The HPC’s latest In Focus magazine (Issue 30) contains an article preparing the ground for their five yearly review of standards. The chief concern of HPC in this project is to produce an ‘overarching’ set of standards to apply to everyone that might come under their control. These new standards will be analysed in more depth shortly. Analysing the text of this one page introductory article from In Focus reveals a number of important points – the title of this blog is one of them that rather speaks for itself. The rest are fragments from the text with a short discussion of each:
1. “There are separate standards of proficiency for each profession we regulate.” It is interesting to note that the HPC deem it necessary to include this statement rather than leaving it as read. It suggests they find it remarkable that it is still the case. The article here is concerned with a new set of standards that will be the ‘overarching’ standards which the 15 different professional standards will have to subordinate themselves to. This is a fabulous example of top down control and ignores the particulars of practice and implicitly over-rides any appeal to science or even common sense. The standards of the HPC do not flow from the actual work, they flow from a centralised committee and an amorphous public consultation. The HPC has been set up on the understanding that it can regulate without needing to know anything about the practice under its control. Each new profession captured by the HPC will make it even more difficult to attend to the diversity amongst practitioners, and cannot help but set up a pressure to reduce these distinctions to make it easier to manage. This pressure will force standards further and further away from actual practice, and closer and closer to moral or political requirements – the less interested the Regulator is in real work, the more interested it will become in its own thoughts and ideas.
2. “Your practice will develop over time, and you may find that you no longer meet all the standards of proficiency for your profession. This is not a problem.” This is from paragraph 2. Let me just quote from paragraph one: “We set standards which ‘you’ must meet, both to gain entry to the Register and to stay on the Register.” How are these two sentences to be reconciled? There is a loophole here through which different degrees of power can easily enter surreptitiously.
3. “Your service users will expect you to meet high standards of personal conduct”. This is a curious statement and seems more interested in creating a class above the rest. Why would you expect, say, an art’s therapist to have higher standards of personal conduct than yourself or, say, your postman? Also, how does the HPC know what ‘service users’ expect? There is no reference to any research which might be consulted. And of course, let us not forget that the phrase ‘service user’ is a politically correct euphemism for ‘patient’, and is incredibly unspecific (one HPC document says it refers to anyone who might know someone who comes under the care of someone on the register) a phrase which has gained currency over the last decade and which perpetuates a misunderstanding of the basic properties of language - there is no implicit moral order in the word patient which, etymologically at least, designates someone who is suffering. HPC standard setting seems to be more interested in ideology than practice. This makes it more a tool for cultural change placed in the hands of bureaucrats.
4. CPD. This requirement was brought in with Patricia Hewitt’s White Paper (Trust, Assurance, and Safety, 2007). Continuing Professional Development is a phrase that belongs to the audit culture ideology and provides the basis for commodifying knowledge and selling training courses for which certificates of attendance are now routinely produced only to be inserted into CPD files and shown to people at the HPC (and their ilk). The HPC boldly state that ‘CPD is the way you continue to learn and develop throughout your career so that you keep your skills and knowledge up to date and are able to work safely, legally, and effectively’. This, however, is a belief, not a fact. In order to substantiate the belief the government have enacted a law which has led the HPC to construct an elaborate ritual where 2.5% of registrants in a particular profession are ordered, at pain of being removed from the register, to fill in a form which proves that their CPD has done what the HPC say it does. HPC have appointed and trained Assessors (‘at least one of whom will be from the same profession as you’ proclaims the booklet), to read these forms and reject any that don’t prove the hypothesis. One physiotherapist was told that one lay-person and one physio looked at her return. She had been assured that the CPD she undertook was her business, as a professional. However, when she filled in the forms and sent them in she was surprised to receive a further communication from the HPC asking her to prove that her CPD was benefiting the service user: “The Standards could be met if the registrant can show links as to how her CPD activities within the registration period have improved her work and benefited the service user." We don’t know whether these are the comments of the lay-person or the professional, but we can find the idea written into the document that accompanies this process (downloadable, of course, from the website). It appears in between two ‘standards’ which have been created by a committee and a consultation process. One standard says ‘a registrant must seek to ensure that their CPD has contributed to the quality of their practice and service delivery’. Another says ‘a registrant must seek to ensure that their CPD benefits the service user’. The reference point has become one from business and has broken away from the rational basis of thought. This is no doubt a result of distributing ‘thinking’ over a disparate group of people none of whom can be held accountable for the consequences of their thoughts. The law of the land then pulses through this mish mash and gets imposed on real people who were otherwise busy getting on with their work. This particular physiotherapist is now very worried that the HPC might remove her from the register, and render her practise illegal, because she cannot prove that her CPD has improved the quality of her service to users! It makes her sound like a poorly functioning factory unit.
Incidentally, the administrator at the HPC is called The Customer Service Manager. Who is the customer here? Apparently the HPC think it is the registrant. However, the registrant, as we all know, is compelled through force of law to pay money to the HPC. There is no service supplied in return. They pay for the right to practice their trade (which was their right before the invention of the HPC). It would not be unreasonable to see them as a tax-payer except that this would require you to understand the HPC as a small state, and to acknowledge that in this mini-state there is taxation without representation.
And what would a lay-person have to offer to the process of assessing the CPD return of a practitioner about which they know nothing? The only thing that seems possible is that a lay person might have the kind of common sense that sometimes goes missing amongst people who know too much about something, and might therefore be helpful to ground a conversation. But the process hasn’t been set up as a conversation, and the situation has not been rescued – it is profoundly un-grounded. The lay-person, rather than one person amongst a group of professionals, is one half of the team that assesses the forms returned by the professional. If this example is typical, then apparently the comments of the assessors aren’t mediated by anyone in contact with reality, but are simply returned to the registrant with the implicit threat that they will lose their right to work. The reasoning, if such it be, behind putting lay people into this process can be traced to the lack of trust the politicians have in the professions who do the work. Remember that peurile advertising campaign that launched the HPC? It encouraged the public to doubt the veracity of the professionals' word. Pernicious stuff.
5. “We use the standards we set whenever we make a decision about [‘you’]”. This statement is nothing more than an alibi. The standards are so vague (we will come to them in due course) that they can be used in wide variety of ways (as we have seen in some of the fitness to practice cases). The HPC are using the Standards as a pseudo objective written document to justify the power they have to stop someone from working. But because the standards are so far removed from actual practice, there is nothing real to help to ground the process of judgement, which leaves the whole thing open to politics and ideology or whim. This will feel like ‘bullying’ by anyone who is unfortunate enough to be in the way. There is no reason or rationality that can be appealed to in order to ameliorate the experience of the power.
6. “As an autonomous and accountable professional, you are responsible for the decisions that you make and must be able to explain them [to us].” There is a contradiction in this that expresses an impossible wish – like that of the child who wants to know something without the having to expend the time and effort it takes to learn. A responsible professional can be expected to account for him or herself to someone who works in the field, who understands the work; an excellent teacher could explain the work to someone who actually wants to know something about it. But why should all registrants now be expected to be excellent teachers, especially when the relationship of teacher pupil is totally inverted through the misapplication of institutional power? Furthermore, by insisting that knowledge be reduced to easily digestible chunks the HPC adds to the commodification of knowledge and interrupts the natural process of transmission and acquisition that traditionally supports a community of practitioners. If that weren’t bad enough, this highly centralised system cannot possibly benefit from the knowledge it produces, anything of value is simply discarded as the process transforms into a method of judging the quality of product in an imaginary factory. The practitioner is transformed into the product.
7. “[Our] Flexible standards give you the opportunity to grow and develop within your scope of practice”. Says who? The willingness of the HPC to say whatever it wants is truly breathtaking. There are no checks and balances.
8. “[Our Flexible Standards] also allow you the opportunity to make your own decisions based on circumstances”. The wording of these statements clearly communicate that the HPC is the overlord by whose grace you, the professional, are granted permission to work. Without this permission you would not have the opportunity to make your own decisions. The HPC, remember, knows nothing about the practice, and delegates big decisions to a few hand picked professionals held in a centralised system, and (in the annual consultation jamboree) to the public at large, over whom no quality control is exercised.
9. The following statement is another great example of the way the HPC insinuate that there is a danger lurking out there that they can protect you from: “You may be placed in a situation where you are worried that something you have been asked to do, or a policy you have been asked to follow, may mean you cannot meet our standards. You may also worry that this will affect your registration. We cannot give guarantees about the outcome of every situation. However, if you make informed, reasonable, and professional judgements about your practice, in the best interests of your service users, and you can explain the decisions that you made if asked to, it is very unlikely that you would not meet our standards or that your registration would be affected.” This does nothing to reassure but is vague and suggestive, it insinuates that you can’t cope in the world without them. It is infantalising.
10. “We would welcome any comments you may have about this article of any suggestions of topics for the future”. There is no promise that thought will be given to any comments that criticise the article - the CEO (Mr Seale) has said he will 'just take on the chin' any criticisms that come his way. Judging from the way that previous comments have been dealt with by his staff it is to be expected that only comments in support of the HPC’s self image will be given any credence.
11. “Next time we will look at whistleblowing and raising concerns.” Unfortunately, nothing productive will be done with any concerns, they will simply be turned into grist for the mill in this 'ecological' disaster.
Wednesday, 11 August 2010
Tuesday, 3 August 2010
Empty speech: Mr Seale on the regulation of counsellors and psychotherapists
Last year, April 2009, an interview with Marc Seale was published on epolitix.com, the first question had two parts. It was a very clear and direct question:
Question: Why has the government decided to bring in statutory regulation for the so-called 'talking therapies'? Does the HPC believe that regulation is necessary in this field?
The response given by CEO Mr Marc Seale is vague and evasive and says almost nothing; lets take it line by line to find something more substantial to say: "The purpose of regulation is to protect members of the public"
This line has never been substantiated - there was no research of any kind - good bad or indifferent - to establish the level or nature of danger that existing practices represented. This major lack leaves us all staring at the repetition of a political statement which we are supposed to swallow whole. The lack of any kind of objective or realistic benchmarks also mean that no proper judgement will every be able to be made about improvements effected by HPC regulation. We will be left in the domain of politics. At the last meeting of the HPC Professional Liaison Group for Counselling and Psychotherapy (12 May 2010) one of the professional members said it would be necessary to offer something more tangible to critics about the way that HPC is able to give better protection to the public. He implied that very few people would be satisfied with a bland repetition of the party line. The reply came quickly from HPC Chair Dr Anna van der Gaag who said: "we offer statutory regulation". For her, the mere presence of parliamentary power is sufficient guarantee of public protection. This is simplistic twaddle at best, and there can be few who believe it, even if there are few who are prepared to say so.
Mr Seale's next sentence is: "The government has indicated that it wishes to bring in statutory regulation for a number of the 'talking therapies' including psychologists, psychotherapists and counsellors"
Yes, we can find this wish written into the White Paper (Trust Assurance and Safety, 2007), but we can find no reason or rationale written alongside it. From the context of the White Paper the common knowledge is that politicking behind the scenes by the economist Lord Layard and his allies (who came together as the 'Savoy Conference') persuaded the then government to invest £170m in some kind of 'talking cure' provision in the NHS in order to save spending on Incapacity Benefits. That Government swallowed the maths, but could not justify giving money to people who were outside its control. Hence the intention to put Counsellors and Psychotherapists under the HPC (the great irony is, however, that the people actually employed to bring about this miracle cure were all outside this established field of expertise! The only winners seem to have been those few who won the training contracts...) Until that point all the major professional groups in the field were adamant in their rejection of HPC as their regulator. With the promise of nice jobs in the NHS they capitulated. Some people might call this bribery.
Mr Seale continues: "These professions account for a large number of practitioners and there is currently no compulsory requirement for registration."
The joke is that since the 1970s psychotherapists have been traipsing along to government offices asking for statutory power to be given to them, in order regulate the field. No government has ever agreed because the field is so diverse. If one pays attention to reality and to history we can see that, yes, there are a lot of people practising in this field, and no, there is no compulsory requirement for state registration. Further, we can understand that, until now, this has never been sufficient reason to hand over statutory power. What is not said here is that almost all the practitioners in the field belong to organisations that perform a regulatory function. Most people want to belong to a community that supports their work. Mr Seale seems to imply that without some kind of external force, practitioners would skulk around in the semi shadows doing things that weren't quite right.
He goes on: "Statutory regulation means that practitioners have to be registered in order to practise, demonstrating that they meet clear standards for their conduct and competence."
There it is, without the HPC, practitioners would not meet clear standards. Now, setting standards against which to judge the competent and incompetent has been the major difficulty of the professional liaison group at the HPC. As I have mentioned many times on this blog, HPC Council Member and Occupation Therapist Annie Turner repeatedly advised the counsellors and psychotherapists on the PLG to forget what actually happens in practice, and invent new standards to fit the HPC regulatory framework. She said that her own profession struggled for a long time before it realised that the Standards used by HPC were nothing to do with the actual practise they would police. The sentence from Mr Seale, above, suggests that the public will be better protected because now there are clear standards of conduct and competence. The advice of Professor Turner is that the actual technical competence of the practitioner is something that HPC is powerless to regulate. What standards, then, is Mr Seale talking about, and how will these standards help to protect the public? What kind of danger does he imagine he will be able to combat with the kind of standards that are invented to fit into his organisational framework? I have never heard or read Mr Seale give any kind of detailed response to these important and serious questions. He certainly doesn't give it here, in this EPolitix interview:
He goes on: "It also means that effective action can be taken in the event of a complaint." This is played like a trump card. Mr Seale’s organisation is, effectively, a fitness to practise factory, the raw material is the pool of registrants that legislation puts into the HPC database. More than one third of the annual income taken from registration fees is spent on the fitness to practise department, yet the proportion of registrants it processes is less than 1% of the register. 499 cases were considered by panels of the Investigating Committee in 2009-10. The number of registrants within the domain of HPC for this period was 205,000. That is 0.24% of all registrants presented a problem. Leaving aside for the moment the kind of problem these registrants pose, we are still left with the rather dismal statistic that of those 499 cases 30% were found unproven by the final hearing. So, out of 499 possible cases from which the public, apparently, needed protection, only 352 were found to be in some way problematic. So, this organisation, with its annual income of £16m managed to ‘protect the public’ from 352 practitioners last year. These figures simply don't support the claims Mr Seale is mouthing.
He says: "We believe that independent statutory regulation of psychologists, psychotherapists and counsellors is essential in order to protect members of the public." He doesn't say why, or how. For Mr Seale, it is sufficient to repeat the party line. At a conference in London on 23 January 2010 organised by Confer (and reported on this blog), Mr Seale was invited to speak to counsellors and psychotherapists about his proposals for regulation the field. His line throughout this meeting was that, "I am only a boring bureaucrat" "I'm just a man in a grey suit" "I just carry out the orders of the government". He consistently sidestepped his responsibility (valued at £180,000 per annum plus expenses according to the figures) claiming to be nothing other than an obedient servant of politicians. Mr Seale's job, however is as Chief Executive Officer and Registrar of an organisation with an income (levied through legislation) of £16m and increasing (but what is a registrar, what does he actually do?).
In the news last week (reported in the previous blog – HPC to capture Social Workers), the new Government seems to believe that Mr Seale is independent of government. How can we square these two things? If Mr Seale is only the obedient servant of the politicians, why don't the politicians know? Without someone taking responsibility here we are left with an organisation with statutory power to levy money from practitioners to stage show trials on behalf of employers (the highest proportion of 'complaints' come from managers in the NHS).
A second question posed by EPolitix last year was:
Question: There are parties who believe that the HPC is not an appropriate regulator for the psychology, psychotherapy and counselling professions, as your current models of regulation can not successfully be applied to non-medical therapies. How would you respond to that?
Mr Seale replies: "We are confident that our model of regulation works and is sufficiently flexible to allow us to regulate these professions. We are a multi-professional regulator and we currently regulate the members of 13 different professions including physiotherapists, paramedics and art therapists."
Again, Mr Seale avoids giving a proper answer to the question and simply states his belief.
He goes on: "Our registrants work in a variety of different contexts and many of our registrants do not work within the NHS for example, working instead in areas such as the prison service, education and industry. The professions we currently regulate also practice in very different ways and to different models, not just the medical model."
Mr Seale is trying to parry the arguments made against his organisation, but he does not engage with the issues (ie the problems associated with regulating such a generalised field). It is as if none of the words have any real meaning, but are simply the ones he has been given to string together into sentences in order to get by. It is as if he knows that he doesn’t really have to bother to think about things, as he has already been given the power.
Finally: "Strong professional input is vital to our model of regulation and we ensure good professional input through the use of 'partners'. Partners are members of the professions we regulate (and lay people) who provide the expertise and advice on matters of professional practise that we need for good decision making. For example, partners may be panel members who sit on fitness to practise panels that consider complaints about registrants, others may be registration assessors or visitors to education providers."
At the Confer meeting in January the counsellors and psychotherapists that I sat with in the afternoon's discussion groups were astonished to discover that the HPC chose and appointed the people from the profession who they wanted to work with. They had assumed that the profession itself would be better placed to know the best people for the job. Of course they are, but this is not what interests the HPC. The bias produced in the field by HPC policy is very troubling and has already caused much conflict and friction. It distorts the field in ways that have nothing whatsoever to do with knowledge and practice, and everything to do with the politics and power of the HPC. What Mr Seale means when he says 'good' and 'strong', then, depends on his own idea of what is good and true, it is a political argument, not a practical one where what counts as Good and True is defined by Mr Seale. The people that the HPC chose to work with were all people who consented to HPC regulation. Those who had strong reservations about the validity of HPC-style regulation were excluded from the process. Only when the HPC process was defeated (the 'public consultation' on HPC proposals last October provoked an unprecedented 1,000 responses and prevented the HPC from moving towards legislation before the collapse of the Labour Government) did any of those Good Strong people on the PLG start talking about taking the opposition seriously. HPC still don't think that would be necessary, however. Judging from Dr van der Gaag's chairing of the last PLG meeting (12 May 2010) HPC will continue their strategy of scare tactics by collecting together cases of complaints to insinuate that the field is full of sexual predators. This tends to close the gates on rational discussion very quickly indeed, and produces a push for punitive top down control.
