Report of the Preliminary Hearing of request for Judicial Review of HPC, from The Alliance

Arrive at the Royal Courts of Justice, The Strand, London, Friday 10 December 2010, around 10.00am. There’s a gaggle of press outside waiting for the protagonists in the South Africa murder case. Pass them, and up the steps to the main front door, into the right-hand queue to pass bag through the X-ray scanner, and walk through the magnetic doorway. No need to give a name, or say where you’re going. Up the stairs and down the grand corridor, men and women flying past in billowing black gowns and curly wigs, piles of papers under their arms.

Room 7, on the right, has a little antechamber for your hats and coats; the hearing room within is wood panelled, with high ceiling and dangling dark chandeliers; the windows are all leaded lights. In the corner of the room, there is a door leading into a kind of enclosed balcony that juts out into the room – metal bars define its sides and extend completely over its top. There are rows of wooden pews sloping down to the little platform for the administrators, behind them the high wooden wall of the platform atop of which a line of green lamps stand ready to light the Judge’s volume of papers. The pews fill up. An earnest and affable young man in gold-rimmed glasses approaches to introduce himself - John Halford, solicitor - and the legal team that are representing us. Three other teams are there – there are four cases that make up the business of his Lordship Justice Burton today. Marc Seale, Anna van der Gaag and a handful of HPC administrators turn up and sit just in front of us. A rap on the door at the top of the room, and Mr Justice Burton bursts in with a huge lever-arch file of papers under his arm. ‘Court Rise’, says a voice, and we do. Then, bang – straight into the business.

Justice Burton dispatches the first case (a willing deportation) in less than fifteen minutes, telling the representative for the Home Secretary to rewrite his letter to the Saudi Arabian embassy and to ask for a reply within four weeks. In Saudi there is no Christmas delay, said the Judge, as the barrister tried to remonstrate about the shortness of time. There is a sigh of relief amongst our party, now crammed into the back rows of the pews – this man is practical, sensible, humorous, and efficient; there is hope for our case.

We learn that we are the main case of the day when Justice Burton apologises to the quiet, elderly gentleman sitting in the front row that his case won’t begin till 3.15pm. So many cases here are listed as little people versus big institutions. The judge invites the man to come back at 3.00pm, warning him that it would be boring to sit through the detail of the Health Professions Council. Mr Justice Burton checks himself with a wry smile, and looks at Dinah Rose, QC (representing the PsyReg group) and says ‘though it’s never boring when you are on, Dinah Rose’. Our hearts lift again – this might even be fun!

It was not yet 11am when Ms Rose stood up and she was still on her feet nearly two hours later. At lunch a colleague compared her performance to that of a dancer. She won the Lawyer Awards’ Barrister of the Year in 2009. She certainly had grace and dexterity, she had precision and energy, she was not clumsy or brash, and showed no sign of personal enjoyment in the points she was making, she nimbly stepped past all interruptions; and by the time she had finished, and she had put in place the basic principles and context within which the case against the HPC should be heard.

One question for exploration in this preliminary hearing was the relation between the HPC's activities and the mandate they had apparently been given by the 2007 White Paper – Trust, Assurance and Safety. This was at the heart of the HPC defence. It gave the HPC the task of regulating psychotherapy and counselling following the assessment both of the ‘regulatory needs’ of the talking therapies and whether ‘its system is capable of accommodating them’. A key issue was what ‘following’ meant: was it a contingent detail or, as the judge suggested, to be understood in the conditional sense of ‘provided that’? The HPC argued that they had simply told the Government that they were capable of accommodating the numbers, doing a kind of logistical, ‘mechanical’ exercise, without making any actual recommendation in their final letter to the Secretary of State in December 2009. The Judge summed this up as, ‘They had big buildings and enough photocopiers’. The HPC argued that it had not addressed the question of whether they had ‘the right standards and approach to regulate this field’ and therefore couldn’t be faulted on points of procedure or power. Dinah Rose repeatedly produced documents that proved the HPC were progressing as if they had done the prerequisite work on their capacity to regulate the field. The inherent duplicity of the HPC’s position was repeatedly exposed with written evidence, and, of course, succeeded in undermining the HPC argument. In the December 2009 letter, they actually stated that they had assessed the regulatory needs of the field and their capacity to accommodate those needs, while, in other correspondence, denying that they ever attempted this.

