hearing difficulties.
16. SC did not know the Registrant but received cases of children referred by their GPs or parents, following assessments of children which the Registrant had carried out at their respective schools.
17. The Registrant had raised concerns about the hearing of a number of these children and advised for them to be referred. When these children were seen at CHC, the majority had hearing that fell within normal limits. When CHC informed parents of their child’s clinical outcome, some were anxious because they had received two sets of conflicting results. This resulted in parents not believing audiologists and requesting that further tests be done.
18. SC ascertained from parents and referral notes that the Registrant had carried out different tests on children, including tympanometry. She stated that tympanometry was not a test of hearing but a test of middle ear function. If there is any malfunction in this area, either in the ear canal, ear drum or middle ear, it can be identified by using tympanometry. She stated that prior to using tympanometry, it is imperative to perform an otoscopy (looking in the ear with a magnifying torch) to check that the ear canal is clear of any obstruction. If the ear is full of wax, or otherwise obstructed, that would completely invalidate the test by tympanometry.
19. SC stated that a person would have to be trained, examined and proved competent to do tympanometry and otoscopy before carrying out these procedures, although such training could be undertaken by someone who was not an audiologist.
20. SC acknowledged that she did not know for a fact whether the Registrant had performed otoscopies prior to any tympanometry test. She stated that he had not recorded having carried out any otoscopies and it was the first thing that should be recorded.
21. SC also acknowledged that she did not know as a fact that the Registrant had not obtained consent from the parents of the children for the treatment which he administered but stated that, if parental consent had been obtained, it should have been recorded in the notes.
22. SC stated that, from speaking to parents and seeing referral notes, it was apparent that the Registrant had informed several parents that he believed that their child had Auditory Processing Disorders (APD). Whilst the Registrant admitted that he could not diagnose it, he continued to suggest it to parents. SC stated that only specialist centres can diagnose APD and only Audiologists, Consultant Audiologists or Clinical Scientists can test for it. In addition, the witness stated APD should only be diagnosed in children over 6 years of age.
23. SC provided an audit of a sample of the Registrant’s work dated 29 May 2019. This showed details of referrals where the Registrant had assessed the existence of a hearing disorder which, on examination by the CHC, were found not to exist. This audit was supported by the patient notes in relation to Service Users 1 to 8.
24. SC referred her concerns about the Registrant to the HCPC on 18 April 2019.

The evidence of EJ

25. EJ stated that at the material time she was, and remains, employed as joint Service Manager at Worcestershire Children’s Speech & Language Therapy Service at Hereford and Worcestershire Health and Care NHS Trust (the Trust). She continues in clinical practice as a highly specialist Speech and Language Therapist.
26. EJ stated that over the period 2018 to 2019 her Service had been provided with eight reports on Service Users by the Registrant. She stated that she had a number of concerns about the referrals from the Registrant, which she summarised in a letter dated 19 August 2019 [D7-10], namely:
• The fact that the Registrant performed tympanometry, which did not appear to be part of his role as a Speech and Language Therapist;
• He had used SCAN-3 assessments for APD in many of his reports, which would usually only be used by audiologists. In eight reports the Registrant had suggested APD. In all reports the Registrant had stated that each child had these difficulties and then recommended a specific programme to remediate them. EJ was concerned that the Registrant was operating outside his own professional field of competence;
• He had made misleading recommendations for treatment programmes;
• His reports contained misleading information;
• He undertook misleading assessments.

27. EJ stated that parental consent to examination should be clearly recorded. It was unclear to her whether the Registrant had obtained parental consent.
28. EJ stated that parental consent might be obtained in advance by the school before the visit of the Speech and Language Therapist.
29. EJ emphasised that the service provided by Speech and Language Therapists is important because the sooner a child’s needs are identified and provided with the right intervention to meet those needs, the sooner the child can make good progress. She therefore stressed the importance of identifying a child’s needs accurately and focussing on the right things. If that is not done, then the children are disadvantaged and potentially their difficulties will persist for longer and affect their lives life unnecessarily. She gave an example where one of the children seen by the Registrant was autistic but there was no reference to this fact in his report. She said that the Registrant’s assessment should have looked at the typical language and communication difficulties to be expected of a child who is autistic but instead he focused on extraneous matters. Their job was to deal with children’s speech and communication needs, not APD.
30. The Panel noted that the SC and EJ were entirely independent of one another. The evidence of both witnesses was clear, consistent and straightforward.

