First Impressions

(First published 7 October 2015)

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I was nine years old the first time I remember visiting a hospital. It was late 1970 and my maternal grandmother just had an operation on her right foot to remove a painful bunion, something my father explained, was a lump on the side of her foot. She had the procedure carried out at the Bridge of Earn Orthopaedic Hospital, a familiar landmark to many, its wartime single storey buildings situated just east of the M90 motorway as it crosses the River Earn, just south of Perth. The hospital was constructed at the beginning of the Second World War to deal with the expected casualties from the fighting and opened in 1940 with space for 1,020 patients. Early admissions came mainly from neighbouring military camps, and the lack of expected air raids led to beds being used by three British General Hospitals, patients with tuberculosis and prisoners of war. The busiest time for the hospital came in 1944, initially from casualties of the V1 and V2 bombing of London, and then the Normandy invasion. Following the war in 1947, an orthopaedic unit from Larbert was transferred to Bridge of Earn and it was predominately for this discipline that the hospital gained its reputation until it finally closed in 1992.

My grandmother had a part time job as a home help and was a fit, healthy woman in her early fifties at the time of the procedure. Her foot had been troublesome for a number of years and it was becoming increasingly painful, especially during her sporting activity, lawn bowls, for which she held a great passion. My father, a chiropodist with the NHS, had spoken to the family doctor, and he arranged an appointment with the surgeon and the bunion was duly removed as an in-patient procedure some time later. I cannot recall much of the visit to see her recovering from the operation other than the smell on the ward of antiseptic, which was quite different to that in my father’s surgery or even the local dentist – and the nurses, who looked pristine in their starched white uniforms. My grandmother was sporting a below-knee plaster cast on her right leg and only her toes were visible and I remember being asked to count them in case any were missing. None were, but she had gained something extra! The operation was a simple arthrodesis; a procedure that corrects the position of the great toe and involves having part of the joint removed and a steel pin or wire inserted through the end of the toe down into the long metatarsal. This pin and the plaster cast would hold the toe in the correct position until the surgery healed in around six weeks and where the pin protruded from the end of the toe, it was capped by a small cork and it was this that held my attention for the duration of the visit. She remained in hospital for a week then returned home to convalesce until the pin and plaster cast were removed around a month later. The operation was deemed a success and a few months later she resumed her bowling with renewed enthusiasm, going on to win a number of championships and trophies in the following years. The operation was carried out on her leading foot as she was right-handed, and as such, the toe joint remained straight with the foot flat on the ground when she released her bowl. By contrast, the great toe on her trailing, left-foot was fully bent back or extended when she released and had the problem occurred on this foot and she had undergone the same procedure, then it would have been much more difficult for her to be able to return to the game she loved so much and in that respect, on this occasion, she was fortunate.

Four years later she was back in hospital for another operation. This time she was in the relatively new Victoria Hospital in Kirkcaldy – a general hospital encompassing the whole gambit of medical specialisms, but this time it was not for a minor joint problem but something altogether more serious. What she would not be aware of at the time was that this episode of ill-health would herald the circumstances of her death a dozen or so years later through a number of simple but completely avoidable mistakes by those she entrusted with her care.

Agnes Wilson was born on 2 October 1916 in the small mining village of Lochgelly in central Fife, midway between Dunfermline and Kirkcaldy. It is a date that would have some significance in my own life some ninety nine years later and is just one of a number of quite remarkable coincidences you will learn about in due course. It was a time of turmoil and slaughter in the middle of the Great War; the Somme Offensive in northern France was entering its bloodiest phase with many casualties from fighting in the Battle of Thiepval. In the collieries and pits of central Fife the outlook was just as grim. Desperate working conditions and real hardship with a dark sense of foreboding saw thousands of young men heading south to help the war effort, leaving behind families struggling to put the basics on the table – a task made even more difficult with the loss of their sons to the battlefield rather than the coalface. The coming decade at the end of the war saw little improvement in their prospects and with so many sons and fathers killed in action the future must have seemed devoid of hope for those left behind. By the time she was thirteen, Agnes had left school and was in work at the Jenny Grey Pit washing and separating coals and rubble at the pit-head where she worked for three years. She was one of five children; two sisters and two brothers and perhaps the only remarkable thing about their formative years was that they survived through into adulthood during times of high infant and child mortality arising from the poor sanitation, not to mention malnutrition and work related injuries down the pits, which were often horrific. By sixteen she had left the pits and went to work ‘in service’ in Edinburgh – cleaning mostly in some of the grand Georgian houses in the New Town where she lived in servant’s quarters before returning home to Lochgelly on her days off. Sometime during the next few years, she met my grandfather, Tom MacDonald, an apprentice blacksmith and a romance started and they were married soon after in