The Hearing Aid Council Investigating and Disciplinary Committee Rules Approval Instrument 1991

SCHEDULE

THE HEARING AID COUNCIL DISCIPLINARY COMMITTEE (PROCEDURE) RULES 1991

The Hearing Aid Council, in exercise of their powers under section 10(4) of the Hearing Aid Council Act 1968 (as amended by the Hearing Aid Council (Amendment)Act 1989), hereby make the following Rules:–

PART I CITATION, INTERPRETATION AND REVOCATION

1.—(1) These Rules may be cited as the Hearing Aid Council Disciplinary Committee (Procedure) Rules 1991.

(2) In these Rules, unless the context otherwise requires–

“the Act” means the Hearing Aid Council Act 1968 (as amended by the Hearing Aid Council (Amendment) Act 1989;

“the Chairman” means the Chairman or the Acting Chairman of the Committee;

“the Committee” means the Disciplinary Committee set up by the Council in pursuance of section 6(1) of the Act;

“complainant” means a person or body by whom a complaint has been made to the Council in a case to which these Rules apply and who has either–

(a)

given notice to the Solicitor before the inquiry (and has not subsequently withdrawn the notice) that he intends to appear as a party to the inquiry; or

(b)

successfully applied to the Committee at the inquiry to be joined as a party;

Provided that a complainant shall not be deemed to appear in any proceedings if he takes part therein only as a witness;

“the Council” means the Hearing Aid Council;

“disciplinary case” means a disciplinary case as defined in section 5(1) of the Act which the Investigating Committee decide ought to be referred to the Disciplinary Committee pursuant to section 5(2) of the Act;

“inquiry” means the proceedings at which the Committee consider and determine any disciplinary case or other case to which these Rules apply;

“the Investigating Committee” means the Committee set up by the Council in pursuance of section 5(1) of the Act for the preliminary consideration of disciplinary cases;

“the Legal Assessor” means an assessor appointed by the Council or the Committee for the purposes of section 11 of the Act;

“party to the inquiry” means the complainant (if any), the Solicitor and any person on whom a notice of inquiry has been served in accordance with these Rules;

“the register” means the register maintained in accordance with section 2(1)(a) of the Act, or the register maintained in accordance with section 2(1)(b) of the Act, as the case may be;

“the Registrar” means the Registrar of the Council;

“the respondent” means any person or body corporate whose name has been entered in a register under the provisions of the Act in respect of whom a case to which these Rules apply has been referred to the Committee for inquiry; and

“the Solicitor” means a solicitor nominated by the Council to act as their solicitor for the purposes of these Rules, and in relation to any inquiry includes counsel instructed by the Solicitor to act on his behalf.

(3) The Hearing Aid Council Disciplinary Committee (Procedure) Rules 1971 are hereby revoked.

PART II PRELIMINARY PROCEEDINGS

Notice of inquiry

2.—(1) The Solicitor shall, as soon as may be after a disciplinary case has been referred to the Committee, serve upon the respondent a notice of inquiry as nearly as may be in the form set out in the Appendix to these Rules stating the charge or charges and specifying the alleged facts relied on in relation to each charge and the provision of section 7 of the Act under which any charge is brought, stating also the day, time and place at which the Committee will hold an inquiry into these matters.

(2) The notice shall be served, together with a copy of these Rules and of the Act, by sending it by recorded delivery post addressed to the respondent at his address in the register or at his last known address if that address differs from his address in the register and it appears to the Registrar that service at his last known address would be more effective.

(3) Where the respondent is a body corporate, the notice of inquiry, together with a copy of these Rules and of the Act, shall be served by recorded delivery post addressed to that body at its address in the register or at the address of its registered or principal office if that address differs from its address in the register and it appears to the Registrar that service at its registered or principal office would be more effective.

(4) If there is a complainant, the Solicitor shall send him a copy of the notice of inquiry and a copy of these Rules.

(5) The Committee shall not hold an inquiry unless a notice of inquiry has been served upon the respondent in accordance with the foregoing provisions of this rule.

(6) Except with the agreement of the respondent the inquiry shall not be held within 28 days after the date of posting the notice of inquiry.

Postponement or cancellation of inquiry

3.—(1) The Chairman, upon the application of any party thereto, may postpone the hearing of any inquiry.

(2) The Chairman may refer a disciplinary case back to the Investigating Committee for further consideration either upon the application of a party to the inquiry or upon the emergence of fresh evidence justifying such a reference.

(3) Where before the inquiry opens it appears to the Chairman, or at any stage of the proceedings it appears to the Committee, that a notice of inquiry is defective, he or they shall cause the notice to be amended, unless it appears to him or them that the required amendment cannot be made without injustice, or, if he or they consider that the circumstances in which an amendment is made require it, he or they may direct that the amended notice shall be served on the respondent and that the inquiry shall be postponed.

