Mohammad T A Ali

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Preliminary Matters

Service

1. The Panel was provided with a Service Bundle, from which it noted that notice of the hearing had been served on the Registrant by email on 13 November 2024 (“the Notice”). The Notice set out the date, time and place (virtual) for the hearing.

2. The Service Bundle also contained a Certificate of Registration, confirming the Registrant’s registered status and his registered email address. The HCPC also provided a copy of an email delivery receipt, confirming that the Notice had been sent by email on 13 November 2024.

3. The Panel accepted advice from the Legal Assessor on the requirement to serve Notice on the Registrant, which allowed a period of at least 28 days before the commencement of the hearing. The Panel was satisfied that the Registrant had been served with notice of the hearing within the requirements of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).

Proceeding in Absence

4. The Registrant did not attend the hearing and was not represented. Ms Danti, on behalf of the HCPC, applied for the Panel to proceed with the hearing in the absence of the Registrant, pursuant to Rule 11. Ms Danti referred the Panel to background of the case and three Supplementary Bundles of correspondence between the parties.

5. Ms Danti submitted that the Panel must strike a balance between fairness to the Registrant and to the public. She reminded the Panel of the statutory objective of ensuring public protection.

6. Ms Danti submitted that the Registrant had made clear that he was unable to commit to eight days for the hearing. She submitted that the case required the Panel to decide no less than 19 factual charges. The HCPC intended to call two live witnesses to give evidence, and the evidence would take time to cover. Ms Danti submitted that eight days was therefore a reasonable time for the hearing. She submitted that ample indication of the intended dates for the hearing had been sent to the Registrant in October 2024. She submitted that the Registrant had voluntarily absented himself from the hearing.

7. Ms Danti submitted that the Registrant had not made any request to adjourn the proceedings in the correspondence. She submitted that the interests of the public and the regulator are highly relevant. The case had already been previously delayed. There had been a preliminary hearing and an amended Allegation sent to the Registrant on 09 February 2024. The hearing listed for May 2024 had been adjourned at the Registrant’s request, which had also aligned with the HCPC’s difficulties for one of its witnesses.

8. Ms Danti submitted that, although no adjournment had been requested, if the Panel did adjourn the hearing, there was no reason to believe that the Registrant would attend on the next occasion. Although the Registrant had given the same reason for his non-attendance due to his studies on both occasions, he had provided no supporting evidence.

9. Ms Danti submitted that the final evidence bundle had been made available to the Registrant in December 2023. A further bundle which was ‘almost identical’ had been sent on 27 January 2025, she said. Ms Danti submitted that there was no doubt that the Registrant is aware of the amended Allegation, and she referred the Panel to the copy sent to the Registrant after the Preliminary meeting in February 2024. Ms Danti submitted that on 20 January 2025 a copy of the further proposed amended Allegation had been sent to the Registrant.

10. Ms Danti informed the Panel that the Registrant had requested further documentation from Specsavers. These had been sent to Blake Morgan, who acted for the HCPC on 10 May 2024. The two documents requested had been disclosed to the Registrant on 27 January 2025. The Registrant had stated in his email and statement to the Panel dated 30 January 2025 that he had not had time to adequately process or incorporate the information due to late disclosure.

11. Ms Danti submitted that it had been clear since October 2024 that the Registrant did not intend to attend the final hearing. Although the two documents were late, they had been sent to the Registrant and he had provided comments on them. The documents were available to the Panel.

12. Ms Danti submitted that there was no unfairness to the Registrant since he had not intended to attend the final hearing. The Panel would have the benefit of hearing from the Expert Witness, who had also considered the two additional documents requested by the Registrant. She submitted that the two additional documents related to the matters concerning Service User B, whereas the most serious Allegation related to Service User A.

13. Ms Danti submitted that, the case having been adjourned once already, the public interest in avoiding further delay must be of significance. It was not in the public interest to further adjourn the case. Ms Danti referred the Panel to the Registrant’s expressed lack of intention to return to practice and that delay would undermine public confidence in the profession.

14. The Panel noted that, in his latest statement, the Registrant had most recently expressed a wish to return to practice. Ms Danti submitted that, whether there was an intention to return to practice or not, the case needed to be dealt with.

15. The Legal Assessor advised the Panel that Rule 11 gave a discretion to the Panel to proceed, despite the absence of the Registrant. He referred the Panel to the caselaw, by reference to R v Jones [2002] UKHL 5 and GMC v Adeogba [2016] EWCA Civ 162 and the factors the courts had set out. He reminded the Panel of the courts’ guidance that the discretion it had to exercise with the ‘utmost care and caution’ but also that, in Adeogba, the court had emphasised the importance of the statutory objective of the regulator. He advised that each case had to be judged on its own facts.

16. The Panel considered that the Registrant had been provided with ample notice of the hearing. He had been provided with the proposed amended Allegation. The Panel was satisfied from reading the Registrant’s response that he is aware of the hearing being held today.

17. The Panel noted that the Registrant had previously stated that he did not intend to attend the final hearing. He had engaged with the Regulator but the hearing had already been adjourned once before. He had been informed of the impending date in October 2024. In his correspondence, the Registrant had not requested the Panel to consider an adjournment. In light of this and the correspondence, the Panel did not believe that the Registrant would attend a future hearing, if the case is further adjourned.

18. Although, if proceeding, the Panel will not hear from the Registrant and there will be some disadvantage to him as a result, the Panel took into account that it has his written statement on the Allegation, including the relevance of the two documents lately disclosed.

19. The Panel took into account that eight days had been allotted to the hearing, which would have to be found again if the hearing were to be adjourned. In addition, the HCPC had arranged for the attendance of its two witnesses.

20. The Panel took into account the need for the expedient disposal of the Allegation, and the court’s guidance in Adeogba. It considered that the public interest in expedition at this point outweighed the Registrant’s interests. In all the circumstances, the Panel concluded, it was fair and appropriate to proceed in the Registrant’s absence.

Application to amend the Allegation

21. Ms Danti applied to the Panel to amend the Allegation. She submitted that the proposed amendments fell into two parts. The first part were amendments which were merely textual and helped to clarify and make sense of the Allegation.

22. Ms Danti informed the Panel that these proposed amendments and the fact that they would be applied for had been made clear to the Registrant in the Case Summary which had been already sent to the Registrant in advance of the hearing and were amendments to particular 1 in the stem, particular 1(g) and the stem of particular 3.

23. The second amendments proposed had not been sent to the Registrant in advance, Ms Danti submitted. She asked the Panel to amend particular 2 to remove the words “and/or dishonest” from the particular. Ms Danti submitted that particular 4 also covered the alleged dishonesty in relation to particular 2. As a result, she submitted, the double reference to dishonesty risked creating confusion to the Panel over whether it had to decide dishonesty twice or in another way.

24. Ms Danti submitted that in the case PSA v HCPC & Doree [2017] EWCA Civ 319 the court had stated that the Panel has a power to amend an allegation which should be exercised in order to avoid undercharging in a case.

25. In addition, the Panel noted that in the Allegation as advised to the Registrant after the Preliminary Hearing in February 2024 and as contained in the Case Summary, some additional words had been left in which, according to the decision of the panel in the Preliminary Hearing should have been removed. In particular, the word “adequate” should have been replaced by “full” with regard to the “full assessment” for Service User A in the stem of particular 1 but had re-appeared alongside “full” in the Allegation latterly sent out.

26. The Legal Assessor advised the Panel that the Rules do not contain an express power to amend the Allegation. However, the court had confirmed in Doree that a Panel should amend an allegation to avoid a risk that a case is undercharged, even at a late stage in the hearing.

27. The Panel decided that the Allegation should be amended to read as the panel decided in the Preliminary Hearing. The Registrant had attended that Hearing and both parties would have been given the chance to be heard. The inclusion of the additional word was clearly an error.

28. The Panel next considered the amendments which had been included as proposals on notice in the Case Summary. The Panel considered that these amendments clarified the language of the Allegation and there was no prejudice in allowing them.

29. The Panel considered the proposed amendment of particular 2, to remove reference to dishonesty in that particular. The Panel acknowledged that removing the broader reference to dishonesty had the effect of restricting the case to the specific dishonesty alleged in particular 4, However, it decided that this was fair, because the amendment added clarity to the HCPC’s case on dishonesty. In addition, the Registrant was not prejudiced by the amendment.

30. The Panel agreed to all the amendments proposed by the HCPC. The Allegation as amended is set out above.

Background

31. The Registrant is a registered Hearing Aid Dispenser (“HAD”). At the time of the alleged misconduct, the Registrant worked for Specsavers.

32. On 11 September 2020, Service User A attended Specsavers for an initial appointment. During this appointment the Registrant performed an initial assessment on Service User A. Due to an administrative error the appointment was booked for 30 minutes instead of 60 minutes.

33. On 17 September 2020, Service User A attended a follow-up appointment to have hearing aids fitted by the Registrant. This appointment lasted 15 minutes.

34. On 5 October 2020, The HCPC received a complaint from Service User A. Service User A complained about the Registrant’s conduct during both appointments.

35. Following the complaint, Specsavers carried out an internal audit of the Registrant’s practice. As a result of the internal audit, further concerns were identified in respect of the assessment the Registrant performed for Service User B.

36. It was alleged that the Registrant did not conduct a full assessment on either Service User A or Service User B. It was further alleged that the Registrant acted with dishonesty in that unmasked bone conduction threshold results were falsely recoded for Service User A.

Evidence

37. The HCPC relied on the evidence of SS, who is employed as the Head of Clinical Training (Audiology) at Specsavers. At the time of the events, SS was a Professional Development Manager for Specsavers.

38. SS stated that she was aware of the matters the HCPC is investigating. She knew the Registrant relatively well in the sense that he had been working in a store for which she had held responsibility, although she had not worked directly with the Registrant. SS produced documents from the Specsavers’ investigation.

39. SS produced the Specsavers’ clinical records for Service User A. She stated that Service User A had attended for a ‘Directly Bookable Service’ (“DBS”) appointment on 11 September 2020. She said that normally such an appointment should last between 30 minutes and 1 hour. She explained the operation of the Specsavers’ audiology software system.

40. SS stated that Service User A had attended for an Any Qualified Provider (“AQP”) fitting on 17 September 2020, which was an NHS appointment. She stated that this should have lasted between 30 minutes and 1 hour. Service User A had attended for a further appointment on 27 September 2020, which was conducted by Colleague A. This was usually for between 15 and 30 minutes and was for checking fitment. It lasted for an hour and included a discussion of her concerns.

41. A further appointment was arranged for re-test of Service User A’s hearing for the next day and was a full private test. Following this test, Service User A had been referred to her GP.

42. As concerns with the Registrant had been raised over Service User A, SS stated, a Specsavers’ audit of five patient records was carried out, as per its policy. SS exhibited a print-out of the audit results, although she had not conducted the audit. She stated that this had raised a concern with the results for Service User B, as not having received “audiometry to BSA recommended procedures” and “Rule 3 of masking missed at 500Hz, PTA also not performed to Specsavers SOP for PTA”. The results stated that there had been no missed referral, although it required a patient recall to ensure test results were accurate and a best fitting outcome.