Mr Rendell’s evidence

31. Mr Rendell stated that he is registered with the HCPC as a Clinical Scientist and Hearing Aid Dispenser and works as an audiologist at the Nuffield Hospital in Cheltenham and the Winfield Hospital in Gloucester. He has been a British Society of Hearing Aid Audiologist council member, a Hearing Aid examiner and HCPC panel member. He is a member of the British Society of Audiology’s Professional Guidance Group.
32. The Panel was satisfied that Mr Rendell was well-qualified to provide expert opinion evidence and was entirely independent of the parties in expressing his opinions.
33. Mr Rendell adopted his report in his evidence. He was then taken through the particulars of allegation which had been amended since the date of his report.
34. With regard to particular 1, Mr Rendell could not state as a fact that the Registrant had not performed otoscopy prior to tympanometry but inferred from the absence of any record, or evidence, that he had not done so.
35. With regard to particular 2, Mr Rendell acknowledged that he could not state as a fact whether or not the Registrant had obtained parental consent in respect of any of the Service Users although he inferred from the absence of any record that parental consent had not been obtained.
36. With regard to particular 3, Mr Rendell stated that tympanometry is not a test of hearing but that the Registrant had purported to use it as such. It was imperative that tympanometry should be preceded by otoscopy which the Registrant appeared not to have performed in the case of any Service User.
37. With regard to particular 4, Mr Rendell was firmly of the opinion that the Registrant’s assessments which he had performed in respect of each and every Service User were inappropriate and incorrect. The Registrant had strayed into areas of practice which were outside his own skill and knowledge, had conducted tests which were inappropriate and reached conclusions which were unsupported.
38. With regard to particular 5, Mr Rendell identified the cases of Service Users 10, 11, 12, 13, 14, 16 and 17 as cases where the Registrant inappropriately performed tympanometry and/or SCAN-3 tests with a view to establishing APD, which he then wrongly diagnosed. On the basis of incomplete assessments of APD, the Registrant recommended treatment plans which were inappropriate.
39. With regard to particular 6, Mr Rendell was unequivocal in his opinion that the Registrant had acted beyond the scope of his practice and without the necessary skill and knowledge in his use of tympanometry and SCAN-3 tests and had arrived at inappropriate and incorrect diagnoses in respect of each and every Service User.
40. Mr Rendell was critical of the Registrant’s apparent assumption of the role of an expert in APD and reaching confident conclusions about Service Users suffering from APD when he had neither the skill or knowledge to reach those conclusions and when his assessments were unsupported by evidence.

The Panel’s decision on facts

41. The Panel was mindful that the burden of proof in relation to the facts is on the HCPC and the standard of proof is on the balance of probabilities.

