FTP of a psychologist who was ordered to do CBT instead of psychotherapy

In April, colleague Bruce Scott noticed that a case on the Fitness to Practise listing on the HPC website had vanished. This was the case of a Psychology Practitioner whose allegation is particularly interesting to counsellors and psychotherapists (see points 3 and 4 especially):

“In the course of your employment as a forensic psychologist in training at R Hospital between 2001 and 2006 you:
1. failed to provide reports in a timely manner;
2. failed to keep accurate client files;
3. undertook psychodynamic work with clients which was outside your scope of practise;
4. continued to undertake psycho¬dynamic work with clients when directed not to do so by your supervisor;
5. submitted a court report which
a) was not counter-signed by your supervisor, and
b) referred to you as a forensic psychologist.
6. The matters set out in 1 – 5 above constitute misconduct.
7. By reason of that misconduct your fitness to practise is impaired.”

The case had been opened in the usual way, and was held in public at HPC HQ, in February this year. They had not managed to get through the proceedings in the two days allocated, so were waiting till June to complete the ordeal. Bruce made a note and planned to attend the final part of the hearing. Then he noticed its disappearance from the listings.

A couple of weeks ago I decided to dig around a bit and asked for the transcript of the hearing, and received four days’ worth of proceedings, amounting to nearly 90,000 words. The HPC clearly deem this case to be one wholly in the public domain, yet the second half, conducted in June, had not been publicly announced. Why?

Meanwhile, Bruce had also noticed that no cases for Practitioner Psychologists were appearing on the HPC website at all. What was going on?

The Chief Executive’s Report to Council last week (HPC Council meeting, 7 July 2010) contains statistics about cases broken down according to section of the register. For example, there are about 40-50 cases pending at the Investigating Panel stage (the first formal stage) for Practitioner Psychologists since the takeover last year (in fact, the Practitioner Psychologists come third most months, after Paramedics and Physiotherapists).

The figures for cases pending at the Competence and Conduct stage, the public hearing, are currently about 22 or so.

When asked why no cases were showing on the HPC website for psychologists, the clerk replied first that this question was being dealt with under the Freedom of Information Act, which seems a bit odd, and second that “The only practitioner psychologist hearings taking place in the next four weeks involve cases transferred from the British Psychological Society. Under the transfer arrangements, these individuals were not eligible for automatic transfer to the HPC register as there were outstanding fitness to practise matters at the time the register opened. The hearings are taking place before the Conduct and Competence Committee under the transitional arrangements to determine whether the person should be entered on the register. We are not publishing details of these cases on our website as these individuals are not currently on the HPC register.”

The decision to remove these cases from the website seems to have come shortly after Dr Cross’s case in March or April, and this appears to have created a bit of confusion in the HPC itself. The case whose allegation was quoted above was pronounced on the website in January in readiness of the February hearing date, but was not declared in May, four weeks before its final two days’ hearing in June. In the clerk’s email this week he specifically states that “The Council's policy is to publish the details of a hearing on the website four weeks in advance of the hearing date. Where a case is part heard or adjourned, the hearing will remain on the website with the new date.” This did not happen in this case. In the transcript of the case (which is freely available by emailing Ciara.O'Dwyer@hpc-uk.org and asking for it: PYL05183) the HPC solicitor clarifies the position as follows:

“As this was an investigation originally carried out by the British Psychological Society, it is probably right that I should explain the background and how the HPC comes to have jurisdiction just briefly. The background is that Ms D was registered with the British Psychological Society as a practitioner psychologist. And as you may be aware there has been a transfer of the voluntary register operated by the BPS into the statutory remit of the HPC. And ordinarily a person registered with the BPS would be then included in the relevant part of the register of the HPC. However an exception to that is where a person is subject to proceedings which could lead to their removal or suspension from the BPS register. And if that is the case, the HPC may determine that the person’s name is not to be entered into the relevant part of the HPC register, and dispose of the matter in such matters as it considers just. And that is according to Article 5(5), (6) of the Healthcare and Associated Professions (Miscellaneous Amendments and Practitioner Psychologist) Order 2009. I outline that in brief because Mr T [registrant’s solicitor] has kindly indicated to me this morning that there is no issue over jurisdiction. This matter has come straight to the Conduct and Competence Committee because of the stage that it had reached at the BPS. And so that explains why, in the notice of allegation, it is phrased in terms of whether she should be admitted to the Register, rather than the usual case where there has not been a transfer of this sort when you are considering someone who is already on the Register, and what if anything, should happen to that registration if you find the matters to be proved.”

So, there it is: this is one of those cases that the HPC is holding that has come from the BPS so the practitioner has not yet been granted access to the HPC Register (though she does have a registration number, and is apparently legally subject to the proceedings of the HPC conduct and competence committee). This is one of those hearings that I am now told is not being held in public, although, as you can see, I have received the transcript in full.

