Someone had been advised by the HPC that the only means of redress open to them after a decision had been made by the HPC was via a judicial review. They duly set one in process, and hired a solicitor. Only then did they discover that they were not in a position to put such a process into play.
This case involved an NHS manager who had been sacked. The HPC tend to trawl these cases and bring them into their own net to re-play the scene and ring out the surplus value. The upshot of this is that the HPC then becomes the complainant in the HPC Process. People who had been involved in the original case might be forgiven for thinking that they still had a part in this second playing of the scene, but in fact they don't. The HPC take over the show - in this way they act on behalf of an imaginary public and take a local sacking into a national misdemeanour.
There are two threads - one is the way a local event is passed to a central court (local difficulties acquire national status), the other is the question of self interest. The original professions were attacked on the grounds that they couldn't be trusted to keep their house in order as they were likely to be biased in their own favour. This inconvenient truth, however, also applies to any new body set up to keep order, it is part of life and must be dealt with by each of us as we act. The idea was that the HPC would always be objective because it has no interest in the professions it manages. However, this completely ignores the interest it has in maintaining itself - it is a naive, puerile view. The HPC is left with no other purpose than to maintain a register and police it - it is administrator, law enforcer, law interpreter, law maker. In the case of the original professions they were also interested in the work itself, and the knowledge pertaining to the work. In fact they were more interested in the work itself for without it they would cease to exist. In the case of the HPC their work - their trade, their profession so to speak - is administrative and legal. They are not interested in the actual work of the people over whom they have such far reaching legal powers. Their business is collecting names onto registers (and money associated), arranging the lists, creating sets of abstract standards of character and practise at a distance, and of enforcing these standards. That's it. It is a false profession, based on nothing. They are under the jurisdiction of another such body (the CHRE) and each of these is under the jurisdiction of the Privy Council, as far as I can see.
My contention is that the HPC is an artificial creation based on a false assumption. This is very shaky ground which sets up a need for a strong policing in order to make it work - an artificial force takes the place of any possible natural order. This sets up an absolute system and places far too much power in the hands of a small set of people. It is a very tricky situation, and one which is out of balance with the requirements of the situation.
It has been very common to explain the creation of the HPC and the CHRE through reference to Harold Shipman. The fear that is created by this move is two fold. There is the fear invoked through reference to a serial killer, and there is fear invoked by the irrationality of the reference to the subject in question. That is, there is no rational link between this murderer, and the creation of a large list, a centralised knowledge base, and an aggressive police force. The link has more in common with a paranoid idea than it does with reason, experience, and rationality.
Thursday, 5 February 2009
The Information Commissioner & HPC's FTP
You can go to www.informationtribunal.gov.uk and get copies of cases, I have one whose decision was promulgated on 14 March 2008. According to my dictionary of word origins, promulgate is linked to the idea 'to milk', that is to cause to emerge. This promulgation was set in motion by a series of events which culminated in a Freedom of Information (FOI) request by Ms Z who had referred a case to the HPC. The HPC refused to give the information which led to the Information Commissioner being called onto the scene. He then issued an Information notice requesting sight of the disputed information and the HPC appealed this notice under section 57(2) of the FOI Act.
Are you following all this?
I'm new to all this too, but little by little I intend to try to discover something about the particularity of the time we live in, the institutions we invent, the context in which bits of our lives get lived.
From the promulgated decision I learn things that I already knew: "The HPC is established under the Health Professions Order 2001 (the 2001 Order)" and subtle differences from things that I thought I knew: ... "It's main functions are set out at article 3(2) of the 2001 Order as "...to establish from time to time [my emphasis] standards of education, training, conduct, and performance for members of the relevant professions and to ensure the maintenance of those standards." The main objective in exercising its functions is "to safeguard the health and well being of persons using the services of registrants." This is written in The Order. But there is room for interpretation in practise and it is this that is in question at the Tribunal Service.
