Guest post by Bruce Scott on the FTP hearing of Malcolm Cross

A case of dialectical disease: A tale of a Health Professions Council fitness to practice hearing of a psychologist.

Bruce Scott
Philadelphia Association, London

Whilst attending the Health Professionals Council fitness to practice hearing of Dr. Malcolm Cross on the 15th and 16th of March 2010, a conversation came to mind that took place between the playwright and poet Goethe and the philosopher Hegel in 1827. Their conversation highlighted the problem of “dialectical disease” of what this hearing, I felt, was suffering from. The conversation between Goethe and Hegel went as follows:

The discourse then turned upon the nature of dialectics. “They are in fact” said Hegel, “nothing more than the regulated, methodically-cultivated spirit of contradiction which is innate in all men, and which shows itself great as a talent in the distinction between the true and the false.”
“Let us only hope,” interposed Goethe, “that these intellectual arts and dexterities are not frequently misused, and employed to make the false true and the true false.”
“That certainly happens,” said Hegel; “but only with people who are mentally diseased.”
“I therefore congratulate myself,” said Goethe, “upon the study of nature which preserves me from such a disease……I am also certain that many a dialectic disease would find a wholesome remedy in the study of nature.”

It became clear during the course of the hearing that it was afflicted with this “dialectical disease” as they (i.e. lawyers, judging panel, complainants etc) were focussing upon and arguing about the notion of what amounts to “misconduct”. In effect they were trying to make the false true and the true false in their logical argumentations of what constitutes misconduct. As I sat in stunned silence, a fear came over me. I felt unsafe amongst these diseased dialecticians as the concerned parties , for what appeal to reason, or to nature as Goethe advocated, would or could be heard? Human nature had been left aside, human freedom had been forgotten, and common sense had been replaced by an authoritarian pseudo-psychological medico-empirical scientific dialectic pertaining to the notion of misconduct that was divorced from any “alternative” or freer way of looking at misconduct (if it could be called that). This lead to an abusive and violent hearing and sad conclusion to the hearing. Let me explain why.

The facts of the case have recently been circulating within various media (i.e., newspaper reports), but let me summarise . Dr Cross was the Chair of an accreditation team (4 in total) visiting a university to carry out its evaluation of a university counselling psychology course to see whether it was up to the job of being accredited with British Psychological Society (BPS) validation. The team met the night before at a hotel and had a brief discussion about the paperwork and any issues pertaining to the accreditation visit. Dr Cross felt (as Chair of this team) that there was very little to go over and that everything was in place for the visit the next day. Then team then went for dinner to a restaurant along with the wife of one of the team members. At dinner wine was drunk (4 bottles in total) and everybody was drinking. Dr Cross was not working as a psychologist at this dinner; neither were any other of the team in their respective roles. It was purely a social occasion. I will relate the facts of what happened during this meal in a moment, but suffice to say, Dr. Cross carried out his duties the next day as the head of the accreditation team perfectly well. Indeed, all the members of the team, which included the two complainants against him, described his performance the next day as “exemplary”. So one might ask what was the problem that occurred the evening before?
During the course of the dinner (and short informal meeting before dinner) Dr Cross was accused of:

1) Being drunk (at the dinner and when he arrived at the hotel for the informal accreditation discussion).
2) Being rude, lewd and condescending during the course of the evening.
3) Touching himself in a sexual manner.
4) Making sexual gestures to two of his colleagues: trying to kiss, express his love and offer oral sex to one colleague and touching the leg of another.

Some people may jump to the conclusion that these events are indeed misconduct and in need of judicial/HPC treatment. Such people might shout, “What! A psychologist drunk, rude, condescending and being sexually disinhibited! What scandal, strike him off, take him to the gallows!” Well obviously some people did, and it went through the laborious administrative process at the HPC and thence to hearing.

