​​John Smyth​

Preliminary Matters

Service of the notice of hearing

1. The Panel was shown a copy of an unredacted email that was sent to the Registrant on 30 March 2026. The email informed the Registrant of the date and time of this hearing, as well as the fact that it was intended that it would be conducted by the use of Microsoft Teams. The Panel was satisfied that this communication constituted a valid notice of hearing.

Proceeding in the absence of the Registrant

2. After the Panel announced its decision that it was satisfied that a valid notice of hearing had been served on the Registrant, the Presenting Officer applied for a direction that the hearing should proceed in the Registrant’s absence. In advancing this application, the Presenting Officer referred the Panel to a separate 39-page bundle of documents that had been prepared for the purposes of the application to proceed in the Registrant’s absence. This bundle of documents contained a number of statements by the Registrant to the effect that he did not intend to appear at the hearing.

3. The Panel received and accepted the advice of the Legal Assessor on the issue and it heeded the guidance contained in the Proceeding in the Absence of the Registrant HCPTS Practice Note. Having carefully considered the matter, the Panel determined that the hearing should proceed in the Registrant’s absence. The reasons for this decision were as follows:
• The Panel was provided with emails written by the Registrant on 10 March 2026 and 1 April 2026, in both of which he had made it clear that he did not intend to participate in the hearing and would not attend it.
• The Registrant did not apply for an adjournment of the hearing and did not suggest that his decision not to participate in this hearing would be different were the hearing to take place on another occasion.
• Accordingly, the Panel concluded that the Registrant had voluntarily waived his right to attend the hearing.
• In the judgement of the Panel, the public interest required the hearing to proceed as there could be no justification for further delaying the hearing of the HCPC’s Allegation.

Application to amend the Allegation

4. In the Allegation referred for hearing by the Investigating Committee there was a rogue “or” included in particular 1(b)(ii). The Presenting Officer applied to remove it by amendment. The Registrant was informed that this application would be made on 14 May 2026. The Panel acceded to this application; it was clearly a typographical error, and the correction of it could not result in any prejudice to the Registrant.

Background

5. The Registrant is registered with the HCPC as a Hearing Aid Dispenser. At the time of the events underpinning the Allegation, he was working in that capacity at Specsavers in Eltham, an employment he had commenced in March 2022.

6. The HCPC’s case relates to an incident that occurred on Saturday, 6 August 2022, when Service User A had an appointment with the Registrant at 3:00pm that day. Service User A had a mastoid cavity in the right ear. When the Registrant sought to take an impression of Service User A’s right ear, the putty material used for the making of an impression became lodged in the mastoid cavity and the Registrant was unable to remove it.

7. Service User A attended a hospital Accident and Emergency Department after the appointment with the Registrant, but it was not possible for the impression to be removed. Service User A underwent surgery on 22 August 2022 when the impression was removed.

8. On 10 August 2022, the Registrant was suspended from his employment, and the following day Specsavers referred him to the HCPC.

9. The specific respects in which the Registrant’s actions with regard to Service User A are clearly set out in the particulars of the Allegation and need not be repeated here.

Decision on Facts

10. The HCPC relied upon the evidence of a single witness, Ms GG. Ms GG is a Hearing Aid Dispenser who is employed as a Hear Care Director at the clinic where the Registrant saw Service User A. Ms GG did not commence her employment until very nearly a year after the events in question, and so had no direct personal knowledge of the matters in issue. She did, however, have access to relevant documents, and these she exhibited to her witness statement.

11. The HCPC had intended to call Ms GG as a witness to give live evidence before the Panel. At the commencement of the hearing, the Panel stated that it had no questions it wished to ask her. Furthermore, the Registrant had explicitly written that he did not challenge the evidence presented against him. Accordingly, the Panel stated that unless the Presenting Officer wished to present Ms GG to give live evidence, it would be content to rely upon her written witness statement. The Presenting Officer did not wish to deal with any supplementary issues and so the hearing proceeded on the basis that the statement was accepted.