Apart from this anomaly, the case itself is fascinating. I commend it to you for leisure-time reading (I bet you could even register the time it takes to read it in your CPD file, if you indulge in such a thing). The lawyer, Mr T is wholeheartedly on the side of his client and goes at the HPC witnesses like a Rotweiler – “Yes, Mr S. I just want to start with something that is not in your witness statement. But is relevant to these proceedings. And that is the genesis of your complaint. Because, of course, this is a complaint which was not pursued or taken up by the Trust, the employer. This is a complaint that you personally had made with Dr B, isn’t it? … you, in fact, were never her supervisor for the purposes of the BPS chartership, were you? … In fact the Trust had previously taken the decision that you would not be her supervisor because she had already made a complaint about you and the way that you were conducting supervision.”

The defence sets out right from the get-go – this is a counter complaint made by two individuals, not supported by the Trust, and prompted by a grievance taken out by the defendant against both managers. As the case unfolds there are some interesting details about what does and does not count as psychodynamic work, what constitutes supervision, what is meant by ‘a vulnerable service user’ (in this case a man who, amongst other things, battered his girlfriend to death with a hammer), how NICE guidelines are used to justify imposing CBT and forbidding psychodynamic work, and finally, the sheer beauty of the evidence of the old psychiatrist (Dr K) who had been supervising the psychotherapeutic work of the defendant - it comes through as if from another planet.

The case rolled on, as already noted, for four whole days, costing about £8k excluding legal costs (say, another another £1k per day). The Panel took 4 hours to come to its decision, which took barely a page to record on the transcript. The decision was NOT well founded.

The latest FTP Annual Report from HPC reports a doubling in the proportion of registrants with complaints against them over the last five years: 0.19% in 2005-6, and 0.38% in 2009-10. There has been a huge increase in cases Not Well Found in the same period: 2% of all cases not well founded in 2005-6, and 30% not well found in 2009-10.

Kelly Johnson, Director of FTP notes in her report that the budget for the FTP department was approximately £6m last year, which is about 40% of the HPC’s operating costs, from money raised by registrant fees. There appears to be no effective mechanism for controlling the quality of work in the FTP department.

Thought Crime - an FTP case of a Biomedical Scientist

This is the story of a Biomedical scientist who was reported as saying of an absent colleague ‘I have an idea of what XX could do as her other job – a suicide bomber’. XX had suddenly handed in her notice with no other job to go to, and had thus become the subject of gossip for the colleagues who remained at work. At a leaving do for another member of staff a while later, the registrant’s comment caused a bit of unease, and somehow, later, seeped into the attention to one of the managers at work who hadn’t been at the party. In a series of convolutions that eventually led to the registrant being sacked, another manager actually phoned the woman who had left, and about whom the comment had been made, to tell her. Apparently he had wanted her to join in and give some kind of evidence of offense in a disciplinary process he was advancing against the registrant. She declined.

When a registrant is sacked or demoted the employer is obliged to tell the HPC, who then consider making their own case against the registrant. This case was first heard by the Conduct and Competence Committee on 29 March 2010 and was concluded on 15 June when the panel found the HPC had made a good case and decided to issue a caution for three years against the registrant. The first part of the hearing was conducted in public. The transcript is available to the public (email ftp@hpc-uk.org and ask for Allegation Number FTP02357) The second part of the hearing was held in private, but the decision is published in full on the HPC website

In order to build a case the HPC lawyer refers to Standard 3 “You must keep high standards of personal conduct” and Standard 12, “You must behave with honesty and integrity and make sure that your behaviour does not damage the public confidence in you or your profession.” Indeed, in the decision, the Panel make use of these standards to justify their action: “The Panel note that misconduct can encompass inappropriate behaviour which occurs out with the course of professional practise itself but compromises the reputation of the profession concerned. The Panel find that the remarks were inappropriate and focused on a professional colleague’s ethnicity. The Panel find that the following HPC Standards of Conduct, Performance and Ethics were breached:
3 – You must keep high standards of personal conduct.
13 – You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
The Panel find misconduct.” No attention is made in the hearing to say what kind of public would lose which sort of confidence in what kind of profession. Nor is there is any effort made to put this to any kind of test. It remains vague.

It is unclear how this comment constitutes a danger to the public. It is also unclear how this comment constitutes a case for dismissal in the NHS. That it has moved both organisations to such a level of activity, resulting in a dismissal (after 30 years of work in which no complaint was ever made about the employee) raises general questions about the direction of British social policy, and specific questions about the quality of local management and leadership in each of these places.