Here is an extract from a clinical psychology internet forum from a blogger after I had alerted their attention to the case of Dr Cross and the nature of HPC hearings . This blogger’s comments highlight the pervasiveness of diseased dialectical processes in the pro-HPC camp. It clearly does not see everything as it is in the clearing to quote Heidegger .

“….it would be highly concerning to me that such behaviour might have an impact on the people they work with, and beyond a certain threshold it would be appropriate to make a complaint. After all, a complaint is then investigated and a hearing is held, where parties can appoint solicitors, in which the person can challenge the allegations, and other witnesses can be called, and their peers can comment on their behaviour and what is outside of acceptable limits.”

Well, that makes it all ok then! Bring on the trial, justice will be done, the law will prevail – or does it?

The HPC lawyer cross-examining Dr Cross obviously believed in such a process. In her summing up of the case she brought the hearings attention to point 3 of “the Standards of conduct, performance and ethics” of an HPC registrant. This states:

“You must keep high standards of personal conduct, as well as professional conduct. You should be aware that poor conduct outside of your professional life may still affect someone’s confidence in you and the profession.”

Following on from this, point 4 on the Standards of conduct, performance and ethics states:

“You must tell us (and any other relevant regulators) if you have important information about your conduct or competence, or about any other registrants and health professionals you work with.”

The HPC lawyer then went on to argue that one has to consider the wider public policy (i.e., protection of the public). She argued that Dr. Cross’s behaviour was evidence of misconduct and was of interest to the confidence and safety of the public as he is a psychologist and treats vulnerable people. Concluding, she argued that the alleged misconduct of Dr Cross is evidence of his impairment of his fitness to practice. She referred to a case brought to the attention of the General Medical Council a few years ago where a Doctor had crossed the boundaries of the patient-doctor relationship (the Doctor had sex with his patient which was consensual). When I heard her mention this case I thought to myself what relevance is this to Dr Cross’ case.

These assertions of misconduct were bolstered earlier in the hearing by the fact that one the complainants (a psychologist) argued, whilst on the stand giving evidence, that Dr Cross’s behaviour was indicative of a potential serious problem that needed to be addressed. Don’t forget, this complainant had also been drinking on this evening. He confessed to drinking three glasses of wine. Perhaps it was more, maybe 4, or 5 perhaps. The second complainant (a British Psychological Society secretary whose role it was to takes minutes during the accreditation meeting the next day) was, according to the testimony of all others who gave evidence, texting, twittering, or emailing on her mobile or blackberry throughout the dinner. She accused Dr Cross of being rude to her and belittling her. She said he was nicer to everybody else compared to her. Dr. Cross had said to her that if she missed her friends that much, she should have stayed at home. Doesn’t the new DSM manual have a new disorder called something along the lines of “internet addiction” which leads to difficulty in social interactions and interpretation of social cues and interaction?

My mention of binge drinking and internet addiction is said with tongue in cheek. I was quite surprised that the HPC panel, the HPC lawyer, and Dr. Cross’s lawyer did not bring these facts up for any real discussion. However, the lay member of the panel did mention that she would find such “twittering” behaviour very rude.

Yes, Dr, Cross did admit to trying to kiss one of the accreditation team, told him he loved him and offered to give him oral sex. But he did say it was a joke, a bad joke perhaps, and not well received by one member of the team. The other male member of the team in his statement to the hearing (a paper submission) reported that he just laughed at Dr. Cross’ disinhibited sexual jokes and antics and did not think they were serious, and he was not offended by them in any way and neither was his wife who was also present.

So, the panel adjourned on the second day at around 11.15am to see if Dr Cross’s behaviour amounted to misconduct of an HPC registered psychologist and if it amounted to an impairment of his fitness to practice. I had to wait for 6 hours to be called back for the result.