12. Before explaining its decisions on the facts, there are two matters that should be explained:

• Specsavers undertook an investigation into the issues to be decided by the Panel, and, at the conclusion of that investigation, a view was formed about the Registrant’s actions. In reaching its own, independent decision, the Panel was careful to distinguish between information that had been produced for the purposes of that internal investigation (which it was satisfied it was proper for it to have regard to), and views formed by Specsavers, whether on the basis of that same information or otherwise (which were to be excluded to ensure that the Panel’s decision was based on the evidence and the evidence alone).

• In communications from the Registrant there were statements that he admitted the HCPC’s case. The Panel accepted the advice of the Legal Assessor that these statements should not be treated as formal admissions which could be accepted to avoid the necessity of the HCPC being required to prove the case. They could, however, be applied to the decision as to whether, taken with all the other information available, matters were proven.

13. The Panel recognised that in respect of all particulars it is for the HCPC to prove matters on the balance of probabilities. The Panel had regard to the entirety of the information provided in the hearing bundles. The documents included the following (but was not limited to):
• Service User A’s patient notes.
• The Registrant’s handwritten statement dated 9 August 2022.
• A record of a formal interview of the Registrant conducted by Specsavers’ Audiology Relationship Manager.
• The minutes of the Specsavers internal disciplinary hearing held on 24 August 2022. 
• The British Society of Audiology’s document entitled “Recommended Procedure – Taking an aural impression” current in August 2022 (“the BSA Guidelines”).
• Various Standing Operating Procedure (“SOP”) documents and other protocol and policy documents issued by Specsavers which were current in August 2022.
Particular 1(a) – Failed to record a near miss following your first attempt at taking an impression for a hearing aid;

14. This particular includes the contentions that there was a “near miss”, that it was not recorded and that there was a duty to record it.

15. The information provided to the Panel demonstrates that when the Registrant attempted to make an impression of Service User A’s right ear canal, the impression material went past the otostop that had been inserted in order to prevent that occurring. In the view of the Panel, that event is properly described as a “near miss” because it was an unintended event (indeed, one the placing of the otostop was designed to avoid) and was something that gave rise to the risk of harm to the service user. The Registrant did not record it in Service User A’s patient record or elsewhere. The reporting of a near miss was required by Specsavers’ Accident, “Incident and Serious Untoward Incident Policy”. In the view of the Panel, the ordinary requirements of HCPC registration, as reflected in the Standards of conduct, performance and ethics, required the recording of such an incident.

16. The Panel found that particular 1(a) was proven.
Particular 1(b)(i) – Failed to follow the correct procedures and/or adequately consider contraindications when taking an impression for a hearing aid, in that you did not arrange a referral for wax removal for Service User A prior to taking the impression, despite this being clinically indicated; 

17. This particular includes the contentions that the Registrant did not refer Service User A for wax removal prior to taking the impression and that it was clinically indicated that he should do so.

18. In Service User A’s patient notes, the Registrant recorded that there was, “40% wax right ear, clear view of intact ear drum”. The available documents do not suggest that there was a referral for wax removal and the Registrant has not suggested (whether in the patient notes or in his comments made since the incident) that he made that referral.

19. Paragraph 11.7 of the BSA Guidelines states that excessive wax should be removed before an impression is taken. The Registrant stated that he did not consider that the removal of the wax was required because he could see the entirety of an intact eardrum. In the judgement of the Panel, the removal of the wax was required even if the eardrum could be seen; the wax might have been pushed further into the ear by the otostop or the impression material, the impression might not have been a true representation of the shape of the ear canal and the wax might have obscured the view of the mastoid cavity.

20. The Panel found that particular 1(b)(i) was proven.
Particular 1(b)(ii) – Failed to follow the correct procedures and/or adequately consider contraindications when taking an impression for a hearing aid, in that you were aware that Service User A had a mastoid cavity and did not use and/or consider the use of additional otostops to pack the cavity prior to taking the impression. 

21. This particular includes the contentions that the Registrant was aware of the mastoid cavity and that additional otostops were not used (or considered) to pack it.

22. From his first comments about the incident on 5 August 2022, the Registrant has acknowledged that Service User A had a mastoid cavity, stating both that he had seen in the patients notes that such was the case and that Service User A told him at the appointment.

