Saunders v The Hearing Aid Council

An appellate court reviewing a disciplinary sanction must decide whether the tribunal’s decision was wrong, applying a broader standard than judicial review for irrationality. Appropriate weight must be given to specialist expertise, but the degree of deference depends on the circumstances and the tribunal’s composition. A sanction must be proportionate to the proved misconduct and based on sound evidence. Significant findings which materially increase culpability must be supported by the evidence. Where a disciplinary tribunal gives insufficient weight to relevant mitigating circumstances and imposes an excessive sanction, the appellate court may quash it and substitute a proportionate sanction.

Mr Saunders appealed under section 9 of the Hearing Aid Council Act 1968 against the Disciplinary Committee’s decision to erase his name from the Register of Hearing Aid Dispensers and order him to pay £30,000 costs. The Committee found that he had stored lawful pornographic images, including an image of himself, on a work computer and had breached the Council’s Code of Practice. The appeal challenged only the proportionality of erasure and the costs order. The central issues were whether the Committee had relied on an unsupported finding of sustained conduct and repeated downloading, and whether erasure and costs were proportionate.

1. The appeal was allowed in substance. The order erasing Mr Saunders’s name from the register was quashed, a six-month suspension was substituted, and the costs order was quashed.

2. The parties accepted the approach summarised in Cheatle v General Medical Council [2009] EWHC 649 (Admin): the question was whether the Committee’s decision was wrong; that was broader than review for irrationality; and appropriate weight had to be given to the expertise of a specialist tribunal. The degree of deference depended on the circumstances, including the composition of the panel. The Committee consisted of three lay and two professional members, and the case did not involve clinical practice or professional judgment.

3. There was no challenge to the finding that Mr Saunders had breached the Code. His conduct was unprofessional and wholly inappropriate in a workplace. However, the Committee’s finding of a sustained course of conduct involving repeated downloading and storage was unsupported. The evidence concerning the generality of the images was not confined to the images in the charge, and the appellant’s evidence that the relevant events occurred over two or three days was uncontradicted.

4. The evidentially unsupported finding was significant because it underpinned both the finding as to conduct and the sanction. The Committee also gave insufficient weight to the fact that the images were lawful, had been deleted at least a year before discovery, were apparently inaccessible, and had not been seen by any patient. Those matters were relevant to proportionality.

5. Although the Committee stated that it was seeking a proportionate response rather than punishment, on the facts erasure served no apparent purpose other than punishment. Suspension for six months properly reflected the gravity and circumstances of the misconduct. The Council’s reduced costs claim was also quashed, having regard to Mr Saunders’s lack of means, loss of employment and the financial penalty imposed by suspension.

The judgment does not state the outcome of any earlier appeal or review. This was an appeal to the Administrative Court under section 9 of the Hearing Aid Council Act 1968 from the Disciplinary Committee’s decision dated 9 February 2009.