Part 2: An in depth analysis of a FTP case

Section 2.

At the end of the last section we began to deduce what kind of danger the HPC believed itself to be protecting the public from, and what kind of public was supposedly benefiting from such protection. From the HPC’s perspective, the implicit danger is that a section of society might lose confidence in the Health Profession if it were to discover a registrant doing the alleged things even in private. The damage in the Cross case would be not to psychology or counselling, but to the Health Profession – which is something that only exists in relation to the HPC, is being created by the HPC. The danger that has motivated the HPC to act, then, appears to be a perceived threat to its own image. The danger is one posed to itself. The public that is being protected is that which is invested in the image of the HPC. Let us see if this is further borne out as the hearing proceeds, or if other things emerge.

We left Mr Russen beginning to give some advice to the Panel. They have been asked by Mr Tyme to abandon the hearing for lack of any real evidence of any particular offense. Mr Russen began, as he had before, by being very clear about what the Panel is not asked to do. They are not being asked to form a judgment, he says, as to whether or not Dr Cross’s current fitness to practise is impaired. No, he continues

“that is emphatically not what the Panel should be doing. What the Panel is being asked to do is to look at this evidence on paper without having heard any witnesses the HPC intends to call, and to say whether what is written on paper, the behaviour that is recorded on paper, could amount to a current impairment of fitness to practise.”

Mr Tyme’s intervention is being set up to be knocked down; Mr Russen has successfully out-manoeuvered him. Mr Tyme had originally wanted to put his request before the allegation was heard. He had agreed this with the HPC solicitor. Mr Russen had whispered something to him, and stopped him. The allegation had been read, and then Mr Tyme had waffled on, taking up two pages of transcription, asking the Panel to overturn the Investigating Committee’s decision to stage this hearing. He seemed to be saying the case was a non-starter because, first, this was a social occasion, and, second, when Dr Cross did the work (chaired a BPS accreditation meeting at a British university) it was widely held to be exemplary. Which begs another question. How can a registrant dispute the HPC’s right to bring the allegations into the public domain, and especially to stop them appearing on the Internet? What mechanism is there to prevent the harm done at this stage if the allegation is not well founded? To put it another way: what good is being done by posting the allegation on the internet? How, exactly, is this helping to protect the public? At this stage, it is only the investigating committee, using the written word, who has come to a decision that the case should go forward. What kind of public is being protected, and from what kind of danger, by the publication of this kind of information?

To some extent, the publication of these allegations can perhaps be construed to be part of a marketing campaign that the HPC (a) is doing something, and (b) that there are plenty of practitioners out there who are doing bad things. The trouble is that the allegations have not been tested, so it could also be true that the registrant is not doing bad things. Again we are left with the question: what purpose is served by putting these untested allegations into the public domain?

One effect, whether inadvertent or calculated, is to instill fear of the HPC, and not only among its registrants.

Bear in mind that any case that is deemed ‘not well found’ pursuant to a hearing is then removed from the HPC website. No apology is made to the registrant for the inconvenience, let alone the damage to the registrant’s reputation caused by the publicity. There is very little trace that the HPC have made a mistake. There is no mechanism to trigger an alarm, no method to make the HPC accountable for its actions.

To return to Mr Russen and his advice: he repeats his admonition that the Panel is not being asked to make a ruling about Dr Cross’s impairment of fitness to practise.

“It would be quite inappropriate to do that in the circumstances where you have not heard the evidence,” he says. “What you are being invited to do is to say that, in effect, even if the HPC’s case is proved to the hilt as we understand it to be capable of proof from the documents, even if that happens it will not be possible for a Panel doing its job properly to take the view that this was behaviour that could amount to current impairment of fitness to practise.”

He affirms confidence in the Investigatory Committee’s process to put forward a case worth considering: “even if the HPC’s case is proved to the hilt as we understand it to be capable of proof from the documents”. In effect he is reminding this Panel, who we know to be drawn from the HPC’s quota of Partners, with the possible exception of Miss Reggiori, that they shouldn’t really overturn their colleagues decision.

“And it is worth noting” he goes on “that the focus of this submission is on the last element of the consideration that a Panel has to undertake in order to say an allegation is well founded or not it carries with it the necessary implication that misconduct, for the purposes of this application, that misconduct is established. That has to be the case because you would not be considering impairment of fitness to practise if there was no misconduct.”