(4) The Solicitor shall, as soon as practicable, give to all parties to whom a notice of inquiry has been sent notification of any decision to postpone or not to hold an inquiry, and inform them of any date fixed for the hearing of a postponed inquiry.

Access to documents

4.  Upon application by any party to the inquiry the Solicitor shall send to that party a copy of any statutory declaration, complaint, answer, admission, explanation or other similar document received by the Council from any party to the inquiry.

PART III DISCIPLINARY CASES

The reading of the charge or charges

5.—(1) The charge or charges shall be read in the presence of the respondent, and of the complainant (if any, and if he appears); Provided that if the respondent does not appear at the inquiry but the Committee nevertheless decide that the inquiry shall proceed the charge or charges shall be read in his absence.

(2) As soon as the charge or charges have been read the respondent may, if he so desires, object to the charge or charges, or to any part thereof, in point of law.

(3) The complainant or, if no complainant appears, the Solicitor may then address the Committee on any objections in point of law raised by the respondent.

(4) The respondent may then address the Committee in reply to any points made to the Committee by the complainant or the Solicitor.

(5) The Committee shall then deliberate and decide in relation to each charge, or any part thereof, whether or not the objection thereto in point of law by the respondent is sustainable, and the Chairman shall announce their findings in this regard. If any such objection is upheld, no further proceedings shall be taken on a charge or on a part of a charge with regard to which the objection has been upheld.

(6) If the Committee uphold the objection of the respondent to any charge under Section 7 of the Act in whole or in part, a finding to that effect shall be recorded, and a copy of the finding so recorded shall be sent, in the manner provided for the service of notices under Rule 2, to the respondent and such other persons, being persons likely to be affected by the finding, as the Chairman may direct.

(7) Having considered any objection, the Committee shall proceed as set out in Rule 6 to consider any charge or part of a charge to which no objection has been made in point of law and any charge or part of a charge with regard to which the objection has not been upheld.

Proof of the facts alleged

6.—(1) If the respondent has appeared at the inquiry, the Chairman shall ask if all or any of the facts alleged in the charge or charges are admitted.

(2) The complainant or, if no complainant appears, the Solicitor shall then open the case and may call witnesses and adduce evidence of any such facts not admitted by the respondent and of any matter connected with the facts alleged which may be relevant.

The respondent may cross-examine any such witness and the witness may thereafter be reexamined.

(3) The respondent may then submit that the evidence called by the complainant or, if no complainant appears, the Solicitor does not establish the charge alleged or does not justify the imposing of any of the penalties mentioned in rule 7. The Committee shall consider and determine any such submission, and the Chairman shall thereupon announce their determination.

(4) If no such submission is made or if any such submission is not upheld the respondent may then call witnesses and adduce evidence; such witnesses may be cross-examined and re-examined, and the respondent may address the Committee either before or after such evidence but not more than once save with the leave of the Committee. The complainant or, if no complainant appears, the Solicitor may address the Committee on any point of law raised by the respondent.

(5) Where the respondent adduces evidence the complainant or, if no complainant appears, the Solicitor may address the Committee thereon and may, with the leave of the Committee, call witnesses and adduce evidence in rebuttal and such witnesses may be cross-examined and reexamined. The respondent shall have the right to address the Committee upon such address or evidence in rebuttal.

(6) The Committee shall then deliberate and decide in relation to each charge which remains outstanding whether the facts alleged in such charge or charges have been proved and in relation to any facts found by the Committee to have been proved whether they are such as to substantiate such charges, and the Chairman shall announce their findings:

Provided that if the Committee find that any charge under section 7 of the Act is not proved a finding to that effect shall be recorded, and a copy of the findings so recorded shall be sent, in the manner provided for the service of notices under rule 2, to the respondent and such other persons, being persons likely to be affected by the finding, as the Chairman may direct. Procedure where charge found proved

7.—(1) Where the Committee finds that a charge is proved the Chairman shall invite the Solicitor to adduce evidence of the circumstances leading up to the facts found proved and as to the character and antecedents of the respondent.

(2) The respondent may then address the Committee in mitigation and adduce any relevant evidence.

(3) The Committee shall then deliberate and decide whether to postpone judgment or forthwith to impose on the respondent any one or more of the following penalties:

(i) issue an admonition;

(ii) impose a monetary penalty on the respondent not exceeding £1,000 or such sum as the Secretary of State may order pursuant to section 7(6) of the Act, which the respondent shall pay to the Council;

(iii) direct that the registration of the name of the respondent shall be suspended for such period as the Committee think fit;

(iv) direct that the name of the respondent be erased from the register.

