Part 3: An in depth analysis of a FTP case

Section 3

The Chair: “The Panel have considered the representations made by Mr Tyme and Ms Kemp and the Panel are not prepared to accede to the application from Mr Tyme. In view of that, [are] there any further representations you wish to make about the allegation at this stage?”

Mr Tyme: “No”

No? This seems strange. It might be expected that a lawyer would put his client’s case firmly and clearly whenever he was invited to speak. The HPC lawyer certainly takes every opportunity to do so. It begins to occur to me that Dr Cross is to some extent compromised by virtue of his having recently become a member of the Council, and that this consideration is complicating things for his lawyer. It also begins to occur to me that Dr Cross might now have a measure of interest in implementing some changes to the HPC to prevent further instances of such confusion. But this supposes a lot, not least about the kind and extent of power that the Council can in fact wield, and this must wait for another time to explore.

So the Registrant’s lawyer once again finds himself in no position to further his client’s case in the face of HPC procedure. The Panel Chair proceeds with the case, thus ignoring Mr Russen’s intervention proposing my ejection from the room. But there is yet another considerations to be addressed before the hearing can begin.

Chair: “Ms Kemp, before you open on behalf of the Health Professions Council there are two matters that the Panel would like to raise with you, one of the exhibits is a letter from your witness, Ms Ross, to Ms Johnson, the Director of Fitness to Practise.

Ms Kemp: “Yes”

Chair: “That appears to be in response to a letter from Ms Johnson dated 28 August 2009; are you going to give us copies of that letter so we can see –

Ms Kemp: – “The letter of Ms Johnson, I was not proposing to do so. However, if there are no objections from Mr Tyme, there is no issue that turns on it, but if the Panel feel it would be assisted and there are no objections, I do not see why you should not have a copy of it.”

Chair: “Mr Tyme”

Mr Tyme: “No objection.”

Ms Kemp: “No objection.”

Chair: “I think it would be helpful because we only really have one half of the picture.”

Ms Kemp: “Yes, madam. I have one copy here. I could ask Ms Dwomoh-Bonsu to copy the letter, make copies available for the Panel and Legal Assessor.”

This perhaps means that the Panel, whilst in private deliberation, spent some of the time going through the paperwork together, and noticed some anomalies. I wonder what the usual routine is for a Panel. A hearing typically starts at 10am, but perhaps it is customary for the Panel to meet at 9am to go through the case together. This would be helpful background information to know. In any case, whether they talked before the case or not, they missed the fact that this letter was missing, or missed the fact that it mattered. [NB They all have very large bundles of paper in front of them when they arrive, and these are not made public unless put into words in the course of the hearing.]

There is yet one more administrative detail to be covered before the Chair is ready to begin.

Chair: “The other matter is, obviously it is a matter for you which witness you call, there is no statement from the witness, from the person whose initials are SP.

Ms Kemp: “That is right, madam, not as part of the Health Professions Council’s case.”

Chair: “Thank you.”

Mr Tyme: “Madam, it may help if I can indicate he has provided, if I assume it is the person who, the present –”

Ms Kemp: “– Yes”

They exchange glances.

Mr Tyme: “He has in fact provided character evidence on behalf of the Registrant. I do have a statement which I can hand up to the Panel at the appropriate time.”

Chair: “That is fine. Thank you very much. Ms Kemp.”

With these administrative details sorted, Ms Reggiori invites Ms Kemp to open the proceedings. Though it would be interesting to ask what these missing documents signify. To begin with, Ms Reggiori drew attention to a missing letter. This brought the name of Ms Johnson, the Director of Fitness to Practise, into the proceedings. More questions. First, it is worth remembering that the HPC was created as an organisation in its own right, and given powers as a regulator. As part of that process the Director of Fitness to Practise emerges as an internal post, not a professional position. The incumbent of that post is not required to have any experience of any professional work, is not nor ever has been engaged in any kind of practical professional work, and, in fact, is really rather young – I remark on this only because it surprised me – I had expected the Director of Fitness to Practise to be a wise old bird with a great deal of experience. The attribution of the title Director is probably just a preference of the HPC, which is free to name the posts within the organisation as it sees fit. The job description for the Director of Fitness to practise can be found at Appendix B. This information was given to me by the HPC under the ‘Freedom of Information Act’ although I did not in fact make my request on that basis, thinking this rather ordinary information that should be freely available as a matter of course. They refused to supply information about the suitability of the current incumbent, saying this was personal information (email reproduced as Appendix A). This might seem reasonable, but in fact leaves things rather ambiguous. Anyone might expect a Director of FTP to be qualified in the profession the post has jurisdiction over. In the case of HPC, however, no-one can have knowledge of 15 different kinds of practise, so what does the Director of FTP have to know in order to get this job? According to the Job Description and Person Specification, the kind of knowledge required is political and administrative see Appendix B. The question is important because in this hearing we begin to see that the people making the allegation are in correspondence with the Director and not the Chair of the Investigating Panel.