23. Additional otostops were not used. Paragraph 11.1 of the BSA Guidance, in noting that it is essential that impression material should not enter a mastoid cavity, records that the cavity can be packed with additional otostops. In the disciplinary hearing on 24 August 2022, the Registrant stated that he was aware of the availability of the procedure of packing a mastoid cavity, but had never come upon a service user with whom it had been necessary to use it.

24. The Panel found particular 1(b)(ii) to be proven.
Particular 1(c) – Failed to document Service User A’s medical history in a timely manner to reflect Service User A had informed you that they had a mastoid cavity;

25. This particular includes the contentions that Service User A informed the Registrant that she had a mastoid cavity, that it was not recorded by the Registrant and that the Registrant had a duty to record it.

26. The Registrant accepted that Service User A told him of a mastoid cavity. In the account he wrote three days after the incident, he stated, “Patient advised about mastoid operation as a young person.” This information was not included by the Registrant in the entries he made in the patient notes on 3 August 2022.

27. The Panel was satisfied that the Registrant was under a duty to record this information even if, which he stated to be the case, the patient notes that were available to him recorded the information as a result of earlier appointments. Quite apart from any duty there might have been imposed by reason of his employment by Specsavers, the Panel was satisfied that, given the significance of the mastoid cavity to the procedure being undertaken, the ordinary obligations of HCPC registration would require it to be included in the patient records made by the Registrant.

28. The Panel found particular 1(c) to be proven.
Particular 1(d) – Did not notify your line manager of the incident outlined in allegation 1(b).

29. The Registrant did not notify his manager of the incident involving Service User A. The Registrant last edited Service User A’s electronic patient notes at 4:22pm on the day of the appointment, by which time he had written, “Patient had to go to A&E as right impression could not be removed” At 5:50pm, upon reading the patient notes, the Registrant’s manager sent a message to the Registrant that included, “Did you complete an incident form for the impression stuck in the customers ear?” The Registrant replied to this question by stating, “Need to do incident form.”

30. The Panel found particular 1(d) to be proven.

Decision on Misconduct

31. The Panel began its consideration of whether the proven facts constituted misconduct by assessing whether they represented breaches of professional performance required by the HCPC’s Standards of conduct, performance and ethics. In the view of the Panel, the Registrant’s actions with regard to Service User A had the consequence that he breached the following standards in force at the time:
2 Communicate appropriately and effectively.
Work with colleagues
2.6 You must share relevant information, where appropriate, with colleagues involved in the care, treatment or other services provided to a service user.

6 Manage risk 
Identify and minimise risk
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. 

7 Report concerns about safety 
Report concerns
7.1 You must report any concerns about the safety or well-being of service users promptly and appropriately.

10 Keep records of your work 
Keep accurate records
10.1 You must keep full, clear and accurate records for everyone you care for, treat or provide other services to. 
10.2 You must complete all records promptly and as soon as possible after providing care, treatment or other services.

32. The Panel accepted the advice it received that a finding that the breaches of standards should not automatically be translated into a finding of misconduct; what is required is for a decision to be made as to whether the departures from required standards are sufficiently serious to merit being described as misconduct.

33. In assessing the seriousness of the Registrants breaches, the Panel found paragraph 15 of the HCPTS Practice Note on Fitness to Practise Impairment to be helpful. Of the suggested factors identified in that paragraph, the Panel was satisfied that the Registrant’s behaviour represented a significant and serious departure from expected standards of professional conduct and resulted in actual harm to a service user who, by reason of her age and hearing loss, had a degree of vulnerability. Although the matters occurred on one occasion with a single service user, it is relevant to note that the Registrant persisted in his treatment of Service User A, and in doing so caused her harm, having initially had a “near miss” and that his failings were compounded by the record keeping and reporting failures. For all these reasons, his actions would have a real impact on public confidence in his profession.

34. Having carefully considered the matter, the Panel was satisfied that the Registrant’s conduct was sufficiently serious properly to be described as misconduct.