"The HPC's functions include the maintenance of a register of health professionals and a mechanism, called the Fitness to Practise process (the Process) whereby the conduct and performance of registrants may be investigated and called to account. An adverse adjudication on a registrant's fitness to practise may lead to, amongst other things, a registrant being removed from the register (such that they could not work in their chosen profession) or conditions being attached to the performance of their profession. Members of the public, employers etc, may make allegations to the HPC with regard to the fitness to practise of particular registrants. Such cases are investigated by the HPC and as a preliminary step in the Process a decision will be taken by a Panel of the Investigating Committee whether there is a case to answer. [If not, the Process ends. If so, a new Committee is called for a full hearing." (Quoted from the Tribunal's introduction.)
In the case in question the initial Committee decided there was no case, so Ms Z made her FOIA request to see on what basis this decision had been made. This was refused by the HPC on the grounds that certain exemptions applied, namely sections 30, 40, and 41... So Ms Z made an application under section 50 of the FOIA for a decision by the Information commissioner as to whether her request had been dealt with in accordance with law. After a lot of argy bargy the HPC filed a Notification of Appeal against the Information Commissioner's Information Notice and so triggered this appeal to tribunal.
It's quite Dickensian - we are in the field of law, very particular human relations, and, by the by, a professional practise.
The Tribunal heard evidence from Mr Jonathan Bracken from Bircham Dysen Bell, who were solicitors for the HPC. Mr Bracken had been involved in the setting up of the HPC and had advised on many of its processes, he had drafted most of its rules. He explained to the Tribunal that the HPC had 'moved away' from a punitive disciplinary scheme, and had put in its place the Fitness to Practise regime. It is a process in two stages. These stages were put into question at the Tribunal and Mr Bracken was revealed as lacking (he had to admit that some of his documents 'perhaps were not as well worded as might be') .
The next in the dock was Ms Kelly Johnson, the HPC's Director of Fitness to Practise. She was obliged to say that 'the practise and procedure guidance were living documents and in certain respects in need of revision'. In the course of her evidence she revealed that the information gained in the Process at the early stage could be shared with the competent authorities of the other European Union states, and in addition, circumstances could arise in which the HPC gave the police a registrant's information prior to a 'no case to answer' determination. Registrants are not warned of these possible disclosures.
To cut a long story short, the Tribunal concluded that 'registrants were unaware of the fact that HPC on occasion made disclosures in the public interest... The reality was that the 'aura' of confidence (as Counsel for the HPC had put it) attached to the information provided by registrants, was not as clear or as bright as contended." [my emphasis] Furthermore, the Tribunal added "this case came nowhere near the mark". Their decision in favour of the Information Commissioner had indeed been unanimous.
Are you following all this?
I'm new to all this too, but little by little I intend to try to discover something about the particularity of the time we live in, the institutions we invent, the context in which bits of our lives get lived.
From the promulgated decision I learn things that I already knew: "The HPC is established under the Health Professions Order 2001 (the 2001 Order)" and subtle differences from things that I thought I knew: ... "It's main functions are set out at article 3(2) of the 2001 Order as "...to establish from time to time [my emphasis] standards of education, training, conduct, and performance for members of the relevant professions and to ensure the maintenance of those standards." The main objective in exercising its functions is "to safeguard the health and well being of persons using the services of registrants." This is written in The Order. But there is room for interpretation in practise and it is this that is in question at the Tribunal Service.
"The HPC's functions include the maintenance of a register of health professionals and a mechanism, called the Fitness to Practise process (the Process) whereby the conduct and performance of registrants may be investigated and called to account. An adverse adjudication on a registrant's fitness to practise may lead to, amongst other things, a registrant being removed from the register (such that they could not work in their chosen profession) or conditions being attached to the performance of their profession. Members of the public, employers etc, may make allegations to the HPC with regard to the fitness to practise of particular registrants. Such cases are investigated by the HPC and as a preliminary step in the Process a decision will be taken by a Panel of the Investigating Committee whether there is a case to answer. [If not, the Process ends. If so, a new Committee is called for a full hearing." (Quoted from the Tribunal's introduction.)
