HPC and the torture of language

The new government hopes to roll back the database state, but do they understand what generates it, or their own role in it?

I would point them to the problem of language and prescribe a dose of Lewis Carroll.

HPC agents often use language to mean whatever they want at any particular time. I have reported many examples from Di Waller’s chairing of the PLG for C&P. The HPC video on CPD is another great treasure trove of examples. But Chair Anna van der Gaag is also quite skilled at this game. She recently wrote an introduction to a new scoping report on existing research on complaints mechanisms commissioned by the HPC and called it a monograph. And this is odd, because, you know, the word has hitherto referred to a scholarly and original piece of work that contributes to a field of intellectual study and thus to the overall enlightenment of society – the Longman Dictionary defines it as ‘a learned treatise on a small area of learning, a written account of a single thing’. The report, no matter how well executed is not a monograph. The stuff in it, no matter how elegantly writ, hardly constitutes the ‘evidence base’ on whose back van der Gaag wishes to advance her expansionist cause.

Who benefits from finding out how to get more people to complain? The report is quite clear in its conclusions. People seem to complain for some unspecific reason that has more to do with standing up for a little bit of truth. Very few people actually want compensation, or to cause trouble, or to break trust. They seem simply to want to be heard.

Will these people be helped if the HPC makes it easier for them to complain? No. The complaint may well trigger a process, but this is an HPC ‘fitness to practice’ process applied to the standardised conduct of a specific individual. The scoping document gave no reason to believe that the information from existing complainants had much to do with this. Secondly, the vast majority of complaints received by HPC are received from employers or other professionals, not from members of the public.

‘I weep for you, the Walrus said, I deeply sympathise, through sobs and tears he sorted out those of the largest size, holding his pocket-handkerchief before his streaming eyes.’

The beneficiaries of this peculiar FTP process are the HPC which turn cases into statistics to prove to Privy Council that they are doing a job; the barristers who receive the fee for pushing the case through to its administrative conclusion; and employers, who avoid having to deal with the problems that arise in their own back yard. None of this has anything to do with increasing the country’s intellectual capital or adding to its programme of enlightenment.

I’m reminded of the monetisation mania preached by Mrs Thatcher and her minions.

Anyway, the report is not a monograph. It is, as it says on the cover, a scoping document that scopes a possible field of colonisation for the HPC. It is commissioned as a kind of market research. Come on.

The HPC newsletter ‘In Focus’ has been pinging into my mailbox for nearly two years now and is dull as ditchwater. It used to list the FTP cases and often provided a little case study of how practitioners were messing up. Since October 2009 however, (Issue 25), the FTP cases have disappeared, and since June (issue 23) the In Focus front page has been given over to the problem of cajoling people into making their renewal on time. Every single issue from 23 to the current issue (29) exhorts registrants to renew their membership on time. How interesting. Supplementary news items tend to report the rate of renewal achieved, and suggest that you encourage your colleagues to renew and put posters up in your consulting room. There is also a regular little line or two thanking the personnel managers and union reps that have helped to round up the registrants and corral them into the pen. Great stuff.

Also regularly featured over the last year are the ‘listening exercises’. Like me, you probably imagine that a listening exercise is where the HPC listen to the views of its various constituents – a kind of corrective to the lack of democratic procedures associated with this kind of organisation. WRONG! These events are for YOU to listen to the HPC. They are undertaken in order to tell you what you need to do to comply with their CPD and FTP procedures. It should come as no surprise that lots of people attend these events (all hopping through the frothy waves, and scrambling to the shore), for if they do not comply they will surely lose their livelihood.

For all its literary faults, the current issue of In Focus does, however, give another wonderful example of the insidious spread of the database state.

On 1 July this year the contentious vetting and barring scheme comes into force. This caused quite a splash when Philip Pullman and other authors objected to being treated as potential paedophiles. The objections were heard, but no one grasped that the scheme itself was where the problem lay. Politicians unwilling to admit they might be wrong simply reduced the volume surrounding the idea but didn’t change the record.

