Diane-Marie Banks

Preliminary Matters

Service

1. The Panel was satisfied that the Registrant had been properly served with notice of today’s hearing by email dated 16 April 2025 in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003, as amended.

Application to proceed in the absence of the Registrant

2. Ms Adjoa Adjei-Ntow, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence on the grounds that she had voluntarily absented herself and waived her right to attend.

3. The Panel had regard to the HCPTS Practice Note “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel was informed by Ms Adjei-Ntow that the Registrant had not engaged with the HCPC since before the substantive hearing, at which she was neither present nor represented. She had not applied for an adjournment. Today’s hearing was a mandatory review which must be heard before the expiry of the Suspension Order on 23 May 2025. The Panel inferred that the Registrant had voluntarily absented herself and waived her right to attend. The Panel considered that the Registrant would be unlikely to attend if the hearing were adjourned to another date and that, accordingly, no useful purpose would be served by an adjournment. The Panel decided that it was in the public interest, and not unfair to the Registrant, to proceed with the hearing in her absence.

Background

4. The Registrant is a qualified Hearing Aid Dispenser, registered with the HCPC.

5. The Registrant was employed by Specsavers as a receptionist in November 2010, qualifying as a Hear Care Assistant (HCA) in July 2014. Specsavers sponsored the Registrant’s training at De Montfort University as a Hearing Aid Dispenser and she qualified in June 2016. Once qualified, she worked for Specsavers as a Registered Hearing Aid Dispenser until she was dismissed on 22 October 2020. Her job description included taking case histories, otoscopy (examining the structures of the ear), taking impressions, audiometry (testing the ability to hear sounds), fitting hearing aids, programming hearing aids, and making medical referrals.

6. During her employment as a Hearing Aid Dispenser, the Registrant’s line manager, KC, was concerned regarding the Registrant’s ability to identify the need for and subsequently carry out ‘masking’, which is an essential component of some hearing tests, along with testing air conduction audiometry thresholds and bone conduction audiometry thresholds.

7. Hearing tests are conducted in accordance with the British Society of Audiology Recommended Procedure 2018 (the BSA Recommended Procedure).

8. Air conduction audiometry is measured using either headphones placed over the external ear or insert earphones placed at the entrance to the ear canal. Air conduction audiometry measures the response of the entire hearing pathway, namely ear canal, middle ear, inner ear (cochlea), and more central auditory pathways. Air conduction thresholds are measured before bone conduction thresholds. If a hearing loss is recorded with air conduction thresholds, it could be due to a blockage in the ear canal or middle ear, or due to damage to the inner ear (cochlea). The hearing loss is termed ‘conductive’ if it is due to blockage in the ear canal or middle ear and ‘sensorineural’ if it is due to damage to the inner ear or central auditory nerves. Sometimes conductive and sensorineural losses are present in the same person, in which case the hearing loss is termed ‘mixed’.

9. Bone conduction audiometry helps to determine whether a hearing loss is conductive or sensorineural. Therefore, whenever a hearing loss is identified by air conduction, bone conduction testing should be carried out. During bone conduction testing, a small bone vibrator is placed on the mastoid bone behind the ear. This sends sound directly to the inner ear (cochlea), bypassing both the ear canal and the inner ear. For this reason, bone conductor thresholds are always the same or slightly better than air conduction thresholds. Bone is an excellent transmitter of sound, and therefore, even though the bone vibrator is placed on one side of the head, the sound it transmits is sent to both cochleae simultaneously. The ear with the better hearing cochlea will respond. It is therefore not possible to be certain which cochlea is responding without bone conduction masking.

10. Masking is a method whereby a masking noise is presented to the better hearing ear to stop it from responding, which allows accurate testing of the worse hearing ear. Masking is not always necessary; for example, if there is no significant difference between the air and bone conduction thresholds in either ear, or if both ears have a significant conductive hearing loss. The BSA Recommended Procedure sets out three rules when masking is necessary to determine whether the hearing loss is conductive or sensorineural, and to be sure that the thresholds belong to the correct ear. The BSA Recommended Procedure refers to these as the three masking rules.

11. Air conduction masking should be carried out if the difference between air conduction thresholds between the two ears is 40 decibels (dB) or more using headphones, as it is possible that the sound presented to the worse ear is reaching the better ear by bone conduction. The thresholds shown for the worse ear may therefore be a ‘shadow’ of the thresholds of the better ear. This is Rule 1 of the BSA Recommended Procedure:

“Rule 1 – Masking is needed at any frequency where the difference between the left and right not-masked a-c (air conduction) thresholds is 40 dB or more when using supra- or circum-aural earphones or 55 dB when using insert earphones.”

12. Bone conduction masking should be carried out when Rules 2 and 3 of the BSA Recommended Procedure apply. When bone masking is performed, a masking noise is presented via a headphone or insert earphone to the opposite ear to the one tested by bone conduction testing. This stops the ear opposite to the one being tested by bone conduction testing from responding to the test signal. Rules 2 and 3 of the BSA Recommended Procedure are:

“Rule 2 – Masking is needed at any frequency where the not-masked b-c (bone conduction) threshold is better that the air-conduction threshold of either ear by 10 dB or more. The worse ear (by air conduction) would then be the test ear and the better ear would be the non-test ear to be masked.”