Particular 1: You failed to perform otoscopy prior to tympanometry. Proved

42. The Registrant acknowledged in his various written submissions that he had not been trained or assessed as competent in tympanometry until 15 October 2019. Nevertheless, he carried out tympanometry on Service Users 1, 2, 3, 6, 7, 8, 10, 11 and 12. He made no record of having performed otoscopy on any of these Service Users. In the course of these proceedings, he provided the HCPC with a number of written submissions. In his submissions dated 10 September 2021 he described his meetings with each of these Service Users and the treatment provided. In none of his accounts did he mention that he had carried out otoscopy prior to tympanometry. In relation to Service Users 6 and 8, it would seem very unlikely that he could have used otoscopy as the subsequent assessments by CHC revealed a significant wax build-up in the ears of both Service Users. It was the opinion of Mr Rendell that, if the Registrant had carried out otoscopy, he would have seen the presence of wax and therefore not carried out tympanometry. There was no record of the Registrant having examined the ear before carrying out tympanometry. The Panel noted that the first time the Registrant claimed to have carried out otoscopy before tympanometry was in his submissions dated 15 October 2023 after he had read the transcript of evidence of the HCPC witnesses, all of whom emphasised the necessity of carrying out otoscopy prior to tympanometry. The Panel was satisfied on the evidence that in each case where the Registrant had carried out tympanometry (Service Users 1, 2, 3, 6, 7, 8, 10, 11 and 12), he failed to perform otoscopy prior to tympanometry.

Particular 2: You failed to obtain consent and/or record consent.
Proved

43. In his written submissions dated 15 October 2023 the Registrant stated “I had the consent to work with all my clients. I did not have specific consent for tympanometry as did not believe that this was necessary. I have since altered my consent form to include the possibility of tympanometry”. On the evidence of all the HCPC witnesses, it was not within the usual remit of a Speech & Language Therapist to carry out tympanometry. The Panel was satisfied that the Registrant should have obtained consent to carry out tympanometry on Service Users 1, 2, 3, 6, 7, 8, 10 11 and 12 but on his own admission failed to do so.
44. With regard to the other Service Users, the Registrant asserts that he had consent to work with all his clients and there is no evidence to the contrary. As the Panel were not provided with copies of the Registrant’s case notes, they were unable to reach a conclusion as to whether the Registrant failed to record parental consent.

Particular 3: You undertook assessment, namely tympanometry and/or SCAN-3 tests, in circumstances where it was inappropriate and/or incorrect.
Proved

45. The Registrant was not at the material time trained or assessed as competent to carry out tympanometry. It follows that he should not have undertaken tympanometry in respect of any of the Service Users. On the evidence of Mr Rendell, which the Panel accepted, it was also incorrect because the Registrant was attempting to use tympanometry to detect APD, when he was not qualified to do so. This particular is therefore proved in relation to Service Users 1, 2, 3, 6, 7, 8, 10 11 and 12, on each of whom the Registrant carried out tympanometry.
46. The Registrant used SCAN-3 tests on Service Users 13,14, 16 and 17 to test for APD. The Panel accepted the evidence of Mr Rendell that this was a misuse of SCAN-3 tests and therefore inappropriate and incorrect. Mr Rendell gave evidence that the Registrant should not have tested for APD where there was a co-occurring condition, as was the case in respect of each Service User.

Particular 4: You made conclusions and/or diagnoses which were inappropriate and/or incorrect.
Proved

47. The Panel accepted the evidence of Mr Rendell that the Registrant’s conclusions and diagnoses were inappropriate and incorrect in respect of each and every Service User. With regard to Service Users 1, 2, 3, 6, 7, 8, 10 11 and 12 the Registrant reached inappropriate conclusions based on his untrained and inappropriate use of tympanometry. In his latest submissions dated 15 October 2023 the Registrant states that “I fully accept that I may have made errors in my interpretation of some tympanometry tests”. He denied having done so in respect of his SCAN-3 assessments. With regard to Service Users 3, 7, 10, 11, 12, 13,14,16 and 17, on whom the Registrant carried out SCAN-3 tests, the Registrant concluded that each of these Service Users had or might have APD. The Panel accepted the evidence of Mr Rendell that the Registrant thereby misused the SCAN-3 tests, which were not an appropriate tool to test for APD.

Particular 5: You recommended inappropriate and/or incorrect treatment plans.
Proved

48. The Panel found this particular proved in relation to Service Users 10, 11, 12, 13, 14, 16 and 17. In relation to Service Users 10, 11 and 12 Mr Rendell expressed the opinion the Registrant inappropriately performed tympanometry and SCAN-3 tests, on the basis of which he incorrectly concluded that they suffered from auditory processing difficulties. In relation to Service Users 13, 14, 16 and 17 the Registrant performed SCAN-3 tests alone, on the basis of which he incorrectly concluded that they suffered from auditory processing difficulties. In respect of all of these Service Users 10, 11, 12, 13, 14, 16 and 17, the Registrant recommended treatment plans based on his unsupported conclusions.