In the case in question the initial Committee decided there was no case, so Ms Z made her FOIA request to see on what basis this decision had been made. This was refused by the HPC on the grounds that certain exemptions applied, namely sections 30, 40, and 41... So Ms Z made an application under section 50 of the FOIA for a decision by the Information commissioner as to whether her request had been dealt with in accordance with law. After a lot of argy bargy the HPC filed a Notification of Appeal against the Information Commissioner's Information Notice and so triggered this appeal to tribunal.
It's quite Dickensian - we are in the field of law, very particular human relations, and, by the by, a professional practise.
The Tribunal heard evidence from Mr Jonathan Bracken from Bircham Dysen Bell, who were solicitors for the HPC. Mr Bracken had been involved in the setting up of the HPC and had advised on many of its processes, he had drafted most of its rules. He explained to the Tribunal that the HPC had 'moved away' from a punitive disciplinary scheme, and had put in its place the Fitness to Practise regime. It is a process in two stages. These stages were put into question at the Tribunal and Mr Bracken was revealed as lacking (he had to admit that some of his documents 'perhaps were not as well worded as might be') .
The next in the dock was Ms Kelly Johnson, the HPC's Director of Fitness to Practise. She was obliged to say that 'the practise and procedure guidance were living documents and in certain respects in need of revision'. In the course of her evidence she revealed that the information gained in the Process at the early stage could be shared with the competent authorities of the other European Union states, and in addition, circumstances could arise in which the HPC gave the police a registrant's information prior to a 'no case to answer' determination. Registrants are not warned of these possible disclosures.
To cut a long story short, the Tribunal concluded that 'registrants were unaware of the fact that HPC on occasion made disclosures in the public interest... The reality was that the 'aura' of confidence (as Counsel for the HPC had put it) attached to the information provided by registrants, was not as clear or as bright as contended." [my emphasis] Furthermore, the Tribunal added "this case came nowhere near the mark". Their decision in favour of the Information Commissioner had indeed been unanimous.
A public point of view: Paola
Paola commented recently that: From where I am standing, the HPC has been protecting the professional against ACCOUNTABILITY. This has not helped her either: learning of the dire consequences of her many misguided actions and inappropriate interferences would have given her valuable feedback and helped her in her professional development and in her personal growth: the HPC has failed her too...
She continues:
"I always felt that there would be much more value for us in an apology and in a constructive use of the damage done to my son and myself as an opportunity for education and training, awareness and growth. The HPC does not do these things. In fact, and with reference to my previous post, the HPC does not do apologies either. The HPC does not do feelings and emotions and real people full stop..."
Paola's experience reveals more of the nature of this particular bureaucracy. It has been set up not as a pre-packaged or natural object without history, values, or character. It is a kind of living thing that can be assessed as a creature in its own right. In a previous blog I reported that Mr Williamson (one of the FTP panel chairmen) had pointed out that the HPC was similar to the GMC and that had inherited something from its predecessor (housed in the same building, and perhaps employing some of the same administrators and support staff) the Council for Professions Supplementary to Medicine. There is every reason to procede with an enquiry into the nature of this new thing, and not to assume that an organisation has no character nor that such is irrelevant. It is a necessary discipline to consider the character of the HPC and its conduct and to ask if it is fit for purpose.
There are also the unintended consequences. Paola raises this other point. "It seems to me that there may well be another worrying outcome of HPC regulation, a danger inherent in their structure and procedures: that the academic and professional standing of registrants under investigation will have a bearing on the outcome. In other words, that there will be a hierarchy of vulnerability to sanctions ..."
From my random attendance of FTP hearings I could not help but be struck by the absence of genuine cases raised by bona fide patients. So far there has been an angry and aggressive man shouting at an ambulance driver, a frightened colleague wishing to avoid another hearing about his own conduct, a training manager who thought he would be held responsible for an amblance drivers decisions, and a new recruit anxious not to be contaminated by any kind of accusation that she rules had not been obeyed.
The HPC has a particular nature, which has an effect on those it brings within its domain.
