QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of Hidden Hearing Limited)
|The Hearing Aid Council
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr James Maurici (instructed by Beachcroft LLP) for the Defendant
Hearing date: 14 January 2009
Crown Copyright ©
Mr Justice Simon:
manifestly incorrect definition of 'dispensing' which is liable to cause confusion and uncertainty.
Dispensing is a process defined in law and in the Council's regulations, and includes both clinical and commercial practices involved in the retail sale of hearing aids. Such processes may include (but are not limited to) taking case histories, testing someone's hearing, assessing the clinical nature of a person's hearing loss and making onward referrals if appropriate, fitting aids and post-fitting rehabilitation work.
"dispenser of hearing aids" means an individual who conducts or seeks to conduct oral negotiations with a view to effecting the supply of a hearing aid, whether by him or another, to or for the use of a person with impaired hearing; and references to the dispensing of hearing aids or to acting as a dispenser of such aids shall be construed accordingly.
The statutory background
to register persons engaged in the supply of hearing aids, to advise on the training of persons engaged in such business, and to regulate trade practices, and for purposes connected therewith.
in order to make further provision for the regulation, conduct and discipline of persons engaged in dispensing hearing aids … and for purposes connected with those matters.
the general function of securing adequate standards of competence and conduct among persons engaged in dispensing hearing aids, together with the specific functions assigned to it by or under … [the Act].
… shall draw up standards of competence for dispensers of hearing aids and codes of trade practice for adoption by such dispensers and by persons employing such dispensers and shall from time to time review those standards and codes and may vary them as it considers appropriate.
shall publish in such manner as it considers appropriate … any code or standard drawn up under this section …
(1) It shall be unlawful at any time more than six months after the commencement of this Act for –
(a) any person other than –
(i) a person registered under this Act as a dispenser of hearing aids; or
(ii) a person whose name has been notified to the registrar of the Council and who is undergoing full-time training with a view to being registered as a dispenser of hearing aids and acting under the supervision of a registered dispenser;
to act as a dispenser of hearing aids;
(b) any person whose name is not for the time being entered in the register maintained pursuant to section 2(1)(b) of this Act to employ any person to act as a dispenser of hearing aids; or
(c) any person whose name is entered in the register which is so maintained to employ a person other than –
(i) a person registered under this Act as a dispenser of hearing aids; or
(ii) a person whose name has been notified to the registrar of the Council and who is undergoing full-time training with a view to being registered as a dispenser of hearing aids and acting under the supervision of a registered dispenser,
to act as a dispenser of such aids.
(2) A person who contravenes subsection (1) of this section shall be guilty of an offence and shall be punishable upon summary conviction by a fine not exceeding level 4 on the standard scale.
"employer of dispensers" includes any person who enters into any arrangements with an individual whereby that individual undertakes for reward or anticipation of reward to act as a dispenser with a view to promoting the supply of hearing aids by that person; and references to the employing of dispensers and their employment shall be construed accordingly;
"hearing aid" means an instrument intended for use by a person suffering from impaired hearing to assist that person to hear better but does not include any instrument or device designed for use by connecting conductors of electricity to equipment or apparatus provided for the purpose of affording means of telephonic communication;
"prescribed" means prescribed by rules made by the Council pursuant to section 4 of this Act;
"supply" means supply by way of retail sale or by way of hire; but does not include a sale to a person acquiring for the purposes of trade.
The 2008 Code of Trade Practices
Dispensers shall at all times give the best possible advice they can to their clients regarding hearing aids and their use.
Notified supervisors must ensure that, except as permitted under Rules 28 and 19, their notified trainees:
(a) dispense hearing aids only when under their own supervision or under the physical supervision of another supervisor (and for the avoidance of doubt, dispensing includes, but is not restricted to, examination of clients, otoscopy, audiometry, ear-impressioning and hearing aid fitting) …
The Guidance Note
Changes to the regulations governing students and trainee dispensers.
Changes to the regulations governing students and trainee dispensers
The Secretary of State for Business, Enterprise and Regulatory Reform has approved changes to the Standards of Competence (2007) and Code of Practice (2004) as it affects the training and registration of hearing aid dispensers/audiologists. These changes have been approved following consultation conducted over the summer of 2006 on the introduction of a foundation degree in hearing aid audiology and the subsequent consultation in late 2007 on the change from the current company-based training route to the foundation degree as the minimum requirement for registration and training as hearing aid dispensers/audiologists. I am writing to advise you of these changes, what they mean for HEIs, employers, registered supervisors, audiology students and trainee dispensers, and what actions you need to take to ensure you comply with the law and the new regulations. I also want to ensure that HEIs that place BSc Audiology students on clinical placements involving the dispensing of hearing aids understand the current law as it affects them and their students.
There then follows the paragraph which is the subject of challenge:
First, it is important to set out the legal position in relation to individuals involved in dispensing. It is illegal for a person to act as a dispenser of hearing aids or be involved in dispensing unless they are either (a) registered with the Hearing Aid Council or (b) notified to the Council as being in training with a view to becoming a hearing aid dispenser. Dispensing is a process defined in law and in the Council's regulations, and includes both clinical and commercial practices involved in the retail sale of hearing aids. Such processes may include (but are not limited to) taking case histories, testing someone's hearing, assessing the clinical nature of a person's hearing loss and making onward referrals if appropriate, fitting aids and post-fitting rehabilitation work. Undertaking such work where it is unrelated to the retail sale of hearing aids is not covered by these legal restrictions.
The financial arrangements have already been agreed with the RHAD at the first consultation, and the fitting of the aid is a technical process that can be taught to an appropriately supervised (DA). Accordingly, where appropriate, the above tasks are completed by a Dispensing Assistant or will be in the future following (the Claimant's) projected business model.
The words 'where appropriate' beg a number of questions.
Discussion and Conclusion
The Court is simply being invited to determine the meaning of a statutory provision and whether the Guidance Note is consistent with that provision. It is not necessary to have a factual basis upon which to make such a determination: see R (Association of British Travel Agents Ltd) v Civil Aviation Authority  EWHC (Admin) 13.
The dispensing process may include fitting aids and post-fitting rehabilitation work (emphasis added)
Judges do not sit as umpires on controversies in the Academy. Nor is it the task of a judge when sitting judicially – even in the Administrative Court – to set out to write a textbook or practice manual or to give advisory opinions.
The word 'supply,' in its ordinary natural meaning, conveys the idea of furnishing or providing to another something which is wanted or required in order to meet the wants and requirements of that other. It connotes more than mere transfer of physical control of some chattel or object from one person to another … the additional concept is that of enabling the recipient to apply the thing handed over to purposes for which he desires or had a duty to apply it.
He submitted that the oral negotiations ended at the end of the first consultation when the supply of the hearing aid was effected.
Fundamental to the role is an exclusion from any duties or function that may be regarded as the function of a 'dispenser of hearing aids' as defined … (emphasis added)