Mrs Daniela Ionescu

: Hearing aid dispenser

: HAD02985

Interim Order: Imposed on 14 Mar 2017

: Final Hearing

Date and Time of hearing:10:00 29/01/2018 End: 17:00 30/01/2018

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

: Conduct and Competence Committee
: Suspended

Allegation

While registered as a Hearing Aid Dispenser and employed at Scrivens Opticians and Hearing Care between 19 December 2016 and 1 February 2017:

 

1. You did not demonstrate the core competencies required to work safely and effectively as an autonomous practitioner, namely that you were unable to demonstrate that you could competently complete and/or complete parts of the following independently:

 

a) Pure Tone audiometry

b) Aural impression taking

c) Hearing aid programming and/or fitting

d) conducting a clinical case history

e) explaining the results of assessments to patients

 

2. The matters set out in paragraph 1 constitute a lack of competence.

 

3. By reason of your lack of competence, your fitness to practise is impaired.

Finding

Preliminary matters
Service
1. The Panel heard that notice in respect of this hearing was sent by first class post and email to the Registrant’s registered address on 23 October 2017 in accordance with Rules 3 and 6 of the Conduct and Competence Procedure Rules 2003.

2. The Panel heard and accepted the advice of the Legal Assessor and determined that the notice had been served in accordance with the Rules.

Proceeding in the absence of the Registrant
3. Ms Vignoles, on behalf of the HCPC, invited the Panel to proceed in the absence of the Registrant. She informed the Panel that while there has been some communication between the HCPC and the Registrant both prior to and subsequent to the service of the notice of hearing, there has been no response to that notice or indeed any engagement in relation to this hearing.         
                                           
4. Ms Vignoles referred the Panel to the guidance contained in the HCPTS Practice Note on ‘Proceeding in the Absence of the Registrant’ and submitted that in the absence of any engagement from the Registrant in relation to the hearing it was appropriate for the Panel to exercise its discretion to proceed on the basis that the Registrant had chosen not to attend the hearing and had waived the right to appear. She submitted that the public interest in the expeditious disposal of the Allegation outweighed any disadvantage to the Registrant in proceeding in her absence. Ms Vignole said that it would run counter to the overarching objective of the protection of the public if a Registrant could effectively frustrate the process by deliberately failing to engage with it.

5. The Panel heard and accepted the advice of the Legal Assessor who reminded it of the guidance provided in the cases of R v Jones [2002] UKHL5, Adeogba v the General Medical Council [2016] EWCA Civ 162 and Davies v HCPC [2016] EWHC 1593 (Admin).

6. The Panel recognised that the discretion to proceed in the absence of a Registrant is one which must be exercised with the utmost care and caution and that its decision should be guided by the overarching objective to protect the public.

7. In reaching its decision, the Panel had regard to the nature and circumstances of the Registrant’s behaviour in absenting herself. In these circumstances in which there has been no engagement at all from the Registrant in relation to the hearing, the Panel concluded that she had voluntarily absented herself and so waived her right to be present. The Panel balanced the public interest in the timely disposal of the Allegation with any disadvantage to the Registrant should the hearing proceed in her absence. It also noted the inconvenience to the two witnesses, in attendance, if the hearing were not to proceed.

8. The Panel had no reason to believe that, if it were to adjourn the hearing, the Registrant would attend on the next occasion.

9. For the reasons set out above, the Panel concluded that it would be fair and in the interests of justice to proceed in the absence of the Registrant.

Declarations
10. Ms Vignoles informed the Panel that one of the witnesses she intended to call, Witness 1, is and has been a Registrant Panel Member sitting on HCPTS panels.

11. The Chair declared that she had never met Witness 1.

12. The Lay Panel Member declared that she had no recollection of ever having met Witness 1.

13. The Registrant Panel Member declared that, some 30 years before, he had been employed by the same company as Witness 1 and that he had seen him on isolated professional occasions subsequently.

14. The Legal Assessor advised that there was no issue with a witness who  happened to be a serving Panel Member giving evidence at a HCPTS hearing. However, the question to be answered by each Panel Member was whether, in light of their individual knowledge of the Witness, the  fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Panel was biased.

