the public, and who it is protected from

The phrase 'to protect the public' gets bandied around a lot, but even with only a small pause one is confronted with a number of problems. What is it - this thing so readily and easily called the public? What must it be protected it from - what is the threat that is imagined?

In the fitness to practice hearing for the absent Mr S (see blog below), I had occasion to ask Mr W how the HPC understood what they meant by 'protecting the public'. Although he had no ready answer for this he did me the courtesy of improvising. 'We don't survey the public to discover a meaning, it's a kind of ideal I suppose; we have lay members, that's what they are for, and everyone is also, of course, a member of the public'. Everyone is also a member of the public. Yes.

More than once I have had the impression that I am in the presence of the invention of some kind of a new religion. Conjuring up an idea of 'what the public will think if they saw this' is rather like "what would god think if he saw me do this?" There are important differences, of course, but the functioning of an Ideal in order to govern behaviour is a very large part of the work of these FTP panels.

The act, and the responsibility for the act.

When the panel returned its verdict on the absent Mr S this week Mr W jumped in very sharply to press the panel to enact the suspension immediately in order to 'protect the public'. The panel retired to consider this, and took Mr P with them for advice. In the lull I asked Mr W in what way he was responsible for his work, and whether he could say why he had decided to ask for this measure to be brought into play so swiftly. Mr W assured me that it was not his decision, but a general policy, made by a committee.

Mundane details

On this bright winter's morning the action in the HPC FTP rooms was slow. The only hearing in progress was that of Mr S (paramedic) whose case had come to the HPC from the police. There had been a traffic accident, a breathaliser, an admission of alcoholism. This had led to a conviction. Mr S was not present at the HPC hearing, which begun today and was over by lunch time. The Panel's verdict was flying from the web-site by the middle of the afternoon. No witnesses were involved, and no legal representation had been engaged from outside to present or defend the case. It seemed to be a straight forward regurgitation of a case already held. The only people on stage when I entered the room were the court stenographer, the HPC case presenter (Mr W), the HPC Hearing Officer (Mr S), and the legal adviser (Mr P). They were discussing their luck in the office secret santa.

After a short while the chairman of the Panel popped his head round the door to ask the legal adviser to come and give his legal advice in the little room round the corner where the panel are able to discuss things in private.

In the wait I was able to address a few questions to Mr W who had been good enough to introduce himself. He recognised my name from a series of email exchanges over the previous weeks.

Mr W is one of 12 officers employed at the HPC in this function. They are drawn from a range of different backgrounds, many of them from other regulatory bodies (Financial Services, Border Control, some ex-police, and so on). Some of them also have legal training but Mr W does not. This confused me. I have been impressed by the highly stylised way this role had been filled in the other cases I had observed, and had become quite sure this function was brought in from the outside. One of the registrant's representatives had told me this as a matter of self-evident fact, in fact. But no.

Mr W said that when a case came through from the Police there was seldom any need for the HPC to engage a solicitor as they could rely on the evidence that had been produced through this other legal procedure. This also confused me, and in fact I understood him to tell me the exact opposite. I had assumed that a case coming from the courts would need a professional law person to understand the translation necessary to bring something from one domain of law into another. As it turns out, the administrators at the HPC appear to simply be picking up a case and repeating it: a sort of empty echo, but one with serious consequences for the person in question.

I asked if he was also a kind of researcher, someone who must go out and discover the facts of a case and find the witnesses who would come and speak. Not really. This was more likely delegated to a solicitor who would be instructed to act on behalf of the HPC. It was less 'research', and more 'investigation', of course. The kinds of facts that are produced through this process are not on the side of knowledge and truth as we know them in science and practice. They are a different quality of knowledge, and will ultimately be written with the weight of State law, not with the weight of the real - something that interests me a lot.

After the panel had presented its conclusions (click the heading of this blog to read them for yourself) they withdrew once more to consider the sanction. Before they left the room they were reminded that a new set of sanctions had been issued by the HPC and had come into force today. The new sanctions had been created by the Conduct and Competence Panel (made up of all kinds of professions and lay people), and written in the Indicative Sanctions Policy, both of which (no doubt) can be consulted on the web.


Post script. When the Panel exited they stopped and said hello. They were returning at 1.30pm to be the Panel for the next hearing of the day. This gave the Chairman of the Panel the chance to say a little about themselves. He was a Chairman. He would be Chairman again this afternoon.The Lay Member would also be returning. The other gentleman was the Paramedic Panel Member, so he won't be returning. They would slot in the relevant Panel member to represent the next registrant. So, out of the 7 people present (8 including me), only one has any idea of the realities and practicalities of the registrants actual real work.