She continues:
"I always felt that there would be much more value for us in an apology and in a constructive use of the damage done to my son and myself as an opportunity for education and training, awareness and growth. The HPC does not do these things. In fact, and with reference to my previous post, the HPC does not do apologies either. The HPC does not do feelings and emotions and real people full stop..."
Paola's experience reveals more of the nature of this particular bureaucracy. It has been set up not as a pre-packaged or natural object without history, values, or character. It is a kind of living thing that can be assessed as a creature in its own right. In a previous blog I reported that Mr Williamson (one of the FTP panel chairmen) had pointed out that the HPC was similar to the GMC and that had inherited something from its predecessor (housed in the same building, and perhaps employing some of the same administrators and support staff) the Council for Professions Supplementary to Medicine. There is every reason to procede with an enquiry into the nature of this new thing, and not to assume that an organisation has no character nor that such is irrelevant. It is a necessary discipline to consider the character of the HPC and its conduct and to ask if it is fit for purpose.
There are also the unintended consequences. Paola raises this other point. "It seems to me that there may well be another worrying outcome of HPC regulation, a danger inherent in their structure and procedures: that the academic and professional standing of registrants under investigation will have a bearing on the outcome. In other words, that there will be a hierarchy of vulnerability to sanctions ..."
From my random attendance of FTP hearings I could not help but be struck by the absence of genuine cases raised by bona fide patients. So far there has been an angry and aggressive man shouting at an ambulance driver, a frightened colleague wishing to avoid another hearing about his own conduct, a training manager who thought he would be held responsible for an amblance drivers decisions, and a new recruit anxious not to be contaminated by any kind of accusation that she rules had not been obeyed.
The HPC has a particular nature, which has an effect on those it brings within its domain.
HPC PLG C&P day 2, pm
Towards the end of the HPC PLG for C&P last week the group started thinking about their next meetings. According to the work plan written down by Mr Guthrie, most of these meetings will be taken up with the question of Education and Training/standards of proficiency.
As the group approached this they revived something that Diane Waller had mentioned and parked a bit earlier. It was the question of 'life coaches' and people using other titles but doing similar work. Mr Guthrie had reminded the group that the process was about Protecting Titles, not function. This left the difficult question of figuring out how the HPC could guarantee anyone on its register without recourse to training and validation of practise. There is also the question of what they would do if people simply invented a new title for their work.
This is the way the nightmare works. Having invented a name, they now have to invent a new practise that fits the name and that they can police, otherwise they have no power whatsoever. It is a where the twist in the law is most obvious. The mistake Ian Kennedy and his followers made was to imagine a group of people who were the exception to the rule. The rule was that professionals were not to be trusted, the exception to this rule could alone solve this problem. The exception to this rule is the HPC. When Ian Kennedy said so casually 'why should they [the medics] have the power over life and death' he implicitly also said 'it should be us, who are better'. Which is, of course, nonsense.
What follows is a compact and incomplete account of some of the discussion. I've given it like this as an antidote to the anodyne minutes which reduce all the differences in the group to a single unanimous voice. I have also included their names so that anyone reading this blog might decide to engage in a conversation with any of these people (simple to figure out how through google) on some of the points that they make.
Jonathan Coe (Witness CE) said "The need for standards in professional training is what will protect the public."
Graham Smith (HPC Panel, Physio) linked this to the 'intention to deceive'.
Karen Ablack (UKCP standing in for Kathi Murphy) remarked that 'if people are not doing it [therapy] well enough and they are using my professional title then ...' she left it to her body language to indicate what she would do (flush them down the loo, I guess, she seemed to
indicate poo).
Mary Clark Glass (HPC Panel lay member) said 'we'll get them on it - if you go beyond your skills and competence, you will be called to account'.
Someone said "Prevention is the better protection of the public"
Finally Julian Lousada (BCP) remarked 'we've parked a difficult issue' to which
Diane Waller (chair) replied 'we can be seen to have done justice to the question'.
Sally Aldridge (BACP) then offered to exhume a dead and buried report done by the big 5 some years ago [UKCP, BACP, BPS, BCP, BABCP I think] which had tried and failed to synthesise competencies across the board. Someone else offered another similar dead and buried document, and Peter Fonagy (SfH) offered his NOS. All were eagerly accepted as fodder for the next few meetings.