Mr Seale has nothing to say for himself. He doesn't understand the work he is authorised to regulate, and won't accept responsibility for that gap in his understanding. There is a vacuum. Without an active thoughtful agent willing to engage with the void, he leaves it open to opportunistic and unpredictable forces. Such forces might have little to do with goodness, truth, or with protecting the public. Really, anyone would know that to make something valuable and worthwhile you have to make an effort, even (or especially) when power is handed to you on a plate.
Question: Why has the government decided to bring in statutory regulation for the so-called 'talking therapies'? Does the HPC believe that regulation is necessary in this field?
The response given by CEO Mr Marc Seale is vague and evasive and says almost nothing; lets take it line by line to find something more substantial to say: "The purpose of regulation is to protect members of the public"
This line has never been substantiated - there was no research of any kind - good bad or indifferent - to establish the level or nature of danger that existing practices represented. This major lack leaves us all staring at the repetition of a political statement which we are supposed to swallow whole. The lack of any kind of objective or realistic benchmarks also mean that no proper judgement will every be able to be made about improvements effected by HPC regulation. We will be left in the domain of politics. At the last meeting of the HPC Professional Liaison Group for Counselling and Psychotherapy (12 May 2010) one of the professional members said it would be necessary to offer something more tangible to critics about the way that HPC is able to give better protection to the public. He implied that very few people would be satisfied with a bland repetition of the party line. The reply came quickly from HPC Chair Dr Anna van der Gaag who said: "we offer statutory regulation". For her, the mere presence of parliamentary power is sufficient guarantee of public protection. This is simplistic twaddle at best, and there can be few who believe it, even if there are few who are prepared to say so.
Mr Seale's next sentence is: "The government has indicated that it wishes to bring in statutory regulation for a number of the 'talking therapies' including psychologists, psychotherapists and counsellors"
Yes, we can find this wish written into the White Paper (Trust Assurance and Safety, 2007), but we can find no reason or rationale written alongside it. From the context of the White Paper the common knowledge is that politicking behind the scenes by the economist Lord Layard and his allies (who came together as the 'Savoy Conference') persuaded the then government to invest £170m in some kind of 'talking cure' provision in the NHS in order to save spending on Incapacity Benefits. That Government swallowed the maths, but could not justify giving money to people who were outside its control. Hence the intention to put Counsellors and Psychotherapists under the HPC (the great irony is, however, that the people actually employed to bring about this miracle cure were all outside this established field of expertise! The only winners seem to have been those few who won the training contracts...) Until that point all the major professional groups in the field were adamant in their rejection of HPC as their regulator. With the promise of nice jobs in the NHS they capitulated. Some people might call this bribery.
Mr Seale continues: "These professions account for a large number of practitioners and there is currently no compulsory requirement for registration."
The joke is that since the 1970s psychotherapists have been traipsing along to government offices asking for statutory power to be given to them, in order regulate the field. No government has ever agreed because the field is so diverse. If one pays attention to reality and to history we can see that, yes, there are a lot of people practising in this field, and no, there is no compulsory requirement for state registration. Further, we can understand that, until now, this has never been sufficient reason to hand over statutory power. What is not said here is that almost all the practitioners in the field belong to organisations that perform a regulatory function. Most people want to belong to a community that supports their work. Mr Seale seems to imply that without some kind of external force, practitioners would skulk around in the semi shadows doing things that weren't quite right.
He goes on: "Statutory regulation means that practitioners have to be registered in order to practise, demonstrating that they meet clear standards for their conduct and competence."
There it is, without the HPC, practitioners would not meet clear standards. Now, setting standards against which to judge the competent and incompetent has been the major difficulty of the professional liaison group at the HPC. As I have mentioned many times on this blog, HPC Council Member and Occupation Therapist Annie Turner repeatedly advised the counsellors and psychotherapists on the PLG to forget what actually happens in practice, and invent new standards to fit the HPC regulatory framework. She said that her own profession struggled for a long time before it realised that the Standards used by HPC were nothing to do with the actual practise they would police. The sentence from Mr Seale, above, suggests that the public will be better protected because now there are clear standards of conduct and competence. The advice of Professor Turner is that the actual technical competence of the practitioner is something that HPC is powerless to regulate. What standards, then, is Mr Seale talking about, and how will these standards help to protect the public? What kind of danger does he imagine he will be able to combat with the kind of standards that are invented to fit into his organisational framework? I have never heard or read Mr Seale give any kind of detailed response to these important and serious questions. He certainly doesn't give it here, in this EPolitix interview:
He goes on: "It also means that effective action can be taken in the event of a complaint." This is played like a trump card. Mr Seale’s organisation is, effectively, a fitness to practise factory, the raw material is the pool of registrants that legislation puts into the HPC database. More than one third of the annual income taken from registration fees is spent on the fitness to practise department, yet the proportion of registrants it processes is less than 1% of the register. 499 cases were considered by panels of the Investigating Committee in 2009-10. The number of registrants within the domain of HPC for this period was 205,000. That is 0.24% of all registrants presented a problem. Leaving aside for the moment the kind of problem these registrants pose, we are still left with the rather dismal statistic that of those 499 cases 30% were found unproven by the final hearing. So, out of 499 possible cases from which the public, apparently, needed protection, only 352 were found to be in some way problematic. So, this organisation, with its annual income of £16m managed to ‘protect the public’ from 352 practitioners last year. These figures simply don't support the claims Mr Seale is mouthing.
He says: "We believe that independent statutory regulation of psychologists, psychotherapists and counsellors is essential in order to protect members of the public." He doesn't say why, or how. For Mr Seale, it is sufficient to repeat the party line. At a conference in London on 23 January 2010 organised by Confer (and reported on this blog), Mr Seale was invited to speak to counsellors and psychotherapists about his proposals for regulation the field. His line throughout this meeting was that, "I am only a boring bureaucrat" "I'm just a man in a grey suit" "I just carry out the orders of the government". He consistently sidestepped his responsibility (valued at £180,000 per annum plus expenses according to the figures) claiming to be nothing other than an obedient servant of politicians. Mr Seale's job, however is as Chief Executive Officer and Registrar of an organisation with an income (levied through legislation) of £16m and increasing (but what is a registrar, what does he actually do?).
In the news last week (reported in the previous blog – HPC to capture Social Workers), the new Government seems to believe that Mr Seale is independent of government. How can we square these two things? If Mr Seale is only the obedient servant of the politicians, why don't the politicians know? Without someone taking responsibility here we are left with an organisation with statutory power to levy money from practitioners to stage show trials on behalf of employers (the highest proportion of 'complaints' come from managers in the NHS).
A second question posed by EPolitix last year was:
Question: There are parties who believe that the HPC is not an appropriate regulator for the psychology, psychotherapy and counselling professions, as your current models of regulation can not successfully be applied to non-medical therapies. How would you respond to that?
Mr Seale replies: "We are confident that our model of regulation works and is sufficiently flexible to allow us to regulate these professions. We are a multi-professional regulator and we currently regulate the members of 13 different professions including physiotherapists, paramedics and art therapists."
Again, Mr Seale avoids giving a proper answer to the question and simply states his belief.
He goes on: "Our registrants work in a variety of different contexts and many of our registrants do not work within the NHS for example, working instead in areas such as the prison service, education and industry. The professions we currently regulate also practice in very different ways and to different models, not just the medical model."
Mr Seale is trying to parry the arguments made against his organisation, but he does not engage with the issues (ie the problems associated with regulating such a generalised field). It is as if none of the words have any real meaning, but are simply the ones he has been given to string together into sentences in order to get by. It is as if he knows that he doesn’t really have to bother to think about things, as he has already been given the power.
Finally: "Strong professional input is vital to our model of regulation and we ensure good professional input through the use of 'partners'. Partners are members of the professions we regulate (and lay people) who provide the expertise and advice on matters of professional practise that we need for good decision making. For example, partners may be panel members who sit on fitness to practise panels that consider complaints about registrants, others may be registration assessors or visitors to education providers."
At the Confer meeting in January the counsellors and psychotherapists that I sat with in the afternoon's discussion groups were astonished to discover that the HPC chose and appointed the people from the profession who they wanted to work with. They had assumed that the profession itself would be better placed to know the best people for the job. Of course they are, but this is not what interests the HPC. The bias produced in the field by HPC policy is very troubling and has already caused much conflict and friction. It distorts the field in ways that have nothing whatsoever to do with knowledge and practice, and everything to do with the politics and power of the HPC. What Mr Seale means when he says 'good' and 'strong', then, depends on his own idea of what is good and true, it is a political argument, not a practical one where what counts as Good and True is defined by Mr Seale. The people that the HPC chose to work with were all people who consented to HPC regulation. Those who had strong reservations about the validity of HPC-style regulation were excluded from the process. Only when the HPC process was defeated (the 'public consultation' on HPC proposals last October provoked an unprecedented 1,000 responses and prevented the HPC from moving towards legislation before the collapse of the Labour Government) did any of those Good Strong people on the PLG start talking about taking the opposition seriously. HPC still don't think that would be necessary, however. Judging from Dr van der Gaag's chairing of the last PLG meeting (12 May 2010) HPC will continue their strategy of scare tactics by collecting together cases of complaints to insinuate that the field is full of sexual predators. This tends to close the gates on rational discussion very quickly indeed, and produces a push for punitive top down control.
Mr Seale has nothing to say for himself. He doesn't understand the work he is authorised to regulate, and won't accept responsibility for that gap in his understanding. There is a vacuum. Without an active thoughtful agent willing to engage with the void, he leaves it open to opportunistic and unpredictable forces. Such forces might have little to do with goodness, truth, or with protecting the public. Really, anyone would know that to make something valuable and worthwhile you have to make an effort, even (or especially) when power is handed to you on a plate.
Monday, 2 August 2010
HPC to capture social workers and change its name
On Tuesday 26 July the Department of Health announced that the General Social Care Council would go and the Social Workers currently under its regulatory authority would be passed to the HPC. The name of the HPC will be changed to reflect the new direction. Primary legislation will be required to achieve these aims.
This surprise was announced by the DH with the publication of a new document called Liberating the NHS: Report of the Arms Length Bodies Review.
Traditionally, social workers do not come under the auspice of the NHS, they come under social services which is a local authority concern. It's not clear how this move will liberate the NHS.
The DH press release says: “The General Social Care Council is an Executive Non-Departmental Public Body responsible for the regulation of social workers and social work students in England. It is anomalous as the only professional regulator answerable directly to the Secretary of State for Health.
The HPC is supposed to be answerable to the Privy Council, or perhaps to the Council for Regulatory Health Excellence. Neither of these bodies, though, seem to actually have any power over HPC. The social workers are being handed over to a body that is answerable to no-one.
“We see no compelling reason why the General Social Care Council should remain as an Executive Non-Departmental Public Body in the arm’s-length bodies sector, and we see potentially significant benefits from putting the regulation of social workers on a similar footing to the regulation of health professions. This involves the regulator being funded through registration fees charged to those registered, set at a level to cover the regulatory functions. In this way members of a regulated profession buy into their professional standards, which are set independently of government, and have an incentive to ensure these are upheld throughout the profession. …"
The potentially significant benefits will accrue to the HPC in the form of the registration fee. In effect this is a tax on the social workers. The fee paid to their own professional body is usually justified in terms of benefits accruing. Aside from the right to work, it is not clear what benefits the HPC offer in return for the fee. There are no voting mechanisms by which professionals who pay the registration fee are able to have any say whatsoever over how that money is spent. Income from fees next year is budgetted at £17m. The single most important item on the list of calls on this money is the fitness to practise department, who are due to spend £7m next year (next highest spenders are communications, IT and registration admin, each around £1m-£1.5m). The FTP department reported that 30% of its cases this year fell as not proven at hearing. All cases account for less than 1% of the total number of people registered. The production of standards by which to regulate the practice is, unfortunately, a daydream. During my observations of the Professional Liaison Group for Counselling and Psychotherapy, I heard Professor Annie Turner say more than once that the only way any profession could come up with standards suitable for the HPC was to forget what happens in practice, and invent something to fit the regime. This, sadly, does not bode well for the future of social workers, let alone the people who depend on them.
“The abolition of the General Social Care Council, the transfer of functions in relation to the regulation of the social worker workforce and related changes will require primary legislation. The timing of these changes is dependent on discussion with the Health Professions Council and the General Social Care Council to ensure an orderly transition.” Department of Health Liberating the NHS: Report of the Arms Length Bodies Review.
http://www.dh.gov.uk/en/MediaCentre/Pressreleases/DH_117844
This news came out of the blue for The British Association of Social Workers. Thinking fast they announced that the new entity must strongly recognise social work in its title and its focus. Ruth Cartwright (joint manager of BASW) said the new body could be called the ‘Health and Care Profession Commission’, while the BASW Chief Exec (Hilton Dawson) thought “the Health Professions and Social Work Council” would be better. There is, of course, much concern that this sudden announcement by the DH comes without any consultation with Social Workers. Who did they consult with? Presumably the President and CEO of the HPC, whose programme of expansion is well known to anyone who cares to read the reports and listen to the meetings.
The GSCC was created in October 2001, one month before the Health Professions Order 2001 was put before the Houses of Parliament for debate. Last year the CHRE (created in 2002 by the NHS Reform and Health Care Professional Act 2002) was commissioned to review the GSCC after the senior management team collapsed. The inquisition found a huge backlog of fitness to practise hearings, and concluded that more robust paperwork systems were needed in order to deliver public protection. The Guardian reported (21 July 2009) that the Chief Exec of the GSCC had been suspended and sent home. The GSCC had been struggling to cope with the growing number of referrals since the Baby P case.
This sudden announcement in favour of HPC seems to be linked less to current government thinking than to the trajectory set up by the last Government, who published a White Paper just a few weeks before calling the General Election - ‘Building the National Care Service’ which had already nominated HPC to help push this through. The HPC had welcomed that white paper and the Government’s approach to piloting the licensing of social care workers and healthcare support workers. HPC PR said of that initiative:
“We look forward in due course to working with other stakeholders on the licensing model of regulation. We are committed to widening regulation to maximise public protection whilst not placing disproportionate burdens on the workforce.
“We believe a licensing model can achieve this balance for support workers, and we look forward to the opportunity to pilot the scheme.”
While it is not clear how Social Workers, Psychotherapists and Care Workers relate to each other as subjects for HPC regulation (let alone how they relate to paramedics, physiotherapists, and biomedical scientists), it is clear that the HPC is keen to pursue its expansion as planned, and to reduce the differences amongst practitioners to maximise economies of scale (see eIpnosis for a further analysis of this move). The new government has apparently been convinced by the argument, although this cannot be without problems within its ranks.
To understand the current news in relation to the ideas stated and published in the run up to the election, have a look at the Conservative Party’s ‘Blue Blog’ November 2009, where John Penrose (currently conservative MP for Weston-super-Mare, ex Bank Trading FloorRisk Manager, management consultant, and Commercial Director of an Academic Books Division) wrote “…As anyone who reads this blog frequently will know, I’ve been working on policies to get rid of red tape, bureaucracy and quangos. After a fair amount of hard work with the big brains in the Conservative Party, I’ve now consolidated these into a comprehensive series of reforms under the rather unsnappy title of ‘Regulation in the Post-Bureaucratic Age’, which we launched in October at the Conservative Party’s conference in Manchester."
It might be more than interesting to notice the trouble this accomplished man had in coming up with a snappy title for his work. He is probably trying to force too much into too tiny a space. This can't be comfortably for a risk manager.
“... The reforms are designed to cut at the very heart of the Government’s regulation culture and free British businesses from the regulatory millstone around their necks. We’re aiming to improve the quality and effectiveness of new regulations, and to start a culture change in Westminster and Whitehall so we can sweep away Labour’s ‘regulation for regulation’s sake’ attitude and replacing it with a less burdensome and intrusive approach."
It is noticeable and questionable that he is focussing on business rather than seeing the problem in terms of anyone who is trying to do a job of work.
“And about time too. Regulation has been snowballing out of control. It now costs businesses an extra £76 billion to keep the Government’s bureaucrats happy. That’s why it’s vital that we get this policy right. If these new listening events are anything like the one we held earlier this year, then I should have a lot to think about afterwards. I hope that everyone who attends will feel we’ve struck the spark that lights the bonfire of red tape.”
The logic that leads him to say that businesses should be allowed to save money must surely be the same logic that assumes that businesses would be better off wisely investing their money, and paying attention to their trade. But this is precisely the same logic that could be applied to anyone plying any kind of trade, even a poet. Penrose, however, does realise the pernicious way that the regulatory ideology eats away at social responsibility and has found its way into many different kinds of practice: the executive summary of the post regulation report states:
“Since 1997, the Labour Government has introduced an unprecedented number of new regulations, which have undermined social responsibility and reduced the UK’s economic competitiveness. The exponential increase in regulation has not only hit businesses (particularly small businesses), but it has also increased the bureaucratic burden on individuals, charities, public bodies and social enterprises. This has hindered innovation and social action and has also led to a rapid increase in government spending on administration and inspection regimes. Unfortunately, as we have seen with the failed system of tripartite financial regulation, Labour’s bureaucratic approach has not only impacted negatively on businesses, social enterprises, charities and public bodies; it has also been largely ineffective."
This is an important point. By asking people to pay money and attention to the regulatory ritual, not only does it stop people doing valuable things with their time and money, but it actually eats away at the normal checks and balances that people have built up in their work and which allow them to govern themselves and those around them in a more ordinary, and effective way. The regulatory ideology has nothing to ground itself with, but can only expand, spread fear, and rush on in the hope that no-one has time to ask questions.
“A different way is possible. We need to sweep away Labour's ineffective system of bureaucracy and replace it with a post-bureaucratic approach to regulation that makes use of new technologies and insights from social psychology and behavioural economics to achieve our policy goals in a less burdensome and intrusive way."
It is here that the rhetoric lets Penrose down so badly. Is it post-bureaucratic regulation he wants, or post regulatory bureaucracy. What do these words actually mean?