Mr H & facts 1, 2, 3(a), (b), (c), (d), (e), 4(a), (b), and (c) etc

Poor Mr H. I hope he has a sense of humour. A dyslexic man, qualified by some regulated and audited educational body to work as a physiotherapist, faced with a panel of people who prove facts 1, 2, 3, etc and write that "the HPC Standards of proficiency were breached, viz: Standards 1a 4, 1a 5, 1b, 1 1b4, 1b5, 2a.1, 2a.2, 2a.3, 2a.4, 2b.1, 2b.2, 2b.3, 2b.4, 2b.5, 2c.1, and 2c.2."

Sitting in the crammed up seats in a cold draft near the door, (which might well appear - misleadingly - in the minutes of this meeting as the 'public gallery') I would say that there are good grounds to suppose that the educational body that granted Mr H the qualification might be unfit for practice. Furthermore, I think that the NHS Trust who employed Mr H also has a little case to answer. The permanent shortage of staff, which is well known to be worse over the Christmas and New Year period, is the context in which Mr H was first offered the job which he had refused. He recognised that he would be in difficulties in such a particular context as this (it was a 'respiratory' rotation, and Mr H knew he had no expertise in this). The job was offered to him again later as no-one else had been found for it, and this time he accepted it. Perhaps he thought he was helping out, and that this spirit of charity on his part would be met with by staff around him.

In fact one of the witnesses, the Band 6, said she had a good working relationship with Mr H, and had been happy to spend time teaching him on the job. So what changed her mind?

The Band 7, another young woman, and responsible for quite a lot (it seemed to me) in this NHS Trust, spoke in a way that did not inspire much confidence. She seemed to reproach Mr H, and to resent his presence - I don't think she can have been part of the process to recruit him to her team. He seemed to represent a threat to her reputation, and to require more from her than she was able to give.

Now, this could mean that she was not fit for purpose, not capable of dealing with the perennial staff shortages, not capable of coping with the level of qualifications produced by contemporary educational bodies, not capable of accommodating the differences amongst the people she is required to work with. Not capable of holding her ground in the face of potential allegations of failure that might be aimed at her.

Or is there another way of thinking about this? As it happens, I studied business 30 years ago. This was when the function 'Personnel' still enjoyed a position. At that time there was much excitement at the new phrase 'Human Resources Management' and the academics in the business schools at the time wondered what effect such a shift in terms signified. Tony Watson (now Prof at Nottingham Trent University) taught me that 'personnel' derived from the French duality born of war-fare: personnel/material. It indicated a human being as opposed to an object. The term Human Resource, however, rather put the person on the same side as an object. Essays and exams were written by hundreds at the time on the question of possible future consequences.

That was a very different context. It was not so unusual to consider it rather dishonest to scape-goat an individual for the failings of the group.

Now it seems that we, the British, think it a virtue to single someone out for a public show trial.

No patient was harmed as a consequence of Mr H's employment.

So what is going on in our name, and from what are we being protected?

Is it not knowledge, or better yet, truth that we are being shielded from? The truth not only of the complexity of reality constructed by us and by government policies over the last 30 years, but also of the truth of human subjectivity and the impossibility to actually turn us all into a fantastically efficient machine.

Physiotherapists and their notes: Mr H's FTP hearing

Today's Fitness to Practice Hearing focused mainly on the question: can Mr H write notes according to the rule book. His chosen practice is Physiotherapy.

The case opened this morning, and is expected to unfold over three days. I stayed for four hours and listened to the cross examination of two witnesses, who seemed to be the whistle blowers in this case. They had been his Band 6 and Band 7 supervisors in a rotation he (Band 5) undertook a year ago.

There was no word of a problem with his actual practice, but a lot of trouble with his ability to recite the rules, and especially with writing them down in the case notes. This is how the two women want to invest their trust in him - can he write notes the way they can?

He is not like them. He is dyslexic, and he has a different relation to the written world.

One witness coughed her way through her performance, and sprinkled it with so many generalisations and ready made phrases that I wondered whether she might inadvertently prove herself unfit for practice.

She and her colleague were effectively questioning the man's qualification, which had been awarded by some other body. This opens up a can of worms. Clearly something had shaken their trust and he had become the object of their fear. So much so indeed that they had decided he must be excluded not just from their work environment, but from their profession and his chosen trade. They had, however, a great deal of difficulty making their case clear.