“Rule 3 – Masking will be needed additionally where Rule 1 has not been applied, but where the b-c threshold of one ear is more acute by 40 dB or more (if supra or circum-aural earphones have been used) or 55 dB or more (if insert headphones have been used) than the not-masked a-c threshold attributed to the other ear.”

13. The British Academy of Audiology has issued guidance for when referrals should be made for a medical or other professional opinion. It is entitled “Guidance for Audiologists: Onward Referral of Adults with Hearing Difficulty Directly Referred to Audiology Services”, published in November 2021. The Guidelines list a number of conditions which indicate when onward referral should be made, including: sudden hearing loss or sudden deterioration of hearing in one or both ears; persistent tinnitus; conductive hearing loss; and unilateral or asymmetrical sensorineural hearing loss.

14. During the Registrant’s time at Specsavers, she was subject to three sets of disciplinary proceedings. The first disciplinary investigation led to a disciplinary hearing on 7 July 2017 and related to Service User 20 and Service User 21. The second disciplinary investigation led to a disciplinary hearing on 24 August 2017 and related to Service User 24.

15. The third disciplinary investigation arose out of an audit by the Registrant’s line manager, KC, of the Registrant’s records. KC became concerned that the Registrant appeared not to be undertaking air conduction and bone conduction masking, or, when it had taken place, it did not appear to comply with the BSA Recommended Procedure and follow the masking rules. As part of her investigation, KC interviewed the Registrant on 24 June, 28 July, 18 August, and 10 September 2020, seeking to explore the Registrant’s knowledge and clinical judgement. The third set of disciplinary proceedings led to the Registrant ultimately being dismissed from her employment on 22 October 2020. The Panel was not provided with the details of the disciplinary hearing and subsequent dismissal.

16. In December 2020, KC referred the Registrant to the HCPC. As part of its investigation, the HCPC instructed an expert in audiology, Ms McKinney, to consider the clinical allegations. The Registrant faced clinical allegations in respect of:

• Performing pure-tone audiometry which was not compliant with the Recommended Procedure in respect of 11 Service Users;
• Prescribing or providing inadequate or incorrect hearing aids in respect of 11 Service Users;
• Not managing earfittings for Service User 13 effectively;
• Not taking adequate aural impressions for new earmoulds for earplugs and hearing aids for Service User 20;
• Not making appropriate onward referrals for five Service Users in order for them to obtain further medical investigation, diagnosis, and treatment.

17. The Registrant also faced allegations of fabricating audiograms in respect of 10 Service Users and doing so dishonestly.

18. On 25 January 2021, the Registrant sent an email to the HCPC in response to its enquiry about whether she was at that time working as a Hearing Aid Dispenser. In the email the Registrant stated that the allegations had been implemented as a malicious vendetta by KC and the supposed evidence had been gathered illegally as she had been on furlough the entire time.

19. The Registrant did not attend and was not represented at the substantive hearing.

20. The substantive hearing panel found the facts proved as set out above, that they amounted to misconduct, and that the Registrant’s fitness to practise was thereby impaired.

21. With regard to impairment, the substantive hearing panel stated as follows:

“The Panel was satisfied that the Registrant’s misconduct was, in principle, capable of remediation, as it related to clinical failings. However, given the Registrant’s lack of engagement, the Panel was mindful that it had not been provided with any information from her to demonstrate that she had developed any insight or undertaken any remediation since she left Specsavers in October 2020. The Panel noted that in her disciplinary meetings with KC before dismissal, the Registrant indicated that she would be willing to undertake further training, which demonstrated some insight, albeit limited. However, the Panel had no information regarding the Registrant’s current circumstances or whether she had undertaken any relevant training. Further, the Panel had not been provided with any evidence to demonstrate that the Registrant had developed any further insight into her failings, for example that she understood the potential risk they had on service users or the reputational damage they may have on public confidence in the profession.

The Panel considered that the consequences of the Registrant’s failures were that service users had been exposed to risk of harm. By failing to follow the BSA Recommended Procedures, particularly in relation to the masking rules, the Registrant obtained inaccurate results. The Panel noted the expert opinion of Ms McKinney that as a consequence of the Registrant’s inaccurate audiometry the Registrant had missed onward referrals for further medical opinion with potentially serious risk of harm to the service users involved. It had also resulted in inappropriate and inaccurate hearing aid fittings, which either did not provide sufficient amplification or too much amplification to service users.

In the absence of any engagement by or information from the Registrant, the Panel was unable to conclude anything other than that the Registrant had not remedied her practice and that the consequent ongoing risk of harm to patients was, therefore, high.