“Achieving this innovative and post-bureaucratic approach to regulation across government will not happen overnight. It will require a fundamental culture shift amongst policymakers in Whitehall and beyond, which will only be made possible through significant structural reforms."
Probably it is more important that people begin to really think about words and what they mean when they speak, than it is to make any innovative, post-wotnot, culture change, fundamental or otherwise.
“These structural reforms fall into two major categories. First, institutional changes that will curb the volume of new regulations, and remove existing regulations that are shown to be ineffective or overly burdensome. Second, policy changes to improve the quality and effectiveness of any new regulations, and ensure that they are genuinely post-bureaucratic and reflect the latest insights from academic research."
How can anything show itself to be genuinely post-bureaucratic unless we know what the phrase means? Without some genuine post-bullshit talking, we are going to lose some truly valuable knowledge, practices, and, probably, some absolutely essential qualities like trust, truth, and justice.
So, let's stick with the particular against this background of generalities - why has the Government suddenly decided that the Health Professions Council is a good candidate to regulate the Social Workers? It didn’t ask the social workers, so who did it ask? In the absence of any information, it seems quite likely that this sudden announcement is a result of politicking behind the scenes by the HPC who need to secure increased income to cover its expanding inefficiencies. The lack of any rationale for swapping the social workers into the Health Professions Council is very worrying. If it is possible to change the Health Professions Council into the Social Work and Health Professions Council just like that, then it looks like the HPC is the puppet of ... politicans, who themselves seem to be the puppet of ... the HPC. Is anyone taking real responsibility here? Does anyone understand what's going on?
There appears to be no idea behind the move, and no idea to behind the HPC. It might be time to turn to an article recently published in the New Statesmen by a former diplomat, and Conservative MP for Buckingham 1983-97, George Walden. The article is a bold analysis of the character, or lack of it, of the prime minister. “Nowhere Man”, is published online at the New Statesman on 28 June 2010
This surprise was announced by the DH with the publication of a new document called Liberating the NHS: Report of the Arms Length Bodies Review.
Traditionally, social workers do not come under the auspice of the NHS, they come under social services which is a local authority concern. It's not clear how this move will liberate the NHS.
The DH press release says: “The General Social Care Council is an Executive Non-Departmental Public Body responsible for the regulation of social workers and social work students in England. It is anomalous as the only professional regulator answerable directly to the Secretary of State for Health.
The HPC is supposed to be answerable to the Privy Council, or perhaps to the Council for Regulatory Health Excellence. Neither of these bodies, though, seem to actually have any power over HPC. The social workers are being handed over to a body that is answerable to no-one.
“We see no compelling reason why the General Social Care Council should remain as an Executive Non-Departmental Public Body in the arm’s-length bodies sector, and we see potentially significant benefits from putting the regulation of social workers on a similar footing to the regulation of health professions. This involves the regulator being funded through registration fees charged to those registered, set at a level to cover the regulatory functions. In this way members of a regulated profession buy into their professional standards, which are set independently of government, and have an incentive to ensure these are upheld throughout the profession. …"
The potentially significant benefits will accrue to the HPC in the form of the registration fee. In effect this is a tax on the social workers. The fee paid to their own professional body is usually justified in terms of benefits accruing. Aside from the right to work, it is not clear what benefits the HPC offer in return for the fee. There are no voting mechanisms by which professionals who pay the registration fee are able to have any say whatsoever over how that money is spent. Income from fees next year is budgetted at £17m. The single most important item on the list of calls on this money is the fitness to practise department, who are due to spend £7m next year (next highest spenders are communications, IT and registration admin, each around £1m-£1.5m). The FTP department reported that 30% of its cases this year fell as not proven at hearing. All cases account for less than 1% of the total number of people registered. The production of standards by which to regulate the practice is, unfortunately, a daydream. During my observations of the Professional Liaison Group for Counselling and Psychotherapy, I heard Professor Annie Turner say more than once that the only way any profession could come up with standards suitable for the HPC was to forget what happens in practice, and invent something to fit the regime. This, sadly, does not bode well for the future of social workers, let alone the people who depend on them.
“The abolition of the General Social Care Council, the transfer of functions in relation to the regulation of the social worker workforce and related changes will require primary legislation. The timing of these changes is dependent on discussion with the Health Professions Council and the General Social Care Council to ensure an orderly transition.” Department of Health Liberating the NHS: Report of the Arms Length Bodies Review.
http://www.dh.gov.uk/en/MediaCentre/Pressreleases/DH_117844
This news came out of the blue for The British Association of Social Workers. Thinking fast they announced that the new entity must strongly recognise social work in its title and its focus. Ruth Cartwright (joint manager of BASW) said the new body could be called the ‘Health and Care Profession Commission’, while the BASW Chief Exec (Hilton Dawson) thought “the Health Professions and Social Work Council” would be better. There is, of course, much concern that this sudden announcement by the DH comes without any consultation with Social Workers. Who did they consult with? Presumably the President and CEO of the HPC, whose programme of expansion is well known to anyone who cares to read the reports and listen to the meetings.
The GSCC was created in October 2001, one month before the Health Professions Order 2001 was put before the Houses of Parliament for debate. Last year the CHRE (created in 2002 by the NHS Reform and Health Care Professional Act 2002) was commissioned to review the GSCC after the senior management team collapsed. The inquisition found a huge backlog of fitness to practise hearings, and concluded that more robust paperwork systems were needed in order to deliver public protection. The Guardian reported (21 July 2009) that the Chief Exec of the GSCC had been suspended and sent home. The GSCC had been struggling to cope with the growing number of referrals since the Baby P case.
This sudden announcement in favour of HPC seems to be linked less to current government thinking than to the trajectory set up by the last Government, who published a White Paper just a few weeks before calling the General Election - ‘Building the National Care Service’ which had already nominated HPC to help push this through. The HPC had welcomed that white paper and the Government’s approach to piloting the licensing of social care workers and healthcare support workers. HPC PR said of that initiative:
“We look forward in due course to working with other stakeholders on the licensing model of regulation. We are committed to widening regulation to maximise public protection whilst not placing disproportionate burdens on the workforce.
“We believe a licensing model can achieve this balance for support workers, and we look forward to the opportunity to pilot the scheme.”
While it is not clear how Social Workers, Psychotherapists and Care Workers relate to each other as subjects for HPC regulation (let alone how they relate to paramedics, physiotherapists, and biomedical scientists), it is clear that the HPC is keen to pursue its expansion as planned, and to reduce the differences amongst practitioners to maximise economies of scale (see eIpnosis for a further analysis of this move). The new government has apparently been convinced by the argument, although this cannot be without problems within its ranks.
To understand the current news in relation to the ideas stated and published in the run up to the election, have a look at the Conservative Party’s ‘Blue Blog’ November 2009, where John Penrose (currently conservative MP for Weston-super-Mare, ex Bank Trading FloorRisk Manager, management consultant, and Commercial Director of an Academic Books Division) wrote “…As anyone who reads this blog frequently will know, I’ve been working on policies to get rid of red tape, bureaucracy and quangos. After a fair amount of hard work with the big brains in the Conservative Party, I’ve now consolidated these into a comprehensive series of reforms under the rather unsnappy title of ‘Regulation in the Post-Bureaucratic Age’, which we launched in October at the Conservative Party’s conference in Manchester."
It might be more than interesting to notice the trouble this accomplished man had in coming up with a snappy title for his work. He is probably trying to force too much into too tiny a space. This can't be comfortably for a risk manager.
“... The reforms are designed to cut at the very heart of the Government’s regulation culture and free British businesses from the regulatory millstone around their necks. We’re aiming to improve the quality and effectiveness of new regulations, and to start a culture change in Westminster and Whitehall so we can sweep away Labour’s ‘regulation for regulation’s sake’ attitude and replacing it with a less burdensome and intrusive approach."
It is noticeable and questionable that he is focussing on business rather than seeing the problem in terms of anyone who is trying to do a job of work.
“And about time too. Regulation has been snowballing out of control. It now costs businesses an extra £76 billion to keep the Government’s bureaucrats happy. That’s why it’s vital that we get this policy right. If these new listening events are anything like the one we held earlier this year, then I should have a lot to think about afterwards. I hope that everyone who attends will feel we’ve struck the spark that lights the bonfire of red tape.”
The logic that leads him to say that businesses should be allowed to save money must surely be the same logic that assumes that businesses would be better off wisely investing their money, and paying attention to their trade. But this is precisely the same logic that could be applied to anyone plying any kind of trade, even a poet. Penrose, however, does realise the pernicious way that the regulatory ideology eats away at social responsibility and has found its way into many different kinds of practice: the executive summary of the post regulation report states:
“Since 1997, the Labour Government has introduced an unprecedented number of new regulations, which have undermined social responsibility and reduced the UK’s economic competitiveness. The exponential increase in regulation has not only hit businesses (particularly small businesses), but it has also increased the bureaucratic burden on individuals, charities, public bodies and social enterprises. This has hindered innovation and social action and has also led to a rapid increase in government spending on administration and inspection regimes. Unfortunately, as we have seen with the failed system of tripartite financial regulation, Labour’s bureaucratic approach has not only impacted negatively on businesses, social enterprises, charities and public bodies; it has also been largely ineffective."
This is an important point. By asking people to pay money and attention to the regulatory ritual, not only does it stop people doing valuable things with their time and money, but it actually eats away at the normal checks and balances that people have built up in their work and which allow them to govern themselves and those around them in a more ordinary, and effective way. The regulatory ideology has nothing to ground itself with, but can only expand, spread fear, and rush on in the hope that no-one has time to ask questions.
“A different way is possible. We need to sweep away Labour's ineffective system of bureaucracy and replace it with a post-bureaucratic approach to regulation that makes use of new technologies and insights from social psychology and behavioural economics to achieve our policy goals in a less burdensome and intrusive way."
It is here that the rhetoric lets Penrose down so badly. Is it post-bureaucratic regulation he wants, or post regulatory bureaucracy. What do these words actually mean?
“Achieving this innovative and post-bureaucratic approach to regulation across government will not happen overnight. It will require a fundamental culture shift amongst policymakers in Whitehall and beyond, which will only be made possible through significant structural reforms."
Probably it is more important that people begin to really think about words and what they mean when they speak, than it is to make any innovative, post-wotnot, culture change, fundamental or otherwise.
“These structural reforms fall into two major categories. First, institutional changes that will curb the volume of new regulations, and remove existing regulations that are shown to be ineffective or overly burdensome. Second, policy changes to improve the quality and effectiveness of any new regulations, and ensure that they are genuinely post-bureaucratic and reflect the latest insights from academic research."
How can anything show itself to be genuinely post-bureaucratic unless we know what the phrase means? Without some genuine post-bullshit talking, we are going to lose some truly valuable knowledge, practices, and, probably, some absolutely essential qualities like trust, truth, and justice.
So, let's stick with the particular against this background of generalities - why has the Government suddenly decided that the Health Professions Council is a good candidate to regulate the Social Workers? It didn’t ask the social workers, so who did it ask? In the absence of any information, it seems quite likely that this sudden announcement is a result of politicking behind the scenes by the HPC who need to secure increased income to cover its expanding inefficiencies. The lack of any rationale for swapping the social workers into the Health Professions Council is very worrying. If it is possible to change the Health Professions Council into the Social Work and Health Professions Council just like that, then it looks like the HPC is the puppet of ... politicans, who themselves seem to be the puppet of ... the HPC. Is anyone taking real responsibility here? Does anyone understand what's going on?
There appears to be no idea behind the move, and no idea to behind the HPC. It might be time to turn to an article recently published in the New Statesmen by a former diplomat, and Conservative MP for Buckingham 1983-97, George Walden. The article is a bold analysis of the character, or lack of it, of the prime minister. “Nowhere Man”, is published online at the New Statesman on 28 June 2010
Friday, 23 July 2010
FTP of a psychologist who was ordered to do CBT instead of psychotherapy
In April, colleague Bruce Scott noticed that a case on the Fitness to Practise listing on the HPC website had vanished. This was the case of a Psychology Practitioner whose allegation is particularly interesting to counsellors and psychotherapists (see points 3 and 4 especially):
“In the course of your employment as a forensic psychologist in training at R Hospital between 2001 and 2006 you:
1. failed to provide reports in a timely manner;
2. failed to keep accurate client files;
3. undertook psychodynamic work with clients which was outside your scope of practise;
4. continued to undertake psycho¬dynamic work with clients when directed not to do so by your supervisor;
5. submitted a court report which
a) was not counter-signed by your supervisor, and
b) referred to you as a forensic psychologist.
6. The matters set out in 1 – 5 above constitute misconduct.
7. By reason of that misconduct your fitness to practise is impaired.”
The case had been opened in the usual way, and was held in public at HPC HQ, in February this year. They had not managed to get through the proceedings in the two days allocated, so were waiting till June to complete the ordeal. Bruce made a note and planned to attend the final part of the hearing. Then he noticed its disappearance from the listings.
A couple of weeks ago I decided to dig around a bit and asked for the transcript of the hearing, and received four days’ worth of proceedings, amounting to nearly 90,000 words. The HPC clearly deem this case to be one wholly in the public domain, yet the second half, conducted in June, had not been publicly announced. Why?
Meanwhile, Bruce had also noticed that no cases for Practitioner Psychologists were appearing on the HPC website at all. What was going on?
The Chief Executive’s Report to Council last week (HPC Council meeting, 7 July 2010) contains statistics about cases broken down according to section of the register. For example, there are about 40-50 cases pending at the Investigating Panel stage (the first formal stage) for Practitioner Psychologists since the takeover last year (in fact, the Practitioner Psychologists come third most months, after Paramedics and Physiotherapists).
The figures for cases pending at the Competence and Conduct stage, the public hearing, are currently about 22 or so.
When asked why no cases were showing on the HPC website for psychologists, the clerk replied first that this question was being dealt with under the Freedom of Information Act, which seems a bit odd, and second that “The only practitioner psychologist hearings taking place in the next four weeks involve cases transferred from the British Psychological Society. Under the transfer arrangements, these individuals were not eligible for automatic transfer to the HPC register as there were outstanding fitness to practise matters at the time the register opened. The hearings are taking place before the Conduct and Competence Committee under the transitional arrangements to determine whether the person should be entered on the register. We are not publishing details of these cases on our website as these individuals are not currently on the HPC register.”
The decision to remove these cases from the website seems to have come shortly after Dr Cross’s case in March or April, and this appears to have created a bit of confusion in the HPC itself. The case whose allegation was quoted above was pronounced on the website in January in readiness of the February hearing date, but was not declared in May, four weeks before its final two days’ hearing in June. In the clerk’s email this week he specifically states that “The Council's policy is to publish the details of a hearing on the website four weeks in advance of the hearing date. Where a case is part heard or adjourned, the hearing will remain on the website with the new date.” This did not happen in this case. In the transcript of the case (which is freely available by emailing Ciara.O'Dwyer@hpc-uk.org and asking for it: PYL05183) the HPC solicitor clarifies the position as follows:
“As this was an investigation originally carried out by the British Psychological Society, it is probably right that I should explain the background and how the HPC comes to have jurisdiction just briefly. The background is that Ms D was registered with the British Psychological Society as a practitioner psychologist. And as you may be aware there has been a transfer of the voluntary register operated by the BPS into the statutory remit of the HPC. And ordinarily a person registered with the BPS would be then included in the relevant part of the register of the HPC. However an exception to that is where a person is subject to proceedings which could lead to their removal or suspension from the BPS register. And if that is the case, the HPC may determine that the person’s name is not to be entered into the relevant part of the HPC register, and dispose of the matter in such matters as it considers just. And that is according to Article 5(5), (6) of the Healthcare and Associated Professions (Miscellaneous Amendments and Practitioner Psychologist) Order 2009. I outline that in brief because Mr T [registrant’s solicitor] has kindly indicated to me this morning that there is no issue over jurisdiction. This matter has come straight to the Conduct and Competence Committee because of the stage that it had reached at the BPS. And so that explains why, in the notice of allegation, it is phrased in terms of whether she should be admitted to the Register, rather than the usual case where there has not been a transfer of this sort when you are considering someone who is already on the Register, and what if anything, should happen to that registration if you find the matters to be proved.”
So, there it is: this is one of those cases that the HPC is holding that has come from the BPS so the practitioner has not yet been granted access to the HPC Register (though she does have a registration number, and is apparently legally subject to the proceedings of the HPC conduct and competence committee). This is one of those hearings that I am now told is not being held in public, although, as you can see, I have received the transcript in full.
Apart from this anomaly, the case itself is fascinating. I commend it to you for leisure-time reading (I bet you could even register the time it takes to read it in your CPD file, if you indulge in such a thing). The lawyer, Mr T is wholeheartedly on the side of his client and goes at the HPC witnesses like a Rotweiler – “Yes, Mr S. I just want to start with something that is not in your witness statement. But is relevant to these proceedings. And that is the genesis of your complaint. Because, of course, this is a complaint which was not pursued or taken up by the Trust, the employer. This is a complaint that you personally had made with Dr B, isn’t it? … you, in fact, were never her supervisor for the purposes of the BPS chartership, were you? … In fact the Trust had previously taken the decision that you would not be her supervisor because she had already made a complaint about you and the way that you were conducting supervision.”
The defence sets out right from the get-go – this is a counter complaint made by two individuals, not supported by the Trust, and prompted by a grievance taken out by the defendant against both managers. As the case unfolds there are some interesting details about what does and does not count as psychodynamic work, what constitutes supervision, what is meant by ‘a vulnerable service user’ (in this case a man who, amongst other things, battered his girlfriend to death with a hammer), how NICE guidelines are used to justify imposing CBT and forbidding psychodynamic work, and finally, the sheer beauty of the evidence of the old psychiatrist (Dr K) who had been supervising the psychotherapeutic work of the defendant - it comes through as if from another planet.
The case rolled on, as already noted, for four whole days, costing about £8k excluding legal costs (say, another another £1k per day). The Panel took 4 hours to come to its decision, which took barely a page to record on the transcript. The decision was NOT well founded.