15. Each member of the Panel declared that they felt able to hear this case without bias, and the Panel concluded that the fair-minded and informed observer, having considered the facts, would conclude that there was no real possibility that the Panel was biased.

Application to amend Particular 1
16. Ms Vignoles applied to amend Particular 1 on the basis that the proposed amendment would mean that the Particulars would more accurately reflect the case against the Registrant.

17. The Panel heard that notice of the proposed amendment had been sent to the Registrant by email and by post on 5 October 2017. The Registrant had not lodged any objection to the proposed amendment.

18. The Panel heard and accepted the advice of the Legal Assessor.

19. The Panel accepted that the amendment would mean that the Particulars would more accurately reflect the case against the Registrant and concluded that there would be no injustice to the Registrant if it allowed the application and would cause no substantial change to the overall strength of the Allegation.

20. The Panel agreed to the amendment.

Background 
21. The Registrant was employed as a registered  Hearing Aid Dispenser with Scrivens Opticians and Hearing Care from 19 December 2016 until 1 February 2017.

22. During the course of her employment, concerns were raised in relation to her  ability to demonstrate the core competencies of a Hearing Aid Dispenser.

Decision on facts
23. In considering the Particulars, the Panel applied the principles that the burden of proving the facts is on HCPC, that the Registrant is not required to prove anything and that any fact alleged is only to be found proved if the Panel is satisfied on the balance of probabilities that it is correct.

24. In reaching its decisions, the Panel had careful regard to all the evidence put before it and to the submissions of Ms Vignoles on behalf of the HCPC.

25. The Panel heard oral evidence from:
• Witness 1, a Hearing Aid Dispenser and Clinical Lead for Hearing for Scrivens Opticians and Hearing, who was responsible for assessing the Registrant’s clinical and technical abilities before she commenced autonomous duties with Scrivens. The Panel found him to be a helpful, clear, fair and reliable witness.
• Witness 2, a Hearing Aid Dispenser and colleague of the Registrant at Scrivens Opticians and Hearing. The Panel found him to be a helpful, clear, fair and credible witness.

26. The documentary evidence before the Panel included:
• A copy of the referral to the HCPC;
• HAD (Hearing Aid Dispensers) Technical Assessment Report by Witness 1 dated 13 January 2017;
• Email report dated 30 January 2017 from Witness 2 to Witness 1;
• Redacted minutes of meeting of 1 February 2017 between the Registrant and Mr A;
• British Academy of Audiology Guidelines for Audiologists;
• British Society of Audiology Recommended Procedure Ear Examination;
• British Society of Audiology Recommended Procedure Pure-tone air-conduction and bone-conduction threshold audiometry with and without masking;
• British Society of Audiology Recommended Procedure Determination of uncomfortable loudness levels;
• British Society of Audiology Recommended Procedure Taking an aural impression;
• Induction Training Programme for week commencing December 19th 2016;
• Registrant’s Application for Employment with Scrivens;
• Registrant’s Job Description.

27. The Panel accepted the advice of the Legal Assessor.

Particular 1(a) – found proved
You did not demonstrate the core competencies required to work safely and effectively as an autonomous practitioner, namely that you were unable to demonstrate that you could competently complete and/or complete parts of the following independently:
a) Pure Tone audiometry  
28. Witness 1, who was responsible for assessing the Registrant’s clinical and technical abilities before she commenced autonomous duties with Scrivens, told the Panel in his written statement that he had conducted his assessment of the Registrant on 13 January 2017 when he had spent the day with her. The Panel had careful regard to the oral evidence of Witness 1, to his sworn statement for the HCPC and to his assessment report dated 13 January 2017 in respect of the Registrant. In each of these Witness 1 reported on his concerns about the Registrant’s competence.

29. Witness 1 stated that he had observed the Registrant conducting Pure Tone Audiometry for at least two patients. He referred the Panel to the ‘British Society of Audiology (BSA) Recommended Procedure For Pure Tone Audiometry’. This recommends a decibel starting point for testing at each frequency, and determines the manner in which the hearing threshold should be established, namely in descent in steps of 10 decibels toward the threshold until below the threshold, and then ascending in steps of 5 decibels until the threshold is reached. Witness 1 stated that the Registrant consistently failed to follow this procedure.