In respect of the public component, the Panel was mindful of its responsibility to protect service users, maintain public confidence in the profession and uphold professional standards. The Panel was of the view that public confidence in the profession would be undermined if no finding of current impairment were made in respect of a Hearing Aid Dispenser who repeatedly failed to comply with the profession’s recommended procedures for conducting hearing tests, prescribe appropriate hearing aids and make appropriate onward referrals, given the potential risk of significant harm to service users as a result of such failures. In all the circumstances, the Panel concluded that the Registrant’s fitness to practise is currently impaired on the public component.”

22. By way of sanction, the panel decided to impose a Suspension Order for a period of 12 months.

23. The panel gave the following guidance to the Registrant as to what might be of assistance to a panel when reviewing the Suspension Order before its expiry:

• Evidence of her engagement with the HCPC;
• Any plan to return to safe practice, including:

• Evidence of reflection on the Panel’s findings and the impact of her actions on Service Users and the reputation of the profession;
• Evidence of training;
• Testimonials;
• Evidence of any relevant health matters.

Submissions

24. On behalf of the HCPC, Ms Adjei-Ntow submitted that, in view of the Registrant’s continued lack of engagement in these proceedings and in the absence of any evidence of insight or remediation, her fitness to practise remains impaired. She invited the Panel to consider extending the Suspension Order by a further period of 12 months.

25. The Panel received no information or submissions from the Registrant.

Decision

26. The Panel took into account the HCPTS Practice Notes “Review of Article 30 Orders” and “Fitness to Practise Impairment” and accepted the advice of the Legal Assessor.

27. The Panel first considered whether the Registrant’s fitness to practise remains impaired by reason of the allegations found proved at the substantive hearing.

28. The Panel took into account the decision of the High Court in Abrahaem v GMC [2008] EWHC 183 [Admin], where it was stated that in practical terms there is a “persuasive burden” on the Registrant to demonstrate at a review hearing that she has fully acknowledged the deficiencies which led to the original findings and has addressed her impairment sufficiently “through insight, application, education, supervision or other achievement”.

29. The Panel found that the Registrant had failed to take any steps to discharge this burden by addressing the fitness to practise concerns identified at the substantive hearing or by providing the Panel with any evidence of insight or remediation.

30. It followed that the Registrant had not discharged the persuasive burden referred to above. The Panel could not be satisfied that the Registrant is currently safe to practise without restriction. The Panel therefore found that her fitness to practise remains impaired in respect of both the personal and public components.

31. With regard to sanction, the Panel took into account the HCPC’s Sanctions Policy and accepted the advice of the Legal Assessor.

32. The Panel considered the need to protect the public and gave appropriate weight to the wider public interest, which includes the reputation of the profession and public confidence in the regulatory process. The Panel applied the principle of proportionality and considered the available sanctions in ascending order of seriousness.

33. The Panel considered that the concerns about the Registrant’s fitness to practise were too serious to take no further action or for the imposition of a Caution Order.

34. The Panel considered whether to impose a Conditions of Practice Order to give the Registrant an opportunity to demonstrate that she had taken steps to address the issues underlying her failures in practice. Given, however, the Registrant’s failure to engage with the HCPC in these proceedings at any time since the decision at the substantive hearing, the Panel could not be confident that:

• the Registrant would comply with any conditions imposed; or
• she would not pose a risk of harm to service users if she were permitted to practise subject to conditions; or
• she is genuinely committed to resolving the concerns raised; or
• she would take any effective measures within a reasonable time, or at all, to mitigate the risk posed to service users.

35. The Panel concluded that a Conditions of Practice Order would not be appropriate because the Registrant has shown no willingness to engage with the HCPC in remediating her practice.

36. The Panel considered whether to impose a further period of suspension, as advocated on behalf of the HCPC. The Panel noted that the substantive hearing panel considered that the Registrant’s failures in practice were remediable. Given the failure of the Registrant to engage with the HCPC since January 2021, the Panel gave serious consideration to imposing a Striking Off Order. However, taking into account that today’s hearing was the first review of the substantive Order, the Panel decided, on balance, that the Registrant should be given a further opportunity to engage with the HCPC and demonstrate an intention to remediate her practice.

37. The Panel therefore decided to impose a Suspension Order for a further period of 12 months on the expiry of the current Order.

38. The next reviewing panel is likely to be as assisted by:

• Evidence of the Registrant’s engagement with the HCPC;
• Any plan to return to safe practice, including evidence of reflection on the Panel’s findings and the impact of her actions on Service Users and the reputation of the profession;
• Evidence of training and/or undertaking Continuing Professional Development (CPD);
• Testimonials in respect of any work undertaken, whether in a paid or unpaid capacity, since April 2024;
• Evidence of any relevant health matters.

39. The Registrant should be in no doubt that, if she fails to engage with the HCPC in a constructive manner prior to the next review hearing, she is at risk of being subject to a Striking Off Order.

The Registrar is directed to suspend Mrs Diane-Marie Banks from the Register for a period of 12 months upon the expiry of the current Suspension Order.

This Order will be reviewed before its expiry.

History of Hearings for Diane-Marie Banks