The latest FTP Annual Report from HPC reports a doubling in the proportion of registrants with complaints against them over the last five years: 0.19% in 2005-6, and 0.38% in 2009-10. There has been a huge increase in cases Not Well Found in the same period: 2% of all cases not well founded in 2005-6, and 30% not well found in 2009-10.
Kelly Johnson, Director of FTP notes in her report that the budget for the FTP department was approximately £6m last year, which is about 40% of the HPC’s operating costs, from money raised by registrant fees. There appears to be no effective mechanism for controlling the quality of work in the FTP department.
“In the course of your employment as a forensic psychologist in training at R Hospital between 2001 and 2006 you:
1. failed to provide reports in a timely manner;
2. failed to keep accurate client files;
3. undertook psychodynamic work with clients which was outside your scope of practise;
4. continued to undertake psycho¬dynamic work with clients when directed not to do so by your supervisor;
5. submitted a court report which
a) was not counter-signed by your supervisor, and
b) referred to you as a forensic psychologist.
6. The matters set out in 1 – 5 above constitute misconduct.
7. By reason of that misconduct your fitness to practise is impaired.”
The case had been opened in the usual way, and was held in public at HPC HQ, in February this year. They had not managed to get through the proceedings in the two days allocated, so were waiting till June to complete the ordeal. Bruce made a note and planned to attend the final part of the hearing. Then he noticed its disappearance from the listings.
A couple of weeks ago I decided to dig around a bit and asked for the transcript of the hearing, and received four days’ worth of proceedings, amounting to nearly 90,000 words. The HPC clearly deem this case to be one wholly in the public domain, yet the second half, conducted in June, had not been publicly announced. Why?
Meanwhile, Bruce had also noticed that no cases for Practitioner Psychologists were appearing on the HPC website at all. What was going on?
The Chief Executive’s Report to Council last week (HPC Council meeting, 7 July 2010) contains statistics about cases broken down according to section of the register. For example, there are about 40-50 cases pending at the Investigating Panel stage (the first formal stage) for Practitioner Psychologists since the takeover last year (in fact, the Practitioner Psychologists come third most months, after Paramedics and Physiotherapists).
The figures for cases pending at the Competence and Conduct stage, the public hearing, are currently about 22 or so.
When asked why no cases were showing on the HPC website for psychologists, the clerk replied first that this question was being dealt with under the Freedom of Information Act, which seems a bit odd, and second that “The only practitioner psychologist hearings taking place in the next four weeks involve cases transferred from the British Psychological Society. Under the transfer arrangements, these individuals were not eligible for automatic transfer to the HPC register as there were outstanding fitness to practise matters at the time the register opened. The hearings are taking place before the Conduct and Competence Committee under the transitional arrangements to determine whether the person should be entered on the register. We are not publishing details of these cases on our website as these individuals are not currently on the HPC register.”
The decision to remove these cases from the website seems to have come shortly after Dr Cross’s case in March or April, and this appears to have created a bit of confusion in the HPC itself. The case whose allegation was quoted above was pronounced on the website in January in readiness of the February hearing date, but was not declared in May, four weeks before its final two days’ hearing in June. In the clerk’s email this week he specifically states that “The Council's policy is to publish the details of a hearing on the website four weeks in advance of the hearing date. Where a case is part heard or adjourned, the hearing will remain on the website with the new date.” This did not happen in this case. In the transcript of the case (which is freely available by emailing Ciara.O'Dwyer@hpc-uk.org and asking for it: PYL05183) the HPC solicitor clarifies the position as follows:
“As this was an investigation originally carried out by the British Psychological Society, it is probably right that I should explain the background and how the HPC comes to have jurisdiction just briefly. The background is that Ms D was registered with the British Psychological Society as a practitioner psychologist. And as you may be aware there has been a transfer of the voluntary register operated by the BPS into the statutory remit of the HPC. And ordinarily a person registered with the BPS would be then included in the relevant part of the register of the HPC. However an exception to that is where a person is subject to proceedings which could lead to their removal or suspension from the BPS register. And if that is the case, the HPC may determine that the person’s name is not to be entered into the relevant part of the HPC register, and dispose of the matter in such matters as it considers just. And that is according to Article 5(5), (6) of the Healthcare and Associated Professions (Miscellaneous Amendments and Practitioner Psychologist) Order 2009. I outline that in brief because Mr T [registrant’s solicitor] has kindly indicated to me this morning that there is no issue over jurisdiction. This matter has come straight to the Conduct and Competence Committee because of the stage that it had reached at the BPS. And so that explains why, in the notice of allegation, it is phrased in terms of whether she should be admitted to the Register, rather than the usual case where there has not been a transfer of this sort when you are considering someone who is already on the Register, and what if anything, should happen to that registration if you find the matters to be proved.”
So, there it is: this is one of those cases that the HPC is holding that has come from the BPS so the practitioner has not yet been granted access to the HPC Register (though she does have a registration number, and is apparently legally subject to the proceedings of the HPC conduct and competence committee). This is one of those hearings that I am now told is not being held in public, although, as you can see, I have received the transcript in full.
Apart from this anomaly, the case itself is fascinating. I commend it to you for leisure-time reading (I bet you could even register the time it takes to read it in your CPD file, if you indulge in such a thing). The lawyer, Mr T is wholeheartedly on the side of his client and goes at the HPC witnesses like a Rotweiler – “Yes, Mr S. I just want to start with something that is not in your witness statement. But is relevant to these proceedings. And that is the genesis of your complaint. Because, of course, this is a complaint which was not pursued or taken up by the Trust, the employer. This is a complaint that you personally had made with Dr B, isn’t it? … you, in fact, were never her supervisor for the purposes of the BPS chartership, were you? … In fact the Trust had previously taken the decision that you would not be her supervisor because she had already made a complaint about you and the way that you were conducting supervision.”
The defence sets out right from the get-go – this is a counter complaint made by two individuals, not supported by the Trust, and prompted by a grievance taken out by the defendant against both managers. As the case unfolds there are some interesting details about what does and does not count as psychodynamic work, what constitutes supervision, what is meant by ‘a vulnerable service user’ (in this case a man who, amongst other things, battered his girlfriend to death with a hammer), how NICE guidelines are used to justify imposing CBT and forbidding psychodynamic work, and finally, the sheer beauty of the evidence of the old psychiatrist (Dr K) who had been supervising the psychotherapeutic work of the defendant - it comes through as if from another planet.
The case rolled on, as already noted, for four whole days, costing about £8k excluding legal costs (say, another another £1k per day). The Panel took 4 hours to come to its decision, which took barely a page to record on the transcript. The decision was NOT well founded.
The latest FTP Annual Report from HPC reports a doubling in the proportion of registrants with complaints against them over the last five years: 0.19% in 2005-6, and 0.38% in 2009-10. There has been a huge increase in cases Not Well Found in the same period: 2% of all cases not well founded in 2005-6, and 30% not well found in 2009-10.
Kelly Johnson, Director of FTP notes in her report that the budget for the FTP department was approximately £6m last year, which is about 40% of the HPC’s operating costs, from money raised by registrant fees. There appears to be no effective mechanism for controlling the quality of work in the FTP department.
Thought Crime - an FTP case of a Biomedical Scientist
This is the story of a Biomedical scientist who was reported as saying of an absent colleague ‘I have an idea of what XX could do as her other job – a suicide bomber’. XX had suddenly handed in her notice with no other job to go to, and had thus become the subject of gossip for the colleagues who remained at work. At a leaving do for another member of staff a while later, the registrant’s comment caused a bit of unease, and somehow, later, seeped into the attention to one of the managers at work who hadn’t been at the party. In a series of convolutions that eventually led to the registrant being sacked, another manager actually phoned the woman who had left, and about whom the comment had been made, to tell her. Apparently he had wanted her to join in and give some kind of evidence of offense in a disciplinary process he was advancing against the registrant. She declined.
When a registrant is sacked or demoted the employer is obliged to tell the HPC, who then consider making their own case against the registrant. This case was first heard by the Conduct and Competence Committee on 29 March 2010 and was concluded on 15 June when the panel found the HPC had made a good case and decided to issue a caution for three years against the registrant. The first part of the hearing was conducted in public. The transcript is available to the public (email ftp@hpc-uk.org and ask for Allegation Number FTP02357) The second part of the hearing was held in private, but the decision is published in full on the HPC website
In order to build a case the HPC lawyer refers to Standard 3 “You must keep high standards of personal conduct” and Standard 12, “You must behave with honesty and integrity and make sure that your behaviour does not damage the public confidence in you or your profession.” Indeed, in the decision, the Panel make use of these standards to justify their action: “The Panel note that misconduct can encompass inappropriate behaviour which occurs out with the course of professional practise itself but compromises the reputation of the profession concerned. The Panel find that the remarks were inappropriate and focused on a professional colleague’s ethnicity. The Panel find that the following HPC Standards of Conduct, Performance and Ethics were breached:
3 – You must keep high standards of personal conduct.
13 – You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
The Panel find misconduct.” No attention is made in the hearing to say what kind of public would lose which sort of confidence in what kind of profession. Nor is there is any effort made to put this to any kind of test. It remains vague.
It is unclear how this comment constitutes a danger to the public. It is also unclear how this comment constitutes a case for dismissal in the NHS. That it has moved both organisations to such a level of activity, resulting in a dismissal (after 30 years of work in which no complaint was ever made about the employee) raises general questions about the direction of British social policy, and specific questions about the quality of local management and leadership in each of these places.
The case was reported in the Daily Telegraph on Friday 16th July, on page 11, under the headline: “Scientist ‘said junior could be a bomber’” the article opens by remarking that the registrant ‘has been allowed to remain in the profession.’ The first hand report of the case would most probably have come from a news agency, rather than a DT reporter on site. Neither, however, ask why this constitutes a case.
In 1995, the JM Consulting Company was commissioned by the Department of Health to make a report into the regulation of health professions. This was an inquiry into the Professions Supplementary to Medicine Act (1960) with recommendations for new legislation. The report notes that amongst the principle areas of concern raised about the then CPSM (Council for Professions Supplementary to Medicine) was ‘archaic and inflexible procedures for discipline’ which meant that misconduct falling short of the ‘infamous’ was not addressed. In essence, the 1960 Act protected the public “by providing a (last resort) mechanism for disqualifying professionals shown to be guilty of exceptional examples of misconduct.” (p18). A lot changed with the passing of the Health Professions Order 2001, but nowhere can I find it written that thought crime, wise-cracks or jokes should become part of the remit of the Conduct and Competence Committee. This particular case must raise questions not simply about the general nature of the secondary legislation behind the HPC, but about the specific management and personal style of those who are responsible for its day-to-day work.
Meanwhile, on Nick Clegg’s Your Freedom Site, HPC regristrants from other professions continue to post their own comments about the bizarre procedures of HPC: eg, this one posted by galileo July 09, 2010 at 21:16:
“This spring I have received 6 letters and 2 printed booklets from HPC. And, if you can believe it, all were to tell me how to fill in my renewal form, which was no more than a recto-verso tick box form. Does it really take a 20-page booklet to tell a professional, trained and recognised as senior in my work, with almost 20 years professional background and clinical experience, how to confirm that my name and address haven't changed? Not only did they write to me, but they also invented a manager that they imagined I must have and who they wrote to, asking them to prompt me to send back my form. Now let me be clear, all this was simply to renew my registration and continue to pay HPC. Nothing to do with providing me with any relevant information about improving my practice, protecting the public, and neither did it provide the public with any meaningful information about me. And all of this was months before the deadline for renewal... Why not use the funds instead to provide public education so that people know what questions to ask and how to access the most suitable one of the multiple treatment choices available to best meet their needs?”
Now, that’s a good idea.
When a registrant is sacked or demoted the employer is obliged to tell the HPC, who then consider making their own case against the registrant. This case was first heard by the Conduct and Competence Committee on 29 March 2010 and was concluded on 15 June when the panel found the HPC had made a good case and decided to issue a caution for three years against the registrant. The first part of the hearing was conducted in public. The transcript is available to the public (email ftp@hpc-uk.org and ask for Allegation Number FTP02357) The second part of the hearing was held in private, but the decision is published in full on the HPC website
In order to build a case the HPC lawyer refers to Standard 3 “You must keep high standards of personal conduct” and Standard 12, “You must behave with honesty and integrity and make sure that your behaviour does not damage the public confidence in you or your profession.” Indeed, in the decision, the Panel make use of these standards to justify their action: “The Panel note that misconduct can encompass inappropriate behaviour which occurs out with the course of professional practise itself but compromises the reputation of the profession concerned. The Panel find that the remarks were inappropriate and focused on a professional colleague’s ethnicity. The Panel find that the following HPC Standards of Conduct, Performance and Ethics were breached:
3 – You must keep high standards of personal conduct.
13 – You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
The Panel find misconduct.” No attention is made in the hearing to say what kind of public would lose which sort of confidence in what kind of profession. Nor is there is any effort made to put this to any kind of test. It remains vague.
It is unclear how this comment constitutes a danger to the public. It is also unclear how this comment constitutes a case for dismissal in the NHS. That it has moved both organisations to such a level of activity, resulting in a dismissal (after 30 years of work in which no complaint was ever made about the employee) raises general questions about the direction of British social policy, and specific questions about the quality of local management and leadership in each of these places.
The case was reported in the Daily Telegraph on Friday 16th July, on page 11, under the headline: “Scientist ‘said junior could be a bomber’” the article opens by remarking that the registrant ‘has been allowed to remain in the profession.’ The first hand report of the case would most probably have come from a news agency, rather than a DT reporter on site. Neither, however, ask why this constitutes a case.
In 1995, the JM Consulting Company was commissioned by the Department of Health to make a report into the regulation of health professions. This was an inquiry into the Professions Supplementary to Medicine Act (1960) with recommendations for new legislation. The report notes that amongst the principle areas of concern raised about the then CPSM (Council for Professions Supplementary to Medicine) was ‘archaic and inflexible procedures for discipline’ which meant that misconduct falling short of the ‘infamous’ was not addressed. In essence, the 1960 Act protected the public “by providing a (last resort) mechanism for disqualifying professionals shown to be guilty of exceptional examples of misconduct.” (p18). A lot changed with the passing of the Health Professions Order 2001, but nowhere can I find it written that thought crime, wise-cracks or jokes should become part of the remit of the Conduct and Competence Committee. This particular case must raise questions not simply about the general nature of the secondary legislation behind the HPC, but about the specific management and personal style of those who are responsible for its day-to-day work.
Meanwhile, on Nick Clegg’s Your Freedom Site, HPC regristrants from other professions continue to post their own comments about the bizarre procedures of HPC: eg, this one posted by galileo July 09, 2010 at 21:16:
“This spring I have received 6 letters and 2 printed booklets from HPC. And, if you can believe it, all were to tell me how to fill in my renewal form, which was no more than a recto-verso tick box form. Does it really take a 20-page booklet to tell a professional, trained and recognised as senior in my work, with almost 20 years professional background and clinical experience, how to confirm that my name and address haven't changed? Not only did they write to me, but they also invented a manager that they imagined I must have and who they wrote to, asking them to prompt me to send back my form. Now let me be clear, all this was simply to renew my registration and continue to pay HPC. Nothing to do with providing me with any relevant information about improving my practice, protecting the public, and neither did it provide the public with any meaningful information about me. And all of this was months before the deadline for renewal... Why not use the funds instead to provide public education so that people know what questions to ask and how to access the most suitable one of the multiple treatment choices available to best meet their needs?”
Now, that’s a good idea.
Monday, 19 July 2010
Part 3: An in depth analysis of a FTP case
Section 3
The Chair: “The Panel have considered the representations made by Mr Tyme and Ms Kemp and the Panel are not prepared to accede to the application from Mr Tyme. In view of that, [are] there any further representations you wish to make about the allegation at this stage?”
Mr Tyme: “No”
No? This seems strange. It might be expected that a lawyer would put his client’s case firmly and clearly whenever he was invited to speak. The HPC lawyer certainly takes every opportunity to do so. It begins to occur to me that Dr Cross is to some extent compromised by virtue of his having recently become a member of the Council, and that this consideration is complicating things for his lawyer. It also begins to occur to me that Dr Cross might now have a measure of interest in implementing some changes to the HPC to prevent further instances of such confusion. But this supposes a lot, not least about the kind and extent of power that the Council can in fact wield, and this must wait for another time to explore.
So the Registrant’s lawyer once again finds himself in no position to further his client’s case in the face of HPC procedure. The Panel Chair proceeds with the case, thus ignoring Mr Russen’s intervention proposing my ejection from the room. But there is yet another considerations to be addressed before the hearing can begin.
Chair: “Ms Kemp, before you open on behalf of the Health Professions Council there are two matters that the Panel would like to raise with you, one of the exhibits is a letter from your witness, Ms Ross, to Ms Johnson, the Director of Fitness to Practise.
Ms Kemp: “Yes”
Chair: “That appears to be in response to a letter from Ms Johnson dated 28 August 2009; are you going to give us copies of that letter so we can see –
Ms Kemp: – “The letter of Ms Johnson, I was not proposing to do so. However, if there are no objections from Mr Tyme, there is no issue that turns on it, but if the Panel feel it would be assisted and there are no objections, I do not see why you should not have a copy of it.”
Chair: “Mr Tyme”
Mr Tyme: “No objection.”
Ms Kemp: “No objection.”
Chair: “I think it would be helpful because we only really have one half of the picture.”
Ms Kemp: “Yes, madam. I have one copy here. I could ask Ms Dwomoh-Bonsu to copy the letter, make copies available for the Panel and Legal Assessor.”
This perhaps means that the Panel, whilst in private deliberation, spent some of the time going through the paperwork together, and noticed some anomalies. I wonder what the usual routine is for a Panel. A hearing typically starts at 10am, but perhaps it is customary for the Panel to meet at 9am to go through the case together. This would be helpful background information to know. In any case, whether they talked before the case or not, they missed the fact that this letter was missing, or missed the fact that it mattered. [NB They all have very large bundles of paper in front of them when they arrive, and these are not made public unless put into words in the course of the hearing.]
