Mr Paul N Coxon

: Hearing aid dispenser

: HAD00402

: Final Hearing

Date and Time of hearing:10:00 31/07/2017 End: 17:00 03/08/2017

: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Struck off

Allegation

During the course of your employment as a Hearing Aid Dispenser by Amplifon (Coventry Branch), you;

 

1.     Between June 2008 and April 2012, did not keep hard-copy audiogram records regarding Service User A.

 

2.     Between June 2008 and April 2012, did not make and/or keep case history records regarding Service User A.

 

3.     Sold Service User A hearing aids without sufficiently testing his hearing on or around;

 

a)     02 June 2008

b)    07 July 2008

c)     19 November 2010

d)    19 July 2011

e)     12 April 2012

 

4.     Saved electronic audiograms in the electronic database indicating that you had taken new audiogram tests of Service User A on the following dates, when you had not done so:

 

a)     02 June 2008

b)    22 September 2008

c)     19 November 2010

d)    19 July 2011

e)     12 April 2012

 

5.     Sold Service User A hearing aids for his left ear, when it was inappropriate to do so, on or around:

 

a)     7 July 2008

b)    19 November 2010

c)     19 July 2011

d)    12 April 2012

 

6.     Your actions described in paragraphs 3 - 5 were dishonest.

 

7.     The matters described in paragraph 1 - 2 constitute misconduct and/or lack of competence.

 

8.     The matters described in paragraphs 3 - 6 constitute misconduct.

 

9.     By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters
Service of Notice

1. The Panel was referred to the Notice of this Hearing which was sent to the Registrant at his Registered address dated 22 March 2017. The Panel was satisfied that notice had been served in accordance with the rules.
Proceeding in absence

2. Ms Chaker, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. She referred the Panel to the legal principles set out in the cases of R v Jones [2001] QB 862 and Adiogba v GMC [2016] EWCA civ 162. Ms Chaker also referred the Panel to a bundle of contacts between the Registrant and Kingsley Napley in particular to a telephone attendance note dated 17 July 2017 recording a telephone call from the Registrant in which he advised that he had planned to attend the hearing but would not now be attending due to his health. He stated that he would find it too stressful and that it would upset his heart. Thereafter there was no further communication from the Registrant despite HCPC informing him that he could apply for an adjournment accompanied by a medical certificate or that he could attend by telephone.

3. Ms Chaker submitted that the Registrant was aware of the hearing and had chosen not to attend. She further submitted that balancing the public interest with the Registrant’s interests, the Panel ought to proceed.

4. The Panel received and accepted the advice of the Legal Assessor that they should only proceed in the Registrant’s absence having considered the factors outlined in R v Jones, in particular whether the Registrant had voluntarily absented himself and whether any purpose would be served by an adjournment, taking into account that two witnesses had attended on behalf of the HCPC. The Legal Assessor also advised that the panel should consider whether all reasonable steps had been taken by the HCPC to inform the Registrant of the hearing, following the judgement in Adiogba v GMC.

5. The Panel was satisfied that the Registrant had voluntarily absented himself and that no purpose would be served by adjourning the hearing. The Panel also had regard to the fact that the allegations concern matters which occurred between 2008 and 2012, and there was a public interest in matters proceeding without further delay. Additionally, two witnesses had attended on behalf of the HCPC. Taking all matters into consideration, the Panel determined to proceed in the Registrant’s absence.


Background:


6. The Registrant was employed as a Hearing Aid Audiologist and Branch Manager at Amplifon, Coventry. The Registrant treated Service User A between approximately 2 June 2008 and 18 June 2012.


7. On 28 April 2015, Service User A’s son submitted a complaint to Amplifon, having found a large number of hearing aids at Service User A’s house, after Service User had moved into a care home. An investigation was carried out by Amplifon resulting in a referral to the HCPC in relation to the allegations.


Decision on Facts


8. The Panel heard oral evidence from two witnesses called on behalf of the HCPC. The first witness is the daughter of Service User A. The second witness is employed as a Professional Services Manager at Amplifon Ltd and was appointed to investigate the complaint against the Registrant. The Panel was provided with a Final Hearing Bundle which included the witness statements of the HCPC witnesses and an Exhibits bundle.