Rose quoted from the 1999 Health Act, the Health Professions Order 2001, the HPC’s own Guidance Documentation, the Government White Paper (Trust, Assurance and Safety, 2007), and from the Maresfield Report 2008, to build her case. A point made early in the proceedings was that the HPC often implies that those who disagree with them are seeking to avoid regulation for scurrilous reasons – the facts, she said, show quite clearly that the opposite is the case. Yes, echoed Mr Justice Burton, the opposite.

Rose stated that the HPC has no inherent power and cannot do what it likes, but has powers designated specifically to it via the legal statutes. By careful scrutiny of these statutes, she argued that they had been acting outside their powers, and that even if they weren’t acting outside these powers, then they were not following correct procedure. ‘The main purpose of this application’, she said more than once, ‘is to inform Government that when it makes its decision it should not listen to the HPC recommendations because, these are flawed’.

The HPC tried to argue that the Secretary of State for Health should have done the background work on whether the HPC was capable of actually regulating this group of practitioners. Dinah Rose countered this by saying it ‘cannot possibly have been the Government’s intention’, and produced letters (e.g. from the then Secretary of State, Ben Bradshaw, and from Mr Seale himself) and even reports (from the PLG) to show that this cannot have been true. All the evidence clearly showed that the HPC was ambivalent, at best, on the question of whether or not they were simply offering their hardware to help the government out, or whether they were seriously considering the reality of regulating this particular practice.

The second question which this hearing had been asked to consider was the point that the PsyReg group was too late to raise objections. Plenty of evidence (again, including letters from the HPC itself) was produced by Ms Rose to prove that they were not at all too late.

The HPC had been asked to consider how to regulate counselling and psychotherapy, and how it might be achieved. ‘Our submission’, said Rose, ‘is that they start off, decide it is too difficult and controversial, and duck the issue’. She points out that not only does the HPC know (as early as 2007) that this is a controversial question, and that many oppose it, but that this is even noted by Baroness Thornton (Labour & Co-op Peer) in Hansard in May 2009. She refers to the published minutes of the first PLG meeting which was already dealing with the tensions in the field, whereupon the Judge asked ‘Do you have people on the PLG?’ – ‘No’ she replied in a flash. ‘Hmmm’, said the judge.

Rose kept pushing her points that either the HPC didn’t have the power to say it could regulate C&P, and even if it did have that power, then it hadn’t followed the right procedure to accomplish it. There are two strands here, each one showing the HPC to be at odds with itself. They were shown to be acting inconsistently and, arguably, without integrity with respect to their own stated requirements. It was a letter from Bindmans that produced clear evidence of Marc Seale’s double-talk: in two separate letters written within a month of each other, Mr Seale claimed two conflicting and contradictory positions. ‘It is my submission’, said Dinah Rose, ‘that they’ve re-written history, taken different positions, used different reasons, are inconsistent’. She added, ‘It is not clear what their case is, they give mixed messages’. She concluded that ‘the purpose of this application is to make clear to the Government that no weight can be placed on recommendations of HPC: they have bypassed their statutory power, and their own guidance’.

When the HPC representative, Mr Fordham, stood up at 12.35pm, Mr Justice Burton looked him straight in the eye and said ‘I’m going to need a knockout point from you’, which we all took as a very good sign indeed. The QC began rather weakly, and wobbled his way forward for half an hour, managing only to muddle the various acronyms – before he sat down again we had an ‘LPG’ instead of a ‘PLG’, and an ‘HSPC’ instead of an ‘HPC’ – clearly confusing the name of his client with the name of his bank.

After lunch he came back in stronger voice, but his ‘knockout’ point still eluded him. After another half an hour, the Judge was ready to sum up. He began by saying ‘I propose to grant permission and will summarise’. A smile lit the faces in the back pews. He noted that the HPC claimed that it had not made any recommendations to the Government, yet this would be difficult to infer from their December letter. He invited HPC to rewrite or revise their December 2009 letter to the Secretary of State, to reflect the conclusions of today’s hearing. He pointed out that even if it were not decided to move to Judicial Review, the claimants would still have wrested an important statement from the HPC.

Nevertheless, Dinah Rose again pressed home the fact that the HPC was ignoring vital points, spinning others, and was happy to waste everyone’s time in order to try to save face. The Judge was persuaded, and awarded the JR permission to the claimants. Quick as a flash she stood up again and asked about the costs. In a move that seemed to be unusual at this stage of a case (i.e. costs are not normally awarded at a preliminary permission hearing), the Judge stated that the HPC must pay one third of the claimants’ costs. It was an elated group that stumbled out of the courtroom (the door of which had a hand-written note pinned to it stating ‘Court Full’) into the corridor. Their case, at last, had been genuinely heard.