Decision on Impairment    

35. The Panel accepted the advice it received and heeded the guidance in the HCPTS Practice Note on Fitness to Practice Impairment. Accordingly, it addressed the issues of the personal component and the public component separately.
Personal component

36. The Panel was satisfied that breaches of the type established by its findings are capable of being remedied. It also accepted that the Registrant had admitted the criticisms that had been levelled against him and acknowledged that he could and should have done things differently. However, in the information provided to the Panel it was not evident that the Registrant had developed a true understanding of why he had acted as he had. There was no reflective statement provided to the Panel. To that extent, the Panel was of the view that there was incomplete insight demonstrated.

37. Furthermore, the Registrant had made it clear that he had ceased to practise as a Hearing Aid Dispenser and had no desire to resume doing so. There was, therefore, no suggestion that he had undergone targeted training in areas relevant to the breaches and no evidence that his practice after 6 August 2022 had changed as a result of what had occurred that day.

38. The conclusion of the Panel was that the Registrant presented a risk of repeating his actions. That finding has the consequence that his fitness to practise is impaired in respect of the personal component.

Public component

39. In reaching its decision the Panel applied the guidance contained in paragraphs 32 and 33 of the Practice Note and considered the three issues of the need to protect service users, maintaining professional standards and maintaining public confidence.

40. The Panel’s finding made in relation to the personal component that there is a risk of repetition means that there is a need to protect service users from the risk of future harm. Furthermore, the failings are of a sufficiently serious nature to require the Panel to reach a finding of impairment of fitness to practise in order to remind other registrants of the importance of ensuring that they practise in accordance with established requirements. With regard to public confidence, the Panel acknowledged that fully informed and fair-minded members of the public accept that some clinical procedures carry with them the risk of harm. However, the issue in the present case is that the harm suffered by Service User A was both avoidable and would have been avoided if the Registrant had acted as he should have done. The public would be acutely troubled by the risk of suffering harm when that risk is removed if only established protocols are followed. For that reason, the Panel is satisfied that public confidence also requires a finding of impairment of fitness to practise.

41. The result of these findings is that the Registrant’s current fitness to practise is impaired in respect of both the personal and public components.

Decision on Sanction

42. After the Panel handed down the written determination appearing above, it allowed the Presenting Officer time to consider the document before making her submissions on sanction.

43. The Presenting Officer reminded the Panel that although a sanction might have a punitive effect, it should not be imposed with the intention of punishing a registrant against whom findings have been made. Rather, she identified the factors that could properly lead to a sanction being imposed, namely, protection of the public, the declaration of proper professional standards and the maintenance of public confidence in the relevant profession and the regulation of it. The HCPC did not advance a positive case that any particular sanction should be imposed, acknowledging that the sanction decision is one for the Panel’s discretion applying proper principles and being guided by the Sanctions Policy. The Presenting Officer identified various matters which she suggested the Panel might consider to be aggravating and mitigating factors, and she also took the Panel to the sections of the Sanctions Policy in which types of cases described as “serious cases” were identified.

44. The Panel accepted the advice of the Legal Assessor in relation to sanction. It therefore proceeded on the basis that a sanction should not be imposed to punish the Registrant. The proper purpose of any sanction should be the factors that had already been identified by the Presenting Officer in her submissions, public protection, maintaining public confidence and declaring and upholding proper professional standards. To ensure that principle is upheld, it is first necessary to decide if any sanction is required. If it is, then the appropriateness of the available sanctions should be assessed in an ascending order of seriousness until one that sufficiently addresses the issues that can properly lead to a sanction being imposed. This exercise is to be undertaken following the guidance contained in the Sanctions Policy. As the finding in the present case is one of misconduct, the entire sanction range up to and including striking off is available. The Panel confirms that it has followed this approach.

45. When the Panel began its deliberations on the sanction issue, it first identified the aggravating and mitigating factors.

46. For the reasons already expressed by the Panel in explaining why it decided that the proven matters amounted to misconduct, the Allegation is one which by its very nature is serious. Aggravating factors are therefore not the elements of that already serious Allegation, but rather factors that make the Allegation yet more serious. In the view of the Panel there were two, namely, the fact that Service User A, a person who by reason of her age and hearing loss had a degree of vulnerability, suffered actual harm. The attempted extraction of the impression material would undoubtedly have been painful. In the first instance she needed to go to an accident and emergency department. As the impression material could not be removed at the accident and emergency department, she subsequently underwent a procedure under sedation. Additional aggravating factors are to be found in the Registrant’s lack of meaningful reflection, absence of remediation, incomplete insight and lack of engagement in this fitness to practise process.