There is yet one more administrative detail to be covered before the Chair is ready to begin.
Chair: “The other matter is, obviously it is a matter for you which witness you call, there is no statement from the witness, from the person whose initials are SP.
Ms Kemp: “That is right, madam, not as part of the Health Professions Council’s case.”
Chair: “Thank you.”
Mr Tyme: “Madam, it may help if I can indicate he has provided, if I assume it is the person who, the present –”
Ms Kemp: “– Yes”
They exchange glances.
Mr Tyme: “He has in fact provided character evidence on behalf of the Registrant. I do have a statement which I can hand up to the Panel at the appropriate time.”
Chair: “That is fine. Thank you very much. Ms Kemp.”
With these administrative details sorted, Ms Reggiori invites Ms Kemp to open the proceedings. Though it would be interesting to ask what these missing documents signify. To begin with, Ms Reggiori drew attention to a missing letter. This brought the name of Ms Johnson, the Director of Fitness to Practise, into the proceedings. More questions. First, it is worth remembering that the HPC was created as an organisation in its own right, and given powers as a regulator. As part of that process the Director of Fitness to Practise emerges as an internal post, not a professional position. The incumbent of that post is not required to have any experience of any professional work, is not nor ever has been engaged in any kind of practical professional work, and, in fact, is really rather young – I remark on this only because it surprised me – I had expected the Director of Fitness to Practise to be a wise old bird with a great deal of experience. The attribution of the title Director is probably just a preference of the HPC, which is free to name the posts within the organisation as it sees fit. The job description for the Director of Fitness to practise can be found at Appendix B. This information was given to me by the HPC under the ‘Freedom of Information Act’ although I did not in fact make my request on that basis, thinking this rather ordinary information that should be freely available as a matter of course. They refused to supply information about the suitability of the current incumbent, saying this was personal information (email reproduced as Appendix A). This might seem reasonable, but in fact leaves things rather ambiguous. Anyone might expect a Director of FTP to be qualified in the profession the post has jurisdiction over. In the case of HPC, however, no-one can have knowledge of 15 different kinds of practise, so what does the Director of FTP have to know in order to get this job? According to the Job Description and Person Specification, the kind of knowledge required is political and administrative see Appendix B. The question is important because in this hearing we begin to see that the people making the allegation are in correspondence with the Director and not the Chair of the Investigating Panel.
One more point could usefully be opened up for discussion here: the anomalous position of professions in the organisation. Statutory power has traditionally been passed to existing professional organisations that have proved themselves capable and trustworthy in their work, and are deemed important enough to be given power of the state to govern their practise and their organisation. It is a way of honoring the people who have established the practice and the institutional procedures to support that practice, of saying that the country respects and trusts their work, and is happy to delegate power to them from parliament in order to run their own concerns on behalf of the good of the country with the help of that power. That was the tradition for many centuries in the UK. With the invention of the HPC, however, a radical change was ushered in. With the invention of the HPC, the act of delegating statutory power to an existing professional organisation was not a reflection of the trust this organisation was held in, but rather the distrust, for rather than give the power to, as in this case, the British Psychological Society, the power was given to the Health Professions Council – an organisation that knew nothing about Psychology. The rationale for this is quite dubious, as it implies, rather directly, that the Government cannot trust the BPS but that it can trust the HPC, a newly created organisation, without history or tradition, created by the government itself. At the time of the creation of the HPC, there was a great deal of talk about regulation both in the media and in and around parliament. The key signifier of this discourse was the case of Harold Shipman, the mere mention of whom eventually had the effect of reducing many otherwise extremely intelligent people to gibbering ideologues. The Bristol Royal Infirmary Inquiry also made a distinctive mark on the character of this new organisation. We will return to this in more detail later, but for now the point that needs to be made is the effect it had on the structure of the HPC, and the position within that professionals would henceforth take. In short, the political rhetoric – vastly amplified by the media – prevented professionals from being given power, as they were portrayed as potential murderers or incompetents not worthy of the trust let alone the power that might otherwise have been placed in them. This, oddly enough, led to the idea that an administrative organisation staffed by non-professionals should be created, and that this organisation would be the repository of statutory power. However, since this administrative organiation was to be given the authority to regulate various professionals in practice, some mechanism was necessary for the administrators to gain at least some access to the corpus of professional knowledge, and this – in fact this became a point of contention in the debate in the House of Lords, and which, due to the limited time given to debates on secondary legislation, was not properly resolved. Anyway, this is an interesting inversion of the usual relationship of administrators to professionals. In the professional organisations, the professionals would employ administrators to help them keep the paperwork under control. Here we have the administrators employing the professionals to keep the practitioners under control, and all because the Government found itself unable to trust the professions, but unable to resist the call to delegate power. In one small step, the idea of statutory regulation has been turned on its head – Alice Through the Looking Glass style.
This has a direct bearing on what is happening in this case, and we are in a very good position to see how power, when it moves through a system like the HPC, can all too easily be misused. The people inside the HPC do not know anything about the real work of the professionals they have been created to control. They have had to set up committees and panels which they have had to staff with Partners only half (or less) of whom have any experience of the practise, and who are required to follow (rather strictly, it seems) HPC procedures in order to make decisions about the competence, conduct, and fitness to practise of people whose work they might know almost nothing. It is almost as if ignorance is being proposed as some kind of guarantee of impartiality: they are supposed not to know anything about them in order, according to the rhetoric, not to be prejudiced in their favour. This is another consequence of stepping through the Looking Glass.
The idea that professionals cannot be trusted, and therefore cannot be given the power to manage themselves, has led in a rather convoluted way to the idea that they should not be trusted – that is that they are positively untrustworthy and in the context of FTP procedures, guilty until proven innocent. This is the second place where we have seen this doubling of a subtraction: not only are professionals reduced to zero, ie by the removal of any positive trust, but they are then subtracted from again which leaves them in the negative zone, where they are actively mistrusted. This explains why the Panel which is set up to judge a person in a fitness to practise hearing has only one person from the practise in question, and the other two will be lay people (when considered from the point of view of the practice) – neither will know anything about the speciality, let alone about the context of the work. In the case we are observing now, however, it doesn’t matter at all, for the practice of counselling psychology is not even in question. No-one needs to know anything in particular about the nature of this work. The Panel are being asked to judge the normal, ordinary, private behaviour of another human being.
The only thing that gives them the power to make such a spectacle of the process is the power invested in it by the Government. The set of people it gives them power over is defined by those in the HPC database. This gives us a little more confidence to say that the upshot of the existence of the HPC, knowingly or not, is the invention of a new set of people called Health Professionals. This new profession has no prior history, no established practise, and apparently no real idea that it is even being created. There is no pioneer, no struggle, no agonistic field, no argument: it is simply materialising out of thin air, the thin air of a largely unconscious ideological imperative. Aspects of the dream seem to be to create a new sector of society, of people who are morally superior, and who are therefore capable of judging what had previously been their peers. We seem to be witnessing the invention of angels – a class that doesn’t sin, and that has been given the right and the power to inflict punishment on anyone it believes to have done so according to its own, essentially, arbitrary standards.
APPENDIX A
Dear Ms Low
Thank you for your e-mail of 9 April to our Recruitment e-mail address, requesting the job descriptions and person specifications for four posts and evidence of the suitability of the current employees holding those posts.
This request is being handled under the Freedom of Information Act 2000 (the Act).
Please find attached job descriptions and person specifications for the Head of Case Management, the Director of Policy and Standards, the Director of Fitness to Practise and the Chief Executive and Registrar.
I can confirm that the Health Professions Council holds information on the suitability of the current employees holding those posts. However we are withholding that information since we consider that the exemption under sections 40(2) and 40(3) of the Act applies, i.e. the suitability of the current employees is personal data of those people. It would breach the first data protection principle (that personal data should be processed fairly and lawfully) by providing this information to you.
The suitability of candidates for a post is determined through a recruitment process, which includes a decision by an interview panel on whether to appoint a candidate. All employees of the Health Professions Council are also subject to an annual performance and development review.
If you are unhappy with the way your request for information has been handled, you can request a review by writing to:
Louise Hart
Secretary to Council
Health Professions Council
Park House
184 Kennington Park Road
London SE11 4BU
Email: louise.hart@hpc-uk.org
If you remain dissatisfied with the handling of your request, you have a right to appeal to the Information Commissioner at:
The Information Commissioner's Office
Wycliffe House, Water Lane
Wilmslow , Cheshire, SK9 5AF
Telephone: 08456 306060 or 01625 54 57 45 Website: www.ico.gov.uk
There is no charge for making an appeal.
Yours sincerely
Colin Bendall
Secretary to Committees
Health Professions Council
Park House, 184 Kennington Park Road, London, SE11 4BU
www.hpc-uk.org
tel +44 (0)20 7840 9710
fax +44 (0)20 7840 9807
email colin.bendall@hpc-uk.org
To sign up to the HPC e-newsletter, please email newsletter@hpc-uk.org
APPENDIX B
Job Description – Director of Fitness to Practise
Fitness to Practise Directorate
Main Purpose of Job
• Overall responsibility and management of the functions of the Fitness to Practise Directorate, including the implementation of the Council’s Case Management Programme
• To develop and implement the organisation’s Fitness to Practise strategy, working closely with the Chief Executive, relevant Committees and appointed agencies.
• To manage Fitness to Practise functions on a day-to-day basis including budget, external agencies involved in the fitness to practise function (lawyers, partners and other agencies) and employees
Position in Organisation
• Reports to the Chief Executive and Registrar.
• Member of the Executive Management Team.
• HPC liaison with Council and relevant Committees which include (but are not limited to) the three Statutory Fitness to Practice Committees.
• External liaison with relevant external stakeholders which include (but are not limited to) professional bodies, other regulators, government departments and MP’s, consumer and employer groups, police forces, court services, lawyers and employers of registrants
• Provide instruction to lawyers on issues as they relate to the responsibilities of the Fitness to Practise Department including High Court Appeals.
• Manages, leads and provides support to the management and employees of the Fitness to Practise Directorate.
• Liaises with employee at all levels within the organisation.
Scope of Job
• Overall responsibility for all Departments within the Fitness to Practise Directorate
• Develops and implements Fitness to Practise Strategy, including the implementation and development of appropriate case management strategies.
• Identifies improvement to processes and procedures supporting the work and functions of the fitness to practise department.
Dimensions and Limits of Authority
• Manages the Fitness to Practise Directorate budget (approximately twenty five percent of HPC’s overall operating costs), operating within the budgetary limits of this Department. This will include preparing the annual budget and monitoring expenditure.
• Acts in accordance with statutory powers delegated by Council.
• Ability to act as HPC’s spokesperson on issues that are the responsibility of the Fitness to Practise Department.
• Can raise quotes, engage contractors (including instruction of lawyers) or other resources within the limits of the Fitness to Practise budget.
• Management of the employees within the Fitness to Practise Directorate.
• Deputises for Chief Executive Officer and Registrar in his/her absence.
Skills, Knowledge and Abilities
Essential
• Educated to degree level or equivalent skills and abilities.
• A sound working knowledge at a senior/executive level of a fitness to practise role within a public sector, health, regulatory environment or private sector organisation.
• Significant demonstrated skills in leading, supporting and managing a team or several teams.
• A high level of diplomacy and proven ability to communicate with and manage stakeholders, including but not limited to UK government departments, and ability to build relationships and network effectively.
• Excellent written English skills with the ability to research and write policy documents and reports of a high standard.
• Strong presentation skills with experience of writing and giving presentations to different audiences.
• An ability to understand legal and procedural documents and ethical principals.
• Knowledge of political and governmental processes.
• Sound working knowledge of window based software packages, including word processing, spreadsheets, databases, electronic mail, and the internet.
• Sound working knowledge of management processes around hearings management, including instruction of lawyers where necessary
• Skills and competencies in project management, designing and implementing complex internal business processes and strategies
• Willingness to travel on a regular basis throughout the UK, including overnight stays as required.
Duties and Key Responsibilities
Your principal duties and key responsibilities will be those set out below. In addition to those duties, HPC reserves the right to require you to undertake additional or other duties within your capacity as may from time to time be reasonably required and necessary to meet the needs of the HPC.
Management
• To perform the duties expected as a member of the Executive Management Team.
• Provide leadership and motivation for the team within the Fitness to Practise Directorate.
• To produce and manage business development plans, and performance and service delivery improvement plans and deliver these in support to HPC’s overall business strategy.
• Co-ordinate and lead in the work across the Fitness to Practise Department
Develop and implement Fitness to Practise Strategy
• Draft overall Fitness to Practise strategy for the Council ensuring that HPC’s resources are managed to their best effect
• Develop targeted budget of appropriate amounts.
Manage Fitness to Practice Department budget
• Control Fitness to Practise budget within appropriate guidelines
• Award and terminate contracts as part of this in relation to Fitness to Practise work
Reports and Strategy
• To write briefings, reports, consultation documents, Council and committee papers, material for the website and intranet, and other documents as required.
• To ensure that all written information is clear and conforms where possible to plain English Campaign guidelines.
• To write or supervise the writing of the Fitness to Practise Departmental annual report.
Legal Matters
• Manage the relationship of the legal services provided to the Fitness to Practise Department.
• Regular liaison with the HPC’s Parliamentary agent on any legal matters pertaining to the Department.
• Attendance at court (including High Court) when required.
• Responsible for assisting the Chief Executive in the legal services tendering process.
Stakeholder Management
• Contribute to working groups of the Council for Regulatory Healthcare Excellence.
• Advise and provide guidance to management at all levels within HPC on Fitness to Practise policy trends and performance.
General
• To carry out the responsibilities of the post with due regard to the HPC's Diversity Policy and to treat colleagues and other HPC stakeholders with respect and dignity at all times.
The Chair: “The Panel have considered the representations made by Mr Tyme and Ms Kemp and the Panel are not prepared to accede to the application from Mr Tyme. In view of that, [are] there any further representations you wish to make about the allegation at this stage?”
Mr Tyme: “No”
No? This seems strange. It might be expected that a lawyer would put his client’s case firmly and clearly whenever he was invited to speak. The HPC lawyer certainly takes every opportunity to do so. It begins to occur to me that Dr Cross is to some extent compromised by virtue of his having recently become a member of the Council, and that this consideration is complicating things for his lawyer. It also begins to occur to me that Dr Cross might now have a measure of interest in implementing some changes to the HPC to prevent further instances of such confusion. But this supposes a lot, not least about the kind and extent of power that the Council can in fact wield, and this must wait for another time to explore.
So the Registrant’s lawyer once again finds himself in no position to further his client’s case in the face of HPC procedure. The Panel Chair proceeds with the case, thus ignoring Mr Russen’s intervention proposing my ejection from the room. But there is yet another considerations to be addressed before the hearing can begin.
Chair: “Ms Kemp, before you open on behalf of the Health Professions Council there are two matters that the Panel would like to raise with you, one of the exhibits is a letter from your witness, Ms Ross, to Ms Johnson, the Director of Fitness to Practise.
Ms Kemp: “Yes”
Chair: “That appears to be in response to a letter from Ms Johnson dated 28 August 2009; are you going to give us copies of that letter so we can see –
Ms Kemp: – “The letter of Ms Johnson, I was not proposing to do so. However, if there are no objections from Mr Tyme, there is no issue that turns on it, but if the Panel feel it would be assisted and there are no objections, I do not see why you should not have a copy of it.”
Chair: “Mr Tyme”
Mr Tyme: “No objection.”
Ms Kemp: “No objection.”
Chair: “I think it would be helpful because we only really have one half of the picture.”
Ms Kemp: “Yes, madam. I have one copy here. I could ask Ms Dwomoh-Bonsu to copy the letter, make copies available for the Panel and Legal Assessor.”
This perhaps means that the Panel, whilst in private deliberation, spent some of the time going through the paperwork together, and noticed some anomalies. I wonder what the usual routine is for a Panel. A hearing typically starts at 10am, but perhaps it is customary for the Panel to meet at 9am to go through the case together. This would be helpful background information to know. In any case, whether they talked before the case or not, they missed the fact that this letter was missing, or missed the fact that it mattered. [NB They all have very large bundles of paper in front of them when they arrive, and these are not made public unless put into words in the course of the hearing.]
There is yet one more administrative detail to be covered before the Chair is ready to begin.
Chair: “The other matter is, obviously it is a matter for you which witness you call, there is no statement from the witness, from the person whose initials are SP.
Ms Kemp: “That is right, madam, not as part of the Health Professions Council’s case.”
Chair: “Thank you.”
Mr Tyme: “Madam, it may help if I can indicate he has provided, if I assume it is the person who, the present –”
Ms Kemp: “– Yes”
They exchange glances.
Mr Tyme: “He has in fact provided character evidence on behalf of the Registrant. I do have a statement which I can hand up to the Panel at the appropriate time.”
Chair: “That is fine. Thank you very much. Ms Kemp.”
With these administrative details sorted, Ms Reggiori invites Ms Kemp to open the proceedings. Though it would be interesting to ask what these missing documents signify. To begin with, Ms Reggiori drew attention to a missing letter. This brought the name of Ms Johnson, the Director of Fitness to Practise, into the proceedings. More questions. First, it is worth remembering that the HPC was created as an organisation in its own right, and given powers as a regulator. As part of that process the Director of Fitness to Practise emerges as an internal post, not a professional position. The incumbent of that post is not required to have any experience of any professional work, is not nor ever has been engaged in any kind of practical professional work, and, in fact, is really rather young – I remark on this only because it surprised me – I had expected the Director of Fitness to Practise to be a wise old bird with a great deal of experience. The attribution of the title Director is probably just a preference of the HPC, which is free to name the posts within the organisation as it sees fit. The job description for the Director of Fitness to practise can be found at Appendix B. This information was given to me by the HPC under the ‘Freedom of Information Act’ although I did not in fact make my request on that basis, thinking this rather ordinary information that should be freely available as a matter of course. They refused to supply information about the suitability of the current incumbent, saying this was personal information (email reproduced as Appendix A). This might seem reasonable, but in fact leaves things rather ambiguous. Anyone might expect a Director of FTP to be qualified in the profession the post has jurisdiction over. In the case of HPC, however, no-one can have knowledge of 15 different kinds of practise, so what does the Director of FTP have to know in order to get this job? According to the Job Description and Person Specification, the kind of knowledge required is political and administrative see Appendix B. The question is important because in this hearing we begin to see that the people making the allegation are in correspondence with the Director and not the Chair of the Investigating Panel.