43. SS stated that, at this point development steps had been put in place for the Registrant. However, before these could take effect, the Registrant had resigned. SS exhibited the Specsavers’ clinical records for Service User B.

44. SS exhibited relevant standards documents, including:

a. Specsavers’ Standard Operating Procedure – Pure Tone Audiometry;
b. British Society of Audiology’s (“BSA”) Recommended Procedure – Pure-tone Audiometry;
c. British Society of Hearing Aid Audiologists’ (BSHAA) Referral Guidelines for HCPC registered Hearing Aid Dispensers (updated September 2017);
d. British Academy of Audiology (“BAA”) “Guidance for Audiologists: Onwards Referral of Adults with Hearing Difficulty Directly Referred to Audiology Services” dated November 2016;
e. Specsavers Referable Conditions Policy (“flowchart”).

45. SS stated that if a referable condition is identified in the flowchart and BAA procedure, there should be a request for consent to a referral to the patient’s GP. The GP would then make a decision about any further referral.

46. SS disagreed with the Registrant’s position set out in his witness statement, in that her evidence was that the completion of the Initial Questionnaire had to be carried out for a new patient.

47. Ms McKinney, a registered Clinical Scientist and Hearing Aid Dispenser, provided her expert report dated 06 September 2023, a further response to questions dated 29 November 2023 and a letter dated 24 January 2025. Ms McKinney also gave evidence to the Panel at the hearing.

48. Ms McKinney informed the Panel of the constituent parts of a ‘full’ hearing assessment and referred to the Association of Independent Hearing Healthcare Professionals (AIHHP) and BAA guidelines. She stated that the consequence of not carrying out a full assessment was a risk that a health condition might be missed.

49. Ms McKinney was taken through her report which formed part of the hearing evidence bundle in detail on each specific particular in the Allegation.

50. Ms McKinney was asked in particular by the Panel why she considered the hearing tests for Service User A on 28 September 2020 were more likely to be correct than those carried out on 11 September 2020.

51. Ms McKinney stated that Colleague A had carried out otoscopy and her audiometric test results had been consistent with the observations. Service User A had also been adamant that she had not been given a bone conduction test on 11 September 2020. Ms McKinney stated that she had performed some calculations having considered the audiograms and found the results were vastly outside the expected results.

Registrant’s statements

52. The Registrant had provided a written statement, sent under cover of his email dated 30 January 2025. In the statement, the Registrant responded to the factual Allegation as follows:

“I obtained my qualification and hearing aid dispensing towards the end of 2018 and subsequently applied for my HAD registration in 2019 with the HCPC. My first role in hearing aid dispensing was with the employer in which these scenarios took place. Not long after, I was designated the clinical lead in this employment and diligently worked to the best of my ability by further developing my skills as a hearing aid dispenser. In 2020 we are all aware of the events that took place at the start of the year which led to a nationwide shutdown. My employment was put on hold for a several months and I was put on furlough. On my return it was an incredibly stressful time having to adapt to a new working environment and also deal with patient issues. The employer I was working for is a known high street optician and the area which we covered was very large. On my return I was solely in charge of dealing with all patient queries coming from our 7 branches for about a month, until my other colleagues returned from furlough. The workload was high and despite it being incredibly stressful I was able to manage reasonably I felt. During this time I had some grievances with regards to scheduling with my employer and decided to submit my resignation in August of the same year. There were several issues in the workplace, the main one being that appointments were booked without triage, and the booking centre frequently amended or changed appointments for patients who had been referred by their GP, without our knowledge. Patients were receiving letters for their appointments with incorrect information stating that the appointment would be an hour long but would be booked in was a 30 minute slot or that they would receive hearing aids on the same day as their appointment. This was incredibly inconsistent and it was unknown to us clinicians as to what was being booked in as the booking policy kept changing during this time.

Service user A was one such patient. They had received information regarding their booked appointment that was incorrect and when contacting the store to clarify that information they were provided with, they were given incorrect information from the administration team. I recall that they had been booked a 30 minute appointment for an assessment but had received a letter stating they would receive and [sic] one hour long appointment for an assessment and fitting. Arriving into the appointment the patient made it known that they were unhappy with what they had to go through to obtain the appointment through their GP as that was difficult and then being provided with the wrong information from us has collectively been a very frustrating experience for them. Service user A proceeded to argue and discuss this with me for most of the appointment. With regards to 1a.f., adequate time was scheduled for the assessment however Service user A did not allow for that time to be appropriately used. Ultimately all I wished to do was to provide this patient with what they had wanted which was to assess their needs and provide them with hearing aid provision. I am aware that I did not complete the pre-set questionnaire on the system but this was not mandatory. I also understand that my notes were limited but I was under an incredibly large amount of stress as a result of the conversation which took place and all I wanted to do was to make sure that I was able to test their hearing with the little time that was remaining. The testing room contained a hearing booth for patients hearing to be assessed, it was a dark booth with no light inside and the only light being from the room and the patient being visible from a window on the side of the booth so there is possibility that the bone conduction headband may have slipped. I admit that the assessment was rushed and for that reason it may have led to an inaccurate hearing test.

In this role I was not financially motivated nor had I any ulterior motive with regards to testing this patient and had no reason to be dishonest when recording the bone conduction thresholds. The expert Ms McKinney is unable to categorically say that the thresholds were falsified as bone conduction thresholds can significantly be impacted with inadequate placement of the bone conduction headband. The error I made was that I had not realised that the bone conduction device had moved and therefore I did not retest the patient or adjust the headband. The lack of time and the pressure that I was under impacted my ability to recognise this. I reflected on this incident shortly after it occurred and recall even then the error may have been made due to incorrect bone conduction placement or slipping and I had not realised due to the pressure that I was under. With regards to conducting the bone conduction, I can categorically say that this was done. There have been many times where I have seen patients who were seen by previous hearing aid providers where I had seen their audiograms, seen that they had bone conduction performed and then on assessment they would claim that they had not had that system before. I would stake my career on this and assure you that if you were to ask any audiologist or hearing aid dispenser in the world they would say the same thing; where patients had forgotten that they had done certain tests performed, even outside of audiology. This mistake I admit was made and had I not been under pressure to test the patient or had I been more experienced with dealing with such cases the same mistake would not be made. I have never had any previous complaints made about me before this event and nor have I after. My behaviour and attitude in the workplace had always been professional and I believe that I had a likeable personality. I openly admit the errors were made during this appointment and I have learned from this and continued my professional development where I have attended courses on emotional intelligence and further trained myself in audiometry. In the main body of the notes is somewhat of a limited history but not enough was noted due to the lack of time unfortunately. I wanted to make sure that this patient was fitted with hearing aids as soon as possible to ensure that their needs would be fulfilled as they have had a pretty difficult experience so far. I had no malice towards Service user A and I wanted to maintain a professional relationship. I fitted the patient with hearing aids not long after their initial assessment despite the normal waiting times at the time were around 3 weeks, the diary states a 15 minute fitting appointment was arranged however the patient was seen during my lunch time which was 30 minutes long and therefore they were seen for longer then what the diary appears to show. In my notes, it states that patient had difficulty inserting the hearing aids and we practised this in the room as I would with all my patients. I made the patient aware that they would require moulds both in the initial assessment and the fitting, they did not wish to wait for moulds to be made at the initial assessment hence I booked them as soon as I could. She felt that I had given her inappropriate hearing aids as she wore glasses and therefore she would be eligible for hearing aids that would just go in her ears and not over, I explained to her that this was not the case and NHS hearing aids that we provided would only go over the ear. The patient seems to have had a better experience when dealing with my colleague who was at the time a trainee hearing aid dispenser; me being her supervisor. What is more concerning to me is that the patient was then given adequate time for appointments and no booking errors were made when they changed over and became a private patient.
Now moving on to service user B. A large portion of part 3 of the allegations I strongly argue.

It is not mandatory to complete the default questionnaires set out on sycle (booking) system. The points made where it is alleged that I did not take an adequate history from the patient are untrue and I can assure you history was taken and that it was put into the notes section of the questionnaire, how else would I establish that he had long standing asymmetrical hearing loss from when he was a child and that he was a existing user of any chance hearing aids? I also established his areas of difficulty; again noted in the main body of the notes. The information exists, I remember writing it in the text box at the bottom of the notes in the questionnaire. So immediately a.b.c.d. are debunked. During my training as a hearing aid dispenser I was taught that bone conduction would only need to be done on the opposite year if the masked bone conduction thresholds on the initial ear did not change and clearly from Service User B’s audiogram we can see it had changed and therefore it was not required. Had there been a significant air-bone gap between the bone conduction and the air conduction thresholds of the right ear then it would have done it, this is also reaffirmed by the BSA guidelines on Pure Tone Audiometry (page111). ‘If the b-c threshold with masking is more than 10 dB worse than the not masked b-c threshold, then the not-masked b-c threshold can be attributed to the other (non-test) ear’. The audiogram shown to Ms McKinney does not show the unmasked thresholds. Rule 1 was actually attempted at 1 kHz but due to the discomfort he was experiencing I did not proceed and therefore did not save the results. I should have written this in my notes and apologise for not doing so. I did not perform rule 2 of masking at 2 KHz due to reaching the limitation of the headband, bone conduction audiometry is not performed beyond 70 kHz due to the lack of accuracy and the limitation of the headband. Speech audiometry was not part of our testing battery that's why it was not performed, there may have been an error somewhere which showed a box was ticked but I can assure you it was not done and nor did I say in my notes that it was done. This must have been a default on the system because I did not tick this box and had not realised that it was ticked. I did not refer Service user B for further assessment due to the history I had obtained from him, I understood that due to them being a longstanding wearer of NHS hearing aids and someone who had previously had them provided to him by the hospital, this is something that would have been investigated by them. What I had not taken into account was the stroke that he had and the potential change in his hearing this may have caused, this may have been poor judgement on my behalf, where had I received guidance from a senior colleague we could have discussed this case, there may have been a different outcome. The reason why I had brought back Service user B to try new hearing aids was because we were in the midst of changing our NHS hearing aid provider from Signia to Resound and I believed he would have better hearing with the Resound hearing aids instead of the ones initially given to him. From following up with him and reviewing how he had been getting on, I made the decision to trial him on something different. I sought to gain evidence from a representative from Specsavers early 2022 but received no response from them when it was requested. I have now received the information that I requested but this was given to me on the 27th of January 2025 and I do not have the time to adequately process it or properly incorporate it into my statement. From the brief time I have spent looking at the information, I can see that it strongly belittles the allegation in regards to service user B and confirms that a full history was in fact taken and masking was done appropriately.”

Application to further amend the Allegation

53. Following the evidence of the last of the HCPC’s two witnesses and the closing of the HCPC’s factual evidence, Ms Danti applied to the Panel for a short adjournment. She submitted that the HCPC wished to have an opportunity to contact the Registrant concerning an application it intended to make for further amendment of the Allegation.

54. Ms Danti said that the HCPC intended to apply to amend the Allegation to add a further particular, concerning the evidence now received that the Registrant had failed to conduct ‘Rule 3’ masking in relation to Service User B. She submitted that, prior to making this application the HCPC wished to give the Registrant an opportunity to respond to its suggestion that there should be a further particular added to the Allegation. The appropriate period of the adjournment Ms Danti left to the Panel, although she suggested it might be appropriate to allow until the end of the day, or the next day.