30. Witness 1 informed the Panel that in bone conduction threshold tests, the threshold should be determined on the worst of the patient’s ears. He said the Registrant would have determined this on the patient’s best ear had he not intervened.

31. Witness 1 stated that failure to follow procedure could lead to inaccuracies in the audiometric assessment and such inaccuracies might result in an incorrect diagnosis of conditions which might require medical referral. In addition, if a hearing aid was fitted, there was a potential that this would be programmed to incorrect levels of amplification.

32. Witness 2 stated that he assessed the Registrant performing Pure Tone Audiometry on 10 patients. In his email of 30 January 2017 he stated:

“In regards to Audiometry, I was aware that [the Registrant] used a method quite contradictory to what BSA guidelines are. There were quite a vast number of mistakes, including reducing stimuli even when the patient had not heard the previous sound, ascending and descending in incorrect step sizes, which could vary between 5dB steps one time to 40dB steps another time, and perhaps more seriously, starting stimuli over and above 80dB. I had taught her the correct 30dB method of testing the next sounds, however after a week of correcting and explaining the risks of going beyond 80dB, she is still doing this. I don't feel there has been any real progress in audiometry when compared to [Witness 1’s] report. How it is performed from one day to the next can differ greatly in quality.”
  
Particular 1(b) – found proved
b) Aural impression taking 
33. In his statement Witness 1 said:

“I observed [the Registrant] undertake this on one person during the assessment…the foam block was not placed deeply enough to allow for a satisfactory impression to be taken. When using the syringe, an unsafe technique was used. Firstly, the cotton threads attached to the foam block should hang down the patient's cheek so that the hand not holding the syringe can hold the cotton threads. This is to ensure that when the material is inserted the foam block does not move deeper down the ear canal. This was not done by [the Registrant]. Secondly, the hand holding the cotton thread should provide a ledge providing support for the hand holding the syringe. This would ensure that, if the patient was to move when the material was being placed in the ear, this would provide a brace and prevent injury. Finally, after the impression [the Registrant] did not re-examine the ear to check if residue was left or if an injury had taken place.”

34. Witness 2 referred the Panel to the ‘British Society of Audiology's Recommended Procedure for Taking an Aural Impression’, which he said the Registrant had contravened. In his witness statement Witness 2 said ” I assessed [the Registrant] take aural impressions on two patients. The main concern I had was that [the Registrant] did not perform the correct bracing position”

Particular 1(c) – found proved
c) Hearing aid programming and/or fitting 
35. Witness 1 stated that, with assistance, the Registrant had programmed aids for two patients. In his witness statement, he said:

“I would have expected [the Registrant] to have been able to navigate the programming software much more confidently than she did. Although she had the basic knowledge, she was not able carry out the programming without considerable assistance from me. I was not able to reassess this aspect of the assessment to a point that  [the Registrant] was deemed satisfactory.”

36. Witness 2, in his witness statement, stated that he had assessed the Registrant in respect of four fittings and that he had no “major” concerns about her programming and fitting. However the Panel noted that in 30 January 2017 email, Witness 2 expressed the following concern:
 
“With regards to software and the process of fitting a hearing aid, [the Registrant] started to make adjustments in the client interactive screen without even having spoken to the patient first to get an idea as to how she sounds. Again, having explained that we cannot make adjustments until we know what sounds actually need to be adjusted, [the Registrant] struggled with this on all fittings that we did.”

Particular 1(d) – found proved
d) conducting a clinical case history 
37. Witness 1 stated:

“I was not able to assess [the Registrant] conducting a clinical case history. The main reason for this was that I was not confident that she was sufficiently well practiced in [the company’s} record system for me to effectively assess her… I was also concerned that her spoken English abilities were not good enough to communicate effectively with patients during the consultations. This was an area which I recommended that she received additional training on. This was later assessed by my colleague, [Witness2].”

