Gill, R (on the application of) v Hearing Aid Council

When reviewing a professional disciplinary penalty, the court must not substitute its own view for that of the disciplinary body. The question is whether the penalty was wrong or improper. Courts should intervene with care and circumspection, particularly where the disciplinary body has specialist knowledge of the profession and the conduct concerned.

Clear and prolonged breaches of professional rules may justify substantial penalties even where there was no dishonesty, fraud or personal financial gain. A guilty plea will ordinarily attract credit, but that principle does not require a reduction where the circumstances justify the penalty imposed. A regulator’s indication that a practitioner may continue in business cannot fetter its statutory disciplinary discretion.

Mr Gill, a registered hearing aid audiologist and managing director of a hearing aid business, pleaded guilty before the Hearing Aid Council to breaches of clauses 3, 11, 19 and 21 of the Hearing Aid Code of Practice. The breaches concerned the provision of advice, disclosure of the make and model of hearing aids, manufacturers’ guarantees and responses to the Council’s enquiries.

The Council imposed a three-month suspension, fines totalling £18,000 and costs of £25,000. Mr Gill challenged the penalties, principally on the grounds that the conduct involved no dishonesty, that guilty pleas should have attracted greater credit, and that suspension jeopardised his new business. The central issue was whether the Council’s penalties were wrong or improper.

1. The challenge was dismissed. The court declined to substitute its own view of the appropriate penalty for that of the Hearing Aid Council. Its task was limited to deciding whether the Council had got the penalty wrong or had acted improperly.
2. The Council possessed closer and more realistic experience of the profession and of the significance of breaches by one of its members. That justified judicial restraint, although it did not exclude intervention in an appropriate case. The court was required to approach the Council’s decision with care and circumspection.
3. The breaches were clear, prolonged and professionally significant. The practice could deprive clients of the best advice, prevent them from identifying the make and model supplied, weaken their legal position under manufacturers’ guarantees and obstruct the Council’s regulatory work. The absence of dishonesty or fraud, and the existence of apparently good commercial motives, did not prevent the Council from treating the conduct as serious.
4. A guilty plea will almost always attract some credit, but the principle does not require a reduction where the surrounding circumstances justify the penalty. The fines for breaches of clauses 3, 11 and 21 were the maximum fines, but they were not necessarily the maximum penalties because suspension was also available. The lower fine for breach of clause 19 demonstrated that the Council had not imposed the maximum automatically.
5. The Council’s awareness that Mr Gill wished to remain in practice, or any indication that it wished him to continue in business, could not fetter its obligation to impose the penalty it considered proper in the public interest. The penalties and costs order therefore stood.

The judgment concerned a challenge to the Hearing Aid Council’s disciplinary determination dated 5 December 2003. The Council had found Mr Gill guilty of four breaches of the Hearing Aid Code of Practice and imposed suspension, fines and costs. The Administrative Court upheld the penalties.