The vetting and barring scheme is designed ‘to ensure that everyone working or volunteering to work with children or vulnerable adults is suitable to do so by being checked and registered’. This law defines a vulnerable adult as any adult receiving healthcare. Health care. This word has been subject to so many twists and turns over the last year or so as the Health Professions Council seeks to define just about everything as health in order to incorporate it within its remit that we can see how the logic of this silly discourse will press everyone to sign up to this pernicious system. Instead of seeing the flaw in the system (a replication of agencies all trying to save the public from itself), the HPC views the VBS database as a potential competitor for the services it provides itself! I quote:

‘…the majority of HPC registrants will need to be registered with the V&B Scheme. … However registration with the VBS will not be a requirement of registration with HPC… Registration with the VBS does not replace HPC registration… The HPC will continue to set the standards for practising in one of the professions it regulates and you will still need to be registered with the HPC if you use one of the titles we protect.’

As the government continues to broadcast scare stories about how little money the country has, and how awful things are going to be, I suppose we cannot expect those employed to administer these various databases regimes to willingly acknowledge that the work they are doing is worse than a waste of time. The money they waste is not raised by direct taxation, but by a kind of stealth tax levied directly on their registrants (who have no right to vote on the way this money is then used). The accompanying discourse of security assumes the population is probably guilty, and punishes it by making it pay for the computers and offices and administrators in these little database states. Is this the kind of thing that politicians would ask seven maids with seven mops to spend half a year sweeping clear?

I doubt it, said the Carpenter, and shed a bitter tear.

Andrew Lansley replied to Esther Hague, the physiotherapist caught in the CPD trap. Basically he told her that the HPC is independent from the professions it regulates and from Government in order to function fairly and effectively, and he is therefore afraid that it is not possible for the Department of Health to intervene in this matter. He also said:

“Section 28 of the NHS Reform and Health Care Professions Act 2002 gives me as Secretary of State the power to make provisions in regulations for the Council for Healthcare Regulatory Excellence (CHRE) to investigate complaints about the way the nine health professions regulatory bodies have exercised any of their functions. However, Section 28 has not yet been enacted and the CHRE does not, therefore, currently have any statutory power to take action on the complaints it receives.

“The purpose of the CHRE is to promote good practice in regulation and consistency across the nine healthcare regulatory bodies. In the absence of formal powers under Section 28, the CHRE can work with the regulatory bodies only informally and consensually on the complaints they receive."

So, there you have it, says Esther. The powers of the HPC are totally unchecked. With regards to her concern about the linking of CPD with re-registration or a refusal to re-register if the arbitrary standards of the HPC are not met, Nick Clegg (her MP) has written to the CHRE to raise the concerns with the Chief Executive.

“So”, she says, “we go round in circles.” But she hopes that Nick Clegg is beginning to recognise the unchecked powers of the HPC and says she is determined to take it further with him “to get this culture of mistrust and excessive regulatory powers of the HPC brought out in the open and hope that the new government will see the negative effect this has on health professionals”. Way to go, Esther.

The union now known as Unite has set up a National Occupational Advisory Committee for counselling and psychotherapy. Meeting Wednesday, 29th September 2010. Vacancies still exist for: Wales region, North East/Yorkshire and the Humber, Ireland, Eastern, East Midlands. You can email me for more info.

Invitation to HPC registrants & co

During the last year several people (registrants of the HPC and their clients, patients and employees), have contacted me to tell me about their dreadful experiences with the FTP processes.

One woman was being 'tried' for the third time for the same 'crime' and was well beyond the end of her tether. The patient had complained to the NHS who had listened and decided there was no case, then to the Quality Care Commission, who had listened and found there was no case to answer, and then to the HPC who had ... put their machinery into operation, heeding neither the NHS nor the QCC, nor even their common sense, only to find, months and months later, that ... there was no case to answer. Three times! For exactly the same complaint!