47. The Panel considered that mitigating factors were to be found in the fact that the Registrant expressed remorse and concern for the harm suffered by Service User A. It is also fair to acknowledge that from the outset he accepted his error and had not tried to deny what had occurred. It should, however, be noted that given that the overarching purpose of fitness to practise proceedings is protection of the public, matters of mitigation are of limited significance.

48. The Panel next considered whether this is a “serious case” as categorised by the Sanctions Policy. The Panel did not find that it fell within any of the suggested types of case identified in paragraph 85 of the Sanctions Policy. Although serious, it was not at the most serious end of the spectrum of cases.

49. Before turning to consider the available sanction options, the Panel stood back and identified the factors that should dictate the sanction decided upon. They were:
• There is incomplete insight and an absence of remediation, as a result of which there is a risk of repetition.
• Were the Registrant to repeat his misconduct, there would be a clear and obvious risk of future service user harm.
• Quite apart from the risk of future harm, the issues of the declaration of proper professional standards (and the consequential deterrent effect) and the maintenance of public confidence require the Panel’s findings to be marked.

50. It has already been stated that the Panel considered the available options in an ascending order of seriousness. It considered whether the case should be referred to mediation, whether no further action should be taken and whether a caution order should be imposed. The reasons for rejecting each of these options in turn were the same. They would neither provide any protection against the risk of future harm were the Registrant to repeat his misconduct, nor would they sufficiently reflect the seriousness of the established misconduct.

51. The Panel therefore next considered a conditions of practice order. The Panel has already stated in its decision on the personal component of impairment of fitness to practise that, although they had not been, the Registrant’s breaches were capable of being remedied. Consistent with that view, the Panel considered that had the Registrant been minded to take active steps to be returned to safe and effective practice, a conditions of practice order might have been an appropriate sanction. It is possible to imagine that conditions such as supervision when making impressions and a requirement to undertake targeted re-training might have permitted the Registrant to be permitted to remain in practice. As it is, however, the Registrant’s stated position that he has not returned to practise and does not wish to do so, renders a conditions of practice order inappropriate. As stated in paragraph 154 of the Sanctions Policy, “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 ……….”

52. The rejection of a conditions of practice order necessarily meant that the Panel considered a suspension order. Paragraphs 169 and 170 of the Sanctions Policy are of particular importance. They are in these terms:

“169. 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.

170. Where a panel is considering suspension orders, it should first consider whether the conduct found proven indicates behaviour which is fundamentally incompatible with continued registration. Examples of such cases are given in paragraph 179. It may still be necessary to impose a striking off order if public protection and/or the wider public interest considerations require it. If that is the case, the panel should not impose a suspension order, even where some or all of the factors listed below are present (this list is non-exhaustive):

• the registrant has insight;
• the issues are unlikely to be repeated; or
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings, particularly in cases where the registrant has demonstrated they have begun to do so or given a credible explanation for how they will do so.”

53. When the Panel assessed the circumstances of the present case against the guidance contained in these two paragraphs it concluded that this is not a case in which a striking off order could only ever have been the appropriate outcome. It is the case that the Registrant has not demonstrated a resolve to remedy his failings, but from the communications from the Registrant which were provided in relation to the issue of proceeding with the hearing in his absence, it may well be that he took the view that a striking off order was the inevitable outcome of the process, and that this belief has determined the position he has taken.