A lot of the talk and cross-questioning concerned the grading of the jobs, the level of staffing, the role of a crisis team, bits of specialist equipment, and other NHS organisational details. This gave a glimpse context within which this drama was taking place, and opens up another can of worms.

Times have indeed changed, and the structural context of both universities and hospitals have been transformed radically by successive government policies. One upshot of this is that today we can watch witch hunts and construct scape goats rather than think about the process, the system, the context or the way people end up scrapping when they feel under threat themselves. This may not be the intention, but it requires a lot of effort to subvert that 'natural' effect. The arena in which our assembly are obliged to meet is structured in such a way to exclude any other kind of outcome. It was a relief, then, to hear the Panel ask for details of the context that threw some real light on situation in question.

The much respected GP George Freeman (trainer, teacher, and practitioner) told me earlier this year that now, for the first time in his long experience, the British Government was supporting a glut of students in the medical profession. He said that many more were going through medical school than there were jobs in hospitals, and in rotations etc. This is a kind of State induced over-production which is often justified by reference to a false kind of 'natural selection'. You don't need me to spell out the kind of benefits that arise for the Government, and the inconvenience to the students that this nonsense implies. (click here to find the full text of that conversation).

It is the kind of competition that Chris Woodhead and Margaret Thatcher enjoyed provoking. It is based on the mistaken belief that you bring out the best in people by artificially undermining the basis of their trust and then injecting fear.

The way the two women spoke in this case revealed lots of inconsistencies and incoherences that left me thinking that they simply didn't understand the way Mr H worked, and couldn't appreciate the value he was providing. He is just not like them.

For example, one of the 'cases' they brought against him was an incident with a patient who was, as it turned out, about to die. It seems that Mr H had read the situation quickly and correctly from the social relations in the room - the family were assembled around the bed of the patient - so when he entered, he let them tell him what had happened (a stroke), listened to the patient's chest through his stethoscope (perhaps to give comfort, it was suggested) before leaving without conducting the planned physiotherapy treatment.

His supervisors complained that he didn't read the information from the file but got it from the relatives, furthermore he should have collected all the 'objective and subjective data' and he should have talked to the medics involved in the case. This was indeed the course of action then taken by the Grade 5 (a woman who knows what is required) after which she arrived at the same conclusion - that today's regime of physiotherapy would be completely out of place.

State Imposition and Statutory Regulation

The British Psychological Society web-site says: "Statutory regulation of psychologists is a stronger form of regulation than the current voluntary system and is therefore potentially a better means of protecting the public. The Society has argued for a long time that a statutory system is necessary to protect the public from charlatans and poor practice."

Statutory regulation, as it is implied here, is strong because it has the force of law pulsing through its veins. To be very clear, tho, this law may be local (pertaining to rules of the organisation itself) if the statutes are those of the organisation. Or it may be State Law, the law of the land, if the statutes are then written into the books of the Houses of Parliament.

What is happening currently, however, is State Regulation of psychological profession, and this is another thing again. State Regulation is imposed by the Government onto the professional organisation.

What protects the public from poorly functioning professionals, however, is not the enforcement of centralised rules (which is an excellent method of producing rule bound functionaries, and people too timid to use their own common sense). On the contrary, what is needed is strong networks of knowledge producing communities who maintain a clear emphasis on the realities of practice.

Here we have the two elements that make up Popper's nightmare. First, how can we make a system that supports the vibrant creation of practical knowledge, distributed as it is, in the minds of the may people that make up the community? Second, how does this relate to the FW Taylor's principle of efficiency, or to the legal notion of the nation state.

In the case of Statutory regulation, it can happen that a profession underwrites the structures of its organisation by getting them written into the Statute books of parliament, thus creating a powerful closed shop.

In the case of State regulation, it is the Government that imposes a system of regulation on a profession. This puts the professionals into a position of either having to pretend it was their idea in the first place, or risk themselves by opposing the law of the land. In 2001 suddenly the Labour Government decided this would be its course of action.

This means that in the current scenario relating to the so-called health professions, things are muddied precisely on this point.

The Government decided to impose State regulation on a whole range of professions. To do this, it first created two new bodies with the Health Professions Order 2001: The CHRE and the HPC. This followed the advice of the report of the Bristol Royal Infirmary Inquiry. It was imagined that these bodies would be able to operate independently of Government and of professionals, and would take over the management of a whole range of practitioner bodies. Once in this position, the HPC would itself apply to the Government to turn the newly written 'statutes' into Statutory Law. In this way, the Government would avoid the accusation of imposing State Regulation on an unwilling body of practitioners. That is, the HPC would be able to claim that it was involved in a process of statutory regulation.

