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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fonagy's faith in the chemicals of the brain

The recently published list of people selected to sit on the professional liaison group for the HPC as it approaches the question of regulating counselling and psychotherapy includes the Freud Memorial Professor of Psychoanalysis at University College London, Professor Peter Fonagy. However, on the plg, he is neither credited with his academic title, nor his professional one, but appears as a representative of a Government Ministry: Skills for Health.

Peter Fonagy is a prolific writer and a busy manager - but it is difficult to square his current work with the aims of psychoanalysis. For example, he has abandoned the idea of the patient as a human subject in favour of the fashion for Gold Standard's of Objectivity. Under his directorship an era of randomised controlled trials was been ushered into the work at the Anna Freud Centre. Another quite alarming report appeared in the Times Newspaper about a year ago. It also appeared as a little news item reported in Therapy Today - the BACP monthly magazine:

"Toddler brains scanned for neglect" (From The Times, May 12, 2007, by Jo Carlowe - click heading for link)

"Psychologist Peter Fonagy, chief executive of the Anna Freud Centre, wants the Government to routinely scan toddler brains to discover signs of neglect - in order to find which children may grow up to be a nervous wreck, a criminal or a psychopath if early intervention is not made. 'The idea would be for parents to check if their kid's socio-emotional development is as expected. There would be no stigma attached,' he says. 'If a child needed a little developmental help, they could be put into a remedial programme, such as psychotherapy.' Fonagy has already started to scan infants to track differences between 'normal' brains and those of children who are neglected and unloved. The aim is to ensure that a child grows up mentally healthy."

quoted from BACP magazine Therapy Today, June 2007, vol 18, No 5 p26

This is quite a backward version of psychotherapy, and quite a contentious view of child development. It is also quite a cynical use of brain scan technology. Rather than appealing to argument and reason to put the case for the link between a child's love relations and his or her destiny, Fonagy appears to be playing the 'government funding game'.

Careful analysis needed in cases of complaints

Tuesday, July 29th, 2008. Letter to the Times, unpublished.

Sir,
I was sorry to read of Ms B's experience with a therapist
and glad to see it reach the light of day in the Times
[http://www.timesonline.co.uk/tol/comment/letters/article4418189.ece],
it touches on a central point. Is State Regulation of the profession going to
improve the practice or will it simply make it more difficult for
aggrieved patients to get their voices heard? The kind of regulation
that is likely to result from Ms B's demand will probably lead
to two linked outcomes: to scape-goat someone in a public show trial
whilst closing the ranks not only of the practitioners but also of
the bureaucrats who she suggests should regulate them. Actually this
kind of thing is already happening through the work of the Health
Professionals Council and Skills for Health. The perverse outcome is
the creation of rules that claim to define ‘best practice’. This
leaves the poor patient with absolutely nowhere to go – so long as
the rules are followed, the practitioner is safe. It also leads this
country back into the dark ages, for this is neither art not science.
It is the worse kind of bureaucracy. The practical answer can only be
enlightenment: the long slog through the difficult terrain of
analysing the theories that channel the actions of people caught up
in conflict. There are no easy answers, but nor is there need for Ms
B or the rest of us, to give up working on the process.

Yours faithfully
Janet Low
SE27

Paul Atkinson's response to Malcolm Allen - letter to the Times

From: Paul Atkinson
Date: Fri, 18 Jul 2008 12:42:50 +0100
To:
Conversation: Therapy requires the right type of regulation
Subject: Therapy requires the right type of regulation

Sir,

Malcolm Allen [Times letters 18th July] is wrong to say that all mainstream professional bodies of psychotherapy and counselling actively support statutory regulation, if he is referring to the Government's current imposition of regulation by the Health Professions Council [HPC]. The United Kingdom Council for Psychotherapists [UKCP], the major national organisation of psychotherapists, states on its website that "the HPC is primarily a medical and NHS model of regulation and the UKCP considers that the model proposed cannot effectively regulate psychotherapy". In a recent survey of the individual membership of the psychoanalytic section of the UKCP 48% of respondents were opposed to HPC regulation and only 27% in favour. A poll of the British Psychological Society's membership also rejected regulation by the HPC recently. Psychotherapists opposed to this form of regulation are not opposed to regulation in principle. We are arguing for a regulatory process fit for purpose.