Another case was of a very well known and respected woman who had herself raised a question about the staff in an agency where she once been contracted to work. This irked the agency who found their way to complain about her in their turn. After months and months of work, and loads and loads of money, the case was finally dismissed.

There is a complaint from an individual against one of his NHS bosses. This boss turns out to be a senior member of the profession, a regular visitor to the HPC. The complainant was (therefore?) told there was no case... However, he continues to hold onto the logic of his case, and writes to the HPC regularly. He is trying to call them to account, and is pursuing his argument tenaciously.

Another woman has been trying to get a response from a registrant whose work damaged the relationship she had with her son. The HPC have no resources to offer her, and can only add to her increasing distress.

There are more. Those caught up in the FTP process are very unwilling to tell their story in public for fear of retribution from the HPC. Others are so immersed in the turmoil that writing about it is the last thing on their minds. People I've spoken to after the hearing is over usually just want to disappear back into their lives and try to rebuild their relationships and routines.

This is simply terrible. What is there to be done?

Many people exclaim: it's a waste of tax payers money!

But before dismissing this as untrue, it's really worth thinking about this in detail. The fee that the registrants pay must be agreed in parliament and passed by law. This fee is then levied exactly like a tax. However, the familiar cry: No Taxation Without Representation is not heeded here. The registrants of the HPC cannot vote on the way the money is spent, and cannot call the officials to account for wasting the money they have paid them. It looks more and more like a stealth tax, and one without representation!

A few people have suggested that I open up this blog to other writers and make sections for each of the different professional groups (15 of them at present in the HPC). If you know someone who would like to write an entry, do encourage them to get in touch (click my name in the Contributors Side Panel at the bottom of the list to find my email address). My aim here is to expose the mechanisms of harm, and to show through actual examples what is really going on. It is this kind of real evidence that can convince people gently, and that can even produce a pacifying effect to the otherwise pernicious experience. It's an appeal to natural justice, with the aim of learning from the mistake (no matter who made it) and of making things better for others in the future. At the moment, the HPC is wasting opportunities for learning, and turning local spats into major incidents; this is very negative overall.

In the meantime, anyone can post a comment on any of the articles already here, and these comments can be anonymous. I am more than happy to engage in a conversation, if you are willing to take the time.

Janet

Fit to practise?

The College of Psychoanalysts-UK is staging a conference on 6th June at Birkbeck College in London. One of the speakers is Mary Clark-Glass, HPC Council member, and member of the Professional Liaison Group for Counselling & Psychotherapy. Mary was bewildered at the recent HPC Fitness to Practise Forum when she realised that more than a third of the HPC total budget is spent on FTP processes. According to the Management Accounts of March 2009, that amounted to £4,652,779.

HPC income is made up of the fees paid by registrants. In 2009 New fees amounted to £751,055; Renewal Fees: £11,318,583; Readmission fees £203,592, sundry others to make up a TOTAL of: £13,505,960.

In his talk to the aspiring group of Hearing Aid Dispensers, Marc Seale, HPC CEO said ‘we are not a charity, we are self financing’. This ‘self financing’ is achieved through force of law: once a title is protected (eg Arts Therapist) a practitioner is compelled under threat of legal action to sign up to the HPC and pay the fee, (which is set by an act of parliament) or be prevented from practising. Mr Seale is responsible to HPC Council, who from July are all appointed by as well as answerable to Parliament through the Privy Council.

By the by, some people who have recently written challenging or critical letters to Mr Seale have received replies with this allusive paragraph: “In conclusion, I would like to raise a particular question. It is as follows. On the assumption that statutory regulation of psychotherapy commences within the next few years, will you apply to join the register, or will you stop practising as a psychotherapist? I look forward to your response with interest.” Could it be that instead of engaging thoughtfully with questions and criticisms about the ability of HPC to regulate psychotherapy Mr Seale is simply awaiting the opportunity to exercise the law?

We saw below (blog 8 May) that If you are late with your fees because you didn’t get the invoice, you can expect trouble.