One more point could usefully be opened up for discussion here: the anomalous position of professions in the organisation. Statutory power has traditionally been passed to existing professional organisations that have proved themselves capable and trustworthy in their work, and are deemed important enough to be given power of the state to govern their practise and their organisation. It is a way of honoring the people who have established the practice and the institutional procedures to support that practice, of saying that the country respects and trusts their work, and is happy to delegate power to them from parliament in order to run their own concerns on behalf of the good of the country with the help of that power. That was the tradition for many centuries in the UK. With the invention of the HPC, however, a radical change was ushered in. With the invention of the HPC, the act of delegating statutory power to an existing professional organisation was not a reflection of the trust this organisation was held in, but rather the distrust, for rather than give the power to, as in this case, the British Psychological Society, the power was given to the Health Professions Council – an organisation that knew nothing about Psychology. The rationale for this is quite dubious, as it implies, rather directly, that the Government cannot trust the BPS but that it can trust the HPC, a newly created organisation, without history or tradition, created by the government itself. At the time of the creation of the HPC, there was a great deal of talk about regulation both in the media and in and around parliament. The key signifier of this discourse was the case of Harold Shipman, the mere mention of whom eventually had the effect of reducing many otherwise extremely intelligent people to gibbering ideologues. The Bristol Royal Infirmary Inquiry also made a distinctive mark on the character of this new organisation. We will return to this in more detail later, but for now the point that needs to be made is the effect it had on the structure of the HPC, and the position within that professionals would henceforth take. In short, the political rhetoric – vastly amplified by the media – prevented professionals from being given power, as they were portrayed as potential murderers or incompetents not worthy of the trust let alone the power that might otherwise have been placed in them. This, oddly enough, led to the idea that an administrative organisation staffed by non-professionals should be created, and that this organisation would be the repository of statutory power. However, since this administrative organiation was to be given the authority to regulate various professionals in practice, some mechanism was necessary for the administrators to gain at least some access to the corpus of professional knowledge, and this – in fact this became a point of contention in the debate in the House of Lords, and which, due to the limited time given to debates on secondary legislation, was not properly resolved. Anyway, this is an interesting inversion of the usual relationship of administrators to professionals. In the professional organisations, the professionals would employ administrators to help them keep the paperwork under control. Here we have the administrators employing the professionals to keep the practitioners under control, and all because the Government found itself unable to trust the professions, but unable to resist the call to delegate power. In one small step, the idea of statutory regulation has been turned on its head – Alice Through the Looking Glass style.
This has a direct bearing on what is happening in this case, and we are in a very good position to see how power, when it moves through a system like the HPC, can all too easily be misused. The people inside the HPC do not know anything about the real work of the professionals they have been created to control. They have had to set up committees and panels which they have had to staff with Partners only half (or less) of whom have any experience of the practise, and who are required to follow (rather strictly, it seems) HPC procedures in order to make decisions about the competence, conduct, and fitness to practise of people whose work they might know almost nothing. It is almost as if ignorance is being proposed as some kind of guarantee of impartiality: they are supposed not to know anything about them in order, according to the rhetoric, not to be prejudiced in their favour. This is another consequence of stepping through the Looking Glass.
The idea that professionals cannot be trusted, and therefore cannot be given the power to manage themselves, has led in a rather convoluted way to the idea that they should not be trusted – that is that they are positively untrustworthy and in the context of FTP procedures, guilty until proven innocent. This is the second place where we have seen this doubling of a subtraction: not only are professionals reduced to zero, ie by the removal of any positive trust, but they are then subtracted from again which leaves them in the negative zone, where they are actively mistrusted. This explains why the Panel which is set up to judge a person in a fitness to practise hearing has only one person from the practise in question, and the other two will be lay people (when considered from the point of view of the practice) – neither will know anything about the speciality, let alone about the context of the work. In the case we are observing now, however, it doesn’t matter at all, for the practice of counselling psychology is not even in question. No-one needs to know anything in particular about the nature of this work. The Panel are being asked to judge the normal, ordinary, private behaviour of another human being.
The only thing that gives them the power to make such a spectacle of the process is the power invested in it by the Government. The set of people it gives them power over is defined by those in the HPC database. This gives us a little more confidence to say that the upshot of the existence of the HPC, knowingly or not, is the invention of a new set of people called Health Professionals. This new profession has no prior history, no established practise, and apparently no real idea that it is even being created. There is no pioneer, no struggle, no agonistic field, no argument: it is simply materialising out of thin air, the thin air of a largely unconscious ideological imperative. Aspects of the dream seem to be to create a new sector of society, of people who are morally superior, and who are therefore capable of judging what had previously been their peers. We seem to be witnessing the invention of angels – a class that doesn’t sin, and that has been given the right and the power to inflict punishment on anyone it believes to have done so according to its own, essentially, arbitrary standards.
APPENDIX A
Dear Ms Low
Thank you for your e-mail of 9 April to our Recruitment e-mail address, requesting the job descriptions and person specifications for four posts and evidence of the suitability of the current employees holding those posts.
This request is being handled under the Freedom of Information Act 2000 (the Act).
Please find attached job descriptions and person specifications for the Head of Case Management, the Director of Policy and Standards, the Director of Fitness to Practise and the Chief Executive and Registrar.
I can confirm that the Health Professions Council holds information on the suitability of the current employees holding those posts. However we are withholding that information since we consider that the exemption under sections 40(2) and 40(3) of the Act applies, i.e. the suitability of the current employees is personal data of those people. It would breach the first data protection principle (that personal data should be processed fairly and lawfully) by providing this information to you.
The suitability of candidates for a post is determined through a recruitment process, which includes a decision by an interview panel on whether to appoint a candidate. All employees of the Health Professions Council are also subject to an annual performance and development review.
If you are unhappy with the way your request for information has been handled, you can request a review by writing to:
Louise Hart
Secretary to Council
Health Professions Council
Park House
184 Kennington Park Road
London SE11 4BU
Email: louise.hart@hpc-uk.org
If you remain dissatisfied with the handling of your request, you have a right to appeal to the Information Commissioner at:
The Information Commissioner's Office
Wycliffe House, Water Lane
Wilmslow , Cheshire, SK9 5AF
Telephone: 08456 306060 or 01625 54 57 45 Website: www.ico.gov.uk
There is no charge for making an appeal.
Yours sincerely
Colin Bendall
Secretary to Committees
Health Professions Council
Park House, 184 Kennington Park Road, London, SE11 4BU
www.hpc-uk.org
tel +44 (0)20 7840 9710
fax +44 (0)20 7840 9807
email colin.bendall@hpc-uk.org
To sign up to the HPC e-newsletter, please email newsletter@hpc-uk.org
APPENDIX B
Job Description – Director of Fitness to Practise
Fitness to Practise Directorate
Main Purpose of Job
• Overall responsibility and management of the functions of the Fitness to Practise Directorate, including the implementation of the Council’s Case Management Programme
• To develop and implement the organisation’s Fitness to Practise strategy, working closely with the Chief Executive, relevant Committees and appointed agencies.
• To manage Fitness to Practise functions on a day-to-day basis including budget, external agencies involved in the fitness to practise function (lawyers, partners and other agencies) and employees
Position in Organisation
• Reports to the Chief Executive and Registrar.
• Member of the Executive Management Team.
• HPC liaison with Council and relevant Committees which include (but are not limited to) the three Statutory Fitness to Practice Committees.
• External liaison with relevant external stakeholders which include (but are not limited to) professional bodies, other regulators, government departments and MP’s, consumer and employer groups, police forces, court services, lawyers and employers of registrants
• Provide instruction to lawyers on issues as they relate to the responsibilities of the Fitness to Practise Department including High Court Appeals.
• Manages, leads and provides support to the management and employees of the Fitness to Practise Directorate.
• Liaises with employee at all levels within the organisation.
Scope of Job
• Overall responsibility for all Departments within the Fitness to Practise Directorate
• Develops and implements Fitness to Practise Strategy, including the implementation and development of appropriate case management strategies.
• Identifies improvement to processes and procedures supporting the work and functions of the fitness to practise department.
Dimensions and Limits of Authority
• Manages the Fitness to Practise Directorate budget (approximately twenty five percent of HPC’s overall operating costs), operating within the budgetary limits of this Department. This will include preparing the annual budget and monitoring expenditure.
• Acts in accordance with statutory powers delegated by Council.
• Ability to act as HPC’s spokesperson on issues that are the responsibility of the Fitness to Practise Department.
• Can raise quotes, engage contractors (including instruction of lawyers) or other resources within the limits of the Fitness to Practise budget.
• Management of the employees within the Fitness to Practise Directorate.
• Deputises for Chief Executive Officer and Registrar in his/her absence.
Skills, Knowledge and Abilities
Essential
• Educated to degree level or equivalent skills and abilities.
• A sound working knowledge at a senior/executive level of a fitness to practise role within a public sector, health, regulatory environment or private sector organisation.
• Significant demonstrated skills in leading, supporting and managing a team or several teams.
• A high level of diplomacy and proven ability to communicate with and manage stakeholders, including but not limited to UK government departments, and ability to build relationships and network effectively.
• Excellent written English skills with the ability to research and write policy documents and reports of a high standard.
• Strong presentation skills with experience of writing and giving presentations to different audiences.
• An ability to understand legal and procedural documents and ethical principals.
• Knowledge of political and governmental processes.
• Sound working knowledge of window based software packages, including word processing, spreadsheets, databases, electronic mail, and the internet.
• Sound working knowledge of management processes around hearings management, including instruction of lawyers where necessary
• Skills and competencies in project management, designing and implementing complex internal business processes and strategies
• Willingness to travel on a regular basis throughout the UK, including overnight stays as required.
Duties and Key Responsibilities
Your principal duties and key responsibilities will be those set out below. In addition to those duties, HPC reserves the right to require you to undertake additional or other duties within your capacity as may from time to time be reasonably required and necessary to meet the needs of the HPC.
Management
• To perform the duties expected as a member of the Executive Management Team.
• Provide leadership and motivation for the team within the Fitness to Practise Directorate.
• To produce and manage business development plans, and performance and service delivery improvement plans and deliver these in support to HPC’s overall business strategy.
• Co-ordinate and lead in the work across the Fitness to Practise Department
Develop and implement Fitness to Practise Strategy
• Draft overall Fitness to Practise strategy for the Council ensuring that HPC’s resources are managed to their best effect
• Develop targeted budget of appropriate amounts.
Manage Fitness to Practice Department budget
• Control Fitness to Practise budget within appropriate guidelines
• Award and terminate contracts as part of this in relation to Fitness to Practise work
Reports and Strategy
• To write briefings, reports, consultation documents, Council and committee papers, material for the website and intranet, and other documents as required.
• To ensure that all written information is clear and conforms where possible to plain English Campaign guidelines.
• To write or supervise the writing of the Fitness to Practise Departmental annual report.
Legal Matters
• Manage the relationship of the legal services provided to the Fitness to Practise Department.
• Regular liaison with the HPC’s Parliamentary agent on any legal matters pertaining to the Department.
• Attendance at court (including High Court) when required.
• Responsible for assisting the Chief Executive in the legal services tendering process.
Stakeholder Management
• Contribute to working groups of the Council for Regulatory Healthcare Excellence.
• Advise and provide guidance to management at all levels within HPC on Fitness to Practise policy trends and performance.
General
• To carry out the responsibilities of the post with due regard to the HPC's Diversity Policy and to treat colleagues and other HPC stakeholders with respect and dignity at all times.
Monday, 12 July 2010
Part 2: An in depth analysis of a FTP case
Section 2.
At the end of the last section we began to deduce what kind of danger the HPC believed itself to be protecting the public from, and what kind of public was supposedly benefiting from such protection. From the HPC’s perspective, the implicit danger is that a section of society might lose confidence in the Health Profession if it were to discover a registrant doing the alleged things even in private. The damage in the Cross case would be not to psychology or counselling, but to the Health Profession – which is something that only exists in relation to the HPC, is being created by the HPC. The danger that has motivated the HPC to act, then, appears to be a perceived threat to its own image. The danger is one posed to itself. The public that is being protected is that which is invested in the image of the HPC. Let us see if this is further borne out as the hearing proceeds, or if other things emerge.
We left Mr Russen beginning to give some advice to the Panel. They have been asked by Mr Tyme to abandon the hearing for lack of any real evidence of any particular offense. Mr Russen began, as he had before, by being very clear about what the Panel is not asked to do. They are not being asked to form a judgment, he says, as to whether or not Dr Cross’s current fitness to practise is impaired. No, he continues
“that is emphatically not what the Panel should be doing. What the Panel is being asked to do is to look at this evidence on paper without having heard any witnesses the HPC intends to call, and to say whether what is written on paper, the behaviour that is recorded on paper, could amount to a current impairment of fitness to practise.”
Mr Tyme’s intervention is being set up to be knocked down; Mr Russen has successfully out-manoeuvered him. Mr Tyme had originally wanted to put his request before the allegation was heard. He had agreed this with the HPC solicitor. Mr Russen had whispered something to him, and stopped him. The allegation had been read, and then Mr Tyme had waffled on, taking up two pages of transcription, asking the Panel to overturn the Investigating Committee’s decision to stage this hearing. He seemed to be saying the case was a non-starter because, first, this was a social occasion, and, second, when Dr Cross did the work (chaired a BPS accreditation meeting at a British university) it was widely held to be exemplary. Which begs another question. How can a registrant dispute the HPC’s right to bring the allegations into the public domain, and especially to stop them appearing on the Internet? What mechanism is there to prevent the harm done at this stage if the allegation is not well founded? To put it another way: what good is being done by posting the allegation on the internet? How, exactly, is this helping to protect the public? At this stage, it is only the investigating committee, using the written word, who has come to a decision that the case should go forward. What kind of public is being protected, and from what kind of danger, by the publication of this kind of information?
To some extent, the publication of these allegations can perhaps be construed to be part of a marketing campaign that the HPC (a) is doing something, and (b) that there are plenty of practitioners out there who are doing bad things. The trouble is that the allegations have not been tested, so it could also be true that the registrant is not doing bad things. Again we are left with the question: what purpose is served by putting these untested allegations into the public domain?
One effect, whether inadvertent or calculated, is to instill fear of the HPC, and not only among its registrants.
Bear in mind that any case that is deemed ‘not well found’ pursuant to a hearing is then removed from the HPC website. No apology is made to the registrant for the inconvenience, let alone the damage to the registrant’s reputation caused by the publicity. There is very little trace that the HPC have made a mistake. There is no mechanism to trigger an alarm, no method to make the HPC accountable for its actions.
To return to Mr Russen and his advice: he repeats his admonition that the Panel is not being asked to make a ruling about Dr Cross’s impairment of fitness to practise.
“It would be quite inappropriate to do that in the circumstances where you have not heard the evidence,” he says. “What you are being invited to do is to say that, in effect, even if the HPC’s case is proved to the hilt as we understand it to be capable of proof from the documents, even if that happens it will not be possible for a Panel doing its job properly to take the view that this was behaviour that could amount to current impairment of fitness to practise.”
He affirms confidence in the Investigatory Committee’s process to put forward a case worth considering: “even if the HPC’s case is proved to the hilt as we understand it to be capable of proof from the documents”. In effect he is reminding this Panel, who we know to be drawn from the HPC’s quota of Partners, with the possible exception of Miss Reggiori, that they shouldn’t really overturn their colleagues decision.
“And it is worth noting” he goes on “that the focus of this submission is on the last element of the consideration that a Panel has to undertake in order to say an allegation is well founded or not it carries with it the necessary implication that misconduct, for the purposes of this application, that misconduct is established. That has to be the case because you would not be considering impairment of fitness to practise if there was no misconduct.”
Mr Russen thus reminds the panel yet again that there is a process to follow, and that this requires them to first split something up into three elements, and then to organise those elements in sequence. It reminds me of the techniques the professor of computer science uses to get people to begin to think about writing a computer programme – write down step by step what you must do to make a cup of tea. Each attempt to write it down always failed because of some minute detail that had been overlooked. (Did you take the lid of the kettle before you filled it up? Did you place it under the cold water tap to get the water in? Did you ‘fill it up’, which would over-ride the circuitry, or did you ‘fill it up’ to just above the element, etc etc, ad infinitum). The end result is to make you think you don’t have the slightest idea how to make a cup of tea. So here the Panel is told that it cannot do what common sense might tell it to do, but must follow the procedure laid down in the rule book.
“Now, I think the Panel have to be careful about this. Reference has been made by Mr Tyme to the evidence that the following day at the validation meeting properly Dr Cross behaved impeccably and did his professional job properly, there is no suggestion that I have seen in the papers anywhere that that is going to be gainsaid by the evidence the HPC might expect to call.”
So at no point will it be said that Dr Cross has been incompetent in his job as an academic course accreditor. He goes on:
“But it is not what this allegation brought by the HPC against Dr Cross is about because if you look at the allegation on page 6 of the letter, it is confined to the pre-meeting and dinner the previous day.”
So we see, yet again, that the HPC is interested in a group of academics who agree to meet for half an hour or so before going out for dinner (accompanied by partners possibly) the day before an academic accreditation meeting in a British University. The plot thickens:
“So I think the HPC are going to have to argue, because you have not heard an opening from Ms Kemp yet, but the HPC are going to have to confine whatever case they construct against Dr Cross on the basis of those facts. So they are going to say those facts amount to misconduct, and that is to say misconduct which is properly to be considered by the HPC, and that that past misconduct is currently impairing Dr Cross’s fitness to practise.”