The case was reported in the Daily Telegraph on Friday 16th July, on page 11, under the headline: “Scientist ‘said junior could be a bomber’” the article opens by remarking that the registrant ‘has been allowed to remain in the profession.’ The first hand report of the case would most probably have come from a news agency, rather than a DT reporter on site. Neither, however, ask why this constitutes a case.

In 1995, the JM Consulting Company was commissioned by the Department of Health to make a report into the regulation of health professions. This was an inquiry into the Professions Supplementary to Medicine Act (1960) with recommendations for new legislation. The report notes that amongst the principle areas of concern raised about the then CPSM (Council for Professions Supplementary to Medicine) was ‘archaic and inflexible procedures for discipline’ which meant that misconduct falling short of the ‘infamous’ was not addressed. In essence, the 1960 Act protected the public “by providing a (last resort) mechanism for disqualifying professionals shown to be guilty of exceptional examples of misconduct.” (p18). A lot changed with the passing of the Health Professions Order 2001, but nowhere can I find it written that thought crime, wise-cracks or jokes should become part of the remit of the Conduct and Competence Committee. This particular case must raise questions not simply about the general nature of the secondary legislation behind the HPC, but about the specific management and personal style of those who are responsible for its day-to-day work.

Meanwhile, on Nick Clegg’s Your Freedom Site, HPC regristrants from other professions continue to post their own comments about the bizarre procedures of HPC: eg, this one posted by galileo July 09, 2010 at 21:16:

“This spring I have received 6 letters and 2 printed booklets from HPC. And, if you can believe it, all were to tell me how to fill in my renewal form, which was no more than a recto-verso tick box form. Does it really take a 20-page booklet to tell a professional, trained and recognised as senior in my work, with almost 20 years professional background and clinical experience, how to confirm that my name and address haven't changed? Not only did they write to me, but they also invented a manager that they imagined I must have and who they wrote to, asking them to prompt me to send back my form. Now let me be clear, all this was simply to renew my registration and continue to pay HPC. Nothing to do with providing me with any relevant information about improving my practice, protecting the public, and neither did it provide the public with any meaningful information about me. And all of this was months before the deadline for renewal... Why not use the funds instead to provide public education so that people know what questions to ask and how to access the most suitable one of the multiple treatment choices available to best meet their needs?”

Now, that’s a good idea.

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.

Part 2: An in depth analysis of a FTP case

Section 2.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Bruce Scott”

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

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

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

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

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

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

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

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

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

Part 1: An in depth analysis of a fitness to practise case

On 1 July 2009, the UK Parliament delegated power to the Health Professions Council through a statutory instrument to take over the registers of practitioner psychologists from the British Psychological Society. Up until then the BPS had been opposed to regulation by the HPC, and had been working towards statutory regulation by a specialist psychological council. It is important to understand the difference. Instead of delegating power to an organisation that has been built up over time and proven itself trustworthy in terms of practice, administration, and knowledge, the Labour Government passed secondary legislation to create a new quasi-autonomous non-governmental organisation (QUANGO) and delegated the power to it. This organisation, the HPC, subsumed the role, staff and premises previously held by the Council for Professions Supplementary to Medicine (CPSM) but with new and changed powers.

The HPC is essentially an administrative centre which holds a database, divided into 15 sections each of which represents a separate type of practice (a full list is available on the HPC website). Before 1July 2010, the Council of the HPC was made up of 1 person from each of the regulated professions, plus the same number of laypeople (ie people not on the register). On July 1 2010, the Council was reduced in size. This effectively put paid to the idea that the Council required representatives from the different groups within it. It is important to realise that the HPC is not set up to work on any kind of democratic principles, the Council is not voted into position but is appointed by agents of the Privy Council - The Appointments Commission (this was established as the NHS Appointments Commission in 2001 to provide ‘an independent and transparent appointment process’ for public appointments, as an 'arms length body' of the Department of Health, https://www.appointments.org.uk/Home/AboutUs/Background 6 July 2010). The members do not ‘represent’ a constituency. The HPC was created by parliament and given powers to levy an annual fee on the members of its register, but there is no system in place whereby those who pay the fee can monitor or influence how it is actually spent. The HPC is accountable only to the Privy Council, a small group of MPs and Peers made up of members of the Government.

The most problematic aspects of the HPC are, therefore, the lack of a perceptible identity, the lack of practical mechanisms of accountability, and the split between administration and the practices it might otherwise serve. In fact, the administration has been set up as the new master in this relation, and it is the practitioners who are placed in a subservient position. They are essentially powerless, effectively disenfranchised.

I am going to characterise this as the problem of nothing. Wittingly or otherwise, the HPC has been set up on nothing. Nothing holds it together, nothing other determines its direction, nothing holds it fast to anything real. It should have been set up with the wisdom of zero, where zero ciphers something that is real. This ‘something real’ is what practitioners, in virtue of their work, are required to know something about, and to be able to work with effectively. This is what justifies their existence.