Perhaps, with an annual income of thirteen and a half million pounds, we could expect HPC to put some of that cash to work on a more effective, not to say more polite, process of fee collection. Perhaps, with an annual income of thirteen and a half million pounds, and only a few hundred allegations to think about, the HPC could be able to spend time, money and effort on other more productive and important matters.

Allegations received:
70 for the y/e 2002,
172 y/e 2004, and
424 y/e 2008 (0.24% of total registrants in 08).

That is, 30% of income is spent on investigating 0.24% of the register against whom allegations are made.

I have not been able to find any reference in the accounts to money spent on improving education, nor disseminating information, ideas or findings arising from the work of the 185,000 practitioners on the HPC books. The amount recorded in the account as spent on the Welcome Pack for registrants was: £0. That’s Nought. Zip, Zilch, Zero. I wonder why they reported it.

The FTP annual report for year-end 2009 is not yet published but the report for y/e 2008 can be downloaded from here

For this period there were 178,289 people on the HPC register, and most of the allegations received were about people who live and work in England (as opposed to those in Wales, Northern Ireland or Scotland).

The majority of complaints are made against men. The vast majority of registrants (76%), however, are women.

Of the 299 allegations that were considered, only 186 were referred for a full hearing of which a decreasing number are held to be well founded. Probably 139.

The HPC appoint a law firm, Kingsley Napley Solicitors to present cases on their behalf. Needless to say, the HPC then have to ‘continually strive’ to manage these costs and have had to introduce a ‘capped hours’ arrangement.

The 09 y/e Management Accounts record a figure of £2,516,642 paid in legal expenses of one kind or another.

In answer to questions whilst observing hearings at the HPC I have been told that it is the solicitor who must do the ‘research’ to build the case against the registrant in question.
Although the number of cases being considered by FTP panels is increasing the number of allegations where the outcome was not well founded has also increased. Solicitors are paid whether they win the case or not, which suggests that there is no tension in the system to insist upon a proper investigation.

Employees of the HPC are not involved in the FTP decision-making process. This is trumpeted as a virtue and is supposed to ensure that all decisions are made independently, and are free from any appearance of bias. Being free from bias, and being free from any appearance of bias are, of course, two different things. Being hands off might indicate objectivity, but it may also indicate abdication of responsibility. Furthermore, being ignorant of something could be either a sign of naivety, or of stupidity.

A recurring and disappointing aspect of the HPC is the frequency with which rhetoric replaces reason. For example, at the end of her executive summary, Kelly Johnson (Director of Fitness to Practise) writes ‘the process is not about punishing a registrant, it is designed to ensure that action is only taken when it is necessary to protect the public.’ This is an empty phrase which could surely only be made by someone with little or no experience of the real world. A registrant against whom an allegation is raised deserves to believe - to know - that the investigation into the allegation is going to be fair and impartial. Only in this way could the process approach something akin to justice.

Who makes the complaints? The biggest group of complainers are … employers. 171 in the year 2006-7, which accounted for 40% of allegations. This suggests that when an employer is unhappy with a member of staff they can shunt the responsibility for dealing with it over to the HPC who in turn shunt the cost of it onto the … employees. Also, as the majority of defendants are men, one begins to wonder about the attributes of the complainer, details of whom are not exposed in the annual report. What do the Unions say about this?

A second group of complaints come automatically from the police (35 in 2007/8). The Home Office Circular 6/2006 provides that the HPC must be informed if a registered health professional is convicted or cautioned for an offence (tho only in England and Wales). This is a legacy of Ian Huntley and the tragedy of Soham in 2003.

At the HPC FTP Forum on Friday 24 April, Council members asked why such an adversarial and expensive method was favoured over mediation, even where the latter might be more effective. The law governing HPC regulation only allows mediation to be mentioned at the end of the process, by which time registrant and complainant are well entrenched in conflict, and mediation is no longer viable.

