John Walton

: Hearing aid dispenser

: HAD01947

Interim Order: Imposed on 04 Aug 2016

: Final Hearing

Date and Time of hearing:10:00 27/07/2017 End: 17:00 28/07/2017

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Struck off

Allegation

While registered as a Hearing Aid Dispenser, and during the course of your employment at Boots Hearing Care between 13 July 2015 and 5 July 2016:

1. On unknown dates between approximately 15 October 2015 - 15 April 2016, you attended work under the influence of non-prescription drugs.

2. On or around 11 April 2016, you left remnants of non-prescription drug use at your work premises.

3. The matters set out in paragraphs 1 - 2 constitute misconduct.

4. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary Matters

Service

1. The Panel was satisfied that Notice of today’s hearing had been properly served on the Registrant in terms of the Rules of the Health and Care Professions Council (Conduct and Competence Committee)(Procedure) Rules 2003 (“the Rules”) on 15 May 2017.

Proceeding in absence

2. The Panel next considered Miss Hastie’s application to proceed in the Registrant’s absence. Miss Hastie referred to the Rules, to the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and the case law. She advised the Panel that the Registrant is aware of today’s hearing as the Notice of service has been sent to his address on the HCPC Register. She reminded the Panel the Registrant had not engaged with the HCPC since referring himself by letter to the HCPC on 19 April 2016. She submitted that the Registrant is aware of the hearing and has not requested an adjournment, nor indicated he would attend. There was also a public interest in proceeding.

3. The Panel is aware that its discretion to proceed in absence is one which should be exercised with care. The Legal Assessor gave advice to the Panel and referred it to the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and to the case of GMC v Adeogba [2016] EWCA Civ 62. This makes clear that the first question the Panel should ask is whether all reasonable efforts have been taken to serve the practitioner with Notice. Thereafter, if the Panel is satisfied on Notice, the discretion whether or not to proceed must be exercised having regard to all the circumstances of which the Panel is aware, with fairness to the practitioner being a prime consideration, but with fairness to the HCPC and the interests of the public also considered.

4. The Panel agreed to proceed in the Registrant’s absence as it is satisfied that it is fair and in the public interest to do so. In reaching this decision, the Panel noted that the Registrant has not asked for an adjournment and had not engaged with the HCPC since referring himself in April 2016. The Panel consider that the Registrant has waived his right to attend. The Panel balanced fairness to the Registrant with fairness to the HCPC and the public interest. The Panel has also taken account of the fact that this is a final hearing and that an adjournment would serve no purpose. In these circumstances the Panel is satisfied that it is appropriate and fair to proceed in the Registrant’s absence. No adverse inference would be drawn from the absence of the Registrant.

Background

5. The Registrant was employed by Boots Health Care from July 2015 as a Hearing Aid audiologist in Boots. In about April 2016, concerns were raised by colleagues that the Registrant might be using non-prescription drugs at work. Colleagues also noticed a deterioration in the Registrant’s appearance and demeanour at that time.

6. At an interview on 31 May 2016 with his Line Manager, the Registrant confirmed that he had been using non-prescriptions drugs at work. He admitted he had used them on the way to and from work and he had been using the non-prescription drugs for six months. On 5 July 2016, a formal disciplinary hearing took place and the Registrant admitted to using the non-prescription drugs. The Registrant referred himself to the HCPC on 19 April 2016.

7. Miss Hastie opened the HCPC case with reference to the burden of proof, the evidence and the required consideration of facts, misconduct and impairment.

The HCPC Witnesses

Witness 1 – SR

8. The Witness took the affirmation and was referred to his Witness Statement, which he confirmed was signed by him and formally adopted as his evidence. He was employed at the time of the allegation as Regional Hearing Care Manager at Boots Hearing Care. He was the Registrant’s Line Manager. He would see the Registrant about once a week, certainly several times a month. That would take the form of a one-to-one meeting to discuss performance, feedback and any audits.

9. The Witness explained the main role of an audiologist at Boots. The Registrant would often see many service users, up to 20 a day. He had a responsibility to practice safely and in the interests of service users. He would typically carry out hearing screening and hearing health checks. The Witness said he felt the Registrant needed some emotional support but never asked for any specific support.

10. The Witness explained his discussions with the Registrant after concerns were raised by the Branch manager about the Registrant. The Witness said he felt sad for the Registrant, who admitted he was using the non-prescription drugs. The Witness said the Registrant had not told him the whole truth at the time about his use of the non-prescription drugs. He said he had been required to send the Registrant home and suspend him and he had tried to support him. He had not had any contact with the Registrant for some time, but he understood when he last contacted him the Registrant was undergoing a programme to help with his use of the non-prescription drugs. The Witness told the Panel the Registrant’s standard of work was generally acceptable and he had passed his audits after extra guidance had been given.