Mr Russen thus reminds the panel yet again that there is a process to follow, and that this requires them to first split something up into three elements, and then to organise those elements in sequence. It reminds me of the techniques the professor of computer science uses to get people to begin to think about writing a computer programme – write down step by step what you must do to make a cup of tea. Each attempt to write it down always failed because of some minute detail that had been overlooked. (Did you take the lid of the kettle before you filled it up? Did you place it under the cold water tap to get the water in? Did you ‘fill it up’, which would over-ride the circuitry, or did you ‘fill it up’ to just above the element, etc etc, ad infinitum). The end result is to make you think you don’t have the slightest idea how to make a cup of tea. So here the Panel is told that it cannot do what common sense might tell it to do, but must follow the procedure laid down in the rule book.

“Now, I think the Panel have to be careful about this. Reference has been made by Mr Tyme to the evidence that the following day at the validation meeting properly Dr Cross behaved impeccably and did his professional job properly, there is no suggestion that I have seen in the papers anywhere that that is going to be gainsaid by the evidence the HPC might expect to call.”
So at no point will it be said that Dr Cross has been incompetent in his job as an academic course accreditor. He goes on:

“But it is not what this allegation brought by the HPC against Dr Cross is about because if you look at the allegation on page 6 of the letter, it is confined to the pre-meeting and dinner the previous day.”

So we see, yet again, that the HPC is interested in a group of academics who agree to meet for half an hour or so before going out for dinner (accompanied by partners possibly) the day before an academic accreditation meeting in a British University. The plot thickens:

“So I think the HPC are going to have to argue, because you have not heard an opening from Ms Kemp yet, but the HPC are going to have to confine whatever case they construct against Dr Cross on the basis of those facts. So they are going to say those facts amount to misconduct, and that is to say misconduct which is properly to be considered by the HPC, and that that past misconduct is currently impairing Dr Cross’s fitness to practise.”

Those of us who are paying attention already know that, in the ordinary use of language, Dr Cross’s past conduct, good or bad, private or public has not impaired his fitness to practise. That is, his fitness to do the job he is engaged to do, which, in this case, is an academic accreditation, and not his work as a counselling psychologist. I am not at all clear which part of Mr Russen’s job he is, or is not, doing at the moment.

To recap, he had been very clear at the beginning: “I am a lawyer and my primary job is to ensure that these proceedings are conducted properly in the sense that the correct procedure is followed and the right law applied.” Mr Russen has interpreted his role as safeguarding the work of the investigatory committee, ensuring that its decision to put this case in the public domain is upheld, no matter that there is only evidence that the registrant is excellent at his job, no matter that this job is the business of academic accreditation. It is not possible to discern any law that is at stake here, no legal expertise is needed, unless the HPC’s rules of procedure have acquired the status of law.

Where is the judge who might call for order? Where is the lawyer who might extend an objection. Who is empowered to impose common sense? It is the Panel who must take or reject Mr Russen’s advice. They are too polite, I suppose, to ask him to shut up. Mr Russen knows that he is speaking outside his formal remit, however, and is about to say as much himself:

“Again, it is not for me to say what the HPC’s case is and is not, but I would venture to suggest from the papers we have been served it is not going to be the HPC’s case that this behaviour demonstrates a propensity on the part of Dr Cross to get drunk and behave outrageously.”
If this is not the HPCs case, then what is it?

“There is no hint of that anywhere, and I do not imagine it is going to be suggested to you, and if it is I would suggest that it should not be suggested to you, that Dr Cross presents a risk to patients or clients, both present and prospective, that he is going to turn up for sessions with them blotto and behave inappropriately towards them.”

It is not going to be suggested to you, and if it is going to be suggested to you I would suggest that it should not be suggested to you! Isn’t this all a bit devious? And what position is Mr Russen speaking from? He seems to have taken over the role of Ms Kemp. So much for what is not going to happen, now Mr Russen then turns to what he imagines will happen:

“What the HPC are, if I understand the matters correctly, suggesting is that to behave on an occasion which could not be said to be wholly social because of the reason that everybody was there, this behaviour was behaviour of a sort that is of legitimate concern to the HPC and is of legitimate concern to the HPC because it would be behaviour which, perhaps absent some explanation, would cause patients/clients to have concerns about Dr Cross as a professional. And that would seem to be the basis from the papers on which the HPC might be able to say that there is current impairment of fitness to practise. Namely, a public confidence in the profession.”