55. Ms Danti submitted that, although the allegation concerning Rule 3 had effectively been removed at the Preliminary hearing, the two additional audiogram documents had not been available at that time. She submitted that no blame was attached to the HCPC for having to request the adjournment.

56. The Legal Assessor referred the Panel to the HCPTS Practice Note (“PN”) on Postponements and Adjournments. He advised that the PN sets out a number of factors to consider, taken from CPS v Picton (2006) EWHC 1108. He advised the Panel that it had to determine what was fair, fairness being considered to both parties, and in light of its previous decisions, in particular to proceed in the absence of the Registrant.

57. The Panel took into account the stage the proceedings had reached and the hearing time which remained. It took into account the matter of fairness and also the need for expedition in dealing with proceedings. The Panel noted that it had already made a decision on proceeding in the Registrant’s absence, and it had no information on whether he was available to respond.

58. The Panel balanced these considerations with the fact that it appeared that a considerable amendment to the Allegation was to be applied for by the HCPC, but the Registrant would not have notice of the application. The Panel took into account that the Registrant had maintained an effective route of correspondence with the HCPC via his email address.

59. The Panel concluded that it would strike a balance of fairness to allow until 10am on the next day for a response, the application having been granted in the early afternoon of day 3 of the hearing.

60. On resuming the next day, the Panel was also provided with a response from the Registrant, sent by email dated 05 February 2025 (see below).

61. Ms Danti then applied to the Panel to allow further amendment of the Allegation to include the additional particular. She submitted that the Panel had a power to amend and an obligation to avoid undercharging: PSA v HCPC & Doree, as above. She submitted that the Allegation could be amended without causing injustice to the Registrant.

62. Ms Danti submitted that an allegation linked to Rule 3 had been initially referred on by the Case Examiners on 05 November 2022. However, in the Preliminary hearing held on 05 February 2024, an amendment to the Allegation was permitted, removing this allegation.

63. Ms Danti submitted that following the expert’s consideration of the two additional audiograms provided in April/May 2024, her position had altered, in respect of the masking issues around Rule 1 and Rule 2, but also in regard to the Rule 3. Ms Danti submitted that the HCPC should not be criticised, because the need for consideration by the Expert Witness had not been immediately apparent.

64. Ms Danti submitted that, although the Registrant had referred to short notice of the allegation, he had provided a response. The Registrant had known, in general terms, of the allegation for some time. He had not obtained representation or sought his own expert evidence. It was submitted that the Registrant’s response to the application would not have altered, if the amendment had been sought earlier.

65. The Legal Assessor advised the Panel that it had power to allow the amendment, per Doree. It had also to bear in mind the obligation to be pro-active in protecting the public and ensuring due enquiry: CHRE v GMC & Ruscillo [2004] EWCA CIv 1356 and PSA v NMC & X [2018] EWHC 70 (Admin).

66. The Legal Assessor advised the Panel that the key consideration was fairness. The Panel had to balance the interests of public protection with the interests of the Registrant receiving a fair hearing.

67. The Panel considered that the requested amendment increased the allegations made against the Registrant. It took into account that the Registrant is not present at the hearing and is not represented. The Panel also took into account that it has a duty to avoid undercharging in a case, in the public interest.

68. The Panel noted that the allegations around Rule 3 matters had been part of the original referral to the HCPC. The amendment application arose due to a clear change in the expert’s opinion, due to previously unseen evidence. Although it was regrettable that this had occurred so late on, the Registrant had provided his response to this additional allegation.

69. The Panel decided that the balance of interests in the circumstances was in favour of the public interest and it allowed the amendment. The amended Allegation is set out above.

70. In response to the additional particular, 3(j) which was added, the Registrant’s comments were as follows:

“3. j) failed to apply Rule 3 of masking, in that you did not mask the right ear at 250 Hz and/or 500 Hz so that bone conduction of the left ear could be measured.

States that due to the audiometry performed, bone conduction for the left ear could not be measured. This is in fact untrue. Rule 2 of masking was done and already shows that the masked bone conduction thresholds for the left ear were beyond what it was possible for me to measure at the time. Rule 3 requires the use of air conduction masking and not bone conduction and would therefore make no difference to the bone conduction thresholds of the left ear.

Rule 3 was not performed at 500Hz and was in fact omitted for the following reason: when attempted, it was uncomfortable for SUB. He has a severe/profound likely sensorineural hearing loss in the left ear and likely a significantly reduced dynamic range. For him to experience discomfort and/or pain at these thresholds would not be uncommon. I also felt at the time it would not make a significant impact on my clinical management. I felt that it would not alter the overall interpretation of the audiogram and therefore excessive masking may not add useful diagnostic value for this patient. This should have been added to my notes and was not and I take accept an error on my part there.”

Submissions

71. Ms Danti submitted that the Panel could find the particulars in the Allegation proved, on the evidence provided, save that she made no positive submission on particulars 3(e) to 3 (h). Ms Danti submitted that the HCPC’s witnesses were credible. Ms Danti submitted the test of dishonesty from Ivey v Genting Casinos [2017] UKSC 62 applied to particular 4.

72. Ms Danti submitted that the Panel should find that the position that the Registrant had put down test results on 11 September 2020, which he knew to be incorrect, suggested by Ms McKinney was correct.

Legal Advice

73. The Legal Assessor advised the Panel that the burden of proving the factual allegations lay with the HCPC. The HCPC had to prove the facts alleged on the “balance of probabilities” and the Registrant bore no burden of proof.

74. The Legal Assessor advised the Panel that the courts had recommended panels to particularly consider the documentary record and known or probable facts, using oral evidence to scrutinise the evidence: Dutta v GMC [2020] EWHC 1974 (Admin). He advised that the panel was not bound to accept the opinion of an expert, and if the panel disagreed with an expert, it should set out its reasons.

75. The Legal Assessor advised the Panel that it had to decide each of the factual allegations. The legal definition of dishonesty, taken from Ivey v Genting Casinos [2017] UKSC 62 was set out. Where there was an alleged ‘failure’, the Panel must be satisfied that there had been a duty on the Registrant, which he had not met. The Panel had to produce written reasons summarising its findings.

 

Decision on Facts

76. The Panel considered each of the factual particulars alleged in turn. It bore in mind that, to find a factual particular proved, the Panel had to be satisfied that it had been proved on ‘the balance of probabilities’, meaning that it was more likely than not to be true.

77. The Panel took into account the evidence, including the written responses provided by the Registrant. It considered the submissions made by Ms Danti and accepted the legal advice of the Legal Assessor. The Panel bore in mind that if the HCPC alleged a ‘failure’ the Panel had to be satisfied that the Registrant had been under a duty and also that he had not met that duty.

1. Between 11 September 2020 and 17 September 2020 you did not conduct a full assessment for Service User A, in that you:

(a) failed to conduct a full case history and/or…

78. The Panel considered the evidence of Ms McKinney, the Expert Witness called by the HCPC and SS, the Specsavers’ manager. Both agreed that there should be a full case history taken on a service user who was new to Specsavers’ audiology service. It was stated that a case history went hand in hand with testing in terms of outlining potential causes and what rehabilitation may be needed. Ms McKinney stated, and the Panel accepted, that absent a full case assessment, a health condition may be missed.

79. The Panel had before it the Specsavers’ clinical records for Service User A, from which it was apparent that a considerable amount of the questions posed in the pro-forma questionnaire were not asked of Service User A.

80. It was not in dispute that the appointment on 11 September 2020 had been booked for 30 minutes. SS said that the initial appointment should have been for between 30 and 60 minutes depending on whether the person had procedures done before, and there was no previous attendance noted.

81. Ms McKinney took the panel through the BSA recommended procedures. Ms McKinney is a suitably qualified and experienced audiologist. She provided her evidence based on a consideration of the Specsavers’ clinical records, the audiograms and the professional standards which were provided in the evidence bundle. Ms McKinney was prepared to revise her opinions in favour of the Registrant, in considering the late evidence.

82. SS occupies a senior position within Specsavers as a Head of Clinical Training and a previous Professional Development Manager. The Panel considered that both HCPC witnesses were reliable and the Panel was able to place reliance on their evidence.

83. The Panel accepted Ms McKinney’s expert opinion evidence that the Registrant did not complete a full case history, on the basis of her consideration of the clinical records. She stated that there was nothing in the records which amounted to a case history: there was nothing to show onset of hearing loss, family history of hearing loss; there was no indication that questions were asked or answered.

84. In addition, the Panel noted the Registrant’s comment in his written statement that he admitted that the assessment had been rushed, offering the explanations of pressure of time and Service User A’s time taken to air her complaints. The Panel considered that the shortage of time was consistent with a lack of a full case history having been taken.

85. The Panel found that no full case history was taken by the Registrant at the second appointment he conducted on 17 September 2020, which had been a short appointment for fitting the hearing aid.

86. The Panel decided that the Registrant had been obliged to, but had not taken a full case history on Service User A. It found particular 1(a) proved.

 

(b) failed to complete the initial assessment questionnaire and/or…

87. The Panel considered that ‘completion’ of the initial assessment questionnaire’ meant having fully completed it, as opposed to partially, or not completing it. Only if fully completed, would the questionnaire inform the HAD as to the needs of the service user.

88. The Panel had before it a copy of the Initial Questionnaire (“IQ”) for Service User A. It noted a considerable number of the pro-forma questions had been answered as ‘Not Asked’. The Panel accepted SS’s evidence that these answers resulted from specific inputs. The Panel concluded it was likely that these were the Registrant’s inputs to the IQ.

89. The Registrant’s position, set out in his written statement, was that there was not a requirement for the IQ to be completed. He did not dispute the lack of full completion. However, the Panel preferred SS’s evidence that the IQ had been necessary. The Panel had already accepted that there should be a full case history taken, per the evidence of the expert and SS. Full completion of the IQ was consistent with the audiologist being in the best position to assist a service user.

90. The Panel also noted SS’s evidence that, as a Lead Audiologist, the Registrant had been responsible for the standards of those persons within his responsibility. Therefore, he should have been more aware of the requirements.

91. The Panel was satisfied that the Registrant had been required to, but had not completed the IQ for Service User A. It found particular 1(b) proved.

 

(c) failed to complete an areas of difficulty assessment and/or…

92. Ms McKinney’s evidence, which the Panel accepted, was that it was Specsavers’ policy and widely held good audiological practice for a full assessment to include a full case history, an initial assessment questionnaire including areas of difficulty section, amongst other things. Ms McKinney told the Panel that the answers to the questions in this section allowed the HAD to identify the particular, suitable hearing aid.

93. The Panel could see from the IQ provided that the section on areas of difficulty had been entered as ‘not asked’, which the panel had accepted had been positive entries into the IQ.

94. The Registrant’s position was that the IQ had not been necessary to complete. However, the Panel preferred the evidence of Ms McKinney, the Expert Witness.

95. The Panel noted the Registrant’s case that there had been a pressure of time. However, it accepted the evidence of SS, who occupies a senior position with Specsavers, that the control of appointment times (even though not their pre-arrangement) lies with the audiologist. She said that the audiologist can extend the appointment, or if that is not possible an appointment can be rearranged. The Panel accepted her evidence.