9. The Panel considered that both witnesses called on the HCPC’s behalf  gave careful, measured evidence and were credible. The Panel carefully considered the Registrant’s representations provided in a letter to the HCPC dated 6 January 2016 and to Kingsley Napley dated 25 February 2016. Given that the Registrant’s representations had been provided at the Investigating Committee stage, the Panel paid no regard to any admissions made by the Registrant in the completed notice to admit facts.


10. Having considered all of the evidence in the round, the Panel made the following findings:


Particular 1 – Not Proved


Ms Chaker offered no evidence in relation to Particular 1. Accordingly, the Panel found it not proved.


Particular 2 – Proved


The Panel had regard to the evidence of Mr Downes that the Registrant could offer no explanation as to why there were no case history records regarding Service User A, notwithstanding that the Registrant had treated him between June 2008 and 2012. Mr Downes also gave evidence that he had carried out a comprehensive search for any such records.
The Panel found the Registrant’s assertion that case history records may have been lost or destroyed as unlikely, particularly given that case history records are still in existence in relation to other Service Users who were treated by the Registrant over that period. Those records for Service User A prior to and after the Registrant’s involvement with him were still on his file as were the invoices for the hearing aids and accessories supplied to him by the Registrant. The Panel was satisfied that it was more likely that the Registrant did not make or keep case history records regarding Service User A.


Particular 3 – Proved apart from 7 July 2008
The Panel first considered whether it was proved that the Registrant had sold Service User A hearing aids without sufficiently testing his hearing. The Panel had regard to the evidence of Mr Downes, the copies of the audiograms, patient records and the manufacturer order forms.


The Panel was satisfied that the audiograms in relation to Service User A had largely been copied by the Registrant using the data from Service User A’s previous hearing tests prior to the Registrant taking over Service User A’s care. In particular, an obvious error in relation to uncomfortable loudness levels and bone conduction results had been copied into the Registrant’s evaluation of Service User A dated 2 June 2008, indicating that he had not carried out proper testing of Service User A’s hearing.
Having had regard to the documentation provided, the Panel was satisfied that the Registrant sold hearing aids to Service User A on 2 June 2008, 19 November 2010, 19 July 2011 and 12 April 2012. In relation to 7 July 2008, the Panel was not provided with any audiogram for that date and also noted that details from the NOAH software on that  session had not been opened for that date.


Particular 4 – proved


The Panel had regard to the evidence of Mr Downes and to the actual audiograms produced in the exhibits bundle. The Panel was satisfied that the left and right ear audiograms in respect of Service User A between 2 June 2008 and 13 October 2014 were identical to a previous audiogram dated 7 March 2007 except for the “no response” symbols.
The Panel was satisfied that that the audiograms for each of the dates set out in Particular 4 were identical to the previous audiogram taken on 7 March 2007. Rather than taking new audiogram tests on these dates, the Panel was satisfied that the Registrant had merely saved previous data in relation to Service User A.


Particular 5 – Proved


The Panel was satisfied from the documentary evidence consisting of Service User A’s records and manufacturer’s orders that the Registrant had sold Service User A hearing aids for his left ear on all of the dates set out. The Panel was provided with no evidence that due to the potential limited benefit to Service User A,  the Registrant had satisfied himself that these hearing aids were of any benefit by trialling them for a test period, as would have been good practice and in accordance with his company’s guidance.


Particular 6 – Proved


The Panel had regard to the fact that over a period of four years, the Registrant inappropriately or without conducting proper hearing tests, sold four left and four right hearing aids to Service User A. This amounted to sales of £19,312.00 generating commission of approximately £2,896.
The Panel was satisfied that the Registrant’s motive was financial gain and that his actions would be regarded as dishonest according to the standards of a reasonable honest person. The Panel was further satisfied that as an educated and trained professional person, the Registrant must have realised that his actions would be regarded as being dishonest.


Decision on Grounds


11. The Panel was satisfied that the Registrant’s conduct fell seriously below the standards required of a registered hearing aids dispenser applicable prior to 2010. The Registrant has also fallen far below the HCPC Standards of Conduct,

performance and ethics in the following respects:
“ 1.  You must act in the best interests of service users”.
“10. You must keep accurate records”.
“13. You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession”.
12. Accordingly, the Panel was satisfied that the Registrant’s conduct amounted to misconduct. The Panel did not consider that the facts constituted lack of competence.