Luckily for Dr Cross, although the panel thought that he was drunk, lewd, and rude, it was not proven if he touched himself in a sexual manner (evidence submitted showed that the complainants could not see this occur as he was sitting in such a way that he was obscured). It was also not proven that Dr Cross was serious in his gestures of love and affection to people at this social occasion. The panel ruled that his behaviour did not amount to misconduct and thus the allegation of misconduct was not well founded. “Justice was done!” the pro-regulation brigade might shout at such a result. “You see,” they might say, “it is a good process, everything was done above board, witnesses were called, and he was cleared.”

Was he cleared? Is Dr Cross in the clear? Not according to the newspapers. He was written about as though he was guilty. The story was sensationalised with all the lewd bits highlighted to the omission of more balancing facts; that two other people were present at the dinner and they thought Dr. Cross’s behaviour was fine; disinhibited, joking, and fun yes, misconduct, no. It was not reported that nobody left the dinner and walked out in disgust; everybody enjoyed a two-course dinner with wine. It was not reported that everybody was drinking, and that no restaurant staff or diners made a complaint about Dr Cross. It was not reported that the BPS, who had been initially consulted about this incident by one of the complainants, wanted to deal with the incident in house. But this complainant was not satisfied with this; it was subsequently taken to the HPC. A grudge perhaps? More importantly, it was never reported in any of the newspaper reports that Cross was not on duty as a psychologist at the time, and also that he carried out his duties in an exemplary fashion (to everybody’s testimonies given) the next day.

What was most upsetting to me just when the HPC panel finished delivering their verdict, Dr Cross broke down into tears, and rushed out of the hearing room. Nobody flinched. I was almost brought to tears myself witnessing this. It was terrible. Dr Cross had been brought to trial, and I call it trial because it had all the hallmarks of a legal trial, and his reputation has been “sullied” by the press and his colleagues and the HPC process in a most disgusting way. This will no doubt affect his working life and livelihood and perhaps even his personal life and relationships. But never mind, justice was done, he was cleared. Of course, I am being ironic in this last statement.

I think at this juncture it might helpful to again look at this idea of “misconduct”. Dictionary definitions of misconduct pertain to: behaviour not conforming to prevailing standards of law, bad management by persons entrusted or engaged on another’s behalf, and deliberate wrongdoing, especially by government officials or military officials. The thesaurus, just for interest, gives some unsurprising results: to behave oneself improperly, rude behaviour, horseplay, and naughtiness.

There are also legal definitions of misconduct. These pertain to ideas of wrongful, improper or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one’s acts.

There are many other definitions of misconduct, but to draw the reader’s attention to these most common and helpful one’s presented here and re-direct the reader above to the HPC standards of conduct, performance and ethics (points 3 and 4), it is clear there is a huge scope for the application of misconduct that the HPC can pursue. Therefore it is clear from this that the HPC has become a dangerous monster. It is quite clear, that in their use of their idea of what constitutes misconduct, the HPC have in effect committed misconduct (mismanaged) themselves in the case of Dr Cross.

Why do I charge the HPC with misconduct in the case of Dr Cross and in general of becoming a dangerous institutional monster? Taking into consideration the scope of what misconduct can cover, and also how the HPC standards of conduct, performance and ethics are laid out, their system is open to abuse, as has occurred in the case of Dr Cross, by the HPC, registrants and patients or the general public. Points 3 and 4 of this document covers personal conduct but also the proviso that a “registrant must tell us (and any other regulators) if you have important information about your conduct or competence, or about other registrants and health professionals you work with.”

This framework encourages denouncements by colleagues and negates the possibility of talking to colleagues about problems, encourages defensive personal and professional conduct, and promotes a lack of trust in oneself or the possibility of efficient self-reflection. I think this is what Michel Foucault calls the panoptic society whereby, we overly self-govern ourselves out of fear of being caught out by the surveillance of the institution that makes the rules.