96. The Panel was satisfied that the Registrant had been obliged to complete the areas of difficulty assessment in the IQ for Service User A but had not.

97. The Panel found particular 1(c) proved.

(d) failed to assess Service User A's hearing care needs prior to the hearing aid fitting and/or…

98. The Panel accepted the evidence of Ms McKinney as to what comprised a full hearing assessment. It took into account its findings that the Registrant had failed to: conduct a full case history; complete the initial questionnaire; and complete the areas of difficulty assessment.

99. The Panel took into account the shortness of time that the appointment took and that the Registrant had stated that Service User A had spent a lot of the time ‘arguing’ and ‘discussing’ her frustration at the appointment. He had recognised that the assessment had been ‘rushed’.

100. The Panel also took into account that Service User A had reported that the hearing aids fitted had been unsuitable and had tended to fall out. Service User A had said she had been unable to re-fit them. She said that Colleague A had been ‘horrified’ that the Registrant had not sat down with her and discussed the different hearing aids suitable to her.

101. The Panel was satisfied that the Registrant had been required to carry out an assessment of Service User A’s hearing care needs but had not done so, despite having been able to extend or re-arrange the assessment. The Panel found particular 1(d) proved.

(e) failed to identify the necessity for, or arrange the onward referral of Service User A to a GP and/or;

102. The Panel accepted the evidence of Ms McKinney, who had stated in her report that: “the failure to record bone conduction thresholds accurately meant that [the Registrant] did not identify the conductive component of [Service User A’s] hearing loss. He therefore did not refer her for further investigation”. Ms McKinney pointed out to the Panel in her report that further testing (by Colleague A) on 28 September 2020 had led to a referral.

103. In addition, Ms McKinney stated and the Panel accepted that “the degree of hearing loss identified on 11.09.20 is greater than can be reasonably be expected from aging alone” and which also warranted referral.

104. The Panel accepted Ms McKinney’s evidence that part of the purpose of assessment was to identify health conditions which might need treatment by others. The Panel had also considered the guidance for referrals put in evidence:

a. British Society of Hearing Aid Audiologists’ (BSHAA) Referral Guidelines for HCPC registered Hearing Aid Dispensers (updated September 2017);
b. British Academy of Audiology (“BAA”) “Guidance for Audiologists: Onwards Referral of Adults with Hearing Difficulty Directly Referred to Audiology Services” dated November 2016;
c. Specsavers Referable Conditions Policy (“flowchart”).

105. The Panel was satisfied that the Registrant had been required to identify any need for or arrange an onward referral, which had been necessary in this case. It was satisfied that the Registrant had not made an appropriate referral.

106. The Panel found particular 1(e) proved.

(f) failed to allow adequate time for the assessment on 11 September 2020 and/or...

107. The Panel accepted that Service User A’s appointment had been booked outside of the Registrant’s control. However, it also accepted the evidence of SS. She had told the Panel that HADs had the ability to extend an appointment. Alternatively, if the appointment was followed immediately by another, she said, the assessment could have been re-booked.

108. Ms McKinney’s opinion was that the Registrant should have managed Service User A’s expectations and re-booked the appointment. In that case, the 11 September appointment could have then been used to gain a full case history and assessment of needs. SS had given evidence that the HAD had autonomy over the appointment.

109. The Panel accepted this evidence. It found that the Registrant had autonomy and the power to alter the appointment arrangements. As HAD and also as a Lead clinician, he should have exercised his autonomy in the best interests of a full assessment. Instead, as he had said, the assessment had been rushed.

110. The Panel found the Registrant had not met his obligation to allow adequate time for the assessment on 11 September 2020. It found particular 1(f) proved.

(g) failed to allow adequate time for the assessment during the hearing aid fitting on 17 September 2020…

111. The Panel noted that the timed records for the hearing aid assessment and fitting appointment on 17 September 2020 showed a length of 15 minutes. The start of the appointment was shown as ‘12.30pm’ and the last edit of notes at ‘12.43pm’, although the note itself was recorded as created at ‘11.13am’.

112. The Panel took into account Ms McKinney’s evidence that “this is an extremely brief period for a hearing fitting appointment, especially for a first-time user”. Her opinion was that a minimum of 60 minutes is required. She described the activities which would be involved.

113. The Panel took into account that Service User A was thereafter in difficulty using her hearing aids. She returned to have other aids fitted, as shown from the records.

114. The Registrant stated that he had held the appointment during his lunch hour, which was 30 minutes long. However, the Panel accepting Ms McKinney’s evidence, noted this was still a short period for all that needed to be done. There was no entry in the clinical record of the longer appointment which the Registrant claimed to have conducted.

115. The Panel concluded, on balance, that the Registrant had been under a duty to all adequate time for the assessment of hearing care needs during the fitting appointment on 17 September 2020. However, there was consistent evidence that the time, whether 15 or 30 minutes had not been adequate.

116. As before, the Panel accepted SS’s evidence that the Registrant had autonomy over allowing sufficient time in appointments and it was part of his duties to ensure there was sufficient time.

117. The Panel found particular 1(g) proved.

Particular 1 stem

118. The Panel had found all the individual particulars 1(a) to 1(g) inclusive had been proved by the HCPC. Taking those findings into account, the Panel also found that these failures by the Registrant having occurred between 11 September 2020 and 17 September 2020 meant that he had not conducted a full assessment for Service User A in the manner set out in particulars 1(a) to 1(g) and the ‘stem’ of particular 1 was proved.

2. On 11 September 2020, you recorded unmasked bone conduction threshold results for Service User A which were inaccurate…

119. The Panel accepted Ms McKinney’s opinion that the two sets of audiograms for Service User A, those dated 11 September 2020 and 28 September 2020, could not both be correct.

120. The Panel heard and accepted Ms McKinney’s evidence as to the reasons that she considered that the audiogram for 28 September 2020 was correct. Ms McKinney told the Panel that there had been much greater focus to the testing carried out on 28 September. In addition, Colleague A had examined the ear with an otoscope. Ms McKinney informed the Panel that she had carried out some calculations using the audiograms which showed results were vastly outside expected results.

121. The Panel accepted Ms McKinney’s evidence that “it is almost impossible that bone conduction thresholds would have improved between 11th and 28th September.” Further, the Panel accepted Ms McKinney’s evidence that there was no history of fluctuating hearing loss and that fluctuating bone conduction thresholds are ‘extremely unusual’. Ms McKinney had also calculated that the differences in recorded values were significantly greater than would be expected for bone-vibrator slippage alone.

122. In addition, Service User A had been adamant that bone conduction had not been carried out. Although the Registrant suggested that many service users forget the tests that are performed on them, the Panel took into account the evidence that the bone conduction testing is uncomfortable. Further, Service User A did have a bone conduction test on 28 September 2020. Therefore, the Panel found it more likely than not that her recollection was reliable.

123. The Panel also heard from Ms McKinney that it is very easy to see if a bone conduction headset slipped from its position on the service user’s head, and an audiologist would re-test. The Panel considered that this made the Registrant’s suggestion that the false tests were due to undetected slippage less credible.

124. In addition, the Panel took into account the agreed evidence that the appointment on 11 September 2020 had been conducted in short time and under some pressure.

125. The Panel accepted the reasoning set out by Ms McKinney in her report dated 06 September 2023 and also her conclusion that it was more likely than not that the Registrant falsely recorded the bone conduction results. The Panel found that the unmasked bone conduction threshold results recorded for Service User A on 11 September 2023 were inaccurate.

126. The Panel found particular 2 proved.

3. Between 24 September 2020 and 3 November 2020 you did not conduct a full assessment for Service User B, in that you:

(a) failed to conduct a full case history on 24 September 2020; and/or…

127. The Panel noted that this appointment was a ‘Directly Bookable Service’ appointment and therefore Ms McKinney’s opinion had been that this was her first appointment with Specsavers. She noted in her report that correspondence with Service User B reported that he had experienced meningitis as a child. Ms McKinney also noted that the Registrant had recorded that Service User B had suffered a stroke in the June prior to the first appointment.

128. Ms McKinney’s opinion, which the Panel accepted, was that, due to these health issues and the family’s reports of deterioration in hearing, it had been essential for the Registrant to conduct a full assessment. However, she reported that the Registrant “did not record a case history or an initial assessment questionnaire on 24.09.20”.

129. The Panel was provided with Specsavers’ clinical records for Service User B. It could see that the notes did not contain full details of Service User B’s case history. The Panel noted the Registrant’s response that he had taken a case history and had noted it appropriately. However, the Panel preferred the evidence from Ms McKinney, that the case history was not sufficient, as omitting important information.

130. The Panel found that the Registrant should have completed a full case history for Service User B but had not. The Panel found particular 3(a) proved.

(b) failed to undertake the initial assessment questionnaire on 24 September 2020; and/or…

131. The Panel preferred SS’s evidence that the IQ was necessary for a new patient to Specsavers. The Panel had already accepted that there should be a full case history taken, per the evidence of the expert and SS. Full completion of the IQ was consistent with the audiologist being in the best position to assist a service user.

132. The Registrant’s position, set out in his written statement, was that there was not a requirement for the IQ to be completed. He did not dispute the lack of full completion.

133. The Panel also noted SS’s evidence that, as a Lead Audiologist, the Registrant had been responsible for the standards of those persons within his responsibility. Therefore, he should have been more aware of the requirements.

134. The Panel was satisfied that the Registrant had been required to, but had not completed the IQ for Service User A. It found particular 3(b) proved.

(c) failed to undertake the areas of difficulty assessment on 24 September 2020; and/or...

135. The Panel accepted Ms McKinney’s evidence that it was Specsavers’ policy and widely held good audiological practice for a full assessment to include a full case history, an initial assessment questionnaire including areas of difficulty section, amongst other things. Ms McKinney told the Panel that the answer to this section on the IQ allowed the HAD to identify the particular, suitable hearing aid.

136. The Panel noted that no IQ had been completed in relation to Service User B. The Registrant’s position was that the IQ had not been necessary to complete. However, the Panel preferred the evidence of Ms McKinney, the Expert Witness.

137. The Panel noted that the Registrant stated that he had conducted an area of needs assessment for Service User B. However, the Panel took into account the absence of a completed IQ, or any notation of an area of needs assessment on the clinical record. It took into account that an area of needs assessment had not been completed in relation to Service User B, and the time pressures

138. The Panel was satisfied that the Registrant had been obliged to complete the areas of difficulty assessment in the IQ for Service User B but had not.

139. The Panel found particular 3 (c) proved.

(d) failed to assess Service User B's hearing care needs prior to hearing aid fitting and/or…

140. The Panel reminded itself of its findings about the constituents of a full audiological assessment of a patient as above. It also took into account the several ways in which the Panel had found that the Registrant had failed to meet the requirements of some of those constituents.

141. The Panel took into account Ms McKinney’s opinion, as expressed in her report, that the requirements of a case history and an initial assessment questionnaire had not been completed and any issues relating to his stroke had not been properly assessed.

142. In his response statement, the Registrant admitted that he had not taken into account the stroke and the potential change in hearing caused.