In this way the work done in these other places by these other people for those other purposes are going to emerge into this tight schedule and could easily be taken up for want of the time to make something more suitable. This is how bad laws get made, and its other people who are going to suffer the consequences without any idea how it happened to them. That's why I'm writing this blog.
As the group approached this they revived something that Diane Waller had mentioned and parked a bit earlier. It was the question of 'life coaches' and people using other titles but doing similar work. Mr Guthrie had reminded the group that the process was about Protecting Titles, not function. This left the difficult question of figuring out how the HPC could guarantee anyone on its register without recourse to training and validation of practise. There is also the question of what they would do if people simply invented a new title for their work.
This is the way the nightmare works. Having invented a name, they now have to invent a new practise that fits the name and that they can police, otherwise they have no power whatsoever. It is a where the twist in the law is most obvious. The mistake Ian Kennedy and his followers made was to imagine a group of people who were the exception to the rule. The rule was that professionals were not to be trusted, the exception to this rule could alone solve this problem. The exception to this rule is the HPC. When Ian Kennedy said so casually 'why should they [the medics] have the power over life and death' he implicitly also said 'it should be us, who are better'. Which is, of course, nonsense.
What follows is a compact and incomplete account of some of the discussion. I've given it like this as an antidote to the anodyne minutes which reduce all the differences in the group to a single unanimous voice. I have also included their names so that anyone reading this blog might decide to engage in a conversation with any of these people (simple to figure out how through google) on some of the points that they make.
Jonathan Coe (Witness CE) said "The need for standards in professional training is what will protect the public."
Graham Smith (HPC Panel, Physio) linked this to the 'intention to deceive'.
Karen Ablack (UKCP standing in for Kathi Murphy) remarked that 'if people are not doing it [therapy] well enough and they are using my professional title then ...' she left it to her body language to indicate what she would do (flush them down the loo, I guess, she seemed to
indicate poo).
Mary Clark Glass (HPC Panel lay member) said 'we'll get them on it - if you go beyond your skills and competence, you will be called to account'.
Someone said "Prevention is the better protection of the public"
Finally Julian Lousada (BCP) remarked 'we've parked a difficult issue' to which
Diane Waller (chair) replied 'we can be seen to have done justice to the question'.
Sally Aldridge (BACP) then offered to exhume a dead and buried report done by the big 5 some years ago [UKCP, BACP, BPS, BCP, BABCP I think] which had tried and failed to synthesise competencies across the board. Someone else offered another similar dead and buried document, and Peter Fonagy (SfH) offered his NOS. All were eagerly accepted as fodder for the next few meetings.
In this way the work done in these other places by these other people for those other purposes are going to emerge into this tight schedule and could easily be taken up for want of the time to make something more suitable. This is how bad laws get made, and its other people who are going to suffer the consequences without any idea how it happened to them. That's why I'm writing this blog.
Max Weber on Structures of Power
"All political structures use force, but they differ in the manner in which and the extent to which they use or threaten to use it against other political organisations." This is the opening sentence of an essay first published in 1921 but written between 1910 and 1914. He is careful to distinguish the differences in the ways different states make use of their structures of power, as he goes on "Not all political structures are equally 'expansive'. They do not all strive for an outward expansion of their power". He speaks of the jealousy of neighbouring states, of the vulnerability of those in possession of colonies to that jealousy, and of the way that proximity and shape might expose some states to invasion from their neighbours. In the opening paragraph he sketches the usual way a structure might acquire domination over another: "by incorporating [others] or making them dependent."
All this can be read in the collection by HH Gerth and C Wright Mills that I have borrowed from my local Lambeth Library, and which I note (not without interest) was first published in 1948.