One more point could usefully be opened up for discussion here: the anomalous position of professions in the organisation. Statutory power has traditionally been passed to existing professional organisations that have proved themselves capable and trustworthy in their work, and are deemed important enough to be given power of the state to govern their practise and their organisation. It is a way of honoring the people who have established the practice and the institutional procedures to support that practice, of saying that the country respects and trusts their work, and is happy to delegate power to them from parliament in order to run their own concerns on behalf of the good of the country with the help of that power. That was the tradition for many centuries in the UK. With the invention of the HPC, however, a radical change was ushered in. With the invention of the HPC, the act of delegating statutory power to an existing professional organisation was not a reflection of the trust this organisation was held in, but rather the distrust, for rather than give the power to, as in this case, the British Psychological Society, the power was given to the Health Professions Council – an organisation that knew nothing about Psychology. The rationale for this is quite dubious, as it implies, rather directly, that the Government cannot trust the BPS but that it can trust the HPC, a newly created organisation, without history or tradition, created by the government itself. At the time of the creation of the HPC, there was a great deal of talk about regulation both in the media and in and around parliament. The key signifier of this discourse was the case of Harold Shipman, the mere mention of whom eventually had the effect of reducing many otherwise extremely intelligent people to gibbering ideologues. The Bristol Royal Infirmary Inquiry also made a distinctive mark on the character of this new organisation. We will return to this in more detail later, but for now the point that needs to be made is the effect it had on the structure of the HPC, and the position within that professionals would henceforth take. In short, the political rhetoric – vastly amplified by the media – prevented professionals from being given power, as they were portrayed as potential murderers or incompetents not worthy of the trust let alone the power that might otherwise have been placed in them. This, oddly enough, led to the idea that an administrative organisation staffed by non-professionals should be created, and that this organisation would be the repository of statutory power. However, since this administrative organiation was to be given the authority to regulate various professionals in practice, some mechanism was necessary for the administrators to gain at least some access to the corpus of professional knowledge, and this – in fact this became a point of contention in the debate in the House of Lords, and which, due to the limited time given to debates on secondary legislation, was not properly resolved. Anyway, this is an interesting inversion of the usual relationship of administrators to professionals. In the professional organisations, the professionals would employ administrators to help them keep the paperwork under control. Here we have the administrators employing the professionals to keep the practitioners under control, and all because the Government found itself unable to trust the professions, but unable to resist the call to delegate power. In one small step, the idea of statutory regulation has been turned on its head – Alice Through the Looking Glass style.

This has a direct bearing on what is happening in this case, and we are in a very good position to see how power, when it moves through a system like the HPC, can all too easily be misused. The people inside the HPC do not know anything about the real work of the professionals they have been created to control. They have had to set up committees and panels which they have had to staff with Partners only half (or less) of whom have any experience of the practise, and who are required to follow (rather strictly, it seems) HPC procedures in order to make decisions about the competence, conduct, and fitness to practise of people whose work they might know almost nothing. It is almost as if ignorance is being proposed as some kind of guarantee of impartiality: they are supposed not to know anything about them in order, according to the rhetoric, not to be prejudiced in their favour. This is another consequence of stepping through the Looking Glass.