Nor is it helpful for Malcolm Allen to imply that the Skills for Health exercise is confined to 'publicly funded therapy available on the NHS'. The HPC is set to regulate private as well as public sector practitioners and we have no guarantees whatsoever how the bank of Skills for Health competency statements will be used by the Department of Health over time [Andrew Billen's article, times2 July 15]. In light of the impact of constant interventions in the working relationships of say GP's or teachers, are psychotherapists wrong to be fearful for the integrity of their work? The evidence-base of the Skills for Health project has been used to severely restrict and misrepresent the profession's pluralistic culture in the pursuit of political aims, not to guarantee the work's efficacy.
Paul Atkinson
Chair, Guild of Psychotherapists

Tim Brown spots the flaw in HPC rationale

"The Government proposes to impose state regulation of psychological therapies through the Health Professions Council (HPC).
The proposal would grant a closed shop to some of the existing accrediting organisations, and encourage a medical model of psychotherapy. " [click title for full article]

Professor Ian Parker: 10 reasons to resist the HPC

Ian Parker is Professor of Psychology at Manchester's Metropolitan University. He has put together 10 pithy points which make a strong argument against the HPC. Published in full on Ipnsosis, here they are in brief:

"The Health Professions Council (HPC) ... reassured those about to be brought into this regulator that all practitioners need to do is pay their money and carry on much as before. The problem, however, is much deeper than this, for the HPC threatens to close down psychoanalytic practice as we understand it today...

1. Surveillance of each individual's activity against a presumed moral standard
2. A notion of moral character defined by conformity and collusion with current questionable practice
3. Training reduced to the logic of compliance to a programme of study
4. Training reduced to the progression through a course of study
5. Knowledge treated as something packaged and applied
6. Thresholds treated as grounding for practice then operate as limits
7. The subordination of independent trainings to the universities
8. Turning of analytic organisations into monitoring bodies that are compliant with regulators
9. Destruction of existing professional spaces and replacement with individual accountability to regulatory apparatuses.
10. An illusion of safety guaranteed by equally illusory attempts to predict and control innovative human activity

Lord Alderdice worried whether HPC is fit to practice

quote from Lord Alderdice, House of Lords February 2007 7.35 pm:

"Why this dissatisfaction with the HPC? The membership of the HPC is primarily concerned with those who treat physical illnesses, and the way that they deal with training and skills is much less variable. In general terms—and I know that I am not doing justice here—while there is largely a right way of doing physiotherapy, chiropody or microbiological or histopathological tests, there is much wider variation in psychological treatments. The HPC professions are also much more able to set out their skills in the form of protocols which can be followed by people of a range of personalities. It matters relatively little if one technician or physiotherapist has to be replaced with another. The personality of the therapist and the relationship with the client is, however, crucial—indeed sometimes central—to psychological treatments."

for more of this, click the title - it provides a link to Ipnosis, where Denis Postle has collected together a wealth of relevant material, including this extract from Hansards.

Marc Seale (HPC CEO) talks to Denis Postle, Ipnosis

Here is a link to an important conversation between Denis Postle and Marc Seale, quoted from eIpnsosis (click the title to link to full report)

Report on eIpnosis meeting with Marc Seale, CEO of the Health Professions Council, October 3rd 2008
"At the end of August eIpnosis received a pair of messages that offered very contradictory views on the HPC's reputation. I emailed extracts of them to Marc Seale, his response was to invite me in for a meeting.

Marc met me in reception and led the way down to a basement room at HPC ‘s Kennington headquarters where we occupied two red settees. Tea was served, and Michael Guthrie, Director of Policy & Standards, joined us. Marc Seale is a genial, vigorous conversationalist and he began with an outline of the HPC’s current process." [click the title of this blog to read the full report. If you would like to make a comment, use this blog...]

Copy of the HPO 2001

Follow this link to get your own copy of the HPO 2001

Daniel Hogan's study: regulating psychotherapy in USA

This is taken from a paper written by AM
"Has the government has considered the use of the criminal law. Daniel Hogan's 4 volume study of regulation of psychotherapists in USA has the idea that -

"Where special dangers are identified in the psychotherapeutic process and where traditional avenues of dealing with them are ineffective, special laws should be enacted. Existing fraud and sexual harassment laws should be strengthened and used to prevent some of the abuses that currently occur in professional practice. This alone would obviate much of the need for licensing."
('Professional Regulation as Facilitation, not Control' in Ethically Challenged Professions...enabling innovation and diversity in psychotherapy and counselling - Bates and House - PCCS Books, 2003

Hogan devoted Volume III of his massive 4 volume study The Regulation of Psychotherapists to a description of malpractice law and a review of malpractice suits on professional practice in particular (Volume II provided a comprehensive analysis of all laws potentially regulating psychotherapists in the USA at the time of writing). Volume III involved analysing 300 decisions from the different legal systems of the different US states. In other words his recommendation that the criminal law is examined in this way arises out of a very detailed understanding of the ways the law can be used.