Particular 6: You operated beyond the scope of your practice by conducting assessments, namely tympanometry and/or SCAN-3 tests, and/or interpreting the results thereof, whilst you did not possess the necessary skills and/or knowledge to do so.
Proved

49. The Panel found that the Registrant conducted tympanometry on Service Users 1, 2, 3, 6, 7, 8, 10, 11, 12 without being trained or assessed as competent in its use and consequently misinterpreted the results. Also that he misused SCAN-3 tests with a view to establishing whether Service Users 3, 7, 10, 11, 12, 13,14,16 and 17 had auditory processing difficulties and wrongly concluded that they did. The Panel found as a fact that the Registrant operated beyond the scope of his practice and without the necessary knowledge or skills.

Decision on grounds

50. The Panel went on to consider whether the facts found proved in allegation amounted to misconduct as alleged in particular 7.
51. The Panel had regard to the submissions of Mr Foxsmith and accepted the advice of the Legal Assessor.
52. The Panel was mindful that this is a matter for the Panel’s professional judgment, there being no standard or burden of proof.
53. Misconduct was defined in Roylance v GMC (No 2) [2000] 1 A.C. 311 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. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the conduct to the profession…... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious …”

54. In the case of Nandi v GMC [2004] EWHC 2317 (Admin), the court stated that:
“The adjective ‘serious’ must be given its proper weight, and in other contexts there has been reference to conduct which would be regarded as deplorable by fellow practitioners”.

55. The Panel found the Registrant to have been in breach of the following standards of HCPC Standards of Conduct, Performance and Ethics (2016):

• Standard 1: You must promote and protect the interests of service users. The Registrant fell short of this standard in respect of each of the proven particulars.
• Standard 1.4: You must make sure that you have the consent from service users or other appropriate authority before you provide care, treatment or other services. The Registrant breached this standard in relation to particular 2.
• Standard 3.1: You must keep within your scope of practice by only practising in the areas you have appropriate knowledge, skills and experience for. The Registrant breached this standard in relation to particulars 1, 3, 4, 5 and 6.
• Standard 6.1: You must take all reasonable steps to reduce the risk of harm to service users … as far as possible. The Registrant breached this standard in relation to particular 1 by failing to perform otoscopy prior to tympanometry and in relation to particular 6 by operating outside the scope of his practice and without the relevant skills and knowledge.
• Standard 6.2: You must not do anything which could put the health or safety of a service user ….. at unacceptable risk. The Registrant breached this standard in relation to particular 1 by failing to perform otoscopy prior to tympanometry and in relation to particular 6 by operating outside the scope of his practice and without the relevant skills and knowledge.
• Standard 9.1: You must make sure that your conduct justifies the public’s trust in you and your profession. The Registrant breached this standard in relation to all the proven particulars.

56. In respect of each of the proven particulars the Panel found that the Registrant’s practice fell seriously below the standards of conduct expected of him as a Speech and Language Therapist and that his conduct would be regarded as deplorable by fellow practitioners. By practising outside the scope of his competence, and without the necessary skill and knowledge, he misdiagnosed hearing problems and/or diagnosed hearing problems which did not exist. He thereby caused children to be referred unnecessarily for assessment and further tests by audiologists. According to the evidence of SC, when CHC informed parents of their child’s clinical outcome, some were anxious because they had received two sets of conflicting results. This resulted in parents not believing audiologists and requesting that further tests be done. The Registrant thereby caused reputational damage to both professions.
57. The Panel found each of the proven facts to constitute misconduct, which was compounded by the length of time over which it continued.