54. In the view of the Panel it would not be a proportionate outcome to make a striking off order at the present time. A suspension order for a period of six months will provide public protection. It will also enable the Registrant to consider this determination in order to decide what, if any, steps he wishes to take. The Panel was provided with information that disclosed that a Voluntary Removal Agreement was being discussed between the Registrant and the HCPC, but that there was insufficient time before the present hearing for that issue to be advanced. A period of six months will enable that process to be completed if that remains the Registrant’s wish. Six months will also be sufficient for the Registrant to decide if he wishes to reconsider his earlier expressed intention not to continue with his career as a Hearing Aid Dispenser. It is important that the Registrant takes note of the fact that the suspension order made by the Panel today will be reviewed before it expires. If, on reflection, the Registrant wishes to resume his career he would be well advised to actively participate in that hearing and explain the steps he has taken and intends to take in order to be permitted to do so. The outcome of the review will be for the discretion of the panel conducting that hearing, but the Registrant should approach that review on the basis that, without any positive steps being taken by him, a striking off order might well be made on that occasion.

Order: The Registrar is directed to suspend the registration of John Smyth for a period of 6 months from the date this Order comes into effect.

Interim Order

Interim Order Application

1. After the Panel announced its decision that the substantive sanction would be that of suspension order for a period of six months, the Presenting Officer applied for an interim suspension order for a period of 18 months to cover the appeal period.  She submitted that the Panel’s decision made in relation to the substantive issues resulted in an interim order being necessary for protection of members of the public and being otherwise in the public interest.  In submitting that the order should be made for the maximum period of 18 months, the Presenting Officer argued that if the Registrant did appeal the Panel’s decision, an appeal could take at least that length of time to be finally disposed of.

2. There were no submissions by or on behalf of the Registrant on this issue.

Decision

3. The Panel accepted the advice it received in relation to the application.  It also had regard to the section entitled, “Interim orders” between paragraphs 182 and 186 of the Sanctions Policy and the HCPTS Practice Note entitled, “Interim Orders”.   Accordingly, it was first required to decide whether it had jurisdiction to consider the application.  If satisfied that it had jurisdiction, it must then decide whether the application should be decided in the absence of the Registrant.  If the issue should be decided in the absence of the Registrant, the Panel must then consider whether there are risks that satisfied one or more of the three grounds that could justify the making of an interim order.  Those grounds are, (i) that it is necessary for protection of members of the public, (ii) that it is otherwise in the public interest, and (iii) that it is in the interests of the registrant concerned.  Furthermore, it is necessary to remember that the default position established by the legislation governing this process is that when a substantive sanction is imposed, there will be no restriction on a registrant’s ability to practise while their appeal rights remain extant.  Accordingly, something more than the fact that a substantive sanction has been imposed is required to justify the making of an interim order.  The Panel confirms that it has followed this approach.

4. Included in the notice of hearing email sent to the Registrant on 30 March 2026, was the following paragraph: “Please note that if the Panel finds that it is necessary to do so, it may also impose an interim order (under Article 31 of the Health Professions Order 2001) at any stage during the hearing. An interim order suspends or restricts a registrant’s right to practise with immediate effect.”  The Panel concluded that this afforded the Registrant the opportunity of making representations on the issue of whether an interim order should be made, and for that reason provided jurisdiction for the application to be considered by the Panel.

5. The Panel was satisfied that it was appropriate to decide the application in the absence of the Registrant; when such an application is made there is necessarily a degree of urgency in deciding the matter, the Registrant was informed in the notice of hearing that such an application might be made and there is no reason to believe that the Registrant would wish to be heard on the matter if the Panel did not deal with it at the present time.

6. Whilst acknowledging the default position that there is no restriction on a registrant’s ability to practise while their appeal rights remain outstanding, the Panel concluded that in the present case, an interim order is required.  It is necessary for protection of members of the public and it is otherwise in the public interest for the same reasons explained by the Panel in its substantive sanction decision.

7. The Panel considered whether interim conditions of practice would be a sufficient restriction during the appeal period, but concluded that, for the same reasons a substantive conditions of practice order was not appropriate, interim conditions of practice would not provide sufficient public protection.

8. The Panel therefore concluded that an interim suspension order should be made.

9. The Panel decided that the interim suspension order should be for the maximum period of 18 months.  An order of that length is necessary because the final resolution of an appeal could well take 18 months if the Registrant appeals the Panel’s decision and Order.  In the event that the Registrant does not appeal the decision and Order, the interim order will simply fall away when the time within which he could have commenced an appeal passes.

History of Hearings for ​​John Smyth​