38. In his witness statement, Witness 2 stated “nearly all of the patients that [the Registrant] spoke to had great difficulty understanding her”. In the email dated 30 January 2017 to his regional manager Witness 2 stated “this resulted in me having to stop her recording information on the clinical case history which was quite clearly contradictory to what the patient had said”

Particular 1(e) – found proved
e) explaining the results of assessments to patients 
39. Witness 1, in his oral testimony and supported by his witness statement, stated that he had not assessed the Registrant explaining results to patients as he was of the opinion it would not be safe for her to work in such an independent manner.
40. Witness 2 stated that he had observed [the Registrant] explaining the results of assessments to approximately five patients. In his 30 January 2017 email, Witness 2 reported:

“Explanation of results is an area where [the Registrant] clearly has quite considerable difficulty, and leaves patients being very confused, with me having to step in and intervene on every explanation so far… I have explained numerous times how to simplify the explanation of the results, but this is still not happening… “

Particular 1(f) – found not proved
f) Otoscopic examinations  
41. In his assessment report dated 13 January 2017, Witness 1  listed six deficiencies he had observed in the Registrant’s otoscopic examinations.  He stated “To her credit, after explaining the omissions to her, [the Registrant] amended her procedure to comply with BSA Recommended Procedure I Company standards in subsequent otoscopic examinations.”

42. In his witness statement, Witness 2 said he observed the Registrant perform otoscopies on 10 patients. He said “In the first few, [the Registrant] did not use the correct bracing procedure…I raised this with her and she subsequently used the correct bracing procedure.”

43. In his email of the 30 January 2017 Witness 2 stated “Her otoscopy is now safe, and she is carrying this out with the correct brace procedure”

Decision on grounds
44. Having made its findings on the facts, the Panel went on to consider whether the matters found proved constituted lack of competence. In this regard, the Panel had careful regard to the submissions of Ms Vignoles and accepted the advice of the Legal Assessor.

45. Ms Vignoles submitted that by reason of the matters alleged in Particular 1 the Registrant had fallen seriously below the standards expected of a Registered Hearing Aid Dispenser as set out in the 2014 edition of the HCPC ‘Hearing Aid Dispensers Standards of Proficiency’. She submitted that the matters alleged in Particular 1 demonstrated serious deficiencies in core competencies which are both fundamental, everyday and basic to the work of a Registered Hearing Aid Dispenser. She said these deficiencies had been identified through a fair sampling of the Registrant’s work undertaken by two assessors, one over one day and the other over four days. She submitted that they constituted a lack of competence which was exacerbated by the Registrant’s deficient English language proficiency.

46. Witness 2 told the Panel he worked with the Registrant for four full days while she shadowed him performing his normal role as a Hearing Aid Dispenser as well as performing the roles herself under his observation. The Panel had careful regard to the oral evidence of Witness 2, to his sworn statement for the HCPC and to his email dated 30 January 2017 to his line manager and to Witness 1. In each of these Witness 2 reported on his concerns about the Registrant’s competence.

47. Witness 2 said that it is possible that loud noises such as those experienced by patients during the Registrant’s Pure Tone testing procedures could exacerbate conditions such as tinnitus. He informed the Panel that the BSA’s recommended procedure states “Care needs to be taken when using high levels of masking, particularly when testing at several frequencies, as it can present a risk to the subject” .

48. With regard to Particular 1(b) aural impression taking Witness 1 said in his statement:

“Finally, after the impression [the Registrant] did not re-examine the ear to check if residue was left or if an injury had taken place. The lack of bracing and lack of holding the cotton threads could have caused an injury. The fact that the foam block had not been placed deeply enough could have led to the custom ear mould or hearing aid not being suitable”

49. In his witness statement Witness 2 said:

 “Applying pressure or pushing/flattening the material after it is in the ear risks getting an impression with an incorrect shape, which would result in an ill-fitting hearing aid or earmould, or, in more serious cases, forces the material further down the ear causing great discomfort or even perforation of the eardrum.”

50. With regard to Particular 1(d), conducting a clinical case history, in his witness statement Witness 2 stated:

“A consequence of not conducting a clinical case history properly could have been that [the Registrant] could have missed out on a referable condition. For example, if the patient had persistent, unilateral tinnitus, or vertigo/dizziness/swaying of movement when walking, you would need to refer them to their GP. If [the Registrant] did not understand the patient or they did not understand her and had given a wrong answer, this could mean that [the Registrant] may miss important information.”

