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.

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.