Jonathan Bracken, HPC Solicitor and Parliamentary Agent, is responsible for writing the operating procedures for the HPC, and is engaged to train people to follow these rules.
A Kingsley Napley press release tells us: The Hearing Aid Council is pleased to announce that it has appointed Jonathan Bracken as its new legal director plus Kingsley Napley as its new Disciplinary Committee solicitors and case handlers.

There is no tension in this system where those who are engaged can call each other to account. This appears to be fostering a situation where Kingsley Napley and their colleague Jonathan Bracken are taking up the slack. This all feeds back into the self fulfilling prophecy - that professionals are greedy unethical ne'er do wells, and need to be placed into the hands of the administrators.

Personal ethics more than ever are going to be required until this stupid system is dismantled or reassembled on rational, ethical, reasonable grounds.

FTP Forum, 24 Apr 09. Why no mediation

At the Fitness to Practise (FTP) Forum on Friday 24 April, Council members expressed surprise that one third of its budget is spent on ‘hearings’, despite FTP concerns affecting fewer than 0.5% of HPC registrants. They also asked why such an adversarial and expensive method was favoured over mediation, even where the latter might be more effective. The answer is that the law governing HPC regulation only allows mediation to be mentioned at the end of the process, by which time registrant and complainant (often a registrant’s NHS manager or colleague, by the way, seldom an ordinary member of the public) are well entrenched in conflict, and mediation is no longer viable.

Who writes the rules that constrain people in this way?
How can the Council move to make a change?

The Information Commissioner & HPC's FTP

You can go to www.informationtribunal.gov.uk and get copies of cases, I have one whose decision was promulgated on 14 March 2008. According to my dictionary of word origins, promulgate is linked to the idea 'to milk', that is to cause to emerge. This promulgation was set in motion by a series of events which culminated in a Freedom of Information (FOI) request by Ms Z who had referred a case to the HPC. The HPC refused to give the information which led to the Information Commissioner being called onto the scene. He then issued an Information notice requesting sight of the disputed information and the HPC appealed this notice under section 57(2) of the FOI Act.

Are you following all this?

I'm new to all this too, but little by little I intend to try to discover something about the particularity of the time we live in, the institutions we invent, the context in which bits of our lives get lived.

From the promulgated decision I learn things that I already knew: "The HPC is established under the Health Professions Order 2001 (the 2001 Order)" and subtle differences from things that I thought I knew: ... "It's main functions are set out at article 3(2) of the 2001 Order as "...to establish from time to time [my emphasis] standards of education, training, conduct, and performance for members of the relevant professions and to ensure the maintenance of those standards." The main objective in exercising its functions is "to safeguard the health and well being of persons using the services of registrants." This is written in The Order. But there is room for interpretation in practise and it is this that is in question at the Tribunal Service.

"The HPC's functions include the maintenance of a register of health professionals and a mechanism, called the Fitness to Practise process (the Process) whereby the conduct and performance of registrants may be investigated and called to account. An adverse adjudication on a registrant's fitness to practise may lead to, amongst other things, a registrant being removed from the register (such that they could not work in their chosen profession) or conditions being attached to the performance of their profession. Members of the public, employers etc, may make allegations to the HPC with regard to the fitness to practise of particular registrants. Such cases are investigated by the HPC and as a preliminary step in the Process a decision will be taken by a Panel of the Investigating Committee whether there is a case to answer. [If not, the Process ends. If so, a new Committee is called for a full hearing." (Quoted from the Tribunal's introduction.)

In the case in question the initial Committee decided there was no case, so Ms Z made her FOIA request to see on what basis this decision had been made. This was refused by the HPC on the grounds that certain exemptions applied, namely sections 30, 40, and 41... So Ms Z made an application under section 50 of the FOIA for a decision by the Information commissioner as to whether her request had been dealt with in accordance with law. After a lot of argy bargy the HPC filed a Notification of Appeal against the Information Commissioner's Information Notice and so triggered this appeal to tribunal.

It's quite Dickensian - we are in the field of law, very particular human relations, and, by the by, a professional practise.