51. With regard to Particular 1(e), explaining the results of assessments to patients, Witness 2 stated in his email of 30 January 2017:

“They are simply told they have a loss and that she will now start the process of referring them to their GP for hearing aids, which has greatly upset some patients, as in some cases they have stated they are not having any problems at all…”

52. With regard to the facts found proved, the Panel concluded that the Registrant had fallen short of the following Standards of Proficiency expected of a Registered Hearing Aid Dispenser:
Standard 1 be able to practise safely and effectively within their scope of practice
Standard 4  be able to practise as an autonomous professional, exercising their own professional judgement
Standard 8 be able to communicate effectively
Standard 12 be able to assure the quality of their practice
Standard 13 understand the key concepts of the knowledge base relevant to their profession
Standard 14 be able to draw on appropriate knowledge and skills to inform practice

53. The Panel decided that the matters found proved represented a fair sample of the Registrant’s work and demonstrated that the Registrant had not performed to the correct standard. In those circumstances, the Panel concluded that this constituted a lack of competence.

Decision on impairment
54. The Panel then went on to consider whether the Registrant’s fitness to practise is impaired by reason of her lack of competence. It had careful regard to all the evidence before it and to the submissions of Ms Vignoles. It accepted the advice of the Legal Assessor and had particular regard to the HCPC’s Practice Note on ‘Impairment’.

55. The Panel concluded that the Registrant’s lack of competence had fallen seriously short of the Standards of Proficiency expected of a Registered Hearing Aid Dispenser, and was such as to put patients at unwarranted risk of harm and bring the profession into disrepute. In those circumstances the Panel had no doubt the Registrant’s fitness to practise had been impaired by reason of her lack of competence.

56. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of her lack of competence. In addressing the personal component of impairment, the Panel asked itself whether the Registrant is liable, now or in the future, to repeat or persist in this lack of competence. In reaching its decision, the Panel had particular regard to the issues of insight and remediation.

57. In considering the extent to which the Registrant had or had not demonstrated insight into her failings, the Panel noted that in her interview with her line manager on 1 February 2017 following feedback from Witnesses 1 and 2, the Registrant is reported to have stated: “I realise that I need to do some reading. I have not been working for a while and realise that I need to be a lot more confident before I have the type of meeting I had with [Witness 1].”

58. The Registrant has not engaged with the proceedings and the Panel has not had the benefit of hearing from her, in person or in writing.  As a consequence, the Panel is unable to conclude that the Registrant has demonstrated any meaningful insight into her failings.

59. The Panel recognised that clinical failings are usually easier to remedy than those, for example, which involve entrenched attitudinal problems. However, it has received no evidence of any steps which the Registrant may have taken since the time of the allegation, to remediate her failings. Accordingly, it had no choice but to conclude that the Registrant’s lack of competence is highly likely to persist. For these reasons, the Panel determined that a finding of personal impairment is required on the ground of public protection.
60. The Panel then went on to consider whether a finding of impairment is necessary on public interest grounds.  In addressing this component of impairment, the Panel had careful regard to the critically important public issues identified by Silber J in the case of Cohen when he said:

“Any approach to the issue of whether .... fitness to practise should be regarded as ‘impaired’ must take account of ‘the need to protect the individual patient, and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.”

61. The Panel considered that maintaining competence to undertake safe and effective practice is a fundamental requirement of the profession of Hearing Aid Dispensers and that the public would be concerned to learn of the deficiencies in such fundamental and basic skills and competencies demonstrated by a Registered Hearing Aid Dispenser. The Panel had no doubt that the need to maintain public confidence in the profession, and to declare and uphold proper standards, would be undermined if a finding of impairment of fitness to practise were not made in the circumstances of this case.

62. For all the reasons set out above, the Panel determined that the Registrant’s fitness to practise is currently impaired, both on the grounds of public protection and in the public interest. 