• The Registrant has shown a persistent disregard for the fundamental requirement to obtain consent to treatment from patients. This has been evidenced by the proven allegations in the previous proceedings which required him to undergo training in informed consent as a condition of the Conditions of Practice Order imposed on 18 January 2013. That Order was not revoked until 21 December 2015, when the Registrant’s fitness to practise was deemed to be no longer impaired. As found proved in the current proceedings in relation to particular 2, from October 2016 – less than 12 months from the revocation of the Conditions of Practice Order – the Registrant was again failing to obtain informed consent from his patients. In the Panel’s judgement, the Registrant thereby showed a deep-seated attitudinal disregard for a fundamental tenet of his profession.
• The Registrant showed a similar attitudinal disregard for a fundamental tenet of his profession by knowingly practising outside the scope of his practice and undertaking assessments and recommending treatment programmes which he was not qualified or competent to make. The Registrant has throughout these proceedings sought to justify his conduct with a view to establishing his preconceived notion that service users were suffering from auditory processing difficulties.
• The Registrant has shown a persistent lack of insight into the damage and potential damage caused by his conduct to service users whom he wrongly assessed and recommended for inappropriate treatment programmes. The potential damage included: physical harm to the ears of patients by the inappropriate application of tympanometry without otoscopy, emotional harm by causing anxiety to patients and their parents by his incorrect assessments, delayed treatment resulting from his misdiagnoses and the loss of confidence of the parents of the children in the professions of Speech and Language Therapy and Audiology.
• Despite the passage of time since the latest incident of misconduct in May 2019, the Registrant has provided the Panel with no evidence of remediation, the lack of which indicates a lack of willingness to resolve the issues relating to his practice.
• Given the Registrant’s attitudinal issues, his lack of insight and lack of remediation, there is a significant risk of repetition.

78. The case is too serious for the Panel to take no further action.
79. Mediation is not relevant.
80. A Caution Order would not be effective to address the risk of repetition and would be insufficient to reflect the seriousness of the Registrant’s misconduct.
81. A Conditions of Practice Order would not be appropriate because the Panel was unable to formulate any conditions which would address the underlying concerns relating to the Registrant’s misconduct. The Panel noted that the Registrant has previously been subject to a Conditions of Practice Order which did not prevent the recurrence of his failure to obtain informed consent and to practise in breach of fundamental tenets of his profession.
82. The Panel considered whether to impose a Suspension Order but given the Registrant’s persistent disregard of fundamental tenets of his profession, lack of insight and lack of remediation, the Panel decided that a Suspension Order would serve no useful purpose.
83. The Sanctions Policy provides the following guidance in relation to Striking Off Orders:
“A Striking Off Order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:
• Lacks insight
• Continues to repeat the misconduct
• Is unwilling to resolve matters”

84. In the Panel’s judgement, the Registrant has demonstrated both that he lacks insight, has continued to repeat his misconduct and is unwilling to resolve matters. The Registrant’s deep-seated attitudinal issues are incompatible with his remaining on the Register. In these circumstances, the Panel concluded that the appropriate sanction is a Striking Off Order. 

ORDER: The Registrar is directed to strike the name of Mr Graham Small from the Register on the date this Order comes into effect.ORDER: The Registrar is directed to strike the name of Mr Graham Small from the Register on the date this Order comes into effect.

Interim Order
1. Mr Foxsmith made an application for an Interim Suspension Order for a period of 18 months to cover the appeal period or until any appeal lodged has been determined.
2. The Panel noted Mr Foxsmith’s submissions and accepted the advice of the Legal Assessor.
3. Given the Panel’s decision to impose a Striking Off Order, it would be inconsistent with the need for public protection and the wider public interest not to impose some form of interim order. The Panel, for the same reasons it identified above, came to the conclusion that it is impracticable and inappropriate to formulate interim conditions of practice in this instance.
4. The Panel therefore makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being in the public interest, having regard to the Panel’s findings of fact and determination as to impairment and sanction.

History of Hearings for Mr Graham J Small