The Tribunal heard evidence from Mr Jonathan Bracken from Bircham Dysen Bell, who were solicitors for the HPC. Mr Bracken had been involved in the setting up of the HPC and had advised on many of its processes, he had drafted most of its rules. He explained to the Tribunal that the HPC had 'moved away' from a punitive disciplinary scheme, and had put in its place the Fitness to Practise regime. It is a process in two stages. These stages were put into question at the Tribunal and Mr Bracken was revealed as lacking (he had to admit that some of his documents 'perhaps were not as well worded as might be') .

The next in the dock was Ms Kelly Johnson, the HPC's Director of Fitness to Practise. She was obliged to say that 'the practise and procedure guidance were living documents and in certain respects in need of revision'. In the course of her evidence she revealed that the information gained in the Process at the early stage could be shared with the competent authorities of the other European Union states, and in addition, circumstances could arise in which the HPC gave the police a registrant's information prior to a 'no case to answer' determination. Registrants are not warned of these possible disclosures.

To cut a long story short, the Tribunal concluded that 'registrants were unaware of the fact that HPC on occasion made disclosures in the public interest... The reality was that the 'aura' of confidence (as Counsel for the HPC had put it) attached to the information provided by registrants, was not as clear or as bright as contended." [my emphasis] Furthermore, the Tribunal added "this case came nowhere near the mark". Their decision in favour of the Information Commissioner had indeed been unanimous.

habeas corpus - the case of missing Mr TH

Another missing man at the centre of this pernicious process. When I arrived this morning the waiting room was full of giggling women. It was as if they were out for a day's pleasure. The line manager, the line manager's line manager, and finally, the line manager's line manger's line manager (yes, another case from the NHS). Three women lining up to nail the coffin down of occupational therapist Mr TH.

The third in this happy parade was the one who submitted the complaint to the hpc. She did this about one or two years after Mr TH had left the employ of her team. Why? "he was a threat to public safety."

She spoke so quietly that I had to strain forward to hear her, so I stood up and moved forward to hear the rest of her statement. In the nano second it took for me to settle in the seat in front she was standing up and leaving. That was it! She had been called in order to recite this empty phrase! Bang, the final nail in the coffin.

At no point in this morning's proceedings did anyone mention what it was that he was doing with his patients that was such a threat. The entire discussion revolved around his note taking. The context of this is the computerisation of notes in the NHS - something which other occupational therapists are fed up about.

Why is it a threat to patient safety for Mr TH to not write notes according to the computer developers protocol? 'in case he doesn't come in and someone else has to take over his work'. (We're talking about occupational therapy remember.) Is there an example of the danger that ensued when he did not turn up for work (he went off sick, then resigned a few months after this witch hunt began). No, no examples. No examples at all in fact, all we had were vague generalisations and examples of his administrative skills: did he make a phone call, did he write a note. His work as an occupational therapist was absolutely absent from the case.

The line of questions that were presented to the witnesses got nowhere near uncovering any kind of truth. The three women were vague, one was verbose, and all were well versed in newspeak: 'got to get up to speed', 'golden rule is to keep accurate and up to date records', 'I did an audit of notes', 'a random selection of his files', 'there was insufficient detail', 'notes were vague'. No substantive content whatsoever in any of the three womens allegations. No sign of any patient in trouble, no whisper of any complaint from any of the people he worked with. None. Repeat: NONE.

Yet another case of people occupying positions of power in the New NHS who are blatantly unworthy of the responsibility on their shoulders. No gravitas, no experience, no compassion, no speech of their own, nothing to say except to mouth empty phrases that knock around like bricks doing random damage, no idea except to cover their backs. Not professional.

I wonder what the Panel will decide. Decision so far not posted.

The right decision but the wrong reason

Mr W's panel agreed that the allegation against Mr R did not amount to a damnation of his fitness to practice. If you want to read their decision you will have to email the HPC because it won't be published on the website.

Why not? Because Mr R wants his name removed from any further damaging publicity. Fair enough.