This, however, is stretching the truth exceeding thin.

Psychotherapy & Counselling, 1st meeting of the Professional Liaison Group .

At the Professional Liaison Group for Psychotherapy and Counselling held on Thursday 4th December the central difficulty - resolving the tensions between imposing government policy from the top down and listening to bottom up, democratically expressed opposition - was raised and then avoided before calling the meeting to an unexpected early end: 2 hours before schedule.

Niall McDermott, Head of Policy & Standards from the Dept of Health, presented the legal frame of the group, explaining the role and process of Section 60 of the Health Act 1999. The work of the PLG will result in recommendations that go to the HPC Council, from where it goes to his team of lawyers to be turned into law. He also spoke of the links between the various governmental bodies, saying that he saw no reason why Skills for Health shouldn't inform HPC - the correct steps had been taken to make that 'read across' work.

Micheal Guthrie, Head of Policy and Standards at HPC said 'there's a clear policy direction from the Government, full stop' and ended his presentation by pointing to the not inconsiderable benefits to the professional bodies who join this process. He added that the PLG were faced with a very difficult and ambitious process, and that they would be 'asked to make pragmatic decisions' in order to 'move things forward'.

Jonathan Coe, CE of Witness supported this line and said 'opposition to the process is a misperception - our job is to move away from left field views' and implement the government's policy. This line was repeated by other HPC Council members on the group (notably Annie Turner representing Occupatonal Therapy and Eileen Thornton for the Physiotherapists) who made long and frequent interventions to reassure those representing the new profession of psychotherapy that there is always dissension to the process, but it would all get suppressed in the end: someone said 'we have a task to do, we have to manage the task'. This was more clearly stated later by another HPC representative, this one appointed as chair of this committee, arts therapist Diane Waller; she said: 'this is the HPC's task: the Government has made a decision, if we don't do it to ourselves, it will be done to us.'

Kathi Murphy (UKCP rep and psychotherapist with Metanoia) had to remind the group that she was not filibustering (a political point set up by the Skills For Health spokesman, and knocked home by the representative for Relate) but was in fact raising important arguments thoughtfully made by large groups she was there to represent. This was the most clear statement that the meeting actually had some work to do to take on board the different positions within the profession.

Sally Aldridge, Head of Regulatory Policy for the BACP, quietly asked how they would resolve the difficulties of dual registration. This deceptively simple question conceals not only the fight for status that might wreck the work of this committee, but also the unwelcome news that there is no way of stipulating when the work of this profession is simply one thing or the other. Brian Magee, representing counselling and psychotherapy for Scotland gave voice to another small question that cuts right across this one, but from a very different starting point. He asked whether the group was entitled to decide that regulation was not in service users’ interests. This question triggered the chair to stop the meeting for lunch. It was a little after 12 midday.

Popper's Nightmare

At the Rally of Impossible Professions, held in London on 20 September, Richard Gombrich had occasion to remind us all of the pertinance of Popper's Nightmare. Click the link for a short snippet of this on you-tube

“The holistic planner overlooks the fact that it is easy to centralize power but impossible to centralize all knowledge which is distributed over many individual minds, and whose centralisation would be necessary for the wise wielding of centralised power. But this fact has far-reaching consequences. Unable to ascertain what is in the minds of many individuals, he must try to control and stereotype interests and beliefs by education and propaganda. But this attempt to exercise power over minds must destroy the last possibility of finding out what people really think, for it is clearly incompatible with the free expression of thought, especially of critical thought. Ultimately it must destroy knowledge; and the greater the gain in power, the greater will be the loss of knowledge.” Karl Popper

Newshounds and the public's right to know

My trip today to the HPC revealed some very different knowledge. The Fitness to Practice Hearing was for an Art Therapist who works with children. The practitioner is alleged to have said things about children, sex and death. This counts sufficiently as a story for the Daily Mail to send a reporter, and for two Agency journalists to turn up too. They, however, took off for Great Ormond Street as soon as the news broke about baby Hope's death after the operation to separate her from her twin sister Faith. This left the unfortunate Daily Mail hound to wait, and wait, and wait... and pass the time with me.

I learned a lot from her.

For a start, in a regular court, there is no need to hang around in the reception waiting to be called. You can just march right on in and watch what goes on while waiting for the real action to start. Second, if someone asks you to leave because a witness prefers to speak in private, you can sit tight - after all, what the witness says is not private. Third, well the third point requires a bit more background.