The idea that professionals cannot be trusted, and therefore cannot be given the power to manage themselves, has led in a rather convoluted way to the idea that they should not be trusted – that is that they are positively untrustworthy and in the context of FTP procedures, guilty until proven innocent. This is the second place where we have seen this doubling of a subtraction: not only are professionals reduced to zero, ie by the removal of any positive trust, but they are then subtracted from again which leaves them in the negative zone, where they are actively mistrusted. This explains why the Panel which is set up to judge a person in a fitness to practise hearing has only one person from the practise in question, and the other two will be lay people (when considered from the point of view of the practice) – neither will know anything about the speciality, let alone about the context of the work. In the case we are observing now, however, it doesn’t matter at all, for the practice of counselling psychology is not even in question. No-one needs to know anything in particular about the nature of this work. The Panel are being asked to judge the normal, ordinary, private behaviour of another human being.

The only thing that gives them the power to make such a spectacle of the process is the power invested in it by the Government. The set of people it gives them power over is defined by those in the HPC database. This gives us a little more confidence to say that the upshot of the existence of the HPC, knowingly or not, is the invention of a new set of people called Health Professionals. This new profession has no prior history, no established practise, and apparently no real idea that it is even being created. There is no pioneer, no struggle, no agonistic field, no argument: it is simply materialising out of thin air, the thin air of a largely unconscious ideological imperative. Aspects of the dream seem to be to create a new sector of society, of people who are morally superior, and who are therefore capable of judging what had previously been their peers. We seem to be witnessing the invention of angels – a class that doesn’t sin, and that has been given the right and the power to inflict punishment on anyone it believes to have done so according to its own, essentially, arbitrary standards.

APPENDIX A

Dear Ms Low

Thank you for your e-mail of 9 April to our Recruitment e-mail address, requesting the job descriptions and person specifications for four posts and evidence of the suitability of the current employees holding those posts.

This request is being handled under the Freedom of Information Act 2000 (the Act).

Please find attached job descriptions and person specifications for the Head of Case Management, the Director of Policy and Standards, the Director of Fitness to Practise and the Chief Executive and Registrar.

I can confirm that the Health Professions Council holds information on the suitability of the current employees holding those posts. However we are withholding that information since we consider that the exemption under sections 40(2) and 40(3) of the Act applies, i.e. the suitability of the current employees is personal data of those people. It would breach the first data protection principle (that personal data should be processed fairly and lawfully) by providing this information to you.

The suitability of candidates for a post is determined through a recruitment process, which includes a decision by an interview panel on whether to appoint a candidate. All employees of the Health Professions Council are also subject to an annual performance and development review.

If you are unhappy with the way your request for information has been handled, you can request a review by writing to:

Louise Hart
Secretary to Council
Health Professions Council
Park House
184 Kennington Park Road
London SE11 4BU
Email: louise.hart@hpc-uk.org

If you remain dissatisfied with the handling of your request, you have a right to appeal to the Information Commissioner at:

The Information Commissioner's Office
Wycliffe House, Water Lane
Wilmslow , Cheshire, SK9 5AF
Telephone: 08456 306060 or 01625 54 57 45 Website: www.ico.gov.uk

There is no charge for making an appeal.

Yours sincerely
Colin Bendall
Secretary to Committees
Health Professions Council
Park House, 184 Kennington Park Road, London, SE11 4BU
www.hpc-uk.org
tel +44 (0)20 7840 9710
fax +44 (0)20 7840 9807
email colin.bendall@hpc-uk.org
To sign up to the HPC e-newsletter, please email newsletter@hpc-uk.org

APPENDIX B

Job Description – Director of Fitness to Practise

Fitness to Practise Directorate
Main Purpose of Job
• Overall responsibility and management of the functions of the Fitness to Practise Directorate, including the implementation of the Council’s Case Management Programme

• To develop and implement the organisation’s Fitness to Practise strategy, working closely with the Chief Executive, relevant Committees and appointed agencies.

• To manage Fitness to Practise functions on a day-to-day basis including budget, external agencies involved in the fitness to practise function (lawyers, partners and other agencies) and employees


Position in Organisation

• Reports to the Chief Executive and Registrar.

• Member of the Executive Management Team.

• HPC liaison with Council and relevant Committees which include (but are not limited to) the three Statutory Fitness to Practice Committees.

