Saunders v Hearing Aid Council
| Jurisdiction | England & Wales |
| Judgment Date | 29 March 2010 |
| Neutral Citation | [2010] EWHC 629 (Admin) |
| Docket Number | Case No: CO/8228/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 March 2010 |
[2010] EWHC 629 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Before: The Honourable Mrs Justice Nicola Davies DBE
Case No: CO/8228/2009
Mr Jamie Carpenter (instructed by Stephenson Solicitors LLP) for the Claimant
Mr John McNally (instructed by Kingsley Napley) for the Defendant
Hearing date: 19 February 2010
THE HONOURABLE MRS JUSTICE NICOLA DAVIES DBE:
This is an appeal by Mr. Saunders pursuant to section 9 of the Hearing Aid Council Act 1968 (‘the Act’) against a decision of the Council's Disciplinary Committee (‘the Committee’) dated 9 February 2009 to erase the name of Mr. Saunders from the Register of Hearing Aid Dispensers, and further ordering him to pay costs of £30,000.
Section 7 of the Act provides grounds upon which a sanction may be imposed on a registered dispenser by the Disciplinary Committee of the Council. The three categories of conduct which may result in sanction are:
i) A conviction for a non-trivial criminal offence.
ii) Serious misconduct in connection with the dispensing of hearing aids or the training of persons to act as dispensers of hearing aids.
iii) Contravention of any code of trade practice published by the Council under section 1 of the Act.
It is in relation to category (iii) that it is alleged the appellant's conduct falls. Paragraph 1(a) of the Code of Practice provides ‘all dispensers and all employers of dispensers shall maintain at all times a high standard of ethical conduct in the operation of their practices, the dispensing of hearing aids and in the training of their trainees.’.
If found proved pursuant to Section 7(1), the Committee may impose any one or more of the following penalties:
i) An admonition;
ii) A monetary penalty, presently not exceeding £5,000;
iii) Suspension of the registration of a person's name for such a period as the committee think fit;
iv) Erasure from the register of the name of the person.
Section 8 of the Act permits a person whose name has been erased from the register to apply to the Committee to be reinstated, but not before 10 months from the date of erasure.
Section 10(3A) empowers the Committee to order any party to the proceedings before them to pay the whole or any part of the cost of the proceedings.
The appellant is a registered dispenser of hearing aids. In May 2005 he began working at a Specsavers store in Eastbourne. He did so under a standard arrangement whereby a company was created, Eastbourne Specsavers Hearcare Limited, of which the appellant was a director and employee. The company was part-owned by the appellant and part-owned by Specsavers. The appellant had access to a computer in the ‘open hearcare’ testing room, a room used for carrying out hearing tests and programming hearing aids. In addition to work related matters the appellant used the computer to receive personal emails. Through a social networking website the appellant received pornographic pictures which he viewed and saved onto the computer. The appellant deleted these images, but it would appear that thumbnail versions of the images remained stored on the computer. On 27 April 2007 another employee of Specsavers visited the Eastbourne shop. He inserted a USB memory stick into the computer in order to transfer some files of patient records. The insertion of the memory stick caused a computer programme to open, displaying thumbnails of the deleted images on the screen. The employee alerted more senior employees within the company and there followed an investigation by the police and by Specsavers. The police took no action against the appellant, however, the matter was referred to the Hearing Aid Council.
The Hearing
At the outset of the hearing on 16 October 2008, Counsel who appeared on behalf of the Council informed the Committee that he was limiting the original charge, by reducing the number and nature of images relied upon. Originally the nature of the images went beyond what might be termed adult pornography, but it was adult pornography images which were now relied upon. The charge as formulated read:
“CHARGE 1
That contrary to Clause 1(a) of the Code in force at all material times
1. Between the 23 May 2005 and 9 May 2007 you were an employee and director of Eastbourne Specsavers practising at 43 Terminus Road, Eastbourne, East Sussex, BN21 3QL. Your duties included the dispensing of hearing aids and the day to day management of Eastbourne Specsavers.
2. The facilities at Eastbourne Specsavers included a testing room. Situated within the testing room was a computer (‘the Computer’), the principal use of which was intended to be the maintenance of client records and programming of hearing aids. Consequently, the use of the computer was not restricted to yourself as other individuals required access to it from time to time, in order to undertake their professional duties.
3. Between 23 May 2005 and 29 April 2007 you stored a number of pornographic images on the computer. These images included adult pornography and an image of yourself naked. You stored these images in a file named ‘Dirty’.
4. On or around 28 April 2007, a locum hearing aid dispenser used the Computer in your absence and was exposed to indecent images stored on the Computer.
5. You failed to comply with the terms of Clause 1(a) of the Code in relation to maintaining a high standard of ethical conduct in the operation of your practices relating to your use of the computer in that you used it to store the following images:
i. pornographic images of adults.
ii. an image of yourself naked.
Further, in storing these images on the computer, you exposed your colleagues to images of an offensive nature”
The substantive hearing commenced on 16 October 2008 and continued on 10 December 2008 and 9 February 2009. The appellant was represented by counsel at the preliminary hearing, thereafter he was unable to afford legal representation. The appellant accepted that he had stored pornographic images on the computer, but denied there was a naked image of himself. The Committee found that there was an image of the naked appellant on the computer. It also found that the appellant had fallen below the standard of conduct required. The Committee ordered the appellant's erasure from the register and that he pay costs in the sum of £30,000.
Appeal
It is contended by the appellant and not disputed by the respondent that the approach of the court should be that summarised in the case of Cheatle v General Medical Council [2009] EWHC 649 (Admin) 12–15. In essence:
i) The question is whether the Committee's decision was wrong;
ii) This is a broader test than judicial review of rationality;
iii) Weight must be given to the expertise of a specialist tribunal, particularly in relation to sanction, but the amount of deference to be given depends on the circumstances, including the composition of the panel, for example whether it has more lay than professional members.
At the outset, it appeared that there may be an issue as to whether or not this appeal was out of time, but this is not a matter which has been pursued.
The sole ground of appeal is that the sanction of erasure was disproportionate and the costs order was wrong or excessive.
Given the facts of this particular case it is contended on the behalf of the appellant that less deference should be given to the Committee than might otherwise be the case. These facts do not involve clinical practice or issues of professional judgment. The Committee comprised three lay and two professional members. The court is therefore in as good a position as the Committee to exercise its judgment as to the appropriate sanction.
It is submitted that the sanction of...
To continue reading
Request your trial
-
Professional Discipline & Regulatory E-bulletin April 2010
...harm when a finding of past harm has been made. For the full judgement please click here Sanction Saunders v The Hearing Aid Council [2010] EWHC 629 (Admin) In this appeal to the High Court the appellant contended that the sanction of erasure and the costs penalty of £30,000 was too severe.......