Those of us who are paying attention already know that, in the ordinary use of language, Dr Cross’s past conduct, good or bad, private or public has not impaired his fitness to practise. That is, his fitness to do the job he is engaged to do, which, in this case, is an academic accreditation, and not his work as a counselling psychologist. I am not at all clear which part of Mr Russen’s job he is, or is not, doing at the moment.
To recap, he had been very clear at the beginning: “I am a lawyer and my primary job is to ensure that these proceedings are conducted properly in the sense that the correct procedure is followed and the right law applied.” Mr Russen has interpreted his role as safeguarding the work of the investigatory committee, ensuring that its decision to put this case in the public domain is upheld, no matter that there is only evidence that the registrant is excellent at his job, no matter that this job is the business of academic accreditation. It is not possible to discern any law that is at stake here, no legal expertise is needed, unless the HPC’s rules of procedure have acquired the status of law.
Where is the judge who might call for order? Where is the lawyer who might extend an objection. Who is empowered to impose common sense? It is the Panel who must take or reject Mr Russen’s advice. They are too polite, I suppose, to ask him to shut up. Mr Russen knows that he is speaking outside his formal remit, however, and is about to say as much himself:
“Again, it is not for me to say what the HPC’s case is and is not, but I would venture to suggest from the papers we have been served it is not going to be the HPC’s case that this behaviour demonstrates a propensity on the part of Dr Cross to get drunk and behave outrageously.”
If this is not the HPCs case, then what is it?
“There is no hint of that anywhere, and I do not imagine it is going to be suggested to you, and if it is I would suggest that it should not be suggested to you, that Dr Cross presents a risk to patients or clients, both present and prospective, that he is going to turn up for sessions with them blotto and behave inappropriately towards them.”
It is not going to be suggested to you, and if it is going to be suggested to you I would suggest that it should not be suggested to you! Isn’t this all a bit devious? And what position is Mr Russen speaking from? He seems to have taken over the role of Ms Kemp. So much for what is not going to happen, now Mr Russen then turns to what he imagines will happen:
“What the HPC are, if I understand the matters correctly, suggesting is that to behave on an occasion which could not be said to be wholly social because of the reason that everybody was there, this behaviour was behaviour of a sort that is of legitimate concern to the HPC and is of legitimate concern to the HPC because it would be behaviour which, perhaps absent some explanation, would cause patients/clients to have concerns about Dr Cross as a professional. And that would seem to be the basis from the papers on which the HPC might be able to say that there is current impairment of fitness to practise. Namely, a public confidence in the profession.”
Just what is going on here? Why is Mr Russen repeating and restating the HPC case? Can it be that without this constant hard work on his behalf the reasons for the case would vanish? Is it purely his personal power that is sustaining the direction of this case? It seems so. He has supported the HPC position that this occasion constitutes one worthy of the HPC’s attention, because there might be a section of the Public who, if they saw or heard about this behaviour, would lose confidence in the HPC (they are not acting on behalf of psychology, here, or of academics, that much must surely be clear by now) to such an extent that a danger would be provoked – presumably the collapse of the HPC. Thus, Mr Russen has easily squashed the attempts of Mr Tyme to pose a serious question about the quality of the HPC’s case. There is still more:
“So, to come back to the submission you are being asked to rule upon, in effect, you are being asked to say that the evidence of the information that you have is such that a Panel doing its job properly could not come to the conclusion, note could not, not should not, should not might be a further question, but could not is the one that will have to be relevant for present purposes. That conduct as appearing on the face of the papers is behaviour that could not result in a finding of current impairment of fitness to practise on the basis I have sought to articulate. That is a judgment for the Panel. I do not think it is appropriate for me to say any more than that. That, I think, is the consideration the Panel should be giving to it.”
But after just a brief moment where the HPC lawyer declines the offer to say more, and Mr Tyme nods his head, which Mr Russen takes as a sign of agreement (at least to his authority and direction, if not to the logic of his statement) he continues:
“I would venture to suggest one more thing, and it is this, clearly if the Panel finds favour in the submission Mr Tyme has made then you should come back and I think it would be appropriate, if, indeed, I think the Panel specifically should give reasons for acceding to it because particularly as this is an allegation that has been through the HPC Investigatory Committee where that Committee has found that there is a case to answer. I think this Panel should explain why it accedes to the allegation.”
So the Panel is being set up properly before it goes off to think about its decision, and is finally reminded that its colleagues who would be called into question if they responded in favour of Mr Tyme’s petition. It is, nevertheless, a very mechanical dance we are witnessing. And it is not over yet:
“If on the other hand the Panel does not accede to the application that has been made, I think the Panel should simply say that it does not accede to the application that has been made on behalf of Dr Cross, and the reason for that is at some point the Panel is going to have to form, it if does not accede to it, a decision on the very issue that is the subject matter of this application, and it is undesirable in those circumstances for the Panel to say why it does not accede to it in circumstances where it is then going to have to make what I can probably call the balanced judgment.”
Mr Russen, if you remember, introduced himself as someone who advises on law, but does not involve himself in the decision of the Panel. But here, he really seems to be putting words into their mouths, or attempting to. He gives the impression of a puppeteer. Let’s see what the panel make of it. They retire to discuss their decision, saying ‘if we need any further advice, we will call upon the Legal Assessor”! What law is being invoked here? Its difficult to see one. Mr Tyme has been reduced to suggesting that there is a mistake at the level of the Investigating Committee in putting the case forward at all. He seems confused about whether or not it is wrong for someone to perhaps be drunk amongst colleagues at a social event, but he does seem to want to say that probably it is not sufficient to warrant a hearing. Mr Russen has taken pains to explain the minutae of HPC procedure in breaking things down and distributing them, including the responsibility the Panel has today in respecting the Investigating Committee’s decision in the past. The Panel knows it needs to discuss this, and takes advantage of the facilities the HPC offers it to do this in private. There is a room set aside for the Panel: glass walls, of course, so they can be seen to be working, but where their words will not be recorded. They adjourn for about half an hour.
They stand up together, turn together, and leave the room together. The four of us in the audience, two public and two reporters, relax and look at each other as if to ask what’s going on? Before we can reply, however, the Hearings Officer comes to ask us to leave the room and go back to wait in reception. This takes me by surprise – I have never yet been asked to leave the room when the Panel leave. I was a little alarmed to see the two journalists pick up their things and leave in a hurry. I didn’t know what they knew, or how they knew it, so I asked Ms Dwomoh-Bonsu why we were being asked to leave. Now it was she who was taken by surprise. I could see she was a little nonplussed by my question, and she gave a rather incoherent reply, grasping for some kind of logic to answer my question. We had a little to and fro where I asked for the rationale, and she tried to supply one, until we established that she didn’t really know whose rule this was, nor why it was being invoked on this occasion. All she knew was that we were being asked to leave, and that perhaps this was because the two lawyers (Mr Tyme and Ms Kemp) wanted to use the space for a private conversation (neither was in the room). While we were thus engaged, Mr Russen, who had left the room, suddenly reappeared and demanded of me: “Are you refusing to leave the room?” This was alarming. He was clearly angry, and he had positioned himself in a very imposing stance. I broke my attention from Ms Dwomoh-Bonsu – we were in mid-sentence, but his question demanded immediate and prior attention – and said ‘No, I’m not refusing to go, but I am trying to understand why I am being asked”. At this he turned on his heels and left the room, leaving me and the Hearings Officer to carry on our rather stilted conversation. This didn’t last much longer, as she could only say that the room was needed for the private conversations of the lawyers, and to turn and gesture to the empty chairs where the lawyers had sat. To which I responded with: “But there is nobody here, and in the past this has not been considered necessary, please tell me what has changed, when, and why.” Unable to answer me herself, she agreed to leave us in the room while she went about her business, and my colleague and I found ourselves alone in the large and airy room, trying to understand what on earth was going on. We knew a power struggle had taken place, and that we were both feeling a little bruised. Not long after, Ms Dwomoh-Bonsu reappeared another young woman who told us quite clearly that we must leave the room in order to let the lawyers have a private conversation. Again this order was accompanied by a gesture to the large and empty room. This time, however, I said “Alright, to show that I am civil, I will obey you, but I don’t understand why you are taking such pains.” We got up and crossed the threshold of the room behind the Manager, and as soon as that was done, she turned to some other business, and left us stranded. She had simply wanted to see us obey her instruction – there was no other reason but that. And now the Panel and the other players were returning to their seats, along with the other two members of the audience, and I asked the air if it was okay for us to go back to our seats. No-one could have cared less, and in the absence of either a yes or a no, we just turned round and went back and sat down.
The Panel took up their seats, and the atmosphere of the room returned to that of a hearing in progress. The Panel Chair drew breath and looked straight at Dr Cross, ready to deliver the decision. But Mr Russen intervened:
“I appreciate that the Panel has a decision on the application, but there is a matter I think I should mention first, and it is a matter that the Panel will be unaware of, and it is this, that as the Panel are probably aware, when the Panel leaves this room to have private deliberations, it is the norm for members of the public and the press to leave this room.”
In my admittedly limited experience of some dozen hearings, not only have I never been asked to leave the room when the Panel leaves the room, but I’ve also been able to ask questions of the players round the table, who have always (including Mr Russen on occasion) politely tried to answer me. Today something different is happening. Why? And what kind of import does it have to actually enter the business of the hearing?
“One of the reasons for that is so there is the opportunity for those who need to have confidential discussions about the case to be able to do that without the risk of being overheard.”
The HPC makes available small private rooms for the Registrant and his supporters (supplying coffee and sandwiches too), and another small private room for the Panel. This would appear to leave the HPC Lawyer in limbo, although I suppose that, as the lawyers seem to return case after case (I often see the same people at different hearings, or around the building when I’m observing the various committee meetings) it is possible that they have arranged a space for themselves in the building too. I have been told that they are responsible for some of the investigations of the case, and so perhaps do have some space in the building. However, Mr Russen is making the case here that in addition to the various places in and around the building, someone may also want to use the room for a private conversation. As it happened, today, it was members of the audience who were most keen to avail themselves of the opportunity, though they were being excluded from this small act of hospitality.
“There are two people”, he continued, looking directly at me and my colleague “there are two people present, I do not know if they are members of the press, or members of the public. There” and everyone in the room turned and fixed me in their gaze, “There is the lady in the black jacket.”
I looked down at my black jacket and fished the yellow tag out from the folds and held it up for all to clearly see and said “My name is Janet Low, I’m a member of the public”.
The Legal Assessor thanked me, and added “And the gentleman sitting next to her.”
“Bruce Scott”
Mr Russen: “Thank you. Who were not prepared to leave at that point. I think it is right that the Panel should be aware of that, because it does potentially affect the ability that the parties have to make discussions about things.”
Well, how extraordinary. Mr Russen, you will remember, suddenly came into the middle of a conversation that was ongoing between me and the Hearings Officer, an employee of the HPC, posed his question (which now is clearly revealed to be rhetorical) and left without hearing my answer, or helping to resolve the situation. And now, here he was, the lawyer engaged by the HPC on a freelance basis to advise the parties concerned in a hearing on points of law and procedure of that hearing, helping himself to a role in the management of HPC hearing rooms. I really have no idea how to explain this in terms other than of a man who had mistaken his role and was overstepping the boundaries of any rational law.
Now this is a very interesting point. Of course it is absolutely essential for someone to take responsibility and go beyond the standardised limits of their power if something exceptional and especially if something dangerous were happening. In fact, when something of this order happens, those present would almost certainly look to the most senior figure in the room to deal with it – there would be an expectation that someone who had achieved a position that warranted the highest fee, or the most institutional power, should take the lead. But what had happened here? What danger had Mr Russen imagined he was averting?
But more than this – Mr Russen might be the most highly paid person in the room, but he is not supposed to be the one with the most power. He has been cast as the servant of the Panel, and so if he wants something done, he has to arrange things so that the Panel understand this, and agree to it, and carry it out. He goes on:
“Of course the Panel does have a residual power. I am not suggesting that they should wield it now but the Panel does have a power to exclude people from the proceedings.”
Why would Mr Russen want to exclude people from these proceedings? One answer would be that this case represents a significant threat to the HPC, and that he, although independent of the HPC, is sufficiently engaged with the HPC (I nearly always see him whenever I visit the HPC) to want to guard it from that threat. But what is the threat? And how is it associated with whether or not I leave an empty room? Even though the situation was resolved when I simply obeyed the order, it seems unlikely that this alone was a sufficient signifier of danger. Perhaps Mr Russen’s uncertainty as to whether I was a member of the press or of the public will help to resolve the mystery. If so, he could easily have reassured himself by looking at the yellow tag I had already consented to wear. Yet there is something here that is interesting, because this is what he then goes on to stress:
“But I think the Panel should be aware of the fact that whereas other people, the two gentlemen who I think may be members of the press, certainly one is a member of the press sitting beyond the two I have identified were prepared to move. Those two were not. It may be that we will have to return to that issue at some point. Sorry, I probably disrupted your announcement.”
The immediate effect of all this was to put my name and that of my colleague into the record, to put everyone’s eyes on us, and to let us feel the weight of his personal power and also to identify the journalists who were present. Presumably this was done to avert a danger, but what danger? Mr Russen said that people must leave the room in order not to overhear private conversations. The Panel had been given its own small room in order to have conversations without being overheard, and so too had the Registrant. The Hearings Officer thought that the particular private conversation we were obstructing was that between the two lawyers; between the HPC lawyer (the prosecution) and the Registrant’s lawyer (the defense). What possible conversation might these two have that would need to be held in secret? We have already seen that one conversation was had by them to agree whether Mr Tyme might put his petition before the Allegation was read. We know that this conversation established an agreement between himself and Ms Kemp which was then over-ruled by Mr Russen. None of this is secret, though we might now note that Ms Kemp has often worked at the HPC, and might be expected to know the ropes and be able to give better advice to Mr Tyme. I wonder why she did not alert Mr Tyme to the futile nature of his wish, but rather allowed him to show his ineptitude. Another lawyers’ trick? Is this why no-one should be allowed to hear what words pass between the two lawyers? What other reason might there be for the HPC to want to make it easy on this occasion (they do not routinely reserve rooms for the private conversations of hired lawyers) for two opposing lawyers to speak freely without being overheard? At the moment the most likely answer has to be linked to the status of Dr Cross as an HPC Council member. The HPC may be embarrassed to find that one of its own members has fallen. Moreover, so close to his appointment date this would reflect badly on the appointment process – how come they didn’t notice this flaw in this character? This information does help to strengthen the ‘reason’ for this hearing. As we’ve noted already, Dr Cross’s competence as a practitioner psychologist is not at stake, nor as an academic. But as a Council member, his behaviour could give ammunition to those who might have wanted one of these rare positions for themselves. This tittle tattle information might have been used to spread gossip and damage the image of the HPC in this seedy circuit of life. Looked at from this point of view, the HPC is using the FTP process to discipline Dr Cross for allowing the HPC itself to be brought into question by those who might want to be part of it but are excluded, for example. There is a certain kind of logic, but if this were the case then it must be said that it is a very convoluted way to go about things, and surely cannot be legal.
Perhaps another answer to this perplexing question will emerge as the hearing progresses.
At the end of the last section we began to deduce what kind of danger the HPC believed itself to be protecting the public from, and what kind of public was supposedly benefiting from such protection. From the HPC’s perspective, the implicit danger is that a section of society might lose confidence in the Health Profession if it were to discover a registrant doing the alleged things even in private. The damage in the Cross case would be not to psychology or counselling, but to the Health Profession – which is something that only exists in relation to the HPC, is being created by the HPC. The danger that has motivated the HPC to act, then, appears to be a perceived threat to its own image. The danger is one posed to itself. The public that is being protected is that which is invested in the image of the HPC. Let us see if this is further borne out as the hearing proceeds, or if other things emerge.
We left Mr Russen beginning to give some advice to the Panel. They have been asked by Mr Tyme to abandon the hearing for lack of any real evidence of any particular offense. Mr Russen began, as he had before, by being very clear about what the Panel is not asked to do. They are not being asked to form a judgment, he says, as to whether or not Dr Cross’s current fitness to practise is impaired. No, he continues
“that is emphatically not what the Panel should be doing. What the Panel is being asked to do is to look at this evidence on paper without having heard any witnesses the HPC intends to call, and to say whether what is written on paper, the behaviour that is recorded on paper, could amount to a current impairment of fitness to practise.”
Mr Tyme’s intervention is being set up to be knocked down; Mr Russen has successfully out-manoeuvered him. Mr Tyme had originally wanted to put his request before the allegation was heard. He had agreed this with the HPC solicitor. Mr Russen had whispered something to him, and stopped him. The allegation had been read, and then Mr Tyme had waffled on, taking up two pages of transcription, asking the Panel to overturn the Investigating Committee’s decision to stage this hearing. He seemed to be saying the case was a non-starter because, first, this was a social occasion, and, second, when Dr Cross did the work (chaired a BPS accreditation meeting at a British university) it was widely held to be exemplary. Which begs another question. How can a registrant dispute the HPC’s right to bring the allegations into the public domain, and especially to stop them appearing on the Internet? What mechanism is there to prevent the harm done at this stage if the allegation is not well founded? To put it another way: what good is being done by posting the allegation on the internet? How, exactly, is this helping to protect the public? At this stage, it is only the investigating committee, using the written word, who has come to a decision that the case should go forward. What kind of public is being protected, and from what kind of danger, by the publication of this kind of information?
To some extent, the publication of these allegations can perhaps be construed to be part of a marketing campaign that the HPC (a) is doing something, and (b) that there are plenty of practitioners out there who are doing bad things. The trouble is that the allegations have not been tested, so it could also be true that the registrant is not doing bad things. Again we are left with the question: what purpose is served by putting these untested allegations into the public domain?
One effect, whether inadvertent or calculated, is to instill fear of the HPC, and not only among its registrants.
Bear in mind that any case that is deemed ‘not well found’ pursuant to a hearing is then removed from the HPC website. No apology is made to the registrant for the inconvenience, let alone the damage to the registrant’s reputation caused by the publicity. There is very little trace that the HPC have made a mistake. There is no mechanism to trigger an alarm, no method to make the HPC accountable for its actions.