The problem with nothing is the difficulty it has in holding a position. This can create problems for the agents responsible for bringing the HPC to life, and might all too easily result in their looking for something more tangible to fill that place. This makes for slippery work: words will be proposed as anchor points, but without real meaning (ie nothing to grip onto, to hold them in place), then other words will find their way in, and it will seem as if people are making it up as they go along. This is where the HPC can all too easily become, wittingly or unwittingly, a pernicious, insidious and even destructive force.

As previously mentioned, on 1 July 2009, the UK Parliament delegated power to the HPC to take over the registers of practitioner psychologists. On that same day a new structure for Council was proposed and a new recruitment campaign was launched to fill the new positions. One of the new Council members happens to be a psychologist who, like most of the other Council members, is also an active academic. As soon as the power of the HPC was activated, a complaint was made about this registrant and was sent to the HPC. This is the story of that complaint.

The first time the public learn anything about this is about nine months later when notice of the hearing is posted on the HPC website about 4 weeks before the scheduled hearing date – auspiciously, it was the ides of March. The full allegation runs to seven numbered points. A psychology colleague spots it, I recognise the name of the new Council member, and the two of us decide to take time off work in order to observe the hearing.

The hearing room is a large bright modern room with tables arranged in a large oblong surrounding a big empty space. Around the table the actors sit (nine or ten people at any one time) with uniform nameplates in front of them. There is no visible cue as to the formal position each holds (except for the stenographer), no clue about how the power is distributed – the appearance puts them all on the level.

At one end of the room, near the door, two rows of chairs are set against the wall for members of the public and the press, which gives us some bearings. The stenographer sits in front of the public with her back to them, and she will transcribe onto her recording device all the words spoken. The chair next to her is empty until the first witness is called.

We (today’s audience) have been kept waiting in the small reception area at the other end of the building until the registrant, the lawyers, and the administrators have taken their places. We are met and invited to sit in the corner by the hearing’s officer, who seems to be anticipating a crowd of late arrivals. Two of us are wearing the yellow tags designating us as members of the public, and the other two are wearing the red tags reserved for the press. One of these is there on behalf of a press agency (his story of the event will be sold on to other newspapers without his authorship being recognised publicly), the other is from the Daily Mail.

Then the Panel enters. This is a highly symbolic act that transforms the room into a legal entity. The Panel is made up of three people, only one of whom is a registrant from the same practice as the accused; of the other two, one may be from another HPC regulated profession, and at least one (ie maybe two) will be a lay member (ie not a registrant). They always act as one, rising together, sitting together, entering and exiting the room together. They must come to a unanimous decision. They take up their seats – they always sit near the door, along the long right hand side of the oblong (from the audience’s point of view).

“Good morning everyone…”

This opens the event, and the stenographer begins her long day’s work.

“I am Clare Reggiori, the Panel Chair, and like my fellow Panel members, I am independent of the HPC.”

This statement is a little bit unusual. I have not heard a chair stress his or her independence before and although the panel members are obliged to reach an independent decision, they are in fact partners of the HPC: selected, trained, appraised, and paid by the HPC. As an example, at another panel (the hearing of a speech and language therapist) the Chair began like this:
“Good morning, ladies and gentlemen. I would like to open this Health Professions Council Conduct and Competence hearing by introducing the panel. On my right is Miss A B; a lay partner, on my left is Mr C D, a speech and language therapist and my name is John Smith. I am a lay partner with the HPC and I am chairing the hearing today. Perhaps we can go round the room and my colleagues can introduce themselves.”

Perhaps Miss Reggiori had been specially appointed from another regulatory body in recognition of the registrant’s membership of the HPC Council. It may also be that she simply felt it important on this occasion to remind everyone that the Panel were duty bound to make their decisions as independent subjects, something like a jury in a court, and without concern for the image or business of the organisation itself, without concern for the HPC. The gentleman to her left seemed puzzled by her statement, and said

“I am Richard Birkin. I am not quite independent; I am the Registrant Panel member.”

If Miss Reggiori meant she herself was not a registrant member of the HPC this was again not clear when the lady to her right said:

“I am Jillian Alderwick. I am the lay member of the Panel.” (emphasis added)
Although there are only about a dozen people in the room, the rules of procedure prohibit questions from the audience, and as no-one else asks for clarification, the anomaly remains unexplained. The Chair then invites the registrant, who is sitting opposite the Panel, to state his name. This is also a slight departure from the routine I’ve observed before, which typically simply goes anti-clockwise around the room thus ending with the Registrant – Dr Malcolm Cross. His representative, Mr Tyme, sitting to his left, is next, then comes the HPC Solicitor, Ms Kemp, who is sitting next to him. These three are seated along the other long side of the oblong, facing the panel, but the distribution of these three clearly reflects a different arrangement from those that they face. While the Panel is arranged evenly around the Chair, the prosecution and defense leave a space between them, so that the registrant and his lawyer are bunched at one end of the table, and the HPC is at the other.