This morning's case alleges that the therapist tried to make jokes to a colleague about children in relation to sex and death. His case is now heard in the week where the news is all about the aftermath of the tragedy of Baby P. So, Mr D's representative moved to remove the press and the public from the gallery, and petitioned for the case to be heard in private.

So I learned another detail: first, the appeal was made to section 10, 1, a. This is written in Statutory Instrument 2003 No 1575, The Health Professions Council (Conduct and Competence Committee) (Procedure) Rules Order of Council 2003. Here it is:

"(a) the proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the health professional, the complainant, any person giving evidence or of any patient or client, the public should be excluded from all or part of the hearing"

What the Daily Mail reporter then wanted to know was under what power she could challenge this. For her our exclusion was an outrageous breach of civil liberties, and might be a contravention of the Human Rights Act.

I stuck close by as she refused to be ushered back to the dullness of the reception, and while she phoned around to see if she could muscle her way back into the room,I noticed the coming and going in the corridor. Three middle aged men in grey walked by and back again, two in their outdoor macs. The indoor man was pointing out the hearing in this room, and the other one in that, and seemed to boast that they always had two or three going on at the same time. As he brought them back down the corridor he said, 'we shall have much more in a few months, maybe 20 or so at the same time, when the psychologists come onto our books. They tend to have better insurance, so the cases will go on for longer'. Never had the place felt more like a factory where registrants are dumped by colleagues and bosses into the mill for the pleasure of the legal profession and the administrators.

The HPC staff don't get involved at all in the nasty business. It is central part of the process that a false objectivity is constructed, and it is here that we can see most clearly the mechanism for producing proliferating unintended unheeded consequences. The 'court gimp' as the hack called him, just trawls through paperwork to collect complaints, then organises the paperwork and room bookings. An IPC is convened (independence practitioners) and it is up to them to gather evidence and find witnesses. The administrator can shrug, and smile, and go home with a clear conscience. These details are spelled out in the Health Professions Order 2001, the legal instrument passed by an elite group, the Privy Council, late in the year 2001.

The journalist was on a 'steep learning curve' trying to figure out her place in the law at the HPC. I am giving myself - and you, if you are there - a more gentle, longer slope to get the hang of the thing, for there is a twist in the logic of it which is pernicious, and which I believe is already producing unitended consequences of a kind that must be stopped.

One more thing: the law that this process is set up on is no ordinary kind of law. It is apparently called 'regulatory law' and has it's own kind of logic.

Bit by bit, in this ordinary way, I am trying to learn and to pass on the peculiar nature of the thing that is taking over as 'task master' for an extraordinary and diverse range of practitioners. I believe it to be the public's duty to join in. Especially as all this is done in our name.

Newsworthiness and children.

A shock expose was trumpeted on Radio 4's pm last night (Tuesday 2 December). The reporting was all indignant self-righteousness and puffed up pride: Radio 4 PM had played a vital role in ... well, from the tone, it must have been tracking down a seriously criminal and saving the lives of at least a dozen children. An undercover reporter had got himself a job in a private ambulance firm and found himself on a shift with a loud bragging bore. He captured this on tape and took it back to base like a hunter in a tribe released into the wild as part of an initiation into man-hood. The bore bragged that he had once had a criminal record. The conclusion that the BBC jumped to was that this man was in close proximity with sick children ... err, and, well what? What the story lacked in facts and reason, the presenter made up with huff and puff.

Reading the small print it turns out that this man is an excellent employee, and the conviction was seven years ago. But, well, this is news in a week of children stories.

As the hospital manager began speaking the journalist suddenly jumped in and urgently and excitedly stated 'and you didn't know about it until the BBC brought it to your attention, is that correct'. For goodness sake. The news and the agitation here is all produced by an over zealous BBC anxious to claim its place among the 'winners' who
save the life of an innocent child. For shame.

In amongst the story a Unison Union rep gives an opinion. It turns out that the ambulance firm is subcontracted to a contractor 'outside' the NHS. This frames his statement as: private company bad, NHS good. He adds "We are seeing the growth of an uncontrolled and unregulated industry." These two lines serve as shorthand for bringing everyone back under the tight control of the State.

Yet, wait, what's this: a small fact emerges. Private ambulance operators are used throughout England, but they are not used at all in Wales and only rarely in Scotland and Northern Ireland. So what, then, is happening in England?

Let's hold off with the sensationalism and short cuts shall we, and take things a bit more slowly and carefully. Its crucial now for us to think and to see what's really going on.