(4) If the Committee decide to impose a monetary penalty, the respondent may then address the Committee as to the question of the time within which he shall be required to pay such penalty. The Committee shall then deliberate and make an order specifying such date (being not earlier than 28 days from service of the notification under rule 7(8)) by which such penalty shall be paid. The Committee may direct at the time of making such an order that upon failure by the respondent to make payment by the due date the registration of the name of the respondent shall be suspended for such period as the Committee shall then specify or that the name of the respondent shall be erased from the register.

(5) If the Committee decide to postpone judgment, they shall specify either a period for which judgment is postponed, or a further meeting of the Committee at which they will further consider the judgment.

(6) The Committee may order the respondent to any proceedings before it or any applicant under rule 11 or the Council to pay the whole or part of the costs of the proceedings.

(7) Any decision of the Commitee under this rule shall be announced by the Chairman in such terms as the Committee may approve.

(8) A copy of the decision shall be sent, in the manner provided for the service of notices under rule 2, to the respondent and such other persons, being persons likely to be affected by the findings, as the Chairman may direct.

Procedure upon postponement of judgment

8.—(1) Where under the foregoing provisions of these Rules the judgment of the Committee in any case stands postponed, the procedure shall be as follows.

(a) The Solicitor shall, not less than six weeks before the day fixed for the resumption of the proceedings, send to the respondent a notice which shall–

(i) specify the day, time and place at which the proceedings are to be resumed and invite him to appear thereat;

(ii) unless the Chairman otherwise directs, invite the respondent to furnish the Registrar with the names and addresses of persons to whom reference may be made confidentially or otherwise concerning his character and conduct; and

(iii) invite the respondent to send to the Solicitor, not less than three weeks before the day fixed for the resumption of proceedings, a copy of any statement or statutory declaration, whether made by the respondent or not, relating to his conduct or setting out any material facts which have arisen since that hearing.

(b) A copy of the notice and of any statement or statutory declaration sent in accordance with the provisions of the last foregoing sub-paragraph shall be sent to the complainant, if any, and he may in turn, if he so desires, send to the Solicitor a statement or statutory declaration, whether made by himself or not, as to the matters mentioned in subparagraph (iii) of the last foregoing paragraph, or as to any other material facts which have arisen since the hearing. A copy of any such statement or statutory declaration shall thereupon be supplied to the respondent.

(c) At the meeting at which the proceedings are resumed the Chairman shall first invite the Solicitor to recall, for the information of the Committee, the position in which the case stands and the Committee may then receive further oral or documentary evidence as to the conduct of the respondent or any material facts which may have arisen since the hearing, and shall hear any party to the inquiry who desires to be heard.

(d) The Committee shall then consider their decision, and paragraphs (3) to (8) of rule 7 shall apply to their procedure.

(2) At any resumed proceedings any new charge alleged against the respondent in accordance with these Rules shall first be dealt with in accordance with such of the provisions of rules 5 to 7 as may be applicable, and the Committee may apply paragraphs (3) to (7) of rule 7 simultaneously to the new charge and to the charge in respect of which they had postponed judgment.

(3) Nothing in the last foregoing paragraph shall prevent the Committee from receiving evidence at any resumed proceedings of any conviction recorded against the respondent which has not been made the subject of a charge under these Rules.

(4) Subject to the provisions of the Act, the validity of any resumed proceedings shall not be called into question by reason only that members of the Committee who were present at any former meeting were not present at the resumed meeting.

(5) The Chairman, of his own motion or upon the application of any party thereto, may postpone the resumption of proceedings, and in that case the Solicitor shall, as soon as practicable, inform all parties to whom notice of the resumption of proceedings has been given of the postponement and of any date fixed for the resumption of proceedings.

PART IV OF A PENALTY ON A BODY CORPORATE UNDER SECTION 7(3) OF THE ACT

9.—(1) This Part of these Rules applies to proceedings brought for the purpose of imposing any one or more of the penalties mentioned in rule 7 on a body corporate under section 7(3) of the Act.

(2) Where–

(a) a director of a body corporate registered under section 2(1)(b) of the Act is convicted of an offence under the Act, or

(b) the Committee are satisfied that a person whose name has been erased from one or both of the registers (and has not yet been restored) or on whom any other penalty mentioned in rule 7 has been imposed is a director of or taking part in the management of or has a controlling interest in such a body corporate,

the provisions of rule 10 shall apply.

10.—(1) The Solicitor shall send to the respondent body corporate and to the complainant (if any) a notice in accordance with the charges and facts to be specified being the circumstances falling under rule 9 which are relevant to the case.

(2) A copy of the notice shall be sent to every director of, or registered dispenser of hearing aids employed by, the respondent who is named therein. The Chairman may direct that a copy of the notice shall also be sent to any other person or body.

(3) Any other person or body with the leave of the Chairman or of the Committee appear at the inquiry as an additional respondent.

(4) Any erasure or suspension from the register shall be proved by a certificate to that effect signed by the Registrar.