Decision on Impairment


13. The Panel was satisfied that the Registrant’s misconduct has damaged the reputation of his profession and has breached fundamental tenets as set out above. Further, the Registrant’s integrity cannot be relied upon. The Panel was provided with no evidence of remorse, insight or remediation and cannot be satisfied that the misconduct is highly unlikely to be repeated.


14. Accordingly, the Panel concluded that the Registrant’s fitness to practise is currently impaired by reason of his misconduct.


Decision on Sanction


15. The Panel considered the submissions made by Ms Chaker on behalf of the HCPC. The Panel received and accepted the advice of the Legal Assessor.


16. The Panel was mindful that the purpose of any sanction was not to punish the Registrant but to protect the public and maintain public confidence in the profession and the HCPC as its regulator, by the maintenance of proper standards of conduct and behaviour and to serve as a deterrent in relation to such behaviour.


17. The Panel had regard to the Indicative Sanctions Policy. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of seriousness.


18. In determining the appropriate and proportionate sanction, the Panel had regard to its findings of fact and misconduct and that the Registrant’s fitness to practise is currently impaired, having breached fundamental tenets and due to his lack of integrity. The Panel was also not provided with any evidence of remorse, insight or remediation and could not be satisfied that the misconduct was highly unlikely to be repeated.

19. In deciding whether to impose any sanction, the Panel had regard to paragraph 14 of the Indicative Sanctions Policy which states,


 "The degree of insight displayed by a registrant is central to a proper determination of whether fitness to practise is impaired and, if so, what sanction (if any) is required. The issues which the Panel need to consider include whether the registrant: 


• has admitted or recognised any wrongdoing;
• has genuinely recognised his or her failings;
• has taken or is taking any appropriate remedial action;
• is likely to repeat or compound that wrongdoing.


20. The Panel considered as a serious aggravating factor that the Registrant had repeatedly taken advantage of Service User A, who was particularly vulnerable due to his age and severe stroke profound deafness, over a prolonged four-year period, causing the Service User substantial financial loss. The number and frequency of hearing aids inappropriately or without proper testing, provided to Service User A is an additional aggravating factor, as is the fact that the dishonesty occurred in the course of the Registrant’s professional practice as a Hearing Aid dispenser.


21. As mitigation, the Panel took into account the absence of any previous complaints or disciplinary proceedings concerning the Registrant and that he did not dispute most of the factual allegations.


22. Given the seriousness of the matters found proved, the Panel considered that it was necessary to impose a sanction in this case and that taking no action or imposing a caution would not be appropriate or proportionate. For the same reasons, the Panel considered that this was not an appropriate case for mediation.


23. The Panel next considered whether a Conditions of Practice Order was appropriate and proportionate. It had regard to the nature of the matters found proved which did not involve clinical failings capable of being remedied through retraining or supervision. The Panel considered that the misconduct arose as a result of attitudinal problems for which appropriate and workable conditions of practice could not be formulated. Furthermore, the case involved dishonesty and serious misconduct. The Panel could not formulate conditions which would satisfactorily protect the public or satisfy the wider public interest.

24. The Panel next considered a Suspension Order and had regard to the Indicative Sanctions Policy that such an order was appropriate where remediation was possible and where a Registrant had demonstrated some insight.


25. Whilst it may be possible to remedy some of the Registrant’s record keeping failures, the Panel considered that the essential gravamen of the misconduct, comprising serious dishonesty and the exploitation of a vulnerable Service User for financial gain, rendered a suspension order wholly insufficient.


26. In all the circumstances, given the Registrant’s lack of insight, remediation or remorse and having regard to the gravity of the misconduct which was calculated and repeated over a long period of time, the Panel concluded that it was not possible to protect the public and the reputation of the profession other than by imposing a striking off order.

Order

Order:
The Registrar is directed to strike the name of Paul N Coxon from the Register.

Notes

A Final Hearing of the Conduct and Competence Committee convened to hear the case of Mr Paul N Coxon at 405 Kennington Road, London between 31 July to 1 August 2017

Hearing history

History of Hearings for Mr Paul N Coxon

Date Panel Hearing type Outcomes / Status
31/07/2017 Conduct and Competence Committee Final Hearing Struck off