143. The Panel was satisfied that the Registrant had been obliged to assess Service User B’s hearing care needs prior to hearing aid fitting, but had not done so.

144. The Panel found particular 3 (d) proved.

(e) failed to measure bone conduction thresholds on the right ear; and/or
(f) failed to apply Rule 1 of masking, in that you failed to carry out masked air conduction tests to the right ear; and/or
(g) failed to apply Rule 2 of masking, in that you failed to mask the right ear at 2KHz so that bone conduction of the left ear could be measured; and/or…

145. Ms McKinney revised her initial opinion in her report, having had the opportunity to review the audiograms relating to Service User B. In her letter to Blake Morgan dated 25 January 2025 and in giving evidence to the Panel, Ms McKinney stated that she was now not critical of the Registrant not having carried out the tests in particulars 3(e), 3(f) and 3(g).

146. Ms McKinney, in her letter dated 24 January 2024, stated that she had not seen the Registrant’s statement when writing her initial report. Now that she had, Ms McKinney considered that: it was apparent that the Registrant had applied Rule 1 of masking at 1KHz. Further, she stated it was not a failure to not have conducted the Rule 2 masking at 2KHz.

147. The Panel found that there was therefore no evidence of an obligation on the Registrant in regard to these particulars. The Panel found particulars 3(e), 3(f) and 3(g) not proved.

(h) failed to carry out speech audiometry; and/or…

148. Ms McKinney informed the Panel that speech audiometry was not a requirement in the role as HAD. SS likewise confirmed that this had not been a requirement of the Registrant to perform.

149. The Panel concluded that the Registrant had therefore not failed in this respect, because there had been no obligation on him.

150. The Panel found particular 3(h) not proved.

 

(i) failed to refer Service User B for further assessment…

151. The Panel noted that the reason for Specsavers referring the Registrant to the HCPC following its audit of records had been in part the failure to refer Service User B for further assessment. Therefore, it had been the view of those reassessing that there should have been a referral.

152. Ms McKinney’s opinion was also that Service User B should have been referred. She stated in her report that, there having been no documentation to show that Service User B’s asymmetrical hearing loss had been medically assessed, there should have been a referral.

153. In addition, Ms McKinney stated that there should have been a referral in accordance with Specsavers’ policies – a Referrable Conditions Specific Procedure, due to the noted deterioration following his stroke. Some of the potential reasons might have significant impacts on hearing and general health.

154. The Panel noted that the Specsavers document stated that there had not been a need for a referral.

155. The Panel also noted the Registrant’s submission where he states: “the only possible mistake I could have made was my judgement in not referring him onwards”. The Panel found that the Registrant should have offered to refer Service User B for further assessments. The Panel found 3(i) proved.

 

(j) failed to apply Rule 3 of masking, in that you did not mask the right ear at 250Hz and 500Hz so that bone conduction of the left ear could be measured

156. Ms McKinney told the Panel that, contrary to her view expressed in her written report and having considered the additional audiograms later submitted, Rule 3 masking should have been performed at “500Hz and 250Hz”.

157. Ms McKinney told the Panel that the audiograms for Service User B had indicated that Rule 3 masking had not been undertaken. In her report Ms McKinney had noted the Specsavers’ staff explanation for the recall of Service User B had been the failure to perform Rule 3 masking at 500KHz. She told the Panel that Rule 3 masking should have been applied to counter the risk of hearing of Service User B’s right ear interfering with the left ear.

158. This was supported by the documentary record audit of the five records conducted by Specsavers, which stated “Rule 3 of masking missed at 500Hz”.

159. The Registrant stated that Rule 3 did not apply at 250Hz because Bone conduction thresholds were not recorded at this frequency, He stated that Ms McKinney’s position rested on her incorrect assumption. He said that Rule 3 masking was not performed at 500Hz because it was uncomfortable for Service User B and would not have impacted on the clinical management of the case.

160. The Panel noted Ms McKinney’s qualifications and experience in audiology. She had given the Panel a credible explanation of the need for the testing. The Panel preferred her evidence to the Registrant’s as more likely to be correct in respect of the need for rule 3 masking at 500Hz. However, in respect of testing at 250Hz the Panel noted the BSA guidelines as follows: “BSA procedure 7.7 [bone conduction] testing is not recommended at frequencies below 500Hz because the subject’s threshold may relate to hearing at the second or third harmonic rather than the fundamental.” In regard to Rule 3: “BSA procedures 8.6.3 at frequencies where no BC thresholds have been measured, doubt may exist regarding the possible effect of Rule 3. If there is a possibility that AC thresholds at these frequencies (including 250Hz and 8000Hz) are not the true thresholds they should be masked or marked accordingly on the audiogram form.” Accordingly, the Panel accepted the evidence of Ms McKinney in respect of testing requirements at 500Hz.

161. Panel considered the wording of the Particular and decided that, in the interest of public protection, it was open to it to consider its finding in relation to either testing at 250Hz or 500Hz.

162. The Panel found that the Registrant should have applied Rule 3 of masking at 500Hz. The Panel found particular 3(j) proved, as regards testing at 500Hz.

163. The Panel had found all the individual particulars 3(a) to (d), (i) and (j) inclusive had been proved by the HCPC. Taking those findings into account, the Panel also found that these failures by the Registrant having occurred between 24 September 2020 and 03 November 2020 meant that he had not conducted a full assessment for Service User B in the manner set out in those particulars and the ‘stem’ of particular 3 was proved.

4. Your conduct in relation to particular 2 was dishonest in that you falsely recorded unmasked bone conduction threshold results when you knew you had not carried out unmasked bone conduction threshold tests…

164. In light of the Panel having found that the unmasked bone conduction threshold results recorded for Service User A on 11 September 2020 were inaccurate (particular 2), the Panel considered whether the Registrant’s actions had been dishonest, specifically in the manner particularised in particular 4.

165. The Panel accepted the legal advice, that it first had to decide what had been the Registrant’s state of knowledge or belief as to the facts.

166. The Panel had already found that the results were inaccurate. The Panel also accepted Ms McKinney’s expert opinion evidence that it is more likely than not that the Registrant had falsely recorded the bone conduction results, on the basis that:

a. It was “almost impossible” that bone conduction thresholds would have improved between 11 and 28 September 2020;
b. The lack of a recorded history of Service User A suffering from fluctuating hearing loss;
c. The calculated differences between the better masked bone conduction thresholds measured on 28 September 2020 and the unmasked bone conduction thresholds measured on 11 September 2020 had been significantly greater than would be expected from bone-vibrator slippage;
d. Service User A had no recollection of bone conduction testing having been carried out, which was unlikely.

167. The Panel also took into account that the acknowledged pressure of time had resulted in the Registrant failing to take other important steps, such as taking a full case history, completing the IQ and performing an area of needs assessment. In the Panel’s view, this demonstrated a willingness to short-cut procedures.

168. In the Panel’s view, the Registrant would also have been aware that the results entered would have negated the requirement for onward referral.

169. The Panel rejected the Registrant’s explanation that the inaccurate results had been due to error, for the above reasons also in relation to Particular 2. It considered that any slippage of the bone conduction equipment was more likely than not to have been noted by the Registrant.

170. The Panel rejected the Registrant’s suggestion that the inaccurate results arose from error. It found that, on the balance of probabilities, the Registrant knew that he was entering results which were inaccurate and that he had not carried out unmasked bone conduction thresholds.

171. The Panel next considered whether, ordinary, decent people would regard such conduct as dishonest by their standards. The Panel was in no doubt that ordinary decent people would consider knowingly entering inaccurate results is dishonest.

172. The Panel found particular 4 proved.

Decision on Statutory Grounds

173. The Panel next considered whether the facts it had found proved amounted to misconduct on the part of the Registrant.

Submissions

174. In its written submissions the HCPC submitted that the conduct in the case fell seriously below the standard expected of registered HADs.

175. Ms Danti submitted that misconduct had been defined in the case of Roylance v GMC (no. 2) [2000] 1 AC 311 as a “word of general effect, involving some act or omission which falls short of what would be proper in the circumstances”. She submitted that there had been breaches of standards in the Standards of Conduct, Performance and Ethics and also the Standards of Proficiency, as set out in the written submissions.

176. Ms Danti submitted that both service users in the case had co-morbid health conditions. She submitted that both had been vulnerable which had a bearing on the importance that their hearing needs were met. However, Service User A had not received a hearing aid from the Registrant which met her needs. Ms Danti submitted that the Panel might consider that harm could be emotional as well as physical and Service User A had suffered emotional harm. With regard to Service User B, the failure to make a referral had risked not addressing his hearing needs.

177. Ms Danti submitted that ensuring care and taking accurate testing results are fundamental aspects of the profession. There had been a failure to conduct a full assessment on more than one occasion, she said. On the facts of this case, both service users had been put at risk of further harm, she submitted.

178. Ms Danti referred the Panel to the case of Khan v GMC [2015] EWHC 301 (Admin) which demonstrated, she submitted, that the courts take a very strict line in relation to findings of dishonesty. Ms Danti submitted that by recording inaccurate test results, the Registrant had created a ‘knock on’ effect, in that subsequent treating professionals would not have the true picture.

179. Ms Danti submitted that the facts, taken individually or collectively, were misconduct.

180. The Registrant, in his written statement set out on the matter of his conduct that:

“This has been a very traumatic time for me over the last few years and I have barely been able to work as a hearing aid dispenser following my time with this employer for fear of reprisal. [Redacted]. I do not think I'm a bad hearing aid dispenser and I do not think my fitness to practise is impaired. I believe that were errors made and these errors could have been avoided if I had shown better emotional intelligence and better judgement. Ultimately a lack of experience on my side and inability to deal with difficult situations impacted my performance. A hearing test should not have been performed with the time that I had remaining and a further appointment should have been offered. The patient was already unhappy and I did not want her to continue being unhappy so I made a rash decision and chose to continue with the appointment.”

And:

“Rule 3 was not performed at 500Hz and was in fact omitted for the following reason: when attempted, it was uncomfortable for SUB. He has a severe/profound likely sensorineural hearing loss in the left ear and likely a significantly reduced dynamic range. For him to experience discomfort and/or pain at these thresholds would not be uncommon. I also felt at the time it would not make a significant impact on my clinical management. I felt that it would not alter the overall interpretation of the audiogram and therefore excessive masking may not add useful diagnostic value for this patient. This should have been added to my notes and was not and I take accept an error on my part there [sic].”

Legal Advice

181. The Legal Assessor advised the Panel that the decision whether the statutory ground, of misconduct, is made out is a matter for the judgement of the Panel, not involving a burden of proof. He referred the Panel to the HCPTS Practice Notice Fitness to Practise Impairment. He advised that, to amount to the statutory ground of misconduct, the Panel must be satisfied that the facts found amounted to serious professional misconduct. The courts had made clear that ‘mere’ negligence was not sufficient, but very serious negligence could be. The assessment of seriousness is for the Panel’s judgement.

182. The Legal Assessor made reference to the case of Simawi v GMC [2020] EWHC 2168, in which other cases on dishonesty were reviewed by the court. He advised that the matter of professional dishonesty was regarded as serious, although it was acknowledged also that there is a ‘range’ of dishonesty and the conduct had to be considered for how serious it was.