Witness 2 - HB

11. The Witness took the oath and was referred to her Witness Statement, which she confirmed was signed by her and was formally adopted as her evidence. She was an Optical Consultant at Boots Opticians at the time.

12. The Witness worked with the Registrant for about 6 months but had little contact professionally with him. She said on the day the Registrant was using non-prescription drugs at work, the Registrant appeared untidy but was usually smart. When she found evidence of the non-prescription drug use it was something that was not normal. She spoke to the manager, who reported it to his line manager, SR.

Witness 3 – AG

13. The Witness took the oath and was referred to her Witness Statement, which she confirmed was signed by her and was formally adopted as her evidence. She was an Optical Consultant at Boots Opticians at the time of the allegation.

14. The Witness worked with the Registrant and she said he was pleasant but did not interact much. She said she had noticed a deterioration in the Registrant’s appearance, looking unshaven, unkempt and smelling of smoke. On the day in question, the Witness said the Registrant was nervous and agitated and he kept leaving the premises by the back door. That was a significant change in his normal behaviour. She said he was seeing patients that day. She did not receive any complaints about the Registrant.

Closing Submissions for the HCPC

15. Miss Hastie set out her closing submissions on the facts, grounds and impairment. She reminded the Panel the onus of proof, on the balance of probabilities, rested on the HCPC. She referred to the Witness Statements and the oral evidence heard today. She referred to the admissions made by the Registrant to SR at the interview. She invited the Panel to find the facts proved.

16. Miss Hastie invited the Panel to find that the allegation does amount to misconduct and was serious, falling substantially below the conduct expected of professionals. She said Standard 3 of the HCPC Standards of Conduct, Performance and Ethics (2012) (“the Standards”) was engaged. She submitted that the Registrant’s behaviour fell seriously short of that expected of a professional and she referred to Roylance v GMC (No. 2) [2001]. On impairment, Miss Hastie referred the Panel to the HCPTS Practice Note on “Finding That Fitness to Practise is ‘Impaired’” and to the case of CHRE v NMC and Grant [2011] EWHC 927 (Admin). She reminded the Panel of the public and personal component of impairment and the lack of evidence from the Registrant on insight, remorse or remediation. She reminded the Panel of the wider public interest. Miss Hastie submitted a finding of impairment was required on both the public and private components.

17. She referred the Panel to an earlier referral to the HCPC regarding a competency allegation at the Registrant’s previous employer. She said that case was a competence case and not a misconduct case. The Registrant had been suspended for 12 months.

18. The Legal Assessor reminded the Panel that when considering the facts, the standard of proof was on the balance of probabilities and that the Panel needed to assess and weigh all the evidence carefully. He reminded it of the definitions of misconduct in Roylance v GMC (No. 2) [2001] 1 AC 311 and Meadow v GMC [2007] 1 All ER 1. On the issue of impairment, he reminded the Panel of the guidance in the HCPTS Practice Note on “Finding That Fitness to Practise is ‘Impaired’” and in CHRE v NMC and Grant [2011] EWHC 927 (Admin), and he reminded the Panel of the central importance of the public interest. He told the Panel that any consideration of the earlier HCPC case was only relevant, if at all, at the impairment stage, should they reach that point.

Decision on Facts

19. The Panel carefully assessed all the evidence it had heard and the documents before it. It accepted the advice of the Legal Assessor. The Panel was aware that on matters of fact, as distinct from issues of lack of competence and/or misconduct and of impairment, the burden of proof rested on the HCPC and that the standard of proof was the balance of probabilities.

20. The Panel was satisfied that the witnesses it heard from did their best to recall events and sought to assist the Panel. It found all three witnesses credible, reliable and consistent. It noted that important admissions were made by the Registrant to witness SR at the interview on May 2016. The other two witnesses, HB and AG, were consistent and corroborated the facts.

21. The Panel accepted the evidence of all three witnesses, which fully supported particulars 1 and 2, and therefore finds those particulars proved.

Finding on Misconduct

22. The Panel was mindful of the advice in the Roylance case. It exercised its own professional judgement in assessing misconduct. The Panel carefully considered the HCPC Standards and noted the period of the allegation covers both the 2012 and 2016 Standards.