• External liaison with relevant external stakeholders which include (but are not limited to) professional bodies, other regulators, government departments and MP’s, consumer and employer groups, police forces, court services, lawyers and employers of registrants

• Provide instruction to lawyers on issues as they relate to the responsibilities of the Fitness to Practise Department including High Court Appeals.

• Manages, leads and provides support to the management and employees of the Fitness to Practise Directorate.

• Liaises with employee at all levels within the organisation.

Scope of Job

• Overall responsibility for all Departments within the Fitness to Practise Directorate

• Develops and implements Fitness to Practise Strategy, including the implementation and development of appropriate case management strategies.

• Identifies improvement to processes and procedures supporting the work and functions of the fitness to practise department.


Dimensions and Limits of Authority

• Manages the Fitness to Practise Directorate budget (approximately twenty five percent of HPC’s overall operating costs), operating within the budgetary limits of this Department. This will include preparing the annual budget and monitoring expenditure.

• Acts in accordance with statutory powers delegated by Council.

• Ability to act as HPC’s spokesperson on issues that are the responsibility of the Fitness to Practise Department.

• Can raise quotes, engage contractors (including instruction of lawyers) or other resources within the limits of the Fitness to Practise budget.

• Management of the employees within the Fitness to Practise Directorate.

• Deputises for Chief Executive Officer and Registrar in his/her absence.


Skills, Knowledge and Abilities

Essential

• Educated to degree level or equivalent skills and abilities.

• A sound working knowledge at a senior/executive level of a fitness to practise role within a public sector, health, regulatory environment or private sector organisation.

• Significant demonstrated skills in leading, supporting and managing a team or several teams.

• A high level of diplomacy and proven ability to communicate with and manage stakeholders, including but not limited to UK government departments, and ability to build relationships and network effectively.

• Excellent written English skills with the ability to research and write policy documents and reports of a high standard.

• Strong presentation skills with experience of writing and giving presentations to different audiences.

• An ability to understand legal and procedural documents and ethical principals.

• Knowledge of political and governmental processes.

• Sound working knowledge of window based software packages, including word processing, spreadsheets, databases, electronic mail, and the internet.

• Sound working knowledge of management processes around hearings management, including instruction of lawyers where necessary

• Skills and competencies in project management, designing and implementing complex internal business processes and strategies

• Willingness to travel on a regular basis throughout the UK, including overnight stays as required.


Duties and Key Responsibilities

Your principal duties and key responsibilities will be those set out below. In addition to those duties, HPC reserves the right to require you to undertake additional or other duties within your capacity as may from time to time be reasonably required and necessary to meet the needs of the HPC.

Management

• To perform the duties expected as a member of the Executive Management Team.

• Provide leadership and motivation for the team within the Fitness to Practise Directorate.

• To produce and manage business development plans, and performance and service delivery improvement plans and deliver these in support to HPC’s overall business strategy.

• Co-ordinate and lead in the work across the Fitness to Practise Department

Develop and implement Fitness to Practise Strategy

• Draft overall Fitness to Practise strategy for the Council ensuring that HPC’s resources are managed to their best effect

• Develop targeted budget of appropriate amounts.

Manage Fitness to Practice Department budget

• Control Fitness to Practise budget within appropriate guidelines

• Award and terminate contracts as part of this in relation to Fitness to Practise work

Reports and Strategy
• To write briefings, reports, consultation documents, Council and committee papers, material for the website and intranet, and other documents as required.

• To ensure that all written information is clear and conforms where possible to plain English Campaign guidelines.

• To write or supervise the writing of the Fitness to Practise Departmental annual report.

Legal Matters

• Manage the relationship of the legal services provided to the Fitness to Practise Department.

• Regular liaison with the HPC’s Parliamentary agent on any legal matters pertaining to the Department.

• Attendance at court (including High Court) when required.

• Responsible for assisting the Chief Executive in the legal services tendering process.

Stakeholder Management

• Contribute to working groups of the Council for Regulatory Healthcare Excellence.

• Advise and provide guidance to management at all levels within HPC on Fitness to Practise policy trends and performance.

General

• To carry out the responsibilities of the post with due regard to the HPC's Diversity Policy and to treat colleagues and other HPC stakeholders with respect and dignity at all times.