 

Decision on Misconduct

183. The Panel carefully considered its findings of fact, the submissions and it accepted the legal advice. The Panel was aware that not every finding of fact will amount to misconduct, the statutory ground.

184. The Panel considered that in the facts found proved, a number of the HCPC’s standards were engaged. It agreed that those submitted by the HCPC were involved in the case, and these are set out below:

185. The following standards in the HCPC Standards of Conduct, Performance, and Ethics (“SoC”), that were in place at the relevant time:

3.2 You must refer a service user to another practitioner if the care, treatment or other services they need are beyond your scope of practice.
6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.
6.2 You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
10.1 You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.

186. Also the following standards in the HCPC Standards of Proficiency for Hearing Aid Dispensers (“SoP”) were in place at the relevant time:

1.1 know the limits of their practice and when to seek advice or refer to another professional
2.1 understand the need to act in the best interests of service users at all times
2.2 understand what is required of them by the Health and Care Professions Council
4.2 be able to make reasoned decisions to initiate, continue, modify or cease treatment or the use of techniques or procedures, and record the decisions and reasoning appropriately
4.5 be able to make and receive appropriate referrals
9.2 be able to recognise those conditions or circumstances that require the involvement of other professionals and give the appropriate advice to service users.
9.4 understand the need to engage service users and carers in planning and evaluating diagnostic, treatments and interventions to meet their needs and goals
10.1 be able to keep accurate, comprehensive records in accordance with applicable legislation, protocols and guidelines
14.11 be able to gather appropriate information
14.12 be able to undertake and record appropriate case histories
14.13 understand the need to make and keep full and accurate records of assessment results, hearing aid prescriptions and actual settings, rehabilitation plans and outcomes
14.14 be able to select and use appropriate assessment techniques
14.15 be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment
14.18 be able to analyse and critically evaluate the information collected
14.19 be able to interpret the data arising from case history, physical examination and hearing assessments.

187. The Panel considered each of its factual findings in the case in turn. The Panel considered that it had been essential to take a full case history in relation to Service User A. It considered that a full assessment was necessary in order to fully serve hearing care needs but also to identify any need for referral. As Ms McKinney, the Expert Witness had stated, both Specsavers policy and good audiological practice held that assessment has certain elements. A full case history was an essential underpinning of the assessment.

1(a)

188. There was a direct breach of SoP paragraphs 14.11 and 14.12, leading to a breach of SoP paragraph 2.1 in consequence of the lack of a case history. In light of the Panel finding that the Registrant had control over extending or rearranging an appointment, the limitation of time on 11 September 2020 did not excuse the failure to undertake a fundamental part of the process. The Panel found particular 1(a) was serious professional misconduct.

1(b)

189. The Panel had also found that the IQ had been a necessary part of the full audiological assessment. The questionnaire contained important questions designed to elicit information relevant to a full assessment. In this case, the failure to complete an IQ had been a deliberate act and not an oversight, as a result of the Registrant’s view it was not necessary. The Panel had accepted the evidence of the HCPC’s witnesses. It found the failure breached in particular paragraphs 14.11 of the SoP and led to a breach of paragraph 2.1 of the SoP. Particular 1(b) was serious professional misconduct.

1(c)

190. The areas of difficulty assessment was also a component of the assessment, according to Ms McKinney, and the Panel accepted her evidence. It considered that this too had been a fundamental tool which had prejudiced a full assessment. There was a direct breach of SoP paragraphs 9.4, 14.11 and 14.12, leading to a breach of SoP paragraph 2.1. The Panel found particular 1(c) was serious professional misconduct.

1(d)

191. The Panel had found that the Registrant had proceeded to the fitting of hearing aids without having carried out fundamental elements of the assessment. It considered that then proceeding to the fitting of the hearing aids in those circumstances and so without a full assessment was a serious matter. As it later proved, the hearing aids provided to Service User A had proved completely unsuitable. There had been a risk of Service User A not returning to obtain the correct hearing aids.

192. The Panel considered this a serious professional matter, which colleagues would regard as deplorable, noting the reported reaction of Colleague A at the appointment on 28 September 2020. There was a direct breach of SoP paragraphs 9.4, 14.11 and 14.12, leading to a breach of SoP paragraph 2.1. The Panel found particular 1(d) was serious professional misconduct.

1(e)

193. Further assessment of Service User A by Colleague A on 28 September 2020 had identified the need for referral. The failure to make an appropriate referral meant that there had been a risk of conditions being missed. In turn this led to a risk of both emotional and physical harm to Service User A, had she not returned for further assessment. The Panel considered that this was particularly serious. There was a direct breach of SoC paragraphs 3.2, 6.1, SoP paragraphs, 1.1, 4.5, 14.11 and 14.12, leading to a breach of SoP paragraph 2.1. The Panel found particular 1(e) was serious professional misconduct.

1(f)

194. The Panel had found that the Registrant had autonomy to re-arrange the assessment appointment on 11 September 2020, even though he was not at fault for the initial arrangement. However, despite the pressure on time, the Registrant had gone ahead with the assessment and failed to complete a full assessment.

195. In this way, the Panel considered the Registrant had breached requirements in paragraph 14.15 of the SoP, to be in a position to undertake a thorough and detailed assessment, also leading to a breach of 14.11 and 14.12, in turn leading to a breach of SoP paragraph 2.1. The Panel found particular 1(f) was serious professional misconduct.

1(g)

196. In a similar manner, the Panel considered that the 15 minutes allotted for the appointment on 17 September 2020 had not been adequate. The Registrant knew that the initial appointment on 11 September had been problematic. The Panel considered that the Registrant had an opportunity to address the difficulties which had arisen during the initial appointment in this second appointment. However, the Registrant himself had made the decision on the timing for this appointment. He appeared to have chosen to do the fitting appointment within 12-13 minutes, considering the clinical notes.

197. In the Panel’s view, on the evidence, this had not been an adequate time. It had been recorded that the Registrant had performed three tests and given patient feedback. Even if the Registrant had extended the appointment into his lunchbreak of 30 minutes, as he suggested, the Panel had accepted the HCPC’s evidence that a 60-minute appointment had been necessary.

198. The Panel was of the view that there were breaches of paragraph 14.15 of the SoP, to be in a position to undertake a thorough and detailed assessment, also leading to a breach of 14.11 and 14.12, in turn leading to a breach of SoP paragraph 2.1. The Panel found particular 1(g) was serious professional misconduct.

199. The Panel considered that the Registrant’s professional obligation had been to carry out a full audiological assessment of Service User A. It had found that he had misconducted himself in relation to essential aspects of the assessment as set out above. The Panel concluded that the Registrant not having conducted a full assessment between 11 September 2020 and 17 September 2020 was serious professional misconduct.

2

200. The Panel considered that it was a fundamental requirement of the role of a HAD to accurately record audiological test results. The Panel had found that the Registrant had deliberately entered results which he knew were inaccurate. The Panel considered this was clearly in breach of the SoP paragraphs 14.13, 14.15 and led to a breach of paragraph 2.1. In addition, there was a risk to patients, in breach of SoC paragraph 6.1 and a breach of trust contrary to paragraph 9.1. The Panel found particular 2 was serious professional misconduct.

3(a)

201. Similarly to paragraph 1(a) above, the Panel considered that the Registrant had omitted a fundamental component of a full assessment of Service User B. For similar reasons, the Panel considered this was a breach of paragraphs 14.11 and 14.12, which also led to a breach of paragraph 2.1 of the SoP. The Panel found particular 3(a) was serious professional misconduct.

3(b)

202. The Registrant knew that Service User B was a ‘DBS’ patient. He had known that Service User B was presenting having had a recent stroke. Service User B’s family had been saying there had been deterioration of hearing. The Registrant knew that he had a duty of care to undertake assessments to obtain potentially important information as part of the assessment. However, the Registrant had chosen not to complete the IQ. Likewise to paragraph 1(b) above, the Panel found the failure breached in particular paragraphs 14.11 of the SoP and led to a breach of paragraph 2.1 of the SoP. Particular 3(b) was serious professional misconduct.

3(c)

203. As in the case of particular 1(c), the Panel considered that the areas of difficulty assessment was also a component of a full assessment. It considered that this too had been a fundamental tool, the lack of which had prejudiced a full assessment. In this case, the Registrant had known that Service User B had experienced a recent stroke. There was a direct breach of SoP paragraphs 9.4, 14.11 and 14.12, leading to a breach of SoP paragraph 2.1. The Panel found particular 3(c) was serious professional misconduct.

3(d)

204. As in the case of particular 1(d), the Panel had found that the Registrant had proceeded to the fitting of hearing aids without having carried out fundamental elements of the assessment. It considered that then proceeding to the fitting of the hearing aids in those circumstances and so without a full assessment was a serious matter. As it proved, there was no referral as a result.

205. There was a direct breach of SoP paragraphs 9.4, 14.11 and 14.12, leading to a breach of SoP paragraph 2.1. The Panel found particular 3(d) was serious professional misconduct.

3(i)

206. The Registrant, demonstrating some insight gained, had admitted that he should have made a referral of Service User B. The Registrant had not been provided with any prior medical evidence to explain the asymmetrical hearing loss. The failure to make an appropriate referral for further assessment meant that there had been a risk of conditions being missed. The Panel considered that this was particularly serious. There was a direct breach of SoC paragraphs 3.2, 6.1, SoP paragraphs, 1.1, 4.5, 14.11 and 14.12, leading to a breach of SoP paragraph 2.1. The Panel found particular 3(i) was serious professional misconduct.

3(j)

207. The Panel was of the view that, as a Lead clinician, the Registrant was aware of the importance of Rule 3 masking. He had an obligation to undertake thorough and accurate testing, but this had not occurred. The Panel was aware that there had been a missed referral as a result. The failure to undertake appropriate testing breached SoP paragraphs 14.11,14.14 and 14.15, leading to a breach of SoP paragraph 2.1. The Panel found particular 3(j) was serious professional misconduct.

208. As with Service User A, the Panel considered that the Registrant’s professional obligation had been to carry out a full audiological assessment of Service User B. It had found that he had misconducted himself in relation to essential aspects of the assessment as set out above. The Panel concluded that the Registrant not having conducted a full assessment between 24 September 2020 and 03 November 2020 was serious professional misconduct.

4

209. The Panel had found that the recording of inaccurate bone conduction testing results had been a deliberate act on the part of the Registrant, in that he knew that he had not carried out the test. The Panel considered that there was a clear breach of trust, contrary to SoC paragraph 9.1 and also a risk of harm, through the entry of inaccurate results contrary to SoC paragraphs 6.1 and 6.2. The Panel regarded the dishonesty as a serious matter. There had been a consequent failure to act in the best interests of Service User A, contrary to SoP paragraph 2.1 and a failure to understand the need for accurate records, contrary to SoP paragraph 14.13. The Panel found particular 4 was serious professional misconduct.

210. The Panel concluded that each of the particulars of the Allegation which it had found proved as a fact was serious professional misconduct and overall, the Registrant had misconducted himself.

 

Decision on Impairment

211. The Panel, having found that the Registrant committed misconduct, next considered whether that misconduct meant that the Registrant’s fitness to practise is currently impaired.