The HPC has however has wildly distorted any ordinary self-governance so that people denounce their colleagues to those who pretend to be the guardians of the public. In other words, we cannot act freely because the “Big Other” as Zizek explains, is always in the background, haunting our being, and robbing us of our ontological freedom. The HPC mistake themselves for the “Big Other”, in a Big Brother Orwellian way. Others are watching our behaviour for any flaws and will report this, not to us, but to the HPC. But we even have to watch out for our own flaws, and must report ourselves to the HPC if we notice any in ourselves. Has the HPC panoptic machine not gone too far?

It is clear from the HPC’s framework, that anybody who is offended by somebody’s (e.g., a psychologist) conduct such as swearing, smoking too much, not sleeping properly, being unfaithful, driving too fast, being late for work, eating unhealthy foods, spending too much time shopping or watching too much television, could make a complaint to the HPC. The examples I list could all be classed as misconduct. But please note, it also depends on who is offended. Some might be offended by such behaviour, others not. This is what occurred in the case of Dr Cross; some people were offended, or perhaps frightened by their duty to the HPC panoptic machine. Or was it because that they felt he didn’t like them as much as they thought or wanted him to like them?

What I am trying to say is this; was there not a better way to do things in the case of Dr. Cross and does the HPC not realise (maybe it does) that their dialectic concerning misconduct has reached monstrous proportions? I put it to the HPC that they have breached their own codes of what amounts to misconduct. They have badly mismanaged their position; protection of the public, and brought a case to hearing that had already been dealt with by the British Psychological Society. This case could have been dealt with (by the BPS for example) in a much more humane, civil, and satisfactory manner). Instead, they have infantilised a profession (psychologists) by encouraging them to snitch on colleagues for matters that previously could be dealt with face-to-face or in-house at work. In the past one could actually talk to a colleague or have word with your manager if someone offends you or if you are concerned about someone’s behaviour. But it seems that such simple gestures seem to be regarded by pro-HPC persons and bodies as obsolete and unreliable; we cannot be trusted anymore! God forbid the HPC cry, stop people from negotiating personal and professional relationships by talking to each other. Dr Cross has been dragged through the papers and his reputation sullied by offending two people. Dr Cross is a member of the public and has not been protected by this shambolic process. The HPC’s fitness to practice is impaired as they have damaged a psychologist’s career and livelihood (and perhaps eroded what it means to be human and the freedom of what this entails) whilst disregarding their ridiculous standards of conduct, performance and ethics of how they deal with misconduct.

We do unfortunately live in world where we will at some point offend someone. We will get up peoples noses and have disagreements. We will all also live lives and engage in behaviours that others will feel are unhealthy, dangerous, and in need of change; we all will. So the sorry state of affairs we all have to accept is that all psychologists, psychotherapists, and counsellors will at some point break the HPC standards of conduct, performance and ethics, and so will the HPC. Let’s all hand ourselves in and get it over and done with! The rock solid idealism of the HPC and how an HPC registrant should be is a fairytale and represents a quite frightening delusional fantasy of what the world should be like. The way the HPC lawyer and two complainants spoke about misconduct painted a picture of reality where no risk, fallibility, or pain (psychic) should enter human life or behaviour. This is dialectical disease.

We live in a world where there are unjust wars being waged (by our own and other governments), there is the banking crisis which exacerbates the greed and deceit by the bankers, politicians are fiddling their expenses and engaging in dodgy lobbying for private companies which affects government policy. The gap between rich and poor is bigger than ever, and there are thousands of homeless people roaming the streets of our country who do not have a warm bed to sleep in or hot plate of food to eat. Thus, I ask, why is it that health professionals (and psychotherapists and counsellors) are being targeted by such a massive projection or demand for “safety” (by the HPC and society in general). I feel we should take Lacan’s lead and seriously look into this demand and see what it has to say. I think underlying this demand may be something quite sinister or at least, fraught with dis-ease. However, I think we have right to feel ill at ease in today’s times, but I feel it is a cheap shot to target health professionals (and psychotherapists and counsellors) . The last thing we need, considering the state of the world today, is a panoptic state breathing down our necks accompanied by a diseased dialectic of what it means to be human or a psychologist (in his or her personal life). The HPC and similar constrictive institutions seem to want to impose a world view where no risk ever takes place, where human beings conduct themselves like robots and are rewarded for perfect behaviour, but severely punished for straying from the (ur) model.