Just what is going on here? Why is Mr Russen repeating and restating the HPC case? Can it be that without this constant hard work on his behalf the reasons for the case would vanish? Is it purely his personal power that is sustaining the direction of this case? It seems so. He has supported the HPC position that this occasion constitutes one worthy of the HPC’s attention, because there might be a section of the Public who, if they saw or heard about this behaviour, would lose confidence in the HPC (they are not acting on behalf of psychology, here, or of academics, that much must surely be clear by now) to such an extent that a danger would be provoked – presumably the collapse of the HPC. Thus, Mr Russen has easily squashed the attempts of Mr Tyme to pose a serious question about the quality of the HPC’s case. There is still more:

“So, to come back to the submission you are being asked to rule upon, in effect, you are being asked to say that the evidence of the information that you have is such that a Panel doing its job properly could not come to the conclusion, note could not, not should not, should not might be a further question, but could not is the one that will have to be relevant for present purposes. That conduct as appearing on the face of the papers is behaviour that could not result in a finding of current impairment of fitness to practise on the basis I have sought to articulate. That is a judgment for the Panel. I do not think it is appropriate for me to say any more than that. That, I think, is the consideration the Panel should be giving to it.”

But after just a brief moment where the HPC lawyer declines the offer to say more, and Mr Tyme nods his head, which Mr Russen takes as a sign of agreement (at least to his authority and direction, if not to the logic of his statement) he continues:

“I would venture to suggest one more thing, and it is this, clearly if the Panel finds favour in the submission Mr Tyme has made then you should come back and I think it would be appropriate, if, indeed, I think the Panel specifically should give reasons for acceding to it because particularly as this is an allegation that has been through the HPC Investigatory Committee where that Committee has found that there is a case to answer. I think this Panel should explain why it accedes to the allegation.”

So the Panel is being set up properly before it goes off to think about its decision, and is finally reminded that its colleagues who would be called into question if they responded in favour of Mr Tyme’s petition. It is, nevertheless, a very mechanical dance we are witnessing. And it is not over yet:

“If on the other hand the Panel does not accede to the application that has been made, I think the Panel should simply say that it does not accede to the application that has been made on behalf of Dr Cross, and the reason for that is at some point the Panel is going to have to form, it if does not accede to it, a decision on the very issue that is the subject matter of this application, and it is undesirable in those circumstances for the Panel to say why it does not accede to it in circumstances where it is then going to have to make what I can probably call the balanced judgment.”

Mr Russen, if you remember, introduced himself as someone who advises on law, but does not involve himself in the decision of the Panel. But here, he really seems to be putting words into their mouths, or attempting to. He gives the impression of a puppeteer. Let’s see what the panel make of it. They retire to discuss their decision, saying ‘if we need any further advice, we will call upon the Legal Assessor”! What law is being invoked here? Its difficult to see one. Mr Tyme has been reduced to suggesting that there is a mistake at the level of the Investigating Committee in putting the case forward at all. He seems confused about whether or not it is wrong for someone to perhaps be drunk amongst colleagues at a social event, but he does seem to want to say that probably it is not sufficient to warrant a hearing. Mr Russen has taken pains to explain the minutae of HPC procedure in breaking things down and distributing them, including the responsibility the Panel has today in respecting the Investigating Committee’s decision in the past. The Panel knows it needs to discuss this, and takes advantage of the facilities the HPC offers it to do this in private. There is a room set aside for the Panel: glass walls, of course, so they can be seen to be working, but where their words will not be recorded. They adjourn for about half an hour.