(5) Subject to the provisions of this rule the provisions of Part II (except as regards reference to the Investigating Committee) and Part III of these Rules shall apply to any proceedings to which this rule applies.

PART V RESTORATION OF NAMES AFTER ERASURE

11.  Where an application is made in accordance with section 8 of the Act by a person or body whose name has been erased from a register in pursuance of a direction made under section 7 of the Act or removed from one of the registers pursuant to rules made under section 4(e) of the Act, the following provisions shall have effect:–

(a) the Committee shall afford the applicant an opportunity of being heard by the Committee, and of adducing evidence;

(b) the Committee may require such evidence as they think necessary concerning the identity or character of the applicant, or his conduct since his name was erased or removed from the register, and for this purpose may receive written or oral evidence;

(c) subject to the foregoing provisions of this rule, and to Part VI of these Rules, the procedure of the Committee in connection with the application shall be such as they may determine.

PART VI GENERAL

Hearing and adjournment

12.—(1) Subject to the provisions of section 11(3) of the Act, and of any rules made thereunder, the Committee may deliberate in camera (with or without the Legal Assessor) at any time and for any purpose during or after the hearing of any proceedings.

(2) Save as aforesaid all proceedings before the Committee shall take place in the presence of all parties thereto who appear therein and shall be held in public except as provided by the next following paragraph of this rule.

(3) Where in the interests of justice it appears to the Committee that the public should be excluded from any proceedings or part thereof, the Committee may direct that the public shall be so excluded: but a direction under this paragraph shall not apply to the announcement in pursuance of any of these Rules of a determination of the Committee.

(4) The Committee may adjourn their proceedings from time to time as they think fit.

Evidence

13.—(1) Where a respondent, or an applicant under rule 11, has supplied to the Committee or to the Registrar on their behalf the name of any person to whom reference may be made confidentially as to his character or conduct, the Committee may consider any information received from such person in consequence of such references without disclosing the same to the respondent or the applicant.

(2) The Committee may receive oral, documentary or other evidence of any fact which appears to them relevant to the inquiry into the case before them: Provided that, where a fact which it is sought to prove, or the form in which any evidence is tendered, is such that it would not be admissible in criminal proceedings in a court, the Committee shall not receive evidence of the fact or in that form, unless after consultation with the Legal Assessor they are satisfied that it is desirable in the interests of justice to receive it having regard to the difficulty and expense of obtaining evidence which would be so admissible.

(3) The Committee may cause any person to be called as a witness in any proceedings before them whether or not the parties consent thereto. Questions may be put to any witness by the Committee through the Chairman or by the Legal Assessor with the leave of the Chairman.

Voting

14.—(1) Any question put to the vote shall be put in the form of a motion by the Chairman. The Chairman shall call upon members present to vote for or against the motion and shall declare that the motion appears to him to have been carried or not carried as the case may be.

(2) Where the result so declared is challenged by any member, the Chairman shall call upon the Registrar to read the roll, and as his name is read every member present including the Chairman (who shall be called last) shall say “For” or “Against” according to whether his vote is given for or against the motion. The Chairman shall thereupon declare the number of members who have voted for and the number who have voted against the motion and whether the motion has been carried or not carried.

(3) Where on any question the votes are equal, the question shall be deemed to have been resolved in favour of the respondent or of the applicant under rule 11 as the case may be.

Procedure where there is more than one respondent

15.  Nothing in these Rules shall prevent one inquiry being held into charges against two or more respondents, and where such an inquiry is held the foregoing rules shall apply with the necessary adaptations, and subject to any directions given by the Committee as to the order in which proceedings shall be taken under any of these Rules by or in relation to the several respondents, so however that any of the rights of a respondent under these Rules shall be exercised separately by each of the respondents who desires to invoke that right.

Supplementary

16.—(1) Any party being an individual may appear either in person or by counsel or solicitor, or any person having a right of audience under the Courts and Legal Services Act 1990, or if the party so elects by any officer or member of any organisation of which he is a member, or by any member of his family.

(2) Any party being a body corporate or an unincorporated body of persons may appear by their secretary or other officer duly appointed for the purpose or by counsel or solicitor, or any person having a right of audience under the Courts and Legal Services Act 1990.

17.  A shorthand-writer shall be appointed by the Committee to take shorthand notes of proceedings before them (except that the Committee may dispense with a shorthand-writer in proceedings under Part V of these Rules) and any party to an inquiry shall, on application to the Solicitor and on payment of the proper charge on a scale fixed by the Committee, be furnished by the Solicitor with a transcript of the shorthand notes on any part of the inquiry at which the party was entitled to be present.

Made by the Council on 10th September 1991.

David Reid

Registrar to the Council

APPENDIX FORM OF NOTICE OF PROCEEDINGS FOR THE PURPOSE OF SECTION 10 OF THE HEARING AID COUNCIL ACT 1968 (AS AMENDED)