Decision on sanction
63. The Panel next considered what, if any, sanction to impose on the Registrant’s registration. It had careful regard to all the evidence put before it and to the submissions of Ms Vignoles. It accepted the advice of the Legal Assessor.
64. Ms Vignoles drew the Panel’s attention to the HCPC’s Indicative Sanctions Policy (ISP) and submitted that the question of sanction is a matter for the Panel’s own independent judgment.

65. In reaching its decision the Panel had at the forefront of its thinking the principle of proportionality and the need to balance the interests of the Registrant with the protection of the public and the wider public interest in maintaining confidence in the profession and the HCPC, and declaring and upholding proper standards of conduct and performance.

66. In reaching its decision, the Panel had regard to all the circumstances, including the following mitigating and aggravating features of the case:

Mitigating factors
• The Panel received no evidence to suggest that there were attitudinal failings or indifference to outcome;
• The Registrant had demonstrated very limited insight in recognising the need for more training;
• The Panel received no evidence that the Registrant had previously been brought before her regulator in respect of any other matters.

Aggravating factors
• The basic and fundamental nature of the deficiencies in respect of a wide range of core competencies;
• The persistence of the failings, even after assistance, training and advice had been provided;
• Errors occurring despite direct and close supervision;
• Patients were put at unwarranted risk of harm .

67. The Panel first considered whether it would be appropriate to impose no sanction in this case. It gave careful consideration to Paragraph 8 of the ISP. The Panel determined that in light of its findings the Registrant has demonstrated no insight or remediation and that there remains a high risk of repetition or persistence of her serious and wide-ranging lack of competence, the imposition of no sanction would neither protect the public nor serve the wider public interest in maintaining confidence and declaring and upholding proper standards.

68. The Panel next considered the imposition of a Caution Order. It gave careful consideration to the factors set out in ISP. The Panel determined that in light of its findings that the Registrant has demonstrated little insight or remediation and that there remains a high risk of repetition or persistence of her serious and wide-ranging lack of competence. The imposition of a Caution Order would be inappropriate as it would neither protect the public nor be sufficient to mark the wider public interest.

69. The Panel then considered the imposition of a Conditions of Practice Order. It gave careful consideration to Paragraphs 30-38 of the ISP. In considering the suitability of a Conditions of Practice Order, the Panel noted that, while clinical failings are, in principle, possible to remediate through a Conditions of Practice Order, the Registrant’s lack of competence is wide-ranging and at a fundamental level, and the Panel has received no evidence of meaningful insight or remediation. As a consequence, any conditions would need to be so onerous as to be unworkable and therefore tantamount to suspension. Further, the Registrant has not engaged with this hearing and the Panel can have no confidence that she would engage with a Conditions of Practice Order. In all the circumstances, the Panel concluded that such an option is neither workable nor appropriate at this time.

70. The Panel went on to consider the imposition of a Suspension Order. It gave careful consideration to Paragraphs 39-45 of the ISP. Such an order would protect the public while providing the Registrant with an opportunity to reflect on her failings and take the first steps towards remedying them by undertaking training in order to improve her English language proficiency and acquire the core competencies necessary for compliance with the HCPC Standards of Proficiency for Hearing Aid Dispensers. The Panel considered that a period of 12 months would be required for this purpose, but noted that it would be open to the Registrant to seek an early review if her progress was rapid.

71. The Panel recognised that a Striking-off Order is not available to it at this time.

72. For all the reasons set out above the Panel decided that a 12 month Suspension Order is the only appropriate and proportionate sanction in this case.

73. The Panel considered that a reviewing panel would be likely to be assisted by:
• The Registrant’s attendance;
• A reflective piece from the Registrant with regard to the failings found;
• Evidence from the Registrant as to any steps she may have taken in order to remediate her failings, including her lack of proficiency in the English language.

Order

That the Registrar is directed to suspend the registration of Mrs Daniela Ionescu for a period of 12 months from the date this order comes into effect. 

Notes

The order imposed today will apply from 27 February 2018 (the operative date).

Hearing history

History of Hearings for Mrs Daniela Ionescu

Date Panel Hearing type Outcomes / Status
29/01/2018 Conduct and Competence Committee Final Hearing Suspended