Along the top (short side) of the oblong, the Hearings Officer, Akua Dwomoh-Bonsu, is next to say her name; next to her is the Legal Assessor, Mr Russen, who makes a short speech:

“I am Simon Russen. I am the Legal Assessor and I am afraid I have to be a bit longer than everybody else because I have to say what my job is and what my job is not.”

A lay-person would be forgiven for thinking that Mr Russen is the Judge of this court. In one way, he is, but in another he is not – as reflected in the manner in which he begins. In this new regulatory environment the function of the Judge appears to have been carved up and redistributed largely to the Panel. At times it is helpful to think of the Panel as the Jury, but in fact its role is more complicated and its composition is quite different. It is empowered to act as judge, jury, and also inquisitor (both for the prosecution and the defense). With the function of the Judge thus fractured, Mr Russen and the Panel must learn how to dance together without touching, or better, without being seen to be touching. When called to act in particularly legal ways, the Panel (essentially laymen in relation to the law) need to make use of his expertise, and there have been times when I have observed that this dependency can become extreme. But it is not for this reason that he has decided that he needs to say quite a lot about the nature of his role; his long intervention here is not typical. He goes on:

“First, I am not a member of the Panel, so that when it comes to decision-making, I do not participate in those decisions. All decisions are for the Panel and the Panel alone. I am a lawyer, and my primary job is to ensure that these proceedings are conducted properly in the sense that the correct procedure is followed and the right law applied.”

Such might be expected from a judge, but he goes on:

“I can, of course, seek to help other people with those issues of procedural law if they wish me to do so.”

Thus he is there for the edification not only of the Panel, but of any of the actors at the table. This essentially establishes him as the master of the law, but this colossal skill (recognised in his fee) does not, in this setting, grant him any formal position of power. He must present himself as a servant. This produces an anomaly.

“As to how I go about doing my job, if the Panel are in this room then so too will be Dr Cross and Mr Tyme and they will hear what I am asked and how I reply to it and that ensures that the lady sitting over there makes a record of it and you have an opportunity to have a say about it.”

This information seems to be directed to the world at large, but might be meant specifically for Dr Cross designated by ‘you’ in the last few words. If this is the case, then perhaps Mr Russen is reassuring Dr Cross that the Legal Assessor is not biased in favour of the others, who also happen to be paid, like him, by the HPC. This, of course, raises questions about what happens when Mr Russen is required to speak to the Panel when they are deliberating in private. He addresses this point now:

“But the rules do allow Panels to ask for advice when they are in their private room. That is permitted. But if it happens in that way when we are next in here, I will [when back in the hearing room] summarise the request that has been made of me and summarise how I have replied to it, again, to ensure that it is recorded and you have an opportunity to comment on the advice I have given.”

He indicates that he is subject to a natural justice wherein the representative of the accused may challenge anything that seems prejudicial to his or her client. The function of the judge, then, seems to be distributed throughout several people in this kind of court, and creates an appearance of leveling. But we haven’t finished yet, he continues:

“And, finally, it is often the case that the Panel ask Legal Assessors to help them with the drafting of the decisions that they make along the way. That is permissible, but if it happens, two things; one, it is important that you should remember that it is only with the wording of the decision the Panel will already have arrived at, and, two, I will disclose the fact that I have had a hand in the drafting of it.”

This seems very pedantic, and it isn’t really clear why so much emphasis needs to be given. It rather suggests that the reality cannot be left to speak for itself, but must constantly be reminded of the place it is supposed to occupy.

For a comparison, here is the introductory statement made by the legal assessor in another case:

“ THE LEGAL ASSESSOR: My name is Angela Hughes and I am the legal assessor. My role is to advise the panel on law and procedure and to ensure that proceedings are conducted fairly and properly. I am independent of the panel and any advice I give to the panel will be placed on the record. I may be asked to assist the panel with the structuring of the decision. If I do so, I will only be asked to join the panel once it has reached its decision. I do not participate in the decision-making process itself.”

All the information is presented here in a much more simple, shorter, statement. What explains this slightly different tack?

Once Mr Russen has finished, the Panel Chair regains control. She addresses the accused directly and explains to him the procedure they are about to follow. She ends by giving the traditional assurance that:

“At the conclusion of the case, the Panel will have to consider whether the allegation is well founded. And that is all the Panel will consider at that stage. If the allegation is not well founded, then that is the end of the matter. If, however, the Panel find that the allegation is well founded, then we will move on to consider sanctions, but we only reach the sanction stage if we find the allegation against you is well founded.”