23. Standard 3 (2012) states: “You must keep high standards of personal conduct”. The Panel finds that Standard 3 was breached by the Registrant’s use of non-prescription drugs.

24. The Panel carefully considered all the circumstances of the case and the facts found proved. The Panel considers that the use of the non- prescription drugs is a very serious matter and it determined that the facts found proved fall seriously short of what would be expected of the profession, and that they would be regarded as deplorable by fellow practitioners. Accordingly, the Panel determine that the facts found proved amount to misconduct.

Finding on Impairment

25. The Panel next considered whether the Registrant’s fitness to practise is currently impaired. It kept in mind the central importance of the protection of the public, the wider public interest and the guidance provided in the Grant case.

26. The Panel has no evidence as to the Registrant’s current circumstances and has no evidence on insight, remorse or steps to remediate. In these circumstances, the Panel is unable to fully assess the risk of repetition. The Panel was mindful of the public interest, the need to protect the public and the seriousness of the allegation involving non-prescription drug use. In these circumstances, the Panel determined that the Registrant presents a real risk of harm to the public and finds his fitness to practice is currently impaired.

27. The Panel was also mindful of the guidance Grant on the central importance of the wider public interest and the need to safeguard public confidence both in the profession and in the HCPC. It considered what a member of the public might make of the Registrant’s conduct and the effect that may have on the reputation of the profession. The Panel determined that the public would be appalled by the conduct of the Registrant. Accordingly, the Panel determined that in order to declare and uphold proper standards and to maintain confidence in the profession and the Regulator, that a finding of impairment is required on wider public interest grounds.

Decision on Sanction

28. Miss Hastie reminded the Panel of the terms of the HCPC “Indicative Sanction Policy” and the need to bear in mind the public interest and to act proportionately.

29. The Legal Assessor referred the Panel to the “Indicative Sanction policy” and reminded it to act proportionately. He advised the Panel to consider sanction in ascending order and to apply the least restrictive sanction necessary to protect the public. It should also consider any aggravating and mitigating factors and bear in mind the public interest and that the primary purpose of sanction was protection of the public.

30. The Panel approached sanction, beginning with the least restrictive first, bearing in mind the need for proportionality. Taking no further action and the sanction of a Caution Order would not reflect the seriousness of the allegation found proved and the finding of impairment. There was a complete lack of evidence of insight, remorse or remediation from the Registrant. These sanctions would not be adequate to protect the public or to satisfy the wider public interest of maintaining confidence in both the profession and the regulatory process. Neither order is appropriate or proportionate in the circumstances of this case.

31. The Panel next considered a Conditions of Practice Order. The allegation found proved is serious and amounts to misconduct. The Panel have no information before it as to the Registrant’s current circumstances. In these circumstances the Panel cannot formulate workable, realistic and proportionate conditions of practice. In addition, such an order would not protect the public interest, or maintain public confidence in the profession or the Regulator.

32. The Panel next considered a Suspension Order. The Registrant has provided no evidence of insight, remorse or remediation in respect of his behaviour and he has not engaged with his Regulator. The Panel were mindful of the “Indicative Sanction Policy” and in particular paragraph 41 (“If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option”). The Panel find, given the nature and gravity of the allegations found proved, which involve the Registrant being under the influence of non-prescription drugs in his work place, that the Registrant is not able to resolve or remedy his failings and has serious difficulties preventing him from understanding and seeking to remedy his failings. In all these circumstances, and in the complete absence of any evidence of insight or remediation, the Panel determined that a Suspension Order would not adequately protect the public or the wider public interest.

33. The Panel next considered the sanction of Striking Off. The allegation proved is very serious, involving the taking of non-prescription drugs and further, being under the influence of those drugs at his work place. There is no evidence of any insight, remediation or of the Registrant’s current circumstances. The Panel determined that in all the circumstances of this case any sanction less than Striking Off would not adequately protect the public. The Panel further determined that due to the gravity of the allegation involving non-prescription drug use, a lesser sanction would lack the necessary deterrent effect and would undermine confidence both in the profession and the Regulator.

34. The Panel therefore determined that, in all the circumstances of the case, the only sanction that would adequately and proportionately protect the public, the wider public interest and uphold proper standards and public confidence in the profession and the Regulator is a Striking Off Order.

Order

That the Registrar is directed to strike the name of Mr John Walton from the Register on the date this order comes into effect.

Notes

The order imposed today will apply from 24 August 2017 (the operative date)

Hearing history

History of Hearings for John Walton

Date Panel Hearing type Outcomes / Status
27/07/2017 Conduct and Competence Committee Final Hearing Struck off