What have others said? And has there been any statement by Government that this path has been considered and rejected? AM

Character control - power of HPC

When Richard Reeves did some research for a paper (co-written with Phil Mollon) on state regulation he reviewed cases from the HPC complaint hearings.

He was struck by several instances where police cautions had been issued to an individual which were non-related to professional work (e.g a chiropodist who had been involved in a ‘punch-up’ with his parents). He wondered how HPC had obtained this information – below is their reply.
------------------------------------------
Dear Sir,

Thank you for your email.

The HPC is involved in the Notifiable Occupations Scheme, in relation to the Home Office Circular 6 / 2006.

Notifiable Occupations are those in which the public interest in the disclosure of conviction and other information by the police or other officials, generally outweighs the normal duty of confidentiality owed to the individual.
Our thirteen professions are included in the list of occupations that carry special trust or responsibility under the Scheme.

Notifying bodies, such as the police, courts and other bodies, send us information about criminal offences committed by registrants if the offence is relevant to HPC registration.

I hope this information is useful to you.

With regards

Simon Thompson
Case Manager
Health Professions Council
Park House
184 Kennington Park Road
London SE11 4BU
www.hpc-uk.org

----------------------------------------------------
There is something rather troubling about this - the creation of the HPC seems to be leading to the invention of a pseudo-legal platform that is essentially moral in character. It is this that I noticed at the CHRE meeting earlier in the year, and that makes me wonder whether an unintended consequence of this mistaken endeavour is to lead to the re-invention of a psuedo state related religion.

an informal opinion from someone in law

"From a legal perspective I am struck by various statements that the scale of the risk is exaggerated and there is insufficient evidence that therapists abuse clients on a scale that warrants the costs of state intervention. That could be an interesting area to focus on:

I haven't looked at the evidence but my guess is that it might be an uphill struggle to persuade a court that the evidence is so weak as to make a govt decision to introduce some form of state regulation irrational or unreasonable. That said however it might be worth really going into the evidence issues as part of the lobbying process and if their answers are insufficient they could form part of a later legal challenge. At this stage you could ask for more detail about what evidence has the government put forward and have they yet done a cost benefit analysis (which they should do for any legislative proposal)

- i.e. sending the Dept of Health a letter saying you would like to know what evidence they are relying upon, e.g. any independent studies as to the scale of the problem, and asking when /whether they have done a cost benefit analysis for the legislative proposals (my guess is that it is still early days and because the exact form of regulation for the different sectors hasn't been decided they haven't yet had to do that sort of analysis). Even worth considering a freedom of information request along those lines (perhaps at a later stage) if you don't get a decent response. And when it comes to deciding on costs for the purpose of the cost benefit analysis it would be interesting to see what they consider to be costs - are they taking into account both economic costs and potential cost to innovation etc. This could be a weak spot to look at and lobby on.

The debate around evidence and lack of sufficient evidence might also be used to help shape the form of the state regulation if it comes to that - there are lots of different sorts of regulation and, for example, the tick box approach, at least in the financial services field, has tended to be replaced by a principles based approach which is less reductive and is better at encouraging innovation. So don't assume that there is only one sort of regulation - it might be possible to have something much more light touch and more suited to innovation and all the different sorts of therapies available. Seems to me that in bringing in this regulation idea, the govt is probably concerned about (1) inflated claims that I can cure you and (2) the range of potential unethical practices. Although in theory the courts can deal with concerns like this the fact is that the courts are expensive and scary and the govt tends to want individual complaints of malpractice to be dealt with by the professional bodies. Perhaps the key is to try to shape the regulation that comes out so that it focuses on misrepresentation (arguably already covered by the common law anyway) and proper ethics (ditto), to keep encouraging something which is very light touch."

Regulating counselling and psychotherapy via HPC

Excerpts from the HPC doc. I include it here because I am surprised by the rather grand way it states its right to intervene in other people's practise in the name of public safety without saying what that means nor why they (the HPC) are less of a threat than any one else. There are many questions begged by this document which I hope to gradually unpack.

Introduction
We are seeking the views of stakeholders on the potential statutory regulation of psychotherapists and counsellors.
About us:
We are the Health Professions Council (HPC). We are a regulator and our job is to protect the health and wellbeing of people who use the services of the health professionals registered with us. To protect the public, we set standards that health professionals must meet. Our standards cover health professionals’ education and training, behaviour, professional skills, and their health. We publish a Register of health professionals who meet our standards.