I wonder what Goethe would have thought if he had witnessed the HPC hearing of Dr Malcolm Cross? I am certain that he would have felt that HPC’s dialectical disease would find a wholesome remedy in the study of the nature of the situation, instead of a dialectical process of trying to make the true false, and the false true, which is what occurred on the 15th and 16th of March 2010 in Kennington, London.


Footnotes
i Conversations of Goethe, with Johann Peter Eckerman. Da Capo Press (1998). Extract taken from page 244.
ii The HPC lawyer, Dr. Cross’s lawyer, the “independent judging panel, and witnesses including Dr. Cross.
iii There is no record of the case or the result of Dr. Cross on the HPC website for the public to consult. I have been in touch with the fitness to practice hearing department at the HPC and they told me that as this case was “not well founded” it automatically becomes deleted from the past hearings list. However, if Dr. Cross wished his hearing details and result to be left on the list (for whatever reason), it would be left on. However, other similar cases’ details and results have been left on the list. It remains to be seen if the HPC have “erased” the case of Dr Cross Orwellian style, for fear of what this terrible, abusive, and highly mismanaged case might signify to a public critical of the HPC regulation of psychologists, psychotherapists, and counsellors.
iv www.clinpsy.org.uk
v Martin Heidegger. Zollicon seminars: Protocols-conversations-letters. Published by Northwestern University Press in 2001.
vi Michel Foucault. Psychiatric power: Lectures at the College de France, 1973-1974. Published by Palgrave Macmillan in 2006.
vii Slavoj Zizek. How to read Lacan. Published by Granata Publications in 2006.
viii Jacques Lacan. Ecrits. A selection. Published by WW. Norton & Company in 2002.
ix I do not subscribe to the view that psychotherapists or counsellors are health professionals.

Report of a public FTP hearing at HPC, 5 Nov 2008

Report from a public hearing of the fitness to practice panel at the HPC 5 November 2008

Mr U has been on the HPC register since it opened. He has been in the ambulance service for 16 years, and for 12 of those he has been qualified and employed as a paramedic. He is at the HPC today because in June 2007 he argued with and pushed a ‘younger and more aggressive’ man who had let rip when the ambulance driven by Mr U got in his way while he was parking his car. Mr S chose not to report this to the police, but instead made a complaint to the hospital. As a result of this a full and proper inquiry was conducted by the senior manager which eventually concluded that Mr U was fit and competent for work, but should attend a ‘de-escalation’ training course as soon as he could. Mr U returned to work about 5 weeks after the incident and has been working well and reliably (according to his manager) ever since.

An HPC administrator was present at the hearing in order to recite the case against Mr U: she said “Your fitness to practise as a registered health professional is impaired by reason of your misconduct in that during the course of your employment as a Paramedic with North West Ambulance Service: 1. On June 28 2007 you verbally and physically assaulted a member of the public outside Lx Women’s Hospital.

The lawyer acting on behalf of the HPC put it to the panel that ‘this must be misconduct given the high standards we expect for the profession, therefore you must accept our case and find Mr U unfit for practice’.

A Trade Union rep spoke on Mr U’s behalf. He told the panel that Mr U admitted to verbally and physically abusing Mr S, and this was not in question. He asked the panel to focus solely on the question: does this mean that Mr U’s fitness to practice is impaired? He put it to them that it did not.

Mr S was not at all interesting to the HPC – he was simply someone who had given them reason to take up the cudgels, so to speak. By refusing to put Mr S into question, the context of the dispute completely vanished and it was only by chance that any of the details found their way into the proceedings at the hearing. Until that point, from the perspective of an observer in the public gallery, without access to the ‘bundle’ of documents related to the case, it was as if Mr U had suddenly turned on an innocent by-passer and launched a surprise attack.