They stand up together, turn together, and leave the room together. The four of us in the audience, two public and two reporters, relax and look at each other as if to ask what’s going on? Before we can reply, however, the Hearings Officer comes to ask us to leave the room and go back to wait in reception. This takes me by surprise – I have never yet been asked to leave the room when the Panel leave. I was a little alarmed to see the two journalists pick up their things and leave in a hurry. I didn’t know what they knew, or how they knew it, so I asked Ms Dwomoh-Bonsu why we were being asked to leave. Now it was she who was taken by surprise. I could see she was a little nonplussed by my question, and she gave a rather incoherent reply, grasping for some kind of logic to answer my question. We had a little to and fro where I asked for the rationale, and she tried to supply one, until we established that she didn’t really know whose rule this was, nor why it was being invoked on this occasion. All she knew was that we were being asked to leave, and that perhaps this was because the two lawyers (Mr Tyme and Ms Kemp) wanted to use the space for a private conversation (neither was in the room). While we were thus engaged, Mr Russen, who had left the room, suddenly reappeared and demanded of me: “Are you refusing to leave the room?” This was alarming. He was clearly angry, and he had positioned himself in a very imposing stance. I broke my attention from Ms Dwomoh-Bonsu – we were in mid-sentence, but his question demanded immediate and prior attention – and said ‘No, I’m not refusing to go, but I am trying to understand why I am being asked”. At this he turned on his heels and left the room, leaving me and the Hearings Officer to carry on our rather stilted conversation. This didn’t last much longer, as she could only say that the room was needed for the private conversations of the lawyers, and to turn and gesture to the empty chairs where the lawyers had sat. To which I responded with: “But there is nobody here, and in the past this has not been considered necessary, please tell me what has changed, when, and why.” Unable to answer me herself, she agreed to leave us in the room while she went about her business, and my colleague and I found ourselves alone in the large and airy room, trying to understand what on earth was going on. We knew a power struggle had taken place, and that we were both feeling a little bruised. Not long after, Ms Dwomoh-Bonsu reappeared another young woman who told us quite clearly that we must leave the room in order to let the lawyers have a private conversation. Again this order was accompanied by a gesture to the large and empty room. This time, however, I said “Alright, to show that I am civil, I will obey you, but I don’t understand why you are taking such pains.” We got up and crossed the threshold of the room behind the Manager, and as soon as that was done, she turned to some other business, and left us stranded. She had simply wanted to see us obey her instruction – there was no other reason but that. And now the Panel and the other players were returning to their seats, along with the other two members of the audience, and I asked the air if it was okay for us to go back to our seats. No-one could have cared less, and in the absence of either a yes or a no, we just turned round and went back and sat down.

The Panel took up their seats, and the atmosphere of the room returned to that of a hearing in progress. The Panel Chair drew breath and looked straight at Dr Cross, ready to deliver the decision. But Mr Russen intervened:

“I appreciate that the Panel has a decision on the application, but there is a matter I think I should mention first, and it is a matter that the Panel will be unaware of, and it is this, that as the Panel are probably aware, when the Panel leaves this room to have private deliberations, it is the norm for members of the public and the press to leave this room.”

In my admittedly limited experience of some dozen hearings, not only have I never been asked to leave the room when the Panel leaves the room, but I’ve also been able to ask questions of the players round the table, who have always (including Mr Russen on occasion) politely tried to answer me. Today something different is happening. Why? And what kind of import does it have to actually enter the business of the hearing?

“One of the reasons for that is so there is the opportunity for those who need to have confidential discussions about the case to be able to do that without the risk of being overheard.”
The HPC makes available small private rooms for the Registrant and his supporters (supplying coffee and sandwiches too), and another small private room for the Panel. This would appear to leave the HPC Lawyer in limbo, although I suppose that, as the lawyers seem to return case after case (I often see the same people at different hearings, or around the building when I’m observing the various committee meetings) it is possible that they have arranged a space for themselves in the building too. I have been told that they are responsible for some of the investigations of the case, and so perhaps do have some space in the building. However, Mr Russen is making the case here that in addition to the various places in and around the building, someone may also want to use the room for a private conversation. As it happened, today, it was members of the audience who were most keen to avail themselves of the opportunity, though they were being excluded from this small act of hospitality.

“There are two people”, he continued, looking directly at me and my colleague “there are two people present, I do not know if they are members of the press, or members of the public. There” and everyone in the room turned and fixed me in their gaze, “There is the lady in the black jacket.”

I looked down at my black jacket and fished the yellow tag out from the folds and held it up for all to clearly see and said “My name is Janet Low, I’m a member of the public”.

The Legal Assessor thanked me, and added “And the gentleman sitting next to her.”

“Bruce Scott”

Mr Russen: “Thank you. Who were not prepared to leave at that point. I think it is right that the Panel should be aware of that, because it does potentially affect the ability that the parties have to make discussions about things.”