This is a version of another standard statement; here is one from another case for comparison:
“The panel will retire to decide whether or not the allegation is well founded. When we return, I will read out our decision and depending on what it is, at that point we may seek further submissions in relation to sanction. That is the process we are going to follow today. Is that clear?”

In today’s case the Chair stresses the phrase ‘case well founded’ – she repeats it four times in the course of four sentences; this raises a question about what might lie behind such an excess of emphasis.

The panel chair then asks that the allegation be put. The HPC solicitor intervenes with two preliminary matters. First is an administrative one, which concerns whether the bundles of paper in front of everyone contain the relevant pages. This is not uncommon, and reminds us of the administrative nightmare this formal procedure must be. Second is something called a Notice of Hearing:

“… I understand from Dr Cross’s representative he wishes to make a preliminary application before the allegations are put, so I will hand over to him to make that application.”

At this point the Mr Russen leaps in:

“Before the allegation is put?”

“Yes” says Mr Tyme

Mr Russen: “It would be unusual for the allegation to be put so the Panel would be able to focus on which bits of it are disputed.”

There is a very brief pause while the Mr Tyme consults quietly with the Mr Russen, before capitulating.

Mr Tyme: “You can put the allegation”

Why did he abandon his original plan, which we know was discussed with the HPC solicitor? It is a question we can hold onto, even though we cannot ask either of the actors involved. It is possible that they don’t even know.

So, the Hearings Officer then reads out the allegation, which has been posted on the website for the last four weeks:

1. On the evening of 8 June 2009 in the course of a briefing meeting and dinner prior to a BPS accreditation visit the next day to the University of West of England of which you were convenor:
(1) you were drunk.
(2) because of your drunkenness you were incapable of chairing the briefing meeting.
(3) you were rude, condescending and aggressive towards a British Psychological Society employee (MR).
(4) you touched yourself inappropriately
(5) you threatened to expose yourself.
(6) you attempted to touch OH and SP inappropriately
(7) you made lewd suggestions to OH.
2. The matters set out in Paragraph 1(1) to (7) constitute misconduct.
3. By reason of that misconduct your fitness to practise is impaired.

Now that we have the allegation in front of us, there are a few things to notice. First the date of the activities in question are nine months before the hearing. This is half the usual time it takes. Second, the occasion of the allegation is non-clinical. In fact it is not even academic. The occasion is an informal meeting out of working hours, a private dinner, a social occasion for a few colleagues. This presents a contradiction which is disturbing: on one hand there are signs that this is a case rushed to hearing which could imply that there is a higher degree of danger to be dealt with than in other cases; on the other hand it seems that we have a non-starter – there is no practice, no patient and no public; this scene is, at the very least, a semi-private, social occasion. In order to resolve the contradiction, we might begin to assume that the conduct at the social event was very bad indeed, yet not so bad as to fall within the purview of the regular law (assault, drunk and disorderly, etc) – our interest is naturally piqued at this level; we want to know what is going on. At the same time, though, we know that this is really none of our business.

So, what interests us here? My argument is that the HPC is set up on a false premise, and a false promise – there is nothing of substance at its heart, and this makes it liable to do no good. This case is extremely useful for showing many aspects where the HPC errs, and this is, in my view, necessary to put a limit to this damage.

Mr Russen continues: “Now, I wonder if I could just explain this. It is usual to ask a Registrant ... if they wish to respond to that allegation, but it is my practice to proffer some explanation before that opportunity is taken up, if it is. And it is this, that there are three distinct elements included there. And they are the three elements reflected in every HPC allegation, and they are as follows: one, the facts, and they are the facts that are alleged in the first paragraph as subparagraphs (1) to (7) inclusive. Two, whether the facts amount to misconduct, that is to say HPC-relevant misconduct, and finally, if the facts did historically amount to misconduct, whether they are currently impairing the Registrant’s fitness to practise.”

So here again we are invited to think about three basic building blocks of HPC hearings, which simultaneously asks us to accept that it is right to consider this case, and which encourages us once again to bring the as yet unfounded allegations into the frame. He continues:

“Now, it can be very helpful for a Registrant to respond to the factual element of the allegation because that is something which, typically, a Registrant knows about. But a Registrant might wish to respond to the issues of misconduct and current impairment to fitness to practise. But even if there is a response to that the advice I would be giving to the Panel is it is a matter for them to form their judgment about in any event.”

The LA seems to be saying nothing. But he is not yet finished:

“So it is now, I think, Mr Cross’s [sic] opportunity to respond to the allegation which, of course, you do [through] Mr Tyme, but it is worth focusing on the fact there are those distinct elements of the facts, whether the facts were misconduct, and if there was misconduct, whether there is a current impairment of fitness to practise.”