I wonder, tho, whether the HPC would consider publishing an apology.

This seems only right. For it was they who thought that Ms B had uncovered a serious case of misconduct that amounted to a significant threat to the public's safety; and it was they who have made Mr R's life extremely unpleasant during the time it takes for the allegation to actually come to trial; and it was they who hired the legal counsel (Ms T) to attack Mr R on their behalf in public on January 5th, 2009. Yes, I would say she attacked and have asked for the full transcript so that I can describe it on a future blog where you may judge for yourself. From my seat in the public gallery it seemed almost obscene to allow her to hammer away for so long when the case was so obvious a non-starter. The law lost its position of objectivity and Ms T went out for her own satisfaction to get a positive result. Not professional, not competent. And Ms B? What might we think of her fitness to practise, judged on her actions in this case?

But the reason that the panel gave for coming to its conclusion continues to miss the point. To be charitable, I shall say that the HPC has been set up on a twisted logic which makes it very difficult for anyone to do a decent job there. The twist is of course difficult to reveal - it is concealed behind a facade which effectively corrupts the truth (hence my reference to George Smiley in the twitter bar) and it will be the subject of several more blog entries, I'm sure. But for now I need to focus on the point of the unfortunate Mr R's Kafkaesque experience.

If you remember, Mr R is a speech and language therapist. This work is not renowned for is life threatening qualities, unlike, say heart surgery, or administering morphine. Nor is it clear why only an NHS employee in office hours may administer a treatment. What is the evidence that giving extra sessions outside the jurisdiction of the NHS will present a danger to the public? Absolutely none in this case.

The taken for granted assumption behind the HPC's action against Mr R can be deduced: that professionals are greedy, money grabbing creatures who will deceive the public if they are not subject to close scrutiny by their colleagues and managers in the NHS together with the weight of authority of the HPC. Puerile.

Mr R is innocent even if he charges the going rate for extra sessions. In fact, by charging the going rate he enters into a relation where both he and his clients are protected. The financial arrangement between people is in itself a form of regulation. The HPC and the NHS here seem to think that money is a filthy contaminator which must be treated like excrement that only they have the expertise to manage. They have invented a new harm - money - against which the public must be protected. This idea is juvenile and has no place in an institution underwritten by the laws of this land.

Money, charity, the NHS and the case of Mr R

There was snow on the ground, and big flakes in the air this morning as I boarded the bus to Kennington. It is the 11th day of Christmas, and the first day back at work for many people in the country. There are quite a few cases beginning today in the Fitness to Practice rooms, so many indeed that the HPC was renting some from its neighbour the Evangelical Alliance. As I walked through the doors I was greeted by a flat screen tv display telling me 'Kind words are like honey, sweet to the taste and good for your health'. Proverbs 16 24

Kind words can cost you your reputation as an HPC health professional, or at least, a kind act can if today's case is a typical example.

The allegation in this case is a short one: "that Mr R provided private speech and language therapy treatment to [a client] whilst also treating them on NHS caseload at [a PCT]". When I popped my head round the door to see if the business had begun the Chair was quizzing the Barrister on the use of the word 'them'.

The writer of the allegation had been at pains to avoid bringing the patient into view. For this reason she had avoided the word 'him' and used 'them' in its place. This switch from single to plural had created the impression that Mr R was in the habit of taking his patients into his private practice. The point clarified that only one patient was in question, and that language might be used for other purposes than simply stating facts.

There was only one witness in today's case: Ms B. She had been employed to replace Mr R when he resigned at the end of Sabbatical. They had never met. Mr R had seen his patient for the standard 5 sessions and was closing the case. However, he had not filled in the last form before going off on leave. So, when Ms B turned up she acquired a case that was all but closed, needing only one final act to make it so. She visited the patient at home to make her assessment, and agreed to close the case.