Well, how extraordinary. Mr Russen, you will remember, suddenly came into the middle of a conversation that was ongoing between me and the Hearings Officer, an employee of the HPC, posed his question (which now is clearly revealed to be rhetorical) and left without hearing my answer, or helping to resolve the situation. And now, here he was, the lawyer engaged by the HPC on a freelance basis to advise the parties concerned in a hearing on points of law and procedure of that hearing, helping himself to a role in the management of HPC hearing rooms. I really have no idea how to explain this in terms other than of a man who had mistaken his role and was overstepping the boundaries of any rational law.

Now this is a very interesting point. Of course it is absolutely essential for someone to take responsibility and go beyond the standardised limits of their power if something exceptional and especially if something dangerous were happening. In fact, when something of this order happens, those present would almost certainly look to the most senior figure in the room to deal with it – there would be an expectation that someone who had achieved a position that warranted the highest fee, or the most institutional power, should take the lead. But what had happened here? What danger had Mr Russen imagined he was averting?

But more than this – Mr Russen might be the most highly paid person in the room, but he is not supposed to be the one with the most power. He has been cast as the servant of the Panel, and so if he wants something done, he has to arrange things so that the Panel understand this, and agree to it, and carry it out. He goes on:

“Of course the Panel does have a residual power. I am not suggesting that they should wield it now but the Panel does have a power to exclude people from the proceedings.”

Why would Mr Russen want to exclude people from these proceedings? One answer would be that this case represents a significant threat to the HPC, and that he, although independent of the HPC, is sufficiently engaged with the HPC (I nearly always see him whenever I visit the HPC) to want to guard it from that threat. But what is the threat? And how is it associated with whether or not I leave an empty room? Even though the situation was resolved when I simply obeyed the order, it seems unlikely that this alone was a sufficient signifier of danger. Perhaps Mr Russen’s uncertainty as to whether I was a member of the press or of the public will help to resolve the mystery. If so, he could easily have reassured himself by looking at the yellow tag I had already consented to wear. Yet there is something here that is interesting, because this is what he then goes on to stress:

“But I think the Panel should be aware of the fact that whereas other people, the two gentlemen who I think may be members of the press, certainly one is a member of the press sitting beyond the two I have identified were prepared to move. Those two were not. It may be that we will have to return to that issue at some point. Sorry, I probably disrupted your announcement.”

The immediate effect of all this was to put my name and that of my colleague into the record, to put everyone’s eyes on us, and to let us feel the weight of his personal power and also to identify the journalists who were present. Presumably this was done to avert a danger, but what danger? Mr Russen said that people must leave the room in order not to overhear private conversations. The Panel had been given its own small room in order to have conversations without being overheard, and so too had the Registrant. The Hearings Officer thought that the particular private conversation we were obstructing was that between the two lawyers; between the HPC lawyer (the prosecution) and the Registrant’s lawyer (the defense). What possible conversation might these two have that would need to be held in secret? We have already seen that one conversation was had by them to agree whether Mr Tyme might put his petition before the Allegation was read. We know that this conversation established an agreement between himself and Ms Kemp which was then over-ruled by Mr Russen. None of this is secret, though we might now note that Ms Kemp has often worked at the HPC, and might be expected to know the ropes and be able to give better advice to Mr Tyme. I wonder why she did not alert Mr Tyme to the futile nature of his wish, but rather allowed him to show his ineptitude. Another lawyers’ trick? Is this why no-one should be allowed to hear what words pass between the two lawyers? What other reason might there be for the HPC to want to make it easy on this occasion (they do not routinely reserve rooms for the private conversations of hired lawyers) for two opposing lawyers to speak freely without being overheard? At the moment the most likely answer has to be linked to the status of Dr Cross as an HPC Council member. The HPC may be embarrassed to find that one of its own members has fallen. Moreover, so close to his appointment date this would reflect badly on the appointment process – how come they didn’t notice this flaw in this character? This information does help to strengthen the ‘reason’ for this hearing. As we’ve noted already, Dr Cross’s competence as a practitioner psychologist is not at stake, nor as an academic. But as a Council member, his behaviour could give ammunition to those who might have wanted one of these rare positions for themselves. This tittle tattle information might have been used to spread gossip and damage the image of the HPC in this seedy circuit of life. Looked at from this point of view, the HPC is using the FTP process to discipline Dr Cross for allowing the HPC itself to be brought into question by those who might want to be part of it but are excluded, for example. There is a certain kind of logic, but if this were the case then it must be said that it is a very convoluted way to go about things, and surely cannot be legal.

Perhaps another answer to this perplexing question will emerge as the hearing progresses.