This statement is very difficult to grasp – the grammar is slipping away from Mr Russen’s control. However, what comes over is that he is simply elucidating the formal and standardised process: those three steps already mentioned that will help to discover whether (1) the man here is guilty of the facts, (2) the facts amount to an offense, and (3) that it matters. But what function does this repetition have in today’s process? Judging by what happens immediately afterwards, it seems to have been done in order to confuse and disorient Mr Tyme. He might have known what he wanted to say before the allegation was put, but now he seems to have almost completely lost the plot:

Mr Tyme: “I have indicated to Miss Kemp. She is aware of the proposed application. It is simply this, if I can indicate and take you to the evidence of Owen Hughes and Sally Ross in the form of the statements, documentation disclosed in the bundle. For present purposes, and for present purposes only, I have to assume that the facts are as presented for the purpose of this application only.”

It is very difficult to grasp what he is saying – but on second reading I understand that he is drawing attention to the written word, those contained in the bundles and which have a special attribute in the proceedings.

“However, if I can draw your attention to, firstly, the evidence of Owen Hughes, and you will find at P3 of his statement, and if I can be as neutral as possible in summarizing, Mr Hughes attended the pre-meeting on 8 June. There was some discussion, there was a social element, a large social element of the evening. There was a meal and there was drink had. And it is alleged that Mr Cross was inebriated, drunk.”

He seems embarrassed and ill at ease: he had wanted to avoid any of these words entering into the frame today, yet he finds that he cannot avoid them coming out of his own mouth. He is caught in a trap even as he tries to avoid the trap. This trap was sprung in the quiet word that Mr Russen had with him just before the Hearings Officer read out the allegation. We have noted that the conversation he had with the HPC lawyer had led him to believe he would be able to carry out his original plan. We might expect that as a paid representative, probably a lawyer, he would have understood the law of the process. [Footnote: a few weeks later at another hearing, I was chatting to the news agency journalist, who has listened to a lot of these hearings. He stressed the importance for a Registrant to get a really good lawyer, which, he added, was one with experience of working in the HPC.] He stumbles on:

“At paragraph 3 you will see the final sentence where Mr Mattews said: “The format of the visit was to include a pre-accreditation meeting [of the BPS], a social [meeting] and, the following day, the formal accreditation meeting with members of the university.”

“So in essence, what you have is a pre-meet, those who were attending the accreditation met in advance to ensure that all the participants were present and ready to attend the accreditation on the following morning.”

The point he is driving at is that this was a private, social occasion, and is not relevant to the HPC. But he does not come out and say this. If this is indeed the point he is trying to make, then it makes sense to say it before the allegation is read, for once the allegation is in public, some damage to his client’s reputation is already done. This raises the question of what someone can do to remove the allegation from the website if they think the HPC investigating committee is doing shoddy work. But there is still some way to go with this intervention:

“You will see, if I may then direct you to page 24 which is, you will see it is the letter which was referred to signed by Sally Ross dated 17 September 2009. It is the third paragraph before the end and it begins “if I may”. Ms Ross describes the behaviour that she complains of and goes on to say importantly: “However, whilst it is my job to attend such events, and each minute of my time spent on an accreditation visit is classed as work time, for colleagues acting as accreditation team members, it is a voluntary commitment and one which falls outside of their normal work commitments. It should also be noted that the pre-meeting was held at a time which is outside normal working hours to the volunteers. Further Dr Cross’s behaviour on the day of the accreditation visit cannot be faulted and could only be described as exemplary.”

It seems quite clear now that Mr Tyme is trying to put into question the very idea that there is any case to answer; more, he is questioning the HPC’s assumption that there is actually anything on which to erect a case. This would be sufficient to make him go right round the houses – to challenge the very process that is sanctioned by law itself is to shake your fist at God. This is something Shakespeare spent most of his plays telling us was a very dangerous thing indeed. We still have more than half a page of transcript to go. Perhaps it is not surprising, now we understand the pickle he finds himself in, that he goes on to shoot if not himself, then his client, in the foot:

“… So, therefore, in my submission, with reference to the three limb test which has quite correctly been pointed out, I query, in my submission, make submission that there is not sufficient evidence of impairment in this conduct. Misconduct maybe.”

Misconduct maybe? What leads him to suggest that the case is a non-starter, and then immediately imply, strongly, that his client has probably misbehaved? But even now he has not yet finished:

“And I would invite this Panel to consider whether or not, based on the evidence as it stands, and this is the totality of the evidence before you today in relation to the specific points, of his capabilities and the manner in which he performed, whether or not that is sufficient to amount to an impairment of his fitness to practise. That is my submission.”