In this morning's part of the hearing a lot of context and detail was revealed. For example, it turns out that the patient is a young man, probably in his twenties. He is married, but still lives at home with his mum and dad whose culture and religion happens to be the same as Mr R. They all speak the same two home languages as well as English. In the detail of the discussions this morning, I understood that mum and dad were doing their best to 'normalise' their Down Syndrome son, and had high hopes that the 'articulation process' of the speech and language therapy would make him just like anyone else. In the meantime dad often spoke on his behalf, jumping in to answer questions and give opinions instead of leaving a space for his son to struggle in. Mr R put it like this - he said there was a lot of energy in the room when the parents were present. In fact, as the case unfolded, Mr R said that his own intervention was less to do with administering the standard procedure and more focused on working with the family to create space in which the young man could find his own way to communicate.

By all accounts the work was successful but the STAP [the South Tyneside Assessment of Phonology] showed that further standardised treatment was unlikely to match target outcomes. The patient and his parents all wanted to carry on with the work, and all agreed that Mr R was the man to do it. The parents were particularly keen, and asked Mr R several times if he would carry on - never mind the rule about 5 sessions, they would pay they were so pleased with the results.

When Ms Betts turned up to make her assessment, the patient's parents let slip that Mr R had done some work with their son outside the domain of the NHS. As soon as they had said this they realised they had dumped their man in trouble and clammed up. But Ms B was not to be deflected. She wanted to know how often this had happened and how much he had been paid. The more she asked the less they said, the message had been instantly transmitted! Something unspeakable had happened, and now the family began to worry that they had caused Mr R to be sacked.

In a way they were right. They had not reckoned on Ms B clinging so tenaciously to the rule book, nor indeed that such a rule book had in fact been written, and they certainly never imagined anything like the HPC who would use such a book to purge the profession of any imaginary stain.

As it turned out Mr R did see this family about four more times outside the NHS protocol. He accepted about £6 from them to avoid the embarrassment that was created through his refusal to accept a proper fee. Today, 2 or 3 years later he says he would definitely never do that again.

Quite right; if he does work in private, he should participate directly in the symbolic exchange that regulates it. He might negotiate a proper price for himself, refer the case to a colleague in private practice, or perhaps he could channel the money to a charity.

No! None of these ideas were considered. Mr R now knows not to accept private work because it would catch him in this dreadful process that might ultimately prevent him from working. For if he is struck off (and that is the HPCs intention - 'a clear case of misconduct'), then he will be legally prevented from practice. In future, he will not try to help a family in need, he will attend only to the requirements of his cv.

From where I sat in this proceeding, I would say there's a very strong possibility that money is a tabu topic in the NHS and forecloses any sensible discussion about working effectively with patients. It certainly muddied the discussion at the HPC. (Was he accused because he took money - sub-text because was greedy? Or because he gave charity - sub-text that he was naive? The prosecuting agent didn't mind which, so long as she nailed him with one.) What was quite clear from this morning's discussion was that the family made direct and repeated demands for treatment that the NHS protocol ruled out. Mr R however, could see that something less rigid and more responsive could and would have a good effect. For goodness sake! What on earth is wrong with that? That Mr R will never do that again is, well, it's a shame. And if The Public conjured up colludes with this ruse then we are in bigger trouble than I had thought.

It was said several times by Ms B that a professional must act ethically to protect himself from suspicion. This puts a curious twist on the question "who is being protected by the HPC, and from what?" Listening to Ms B it seems that 'the public' that is protected is the one that belongs to a profession. What the HPC is protecting this public from is the accusation from an ill-informed mob who might otherwise point the finger of suspicion. There are two kinds of public here. One is being protected from the truth, the other is being protected from any possible accusation of suspicion.

Poor show. Doubly so, for in another time or another place it would be quite normal to deal with this question in an ordinary conversation between people (supervision? seminar? collegiate conversation? quiet personal reflection?), or even just getting on with the job and accepting a fee for it. What we have instead is an elaborate construction of something approaching a kangaroo court dressed up as respectable profession.

Mundane details

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

Physiotherapists and their notes: Mr H's FTP hearing

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

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

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

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

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

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

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

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

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

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

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

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

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