Health professionals on our Register are called ‘registrants’. If registrants do not meet our standards, we can take action against them which may include removing them from the Register so that they can no longer practise.

About statutory regulation
• Statutory regulation of psychotherapists and counsellors
In February 2007, the government published a White Paper on the future of regulation, ‘Trust, Assurance and Safety – The Regulation of Health Professionals in the 21st Century’.
The White Paper said: ‘The government is planning to introduce statutory regulation
for…psychotherapists and counsellors…’ (page 81) ‘…psychotherapists and counsellors will be regulated by the Health Professions Council, following that Council’s rigorous process of assessing their regulatory needs and ensuring that its system is capable of accommodating them. This will be the first priority for future regulation.’ (page 85)
Subject to the necessary legislative approval, the White Paper indicated that psychotherapists and counsellors would be regulated by the HPC in the future.
We are therefore undertaking this project in anticipation of that legislative approval. [emphasis added] However, please note that the outcome will be subject to any final decisions made by the UK and Scottish Parliaments.

HPC call for ideas for regulating psychotherapy and counselling

If you go into the web-link in this blog's title, you will download a document about the proceedings to include counselling and psychotherapy in the HPC register.

I suppose it is because the HPC is already set up on the basis of a legal statute that they must proceed as if it is ipso facto a good idea to regulate this practice. The questions are already set up on the contentious assumption that the HPC is the right way to register professionals. The call for ideas, then, is a highly particular call, and precludes the possibility that anyone should have a different idea. This is extremely worrying, especially given the field of work that is in question here.

Summary of questions
The following is a summary of the questions we have asked in this document:
1. What are your views about how the Register should be structured for
psychotherapists and counsellors?
2. Which titles should be protected and why?
3. What criteria might be used in considering which voluntary registers should transfer and which should not?
4. We invite voluntary membership organisations to provide us with details about:
o The number of members and the extent to which this number is likely to overlap with membership of other organisations.
o Information about arrangements for determining entry to membership.
o Information about arrangements for considering complaints about members.
5. How long should the grandparenting period be open for and why?
6. Are there are any other matters which the group should consider in recommending appropriate grandparenting arrangements?
7. We would welcome any information about:
o The number and names of existing qualifications leading to the practice of psychotherapy and counselling.
o Types of qualifications including the academic level or academic awards of those qualifications.
o The structure of qualifications including theoretical content and practical experience.
o Quality assurance of qualifications including existing internal and external quality assurance mechanisms.
8. What issues should the PLG consider in determining the threshold level of qualification for entry to the Register?
9. What existing standards or other work should the PLG take into account in putting together draft standards of proficiency?
10. Do you have any further comments?

http://www.hpc-uk.org/assets/documents/1000234Fcouncil_20080703_enclosure08.pdf

HPC & Psychology

The Health Professions Council was set up by the Health Professionals Order passed by the Privy Council in 2001. The Privy Council is a Government operational arm which is separate from the judicial system, and operates through the Lord Chancellor and the courts. Traditionally it is reckoned to be an unusual way of using power, and is reserved for extreme emergencies such as would happen in war. Tony Blair's Government, however, made frequent use of it. The object or aim of HPO2001 is to 'safeguard health and wellbeing' by State registration and regulation of a whole range of people who practise a very wide variety of professions. A secondary function of this legislation, tho not named in the documentation, is to give government approval to those who sign up in the form of legally protected titles. The psychologists have wanted this status since the early 1980's, for example. It allows them to protect their practise from any competition.

Earlier this year (2008), there was a 'consultation' about section 60 of the Health Act 1999 which sets out to enrol psychologists into the HPC. Section 60 is contained in the Health Care and Associated Professions (Miscellaneous Amendments) No 2 Order 2008, and is tabled for consideration in the 08-09 session where it is expected to be passed in the Commons Select Committee on Health. The BPS (British Psychological Society) comment on this can be consulted on their web site (under ‘statutory legislation’, ‘latest updates’, ‘20 March 2008, 29 April and 22 May’.

The consultation took the form of a very biased questionnaire. It was biased in that it took for granted that everyone shares the government's opinion that 'professionals' must be regulated through the State machinery. The rhetoric that pretends to underpin this idea is that professionals are ipso facto a menace to the public. It is not uncommon for someone to start talking about Harold Shipman at this point as if this highly unusual man is somehow representative of professionals who are not registered by the State. This, of course, is nonsense.

The philosophy behind the HPO 2001 shares much with the work of Ian Kennedy, an academic lawyer. He chaired the commission of enquiry into the Bristol Royal Infirmary and is well known for his sustained attack against the medical profession published in his book (1981) The Unmasking of Medicine.