At one nervy moment in the proceedings, Mr U volunteered to go into the witness box. This rendered him open to questions from all the parties to the hearing and it was through this avenue that he found his way to say something about the context of the case. The panel asked him whether his action had caused a delay in getting his patient (a woman in labour with a breech baby, I believe) into the ward. Mr U seemed to hear this as an accusation, and gave a lengthy answer into which seeped details of the encounter he had with Mr S. Until this point the hearing had not gone into any details about this but did watch several silent minutes of cctv footage. Mr U said that the camera missed Mr S aggressively shouting right into his face accusing him of cutting him up in the car park. He went on to say (repeatedly) that it was an error of judgement on his part to have responded to the attack in this way, and ventured that perhaps it was because he was confronted by a younger and more aggressive man. He had never done it before nor since, in spite of the fact that he had experienced worse offenses from the public on many occasions. He stressed that he was full of remorse and that he certainly would act differently next time – he would stay in the cabin, lock the doors and call for help from security or the police. No-one asked how much time this alternative course of action would have taken.

Shame played a large part in the proceedings. Mr U was a very quietly spoken man, and very humble. He repeatedly said he had made an error of judgement, showed remorse, made frequent reference to the reflection done and insight got, and declared that he now knew that he should have remained passive and called the police for help. Much of this was repeated by the panel in its concluding remarks.

One other point that I believe needs to be raised relates to the use of the cctv footage. The security guard who had been on duty on the day, and who had been present during much of the altercation, had given a statement which had been submitted as part of the bundle of papers. He was not present for the hearing and three rather contradictory reasons were given for this: first Mr U was not disputing the fact that he had verbally and physically assaulted Mr S, and therefore his testimony was not required. Secondly the man was currently on night shift and so would have been greatly inconvenienced by a trip to London. Third, his statement was already included in the bundle. I was puzzled, then: what reasons there could have been for playing the footage?

A second anomaly relates to the cctv film. I was surprised that the HPC lawyer remarked to the operational manager in the witness box: ‘you were able to seize the footage’. The manager quietly corrected him – “I asked for it, and they gave it to me.”

If Mr U had not gone onto the witness stand, and had he not rambled on, the inappropriate action of Mr S would never have come up. I suppose that it might have been written in the documents that lay in the bundle that the panel had read before coming in. However, there was no mention of it whatsoever during the hearing and it seems this was something the HPC find unnecessary to question. This suggests that The Public is unquestionable. Is there not a good reason to expect the public to act in a way that gives them the right to make a complaint? From what seeped into this case, and judging from the conclusion of the Manager at the Hospital, it seems rather likely that Mr S has a little case to answer on the question of insight, appropriateness, or even fitness to practice as a bone fide member of the public! Tho I don't propose we erect a bureaucratic edifice to bring him to face this fate.

One last point, when the Panel returned to give their decision they kept us all on tenterhooks. It was a highly ritualised occasion, and the chair of the panel read out a written document that was preprepared. It repeated statements about the assault that was never in question before coming to the rather un-contentious point – the case was not well founded.

Upon leaving the HPC after the event, I had the chance to bump into Mr U and his representative. I took the chance to explain to them who I was and why I happened to be there. They were grateful as they had thought I may have been a journalist who might suddenly whip out a camera and take their photos to publish in the press. In fact it was chance that took me to this hearing. I was there to begin to try to understand exactly how the HPC acted. In this respect I was simply a member of the public. However, as I explained, I was also very interested in the sociological implications of the HPC for our society, and as a psychoanalytic practitioner I had a more pressing reason to discover the reality of this work.

At this point Mr U snapped out of his quiet fatigue and in a very alive and focussed way instructed me to work very hard right now to avoid ever being taken into the HPC.