Submissions

212. Ms Danti referred the Panel to the HCPTS Practice Note ‘Fitness to Practise Impairment’. She submitted that the Panel must first consider the ‘personal element’ and then the ‘public component’ of impairment. She also referred the Panel to the decision of the court on impairment in CHRE v NMC & Grant [2011] 927 (Admin) and the test of impairment taken from the 5th Shipman report by Dame Janet Smith.

213. Ms Danti submitted that a risk of harm arose from the Registrant’s failure to refer Service User A and Service User B. She submitted that Ms McKinney had given evidence that some conditions may have serious consequences and if the failures to refer repeated there was a risk of serious harm.

214. Ms Danti also reminded the Panel of its finding of dishonesty and that the Panel had found the Registrant had deliberately created a risk of harm. She said that the Registrant had shown some insight, by his acknowledgement that his appointment with Service User A had been rushed, although he suggested that Service User A had, by her complaints, prevented full use of the appointment time. However, she submitted the Registrant had shown no insight into the need to maintain notes. He had displayed no insight into the impact of his failures. There was no evidence of real reflection into the ramifications and potential for harm. There was no real evidence of regret or remorse, or recognition of responsibility, Ms Danti submitted.

215. Regarding the demonstration of any remediation, Ms Danti submitted that the Registrant had plenty of time in which to demonstrate any remediation or strengthening of practice. She submitted that the Registrant had provided no evidence of CPD or training. There was nothing to suggest that he had improved his assessment skills or conduct relating to the past dishonesty. Ms Danti submitted that if the Registrant returned to practice a risk of repetition remains.

216. In relation to the ‘public component’ of impairment, Ms Danti submitted that there was a risk to public protection, as a result of the Registrant’s lack of insight and the risk of repetition of serious harm. In relation to public confidence, Ms Danti submitted that the public was entitled to expect a full assessment of hearing needs. She said that the public would be shocked if there is no finding of impairment and each of the four limbs of the ‘test’ of impairment from Dame Janet Smith’s 5th ‘Shipman’ report was engaged.

217. The Registrant in his written statement had submitted the following:

“This has been a very traumatic time for me over the last few years and I have barely been able to work as a hearing aid dispenser following my time with this employer for fear of reprisal. [Redacted]. I do not think I'm a bad hearing aid dispenser and I do not think my fitness to practise is impaired. I believe that were errors made and these errors could have been avoided if I had shown better emotional intelligence and better judgement. Ultimately a lack of experience on my side and inability to deal with difficult situations impacted my performance. A hearing test should not have been performed with the time that I had remaining and a further appointment should have been offered. The patient was already unhappy and I did not want her to continue being unhappy so I made a rash decision and chose to continue with the appointment. I am now undertaking a masters degree where I hope to help people in a different healthcare environment. I do not wish to close the door on hearing aid dispensing as I have barely been able to open it. I was incredibly young at the time when this took place. I have now gained experience both in life and in the audiology world. With the professional development I have completed, I hope that I am able to move on from this and return to the world of work and go back to the reason why I came into this field of practice in the first place. I have always been passionate about helping people with their hearing. And although yes I have been allowed to practise as a HAD in the last few years I have not done so for the reasons I mentioned earlier. I would like to return to working as a HAD in a productive and supportive environment. In the role I was in where this incident took place, I always held myself to a high regard and was a key component with them receiving their IQIPS accreditation. I completed many audits and many assessments and was even observed by IQIPS assessors in clinic and therefore I do not believe my ability or my knowledge to practice is compromised. I do not wish for the errors I made when seeing service user A; so early into my working career to impact any future role I look to obtain, both in hearing aid dispensing and any new role I wish to go in.

I apologise for any errors or spelling mistakes or grammar that may be present in this letter but I am not very articulate and I hope the message is received by you and understood clearly.

To conclude, I wanted to draw attention to the fact that the events in September 2020 took place after I had submitted my resignation in a time of a pandemic and that my lack of experience and lack of accessibility to a direct senior colleague in the building may have impacted my judgement in these cases, especially with Service user A. My development as a HAD was directly impacted by the pandemic. The allegations made against me with Service user B are unfounded and the only possible mistake I could have made was my judgement in not referring him onwards. I want to improve my skills, I want to continue helping people and I want to make positive contributions in society. If there was any learnings you suggest I would gladly take it.

I have not had any legal advice with curating this statement nor during this entire hearings process due to my inability to afford one. [sic]”

Legal Advice

218. The Legal Adviser advised the Panel that, having found misconduct the Panel had to decide whether the Registrant’s fitness to practise is currently impaired. He referred the Panel to the HCPTS Practice Note ‘Fitness to Practise Impairment’. The Legal Adviser advised that the Practice Note states that the Panel should first consider the ‘personal component’ or the risk of repetition and then the ‘public component’.

219. The Legal Assessor advised the Panel to consider whether the Registrant’s conduct is remediable, has been remedied and is highly unlikely to be repeated. He advised that, even if there was no risk of repetition, the Panel must consider that there are some instances of misconduct which require a finding of impairment in order to maintain public confidence in the wider public interests, to maintain public confidence in the profession. He reminded the Panel of the ‘test’ of impairment cited in the Grant case and taken from the 5th ‘Shipman’ report, which as relevant to this case was:

“Do our findings of fact in respect of the [professional’s] misconduct, … show that his/her fitness to practise is impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or
d. has in the past acted dishonestly and/or is liable to act dishonestly in the future.”

Panel’s decision on Impairment

220. The Panel took into account its findings of fact and of misconduct thus far. The Panel was mindful that not every finding of misconduct will result in a finding of impairment. The Panel also bore in mind that the decision on impairment is a matter for the judgement of the Panel, not involving any burden of proof. The Panel accepted the legal advice.

221. The Panel had found serious failings on the part of the Registrant in his failure to properly carry out full audiological assessments in relation to two service users. The Panel had found that both service users had been exposed to a risk of harm. The Panel had also found that there had been serious dishonesty in relation to knowingly recording inaccurate results in relation to Service User A. This had also exposed Service User A to a risk of not being referred for further assessment. Dishonesty is a serious matter for a professional person. The Panel was therefore of the view that the misconduct in this case is of a high level of seriousness.

222. As prompted by the Practice Note, the Panel first considered the ‘personal component’ of impairment and the risk of repetition.

223. The Panel considered that the failures in assessment were capable of remediation. In addition, although it is acknowledged that is harder to remediate, the Panel was also of the view that it might be possible for the Registrant to remediate his dishonest misconduct.

224. The Panel noted that the Registrant had stated that he had chosen not to practise and had reflected on his past conduct. It was also of the view, however, that the Registrant had provided no real evidence to the Panel that he had remediated his misconduct, even though he had offered his remorse.

225. The Panel also concluded that the Registrant had demonstrated little insight into the concerns. Although it acknowledged that the Registrant has a right to defend the specific allegations, he had demonstrated no insight on the broader concerns. The Registrant had shown no recognition of the effects on the two service users, beyond a recognition that he should have referred Service User B and an expression of remorse.

226. The Panel was of the view that there was no reflection from the Registrant on the impact of the Registrant’s conduct on his colleagues, in respect of some of whom he held a leadership role. Nor was there any demonstration of the impact on public confidence in the profession. The reflections which the Registrant had provided mostly were concerned with his own position.

227. The Registrant had neither provided evidence to support his contention that he had undertaken CPD or other training. He had stated that he had not practised in recent times in the profession but was engaged in unspecified studies.

228. The Panel concluded that although the misconduct was potentially remediable, in the absence of any real remediation or demonstrated insight, there remained a risk of repeating his past misconduct.

229. In considering the ‘public component’ the Panel took into account that its findings involved a failure by the Registrant to properly assess the hearing needs of Service User A and Service User B and had failed the aim of public protection. The Registrant’s failures also prejudiced public confidence in the profession.

230. Considering the ‘tests’ in Grant, the Panel took into account that the Registrant had placed service users at risk of harm and that risk had not abated. His actions in not conducting a full assessment had breached fundamental tenets of the profession. The lack of assessments with the addition of dishonesty had prejudiced public confidence in the profession.

231. The Panel considered that members of the public would be shocked by the findings in the case. It concluded that a finding of impairment is also required in the wider public interest of maintaining public confidence in the profession.

232. The Panel found that the Registrant’s fitness to practise is impaired on both the personal and public components of impairment.

 

Decision on Sanction

233. The Panel having found the Registrant’s fitness to practise is currently impaired, went on to consider what, if any, step to take in terms of sanction as a result of its decision that the Allegation is well-founded.

Submissions

234. Ms Danti submitted that the matter of any sanction is a decision for the Panel alone. She also submitted that the Panel should be guided by the HCPC’s Sanctions Policy (March 2019) (“SP”) and drew the Panel’s attention to various parts of the SP.

235. Ms Danti submitted that the SP recommended the Panel consider any mitigating or aggravating factors in the case. She referred the Panel to the fact that dishonesty cases are mentioned under the type of ‘serious’ cases within the SP. However, she submitted the consideration of dishonesty, required a ‘nuanced’ approach. In this case, the dishonesty related to a single instance. Ms Danti reminded the Panel of various parts of its previous determinations above.

236. The Registrant had stated that there had been a lack of experience on his part and a lack of access to a direct senior colleague. He also raised the issue of the effect of the pandemic on his development. He stated:

“To conclude, I wanted to draw attention to the fact that the events in September 2020 took place after I had submitted my resignation in a time of a pandemic and that my lack of experience and lack of accessibility to a direct senior colleague in the building may have impacted my judgement in these cases, especially with Service user A. My development as a HAD was directly impacted by the pandemic. The allegations made against me with Service user B are unfounded and the only possible mistake I could have made was my judgement in not referring him onwards. I want to improve my skills, I want to continue helping people and I want to make positive contributions in society. If there was any learnings you suggest I would gladly take it.

I have not had any legal advice with curating this statement nor during this entire hearings process due to my inability to afford one.

It will be for over four years from when the allegation was first made to now, where a hearing is finally taking place. Four years where I have not been able to move on professionally or personally. I hope now I can move on from this incident and finally work within this field, without this fitness to practise hearing hanging over my head. I hope you know I can make a positive contribution towards hearing dispensing and develop myself within this field.”

237. The Legal Assessor advised the Panel to have well in mind the overarching objective of the HCPC when making its decisions. That objective is public protection and has three ‘strands’, namely:

(a) to protect, promote and maintain the health, safety and well-being of the public;
(b) to promote and maintain public confidence in the professions regulated under this Order; and
(c) to promote and maintain proper professional standards and conduct for members of those professions.

238. The Legal Assessor advised the Panel that it had to consider its powers under Articles 29(4) and 29(5) of the Order. The Panel had to act proportionately in determining whether and, if so, what sanction to impose. Therefore, the Panel must approach the matter of sanction, starting with the least serious restriction and moving upward in restriction, stopping at the level commensurate with its impairment findings. The Panel had to balance the public interest with the Registrant’s interests.