The Chair is obliged to ask the HPC solicitor to respond. She uses the opportunity to repeat the HPC position, that she is confident that there is a case to be answered. However, before she restates her main points, she does concede that the Panel could dismiss the case at this stage if they thought that the evidence before them was not sufficient to find the Registrant’s fitness to practise impaired. That is, if the Panel think that what someone does in private is irrelevant to their business, they may throw a case out. This, however, as the LA will soon say, would imply that they thought their colleagues in the Investigating Panel had done a shoddy job. It is not clear how the HPC solicitor is implicated in this charge; it is not clear to what extent the research thus far carried out by HPC has been done by her. Miss Kemp continues:

“However, it is my submission that there is evidence before you which you should consider in respect of the allegation that fitness to practise is impaired. This is because impairment of fitness to practise, albeit an undefined concept in the Health Professions Council’s legislation rules has been defined or considered in the High Court in a number of cases, and it is referred to in your Practice Note on finding of fitness to practise is impaired which is a Health Professions Council’s practice note. It is referred to in that Practice Note what a Panel should consider. I understand that the Panel has these practice notes. The Practice Note on page 3 refers to the case of Cohen v The General Medical Council and the reference is EWHC 581 (Admin).”

This is verbatim from the transcription, and is quite difficult to follow. She appears to say that fitness to practise is an undefined concept in the HPC’s legislation, but that one can deduce its meaning through High Court decisions on a number of previous cases. It seems that the wisdom of the High Court over the last eight years has been reduced to a practice note issued to the panel – a bureaucratic item. Yet she then goes on to quote one of the cases that informs this organisational rule, and we see it is from the General Medical Council. It is not clear why this is relevant here, nevertheless, she goes on to give her synopsis of that case, and no-one shouts ‘objection’:

“The High Court in Cohen said that the Panel is concerned with the issues of whether in the light of any misconduct proved the fitness of the health professional to practise had been impaired taking account of the critically important public policy issues. It goes on to say that those public policy issues are, the need to protect the individual patient and the collective need to maintain confidence in the profession, as well as declaring and upholding proper standards of conduct and behaviour which the public expect, and that the public interest includes, among other things, the protection of patients and maintenance of public confidence in the profession.”

Is the GMC case common currency amongst those present? To me it seemed a strange reference point and one that served only to remind everyone that a more powerful body is somehow on the side of the HPC – in short, a lawyer’s trick but no-one picks up on it. She goes on:

“Those public policy issues and those considerations can take two forms. They can take the form of a consideration of a Registrant’s capability in terms of their ability to practise. But also their suitability to practise. And suitability takes into account personal conduct. And this is a case that involves such conduct, and one of the aspects which Registrants of the HPC are required to consider which is set out in the Standards of Conduct, Performance and Ethics at Paragraph 3 is that Registrants must keep high standards of personal conduct. It says “You must keep high standards of personal conduct, as well as professional conduct. You should be aware that poor conduct outside your professional life may still affect someone’s confidence in you and your profession”.

“So whilst it is accepted that this incident involving Dr Cross occurred in, effectively, three stages. There was a pre-meeting in respect of the accreditation visit. Then, secondly, a social event. And then, thirdly, there was the accreditation visit itself. You can look at conduct which occurred in the social aspect of this case, but also in the pre-meeting which was in work context. So those aspects of conduct can be considered. In my submission, there is evidence which goes to personal conduct which falls to be considered [sic] and it would be better dealt with by the Panel in my submission if it were to hear the evidence before you today. So the evidence of Mr Hughes and Sally Ross, and [you will] also hear from Dr Cross and then come to your own determination whether you consider fitness to practise impaired.”

The registrant’s representative is given another chance to respond, but declines, this leaves it open to the LA who stokes himself up again, refers once more to those three building blocks:

“Well, I think the Panel has to be very clear about what it is being asked to do. And it is not being asked to form a judgment as to whether or not Dr Cross’s current fitness to practice is impaired.”

Before continuing with Mr Russen’s argument, it is important to look more carefully at the phrase ‘fitness to practice’. We have heard nothing whatsoever about the registrant’s practice as a counselling psychologist. We have heard that his competency at chairing a BPS accreditation visit in a University was exemplary. We begin to be aware of the scope of power the HPC assumes for itself. Not only does it easily assume an interest in the registrant’s academic work, but also in his private affairs. This is justified through a standard which asks its registrants not to bring the profession into disrepute. It is worth asking, which profession? It is not the profession of counselling psychologists, nor of psychologists, not even of scholars, but of the new and emerging profession that is being actively, if thoughtlessly, created by the HPC to fill the void – this is the Health Profession where Health has assumed the status of a Proper Noun, not the general adjective you might hitherto have assumed.