He goes on to sketch two broad attitudes that political structures tend to have towards those outside their immediate control. They can be more 'isolationist' or they can be more 'expansive', and of course they can change their mind about this along the way. 'On the basis of this power the members may pretend to a special 'prestige' and their pretensions may influence the external conduct of the structure.. Experience teaches us that claims to prestige have always played into the origins of war... Feudal lords, like modern officers or bureaucrats, are the natural and primary exponents of this desire for power-oriented prestige... power for the political community means power for themselves as well as prestige based upon this power."
"For the bureaucrat and the officer, an expansion of power, however, means more office positions, more sinecures, and better opportunities for promotion (even in a lost war)."
After a short excursion into some moments in history describing states favouring isolationist policies (including Roman, Britian, and Spartan) he returns to the question of fear. "The Spartan aristocrats, so far as they were able, quite deliberately limited their political expansion for the sake of isolation. They restricted themselves to the smashing of all other political strucures than endangered their power and prestige. They favoured the particularism of city states. Usually, in such cases, and in many similar ones, the ruling groups of notables (the Roman nobility of office, the English and other liberal notables, the Spartan overlords) harbor more or less distinct fears lest an Imperator, that is, a charismatic war lord, emerge. A tendency towards centralisation of power goes very readily with a chronically conquering 'imperialism' and the war lord might gain the ascendancy at the expense of the power of the ruling notables."
Weber concludes this opening section by returning to the question of money: "Like the Romans, the British, after a short time, were forced out of their policy of self-restraint and pressed into political expansion. This occured, in part, through capitalist interests in expansion."
In order to try to understand the nature of the hpc it is necessary to understand the context which brought it into existence. I've gone back to Weber as a kind of touch stone. I particularly like the way that he sets off without forgetting that human beings are subject to fear, jealousy, aggressivity, and greed. He doesn't emphasise this unduly, he doesn't do it like Ian Kennedy, and he doesn't pretend it isn't part of the scene. It is the sensibility of a novelist in the service of a sort of science, not the raging of a beautiful soul against the sins of the others.
All this can be read in the collection by HH Gerth and C Wright Mills that I have borrowed from my local Lambeth Library, and which I note (not without interest) was first published in 1948.
He goes on to sketch two broad attitudes that political structures tend to have towards those outside their immediate control. They can be more 'isolationist' or they can be more 'expansive', and of course they can change their mind about this along the way. 'On the basis of this power the members may pretend to a special 'prestige' and their pretensions may influence the external conduct of the structure.. Experience teaches us that claims to prestige have always played into the origins of war... Feudal lords, like modern officers or bureaucrats, are the natural and primary exponents of this desire for power-oriented prestige... power for the political community means power for themselves as well as prestige based upon this power."
"For the bureaucrat and the officer, an expansion of power, however, means more office positions, more sinecures, and better opportunities for promotion (even in a lost war)."
After a short excursion into some moments in history describing states favouring isolationist policies (including Roman, Britian, and Spartan) he returns to the question of fear. "The Spartan aristocrats, so far as they were able, quite deliberately limited their political expansion for the sake of isolation. They restricted themselves to the smashing of all other political strucures than endangered their power and prestige. They favoured the particularism of city states. Usually, in such cases, and in many similar ones, the ruling groups of notables (the Roman nobility of office, the English and other liberal notables, the Spartan overlords) harbor more or less distinct fears lest an Imperator, that is, a charismatic war lord, emerge. A tendency towards centralisation of power goes very readily with a chronically conquering 'imperialism' and the war lord might gain the ascendancy at the expense of the power of the ruling notables."
Weber concludes this opening section by returning to the question of money: "Like the Romans, the British, after a short time, were forced out of their policy of self-restraint and pressed into political expansion. This occured, in part, through capitalist interests in expansion."
In order to try to understand the nature of the hpc it is necessary to understand the context which brought it into existence. I've gone back to Weber as a kind of touch stone. I particularly like the way that he sets off without forgetting that human beings are subject to fear, jealousy, aggressivity, and greed. He doesn't emphasise this unduly, he doesn't do it like Ian Kennedy, and he doesn't pretend it isn't part of the scene. It is the sensibility of a novelist in the service of a sort of science, not the raging of a beautiful soul against the sins of the others.
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