239. As the Panel had made a finding of dishonesty, the Legal Assessor also referred the Panel to the judgment of the courts in Simawi v GMC [2020] EWHC 2168 and Khan v GMC [2015] EWHC 301 (Admin) which set out that dishonesty is regarded as serious for professionals. He also advised the Panel that the cases had made clear that a nuanced approach to the issue of dishonesty is required. There is a range of seriousness within dishonesty itself which is recognised in determining sanction: Lusinga v Nursing and Midwifery Council [2017] EWHC 1458 (Admin); Abbas v GMC [2017] EWHC 51; R (ota Hassan) v GOC [2013] EWHC 1887 (Admin).

 

Decision on Sanction

240. The Panel considered its previous findings of fact, misconduct and impairment. It took into account the submissions and accepted the legal advice of the Legal Assessor.

241. In its determinations above, the Panel had found that the Registrant had failed in several respects to conduct full audiological assessments in respect of two service users, both of whom in the end had needed onward referral. The Panel had found that there had been a serious, though single, instance of dishonesty. It found a high level of misconduct. The Registrant had been found to have impairment of fitness to practise, on grounds of both the ‘personal component’, involving a risk of repetition and a risk of harm, and the ‘public component’.

242. The Panel first considered whether there were any factors which mitigated or aggravated the seriousness of the misconduct in the case.

243. The Panel acknowledged that SS’s evidence had been that there had been no other concerns known with the Registrant’s practice. The Panel had acknowledged earlier in its determinations the remorse expressed by the Registrant and his limited insight. However, the Panel did not consider that the mitigating factors carried significant weight in the case. The expressed remorse and insight had significant limitations.

244. The Registrant had not provided the Panel with any reflections on the wider issues arising from the concerns, even allowing for his right to deny the allegations. The Panel had no positive testimonials or references in support of the Registrant’s character or performance.

245. The Panel did not accept the Registrant’s submission that his conduct was mitigated by having already submitted his resignation. It noted that the Registrant had occupied a position of responsibility as a Lead clinician, and considered that he should have acted as an example to his junior colleagues. The Panel considered there had been a failure to perform clear and fundamental requirements of audiological assessment procedures and additionally the deliberate entry of inaccurate results. Therefore, it rejected the relevance of any submission of inexperience.

246. The Panel considered it aggravated the case that Service User A and Service User B, who were two vulnerable patients with particular needs to be referred. Both had been exposed to a risk of harm by this initially being missed. If Service User A had not complained, the need for referral would not have been uncovered. Service User B’s need for referral had only come to light because of the audit conducted into the Registrant’s cases. The Registrant, as a Lead clinician, had an obligation to act as an exemplar to those more junior. It was also aggravating that the misconduct was repeated with a second service user after Service User A.

247. The Panel considered that the Registrant’s responses showed very limited insight into the concerns. It noted paragraphs 51 and 52 of the SP states:

“51. Where a registrant lacks insight, fails to express remorse and / or refuses to apologise in a timely manner, they may pose a higher risk to service users.

52. Registrants who lack a genuine recognition of the concerns raised about their fitness to practise, and fail to understand or take responsibility for the impact or potential impact of their actions, are unlikely to take the steps necessary to safeguard service user safety to address the concerns raised. For this reason, in these cases panels are likely to take more serious action in order to protect the public.”

248. The Panel first considered whether this case was suitable for mediation. However, it noted that this is only suitable when the impairment is minor, which the Panel did not consider to be so in this case. The Panel also considered taking no action, despite the finding of impairment. However, it considered that there were no exceptional factors about the case which would warrant it taking this course. Moreover, to take no action where the Panel had found a risk of repetition of exposure to a risk of harm failed to meet protection of the public.

249. The Panel considered whether it was appropriate to impose a caution order. However, this course was stated in the SP to be appropriate where the impairment was relatively minor, there was a low risk of repetition, good insight had been demonstrated or remediation undertaken. In the Panel’s view none of these applied to the case.

250. Further, the Panel noted that, even though a caution order can be applied for up to 5 years, it would leave the Registrant free to resume unrestricted practice. This was not appropriate, in light of the risk of repetition and the need for public protection, including maintaining confidence in the profession.

251. The Panel considered a conditions of practice order. It noted the SP states:

“106. A conditions of practice order is likely to be appropriate in cases where:
• the registrant has insight;
• the failure or deficiency is capable of being remedied;
• there are no persistent or general failures which would prevent the registrant from remediating;
• appropriate, proportionate, realistic and verifiable conditions can be formulated;
• the panel is confident the registrant will comply with the conditions;
• a reviewing panel will be able to determine whether or not those conditions have or are being met; and
• the registrant does not pose a risk of harm by being in restricted practice.

When might a conditions of practice order not be appropriate?

107. Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practise process or where there are serious or persistent failings

108. Conditions are also less likely to be appropriate in more serious cases, for example those involving:
• Dishonesty…”

252. In this case, the Panel was not satisfied that the Registrant has proper insight. Although remediation may be possible, the Registrant had provided no real evidence of remediation having been undertaken. The Panel was aware that dishonesty is particularly difficult to remediate. The Panel has no detail of any concrete arrangements made by the Registrant to resume practice and no confidence that the Registrant will comply with conditions. It was of the view that there are attitudinal concerns raised by the Panel’s findings. There was an identified risk of repetition which raised a risk of harm.

253. The Panel took into account that the Registrant has engaged in the proceedings, attending the earlier preliminary hearing and providing written representations to the hearing, although not attending the final hearing. However, due to the time which had elapsed since the events in the Allegation, with no remediation being provided in evidence, the Panel had doubts that the Registrant is committed to resolving the issues.

254. The case also involves the serious attitudinal issue of dishonesty, which in this case had resulted in a risk of harm to both service users. It took into account that the SP states that conditions are less likely to be appropriate in a case involving dishonesty.

255. The Panel concluded that conditions of practice are not a suitable sanction because, with the concerns over insight and attitudinal issues, they would not protect the public, nor, in light of the seriousness of the failings, would this sanction maintain public confidence in the profession.

256. The Panel next considered whether it was appropriate to suspend the Registrant’s registration, which can be for up to 1 year. It noted that paragraph 121 of the SP states:

“121. A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”

257. The Panel considered, however, that there is a risk of repetition in this case, the Registrant having evidenced no remediation and having limited insight, and in light of the attitudinal issue of serious dishonesty. The Panel has not been provided sufficient evidence that the Registrant will be able to remediate his failings.

258. The Panel considered that the failure to have carried out full assessments on the two service users was serious, and the fact that there had been a repetition of issues with Service User B made it more serious. However, the findings also included serious dishonesty. The SP states:

“57. Dishonesty, both in and outside the workplace, can have a significant impact on the trust placed in those who have been dishonest, and potentially on public safety. It is likely to lead to more serious sanctions. The following are illustrations of such dishonesty:
• putting false information in a service user’s record (including in an attempt to cover up misconduct or a lack of competence);
• providing untruthful information in job applications (perhaps misleading the prospective employer about experience, training or skills gained);
• using medicines, devices or services meant for service users;
• fraud, theft or other financial crime.

58. Given the seriousness of dishonesty, cases are likely to result in more serious sanctions. However, panels should bear in mind that there are different forms, and different degrees, of dishonesty, that need to be considered in an appropriately nuanced way. Factors that panels should take into account in this regard include:
• whether the relevant behaviour took the form of a single act, or occurred on multiple occasions;
• the duration of any dishonesty;
• whether the registrant took a passive or active role in it;
• any early admission of dishonesty on the registrant’s behalf; and
• any other relevant mitigating factors.”

259. The Panel acknowledged that the dishonesty in this case had been a single event. However, that had been a very serious instance, contravening fundamental issues of trust, with service users and professional colleagues. The Panel was unable to say that there had been an early admission of dishonesty, or other significant mitigating factors to allow the Panel to regard it as lower in the spectrum of seriousness.

260. The Panel had found that the Registrant’s act had been deliberate, recording results of a test knowing that the test had not been carried out. The result had been to expose Service User A to a risk of harm, because she was not offered a referral to a GP or other professional. The Panel considered that the attitudinal issues involved also were consistent with the Registrant’s willingness to forgo the proper requirements of a full assessment.

261. The Panel noted that, as the SP states at paragraph 130:

“130. A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive):
• dishonesty…”

262. The panel also noted paragraph 131 as follows:

“131. 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 or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or
• is unwilling to resolve matters.”

263. The Panel was of the view that the Registrant lacks significant insight. He had provided no evidence of remediation, and the Panel was not of the view that he had demonstrated an intention to deal with the attitudinal concerns behind the facts in this case.

264. The Panel recognised that, if it makes a striking-off order, it will have serious potential consequences for the Registrant. The Panel concluded, however, having balanced the consequences for the Registrant with the interests of public protection, that no lesser sanction will adequately protect the public than making a striking-off order. It considered that the misconduct in the case, in particular the dishonesty in relation to a fundamental aspect of the HAD role was fundamentally incompatible with remaining on the register.

265. The Panel decided to make a Striking-Off Order.

ORDER: That the Registrar is directed to strike the name of Mr Mohammad T A Ali from the Register on the date this order comes into effect.

Interim Order

Application

1. Ms Danti indicated to the Panel that she wished to apply for an Interim Order, following the Panel’s decision on sanction. In accordance with the HCPTS Practice Note ‘Interim Orders’, Ms Danti first applied for the Panel to proceed in the absence of the Registrant.

2. The Legal Adviser advised the Panel it had power to proceed in the absence of the Registrant, pursuant to Rule 11. He advised that the Panel should consider exercising its discretion with care, balancing the interests of the Registrant with the public interest.

3. The Panel was satisfied that the Registrant had been served with Notice of the Hearing, which had also indicated that an Interim Order could be granted at any stage of the hearing, and that the Interim Order could have immediate effect. The Panel decided that it was in the interests of public protection, in light of its decision in the case, to proceed to hear the application.

4. The Panel having determined to make a Striking-Off Order on the Registrant’s registration, Ms Danti applied to the Panel for it to also impose an Interim Suspension Order.

5. Ms Danti reminded the Panel of its findings leading to the substantive Striking-Off Order. She applied for the Interim Order on the same grounds that the Panel had determined it was necessary to make the Striking-Off Order. Ms Danti submitted that the substantive Order would not come into effect until the end of the appeal period, or, if an appeal is made, until that appeal is disposed of. Ms Danti asked the Panel to make the Interim Order for a period of 18 months, to cover the potential period it may take to deal with any appeal.

6. The Legal Assessor advised the Panel that it may impose an Interim Order at this stage, if it is necessary in order to protect the public, it is otherwise in the public interest, or it is in the Registrant’s own interests. The Panel may impose an Interim Conditions of Practice Order or an Interim Suspension Order, and should impose the minimum restriction which met the risks identified. The Panel must also specify the duration of the Interim Order.

Decision

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. The Interim Suspension Order is necessary because the Panel has determined that there is a risk of repetition of misconduct and a risk of harm from which the public requires protection and it is otherwise in the public interest, in light of the Panel’s findings set out above in the determination. The Panel decided that nothing less than an Interim Suspension Order met the necessity for public protection and 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. The Panel made the Interim Order for 18 months to allow for dealing with any appeal.

History of Hearings for Mohammad T A Ali

Date	Panel	Hearing type	Outcomes / Status
03/02/2025	Conduct and Competence Committee	Final Hearing	Struck off