To return to Mr Russen and his advice: he repeats his admonition that the Panel is not being asked to make a ruling about Dr Cross’s impairment of fitness to practise.
“It would be quite inappropriate to do that in the circumstances where you have not heard the evidence,” he says. “What you are being invited to do is to say that, in effect, even if the HPC’s case is proved to the hilt as we understand it to be capable of proof from the documents, even if that happens it will not be possible for a Panel doing its job properly to take the view that this was behaviour that could amount to current impairment of fitness to practise.”
He affirms confidence in the Investigatory Committee’s process to put forward a case worth considering: “even if the HPC’s case is proved to the hilt as we understand it to be capable of proof from the documents”. In effect he is reminding this Panel, who we know to be drawn from the HPC’s quota of Partners, with the possible exception of Miss Reggiori, that they shouldn’t really overturn their colleagues decision.
“And it is worth noting” he goes on “that the focus of this submission is on the last element of the consideration that a Panel has to undertake in order to say an allegation is well founded or not it carries with it the necessary implication that misconduct, for the purposes of this application, that misconduct is established. That has to be the case because you would not be considering impairment of fitness to practise if there was no misconduct.”
Mr Russen thus reminds the panel yet again that there is a process to follow, and that this requires them to first split something up into three elements, and then to organise those elements in sequence. It reminds me of the techniques the professor of computer science uses to get people to begin to think about writing a computer programme – write down step by step what you must do to make a cup of tea. Each attempt to write it down always failed because of some minute detail that had been overlooked. (Did you take the lid of the kettle before you filled it up? Did you place it under the cold water tap to get the water in? Did you ‘fill it up’, which would over-ride the circuitry, or did you ‘fill it up’ to just above the element, etc etc, ad infinitum). The end result is to make you think you don’t have the slightest idea how to make a cup of tea. So here the Panel is told that it cannot do what common sense might tell it to do, but must follow the procedure laid down in the rule book.
“Now, I think the Panel have to be careful about this. Reference has been made by Mr Tyme to the evidence that the following day at the validation meeting properly Dr Cross behaved impeccably and did his professional job properly, there is no suggestion that I have seen in the papers anywhere that that is going to be gainsaid by the evidence the HPC might expect to call.”
So at no point will it be said that Dr Cross has been incompetent in his job as an academic course accreditor. He goes on:
“But it is not what this allegation brought by the HPC against Dr Cross is about because if you look at the allegation on page 6 of the letter, it is confined to the pre-meeting and dinner the previous day.”
So we see, yet again, that the HPC is interested in a group of academics who agree to meet for half an hour or so before going out for dinner (accompanied by partners possibly) the day before an academic accreditation meeting in a British University. The plot thickens:
“So I think the HPC are going to have to argue, because you have not heard an opening from Ms Kemp yet, but the HPC are going to have to confine whatever case they construct against Dr Cross on the basis of those facts. So they are going to say those facts amount to misconduct, and that is to say misconduct which is properly to be considered by the HPC, and that that past misconduct is currently impairing Dr Cross’s fitness to practise.”
Those of us who are paying attention already know that, in the ordinary use of language, Dr Cross’s past conduct, good or bad, private or public has not impaired his fitness to practise. That is, his fitness to do the job he is engaged to do, which, in this case, is an academic accreditation, and not his work as a counselling psychologist. I am not at all clear which part of Mr Russen’s job he is, or is not, doing at the moment.
To recap, he had been very clear at the beginning: “I am a lawyer and my primary job is to ensure that these proceedings are conducted properly in the sense that the correct procedure is followed and the right law applied.” Mr Russen has interpreted his role as safeguarding the work of the investigatory committee, ensuring that its decision to put this case in the public domain is upheld, no matter that there is only evidence that the registrant is excellent at his job, no matter that this job is the business of academic accreditation. It is not possible to discern any law that is at stake here, no legal expertise is needed, unless the HPC’s rules of procedure have acquired the status of law.
Where is the judge who might call for order? Where is the lawyer who might extend an objection. Who is empowered to impose common sense? It is the Panel who must take or reject Mr Russen’s advice. They are too polite, I suppose, to ask him to shut up. Mr Russen knows that he is speaking outside his formal remit, however, and is about to say as much himself:
“Again, it is not for me to say what the HPC’s case is and is not, but I would venture to suggest from the papers we have been served it is not going to be the HPC’s case that this behaviour demonstrates a propensity on the part of Dr Cross to get drunk and behave outrageously.”
If this is not the HPCs case, then what is it?
“There is no hint of that anywhere, and I do not imagine it is going to be suggested to you, and if it is I would suggest that it should not be suggested to you, that Dr Cross presents a risk to patients or clients, both present and prospective, that he is going to turn up for sessions with them blotto and behave inappropriately towards them.”
It is not going to be suggested to you, and if it is going to be suggested to you I would suggest that it should not be suggested to you! Isn’t this all a bit devious? And what position is Mr Russen speaking from? He seems to have taken over the role of Ms Kemp. So much for what is not going to happen, now Mr Russen then turns to what he imagines will happen:
“What the HPC are, if I understand the matters correctly, suggesting is that to behave on an occasion which could not be said to be wholly social because of the reason that everybody was there, this behaviour was behaviour of a sort that is of legitimate concern to the HPC and is of legitimate concern to the HPC because it would be behaviour which, perhaps absent some explanation, would cause patients/clients to have concerns about Dr Cross as a professional. And that would seem to be the basis from the papers on which the HPC might be able to say that there is current impairment of fitness to practise. Namely, a public confidence in the profession.”
Just what is going on here? Why is Mr Russen repeating and restating the HPC case? Can it be that without this constant hard work on his behalf the reasons for the case would vanish? Is it purely his personal power that is sustaining the direction of this case? It seems so. He has supported the HPC position that this occasion constitutes one worthy of the HPC’s attention, because there might be a section of the Public who, if they saw or heard about this behaviour, would lose confidence in the HPC (they are not acting on behalf of psychology, here, or of academics, that much must surely be clear by now) to such an extent that a danger would be provoked – presumably the collapse of the HPC. Thus, Mr Russen has easily squashed the attempts of Mr Tyme to pose a serious question about the quality of the HPC’s case. There is still more:
“So, to come back to the submission you are being asked to rule upon, in effect, you are being asked to say that the evidence of the information that you have is such that a Panel doing its job properly could not come to the conclusion, note could not, not should not, should not might be a further question, but could not is the one that will have to be relevant for present purposes. That conduct as appearing on the face of the papers is behaviour that could not result in a finding of current impairment of fitness to practise on the basis I have sought to articulate. That is a judgment for the Panel. I do not think it is appropriate for me to say any more than that. That, I think, is the consideration the Panel should be giving to it.”
But after just a brief moment where the HPC lawyer declines the offer to say more, and Mr Tyme nods his head, which Mr Russen takes as a sign of agreement (at least to his authority and direction, if not to the logic of his statement) he continues:
“I would venture to suggest one more thing, and it is this, clearly if the Panel finds favour in the submission Mr Tyme has made then you should come back and I think it would be appropriate, if, indeed, I think the Panel specifically should give reasons for acceding to it because particularly as this is an allegation that has been through the HPC Investigatory Committee where that Committee has found that there is a case to answer. I think this Panel should explain why it accedes to the allegation.”
So the Panel is being set up properly before it goes off to think about its decision, and is finally reminded that its colleagues who would be called into question if they responded in favour of Mr Tyme’s petition. It is, nevertheless, a very mechanical dance we are witnessing. And it is not over yet:
“If on the other hand the Panel does not accede to the application that has been made, I think the Panel should simply say that it does not accede to the application that has been made on behalf of Dr Cross, and the reason for that is at some point the Panel is going to have to form, it if does not accede to it, a decision on the very issue that is the subject matter of this application, and it is undesirable in those circumstances for the Panel to say why it does not accede to it in circumstances where it is then going to have to make what I can probably call the balanced judgment.”
Mr Russen, if you remember, introduced himself as someone who advises on law, but does not involve himself in the decision of the Panel. But here, he really seems to be putting words into their mouths, or attempting to. He gives the impression of a puppeteer. Let’s see what the panel make of it. They retire to discuss their decision, saying ‘if we need any further advice, we will call upon the Legal Assessor”! What law is being invoked here? Its difficult to see one. Mr Tyme has been reduced to suggesting that there is a mistake at the level of the Investigating Committee in putting the case forward at all. He seems confused about whether or not it is wrong for someone to perhaps be drunk amongst colleagues at a social event, but he does seem to want to say that probably it is not sufficient to warrant a hearing. Mr Russen has taken pains to explain the minutae of HPC procedure in breaking things down and distributing them, including the responsibility the Panel has today in respecting the Investigating Committee’s decision in the past. The Panel knows it needs to discuss this, and takes advantage of the facilities the HPC offers it to do this in private. There is a room set aside for the Panel: glass walls, of course, so they can be seen to be working, but where their words will not be recorded. They adjourn for about half an hour.
They stand up together, turn together, and leave the room together. The four of us in the audience, two public and two reporters, relax and look at each other as if to ask what’s going on? Before we can reply, however, the Hearings Officer comes to ask us to leave the room and go back to wait in reception. This takes me by surprise – I have never yet been asked to leave the room when the Panel leave. I was a little alarmed to see the two journalists pick up their things and leave in a hurry. I didn’t know what they knew, or how they knew it, so I asked Ms Dwomoh-Bonsu why we were being asked to leave. Now it was she who was taken by surprise. I could see she was a little nonplussed by my question, and she gave a rather incoherent reply, grasping for some kind of logic to answer my question. We had a little to and fro where I asked for the rationale, and she tried to supply one, until we established that she didn’t really know whose rule this was, nor why it was being invoked on this occasion. All she knew was that we were being asked to leave, and that perhaps this was because the two lawyers (Mr Tyme and Ms Kemp) wanted to use the space for a private conversation (neither was in the room). While we were thus engaged, Mr Russen, who had left the room, suddenly reappeared and demanded of me: “Are you refusing to leave the room?” This was alarming. He was clearly angry, and he had positioned himself in a very imposing stance. I broke my attention from Ms Dwomoh-Bonsu – we were in mid-sentence, but his question demanded immediate and prior attention – and said ‘No, I’m not refusing to go, but I am trying to understand why I am being asked”. At this he turned on his heels and left the room, leaving me and the Hearings Officer to carry on our rather stilted conversation. This didn’t last much longer, as she could only say that the room was needed for the private conversations of the lawyers, and to turn and gesture to the empty chairs where the lawyers had sat. To which I responded with: “But there is nobody here, and in the past this has not been considered necessary, please tell me what has changed, when, and why.” Unable to answer me herself, she agreed to leave us in the room while she went about her business, and my colleague and I found ourselves alone in the large and airy room, trying to understand what on earth was going on. We knew a power struggle had taken place, and that we were both feeling a little bruised. Not long after, Ms Dwomoh-Bonsu reappeared another young woman who told us quite clearly that we must leave the room in order to let the lawyers have a private conversation. Again this order was accompanied by a gesture to the large and empty room. This time, however, I said “Alright, to show that I am civil, I will obey you, but I don’t understand why you are taking such pains.” We got up and crossed the threshold of the room behind the Manager, and as soon as that was done, she turned to some other business, and left us stranded. She had simply wanted to see us obey her instruction – there was no other reason but that. And now the Panel and the other players were returning to their seats, along with the other two members of the audience, and I asked the air if it was okay for us to go back to our seats. No-one could have cared less, and in the absence of either a yes or a no, we just turned round and went back and sat down.
The Panel took up their seats, and the atmosphere of the room returned to that of a hearing in progress. The Panel Chair drew breath and looked straight at Dr Cross, ready to deliver the decision. But Mr Russen intervened:
“I appreciate that the Panel has a decision on the application, but there is a matter I think I should mention first, and it is a matter that the Panel will be unaware of, and it is this, that as the Panel are probably aware, when the Panel leaves this room to have private deliberations, it is the norm for members of the public and the press to leave this room.”
In my admittedly limited experience of some dozen hearings, not only have I never been asked to leave the room when the Panel leaves the room, but I’ve also been able to ask questions of the players round the table, who have always (including Mr Russen on occasion) politely tried to answer me. Today something different is happening. Why? And what kind of import does it have to actually enter the business of the hearing?
“One of the reasons for that is so there is the opportunity for those who need to have confidential discussions about the case to be able to do that without the risk of being overheard.”
The HPC makes available small private rooms for the Registrant and his supporters (supplying coffee and sandwiches too), and another small private room for the Panel. This would appear to leave the HPC Lawyer in limbo, although I suppose that, as the lawyers seem to return case after case (I often see the same people at different hearings, or around the building when I’m observing the various committee meetings) it is possible that they have arranged a space for themselves in the building too. I have been told that they are responsible for some of the investigations of the case, and so perhaps do have some space in the building. However, Mr Russen is making the case here that in addition to the various places in and around the building, someone may also want to use the room for a private conversation. As it happened, today, it was members of the audience who were most keen to avail themselves of the opportunity, though they were being excluded from this small act of hospitality.
“There are two people”, he continued, looking directly at me and my colleague “there are two people present, I do not know if they are members of the press, or members of the public. There” and everyone in the room turned and fixed me in their gaze, “There is the lady in the black jacket.”
I looked down at my black jacket and fished the yellow tag out from the folds and held it up for all to clearly see and said “My name is Janet Low, I’m a member of the public”.
The Legal Assessor thanked me, and added “And the gentleman sitting next to her.”
“Bruce Scott”
Mr Russen: “Thank you. Who were not prepared to leave at that point. I think it is right that the Panel should be aware of that, because it does potentially affect the ability that the parties have to make discussions about things.”
Well, how extraordinary. Mr Russen, you will remember, suddenly came into the middle of a conversation that was ongoing between me and the Hearings Officer, an employee of the HPC, posed his question (which now is clearly revealed to be rhetorical) and left without hearing my answer, or helping to resolve the situation. And now, here he was, the lawyer engaged by the HPC on a freelance basis to advise the parties concerned in a hearing on points of law and procedure of that hearing, helping himself to a role in the management of HPC hearing rooms. I really have no idea how to explain this in terms other than of a man who had mistaken his role and was overstepping the boundaries of any rational law.
Now this is a very interesting point. Of course it is absolutely essential for someone to take responsibility and go beyond the standardised limits of their power if something exceptional and especially if something dangerous were happening. In fact, when something of this order happens, those present would almost certainly look to the most senior figure in the room to deal with it – there would be an expectation that someone who had achieved a position that warranted the highest fee, or the most institutional power, should take the lead. But what had happened here? What danger had Mr Russen imagined he was averting?
But more than this – Mr Russen might be the most highly paid person in the room, but he is not supposed to be the one with the most power. He has been cast as the servant of the Panel, and so if he wants something done, he has to arrange things so that the Panel understand this, and agree to it, and carry it out. He goes on:
“Of course the Panel does have a residual power. I am not suggesting that they should wield it now but the Panel does have a power to exclude people from the proceedings.”
Why would Mr Russen want to exclude people from these proceedings? One answer would be that this case represents a significant threat to the HPC, and that he, although independent of the HPC, is sufficiently engaged with the HPC (I nearly always see him whenever I visit the HPC) to want to guard it from that threat. But what is the threat? And how is it associated with whether or not I leave an empty room? Even though the situation was resolved when I simply obeyed the order, it seems unlikely that this alone was a sufficient signifier of danger. Perhaps Mr Russen’s uncertainty as to whether I was a member of the press or of the public will help to resolve the mystery. If so, he could easily have reassured himself by looking at the yellow tag I had already consented to wear. Yet there is something here that is interesting, because this is what he then goes on to stress:
“But I think the Panel should be aware of the fact that whereas other people, the two gentlemen who I think may be members of the press, certainly one is a member of the press sitting beyond the two I have identified were prepared to move. Those two were not. It may be that we will have to return to that issue at some point. Sorry, I probably disrupted your announcement.”
The immediate effect of all this was to put my name and that of my colleague into the record, to put everyone’s eyes on us, and to let us feel the weight of his personal power and also to identify the journalists who were present. Presumably this was done to avert a danger, but what danger? Mr Russen said that people must leave the room in order not to overhear private conversations. The Panel had been given its own small room in order to have conversations without being overheard, and so too had the Registrant. The Hearings Officer thought that the particular private conversation we were obstructing was that between the two lawyers; between the HPC lawyer (the prosecution) and the Registrant’s lawyer (the defense). What possible conversation might these two have that would need to be held in secret? We have already seen that one conversation was had by them to agree whether Mr Tyme might put his petition before the Allegation was read. We know that this conversation established an agreement between himself and Ms Kemp which was then over-ruled by Mr Russen. None of this is secret, though we might now note that Ms Kemp has often worked at the HPC, and might be expected to know the ropes and be able to give better advice to Mr Tyme. I wonder why she did not alert Mr Tyme to the futile nature of his wish, but rather allowed him to show his ineptitude. Another lawyers’ trick? Is this why no-one should be allowed to hear what words pass between the two lawyers? What other reason might there be for the HPC to want to make it easy on this occasion (they do not routinely reserve rooms for the private conversations of hired lawyers) for two opposing lawyers to speak freely without being overheard? At the moment the most likely answer has to be linked to the status of Dr Cross as an HPC Council member. The HPC may be embarrassed to find that one of its own members has fallen. Moreover, so close to his appointment date this would reflect badly on the appointment process – how come they didn’t notice this flaw in this character? This information does help to strengthen the ‘reason’ for this hearing. As we’ve noted already, Dr Cross’s competence as a practitioner psychologist is not at stake, nor as an academic. But as a Council member, his behaviour could give ammunition to those who might have wanted one of these rare positions for themselves. This tittle tattle information might have been used to spread gossip and damage the image of the HPC in this seedy circuit of life. Looked at from this point of view, the HPC is using the FTP process to discipline Dr Cross for allowing the HPC itself to be brought into question by those who might want to be part of it but are excluded, for example. There is a certain kind of logic, but if this were the case then it must be said that it is a very convoluted way to go about things, and surely cannot be legal.
Perhaps another answer to this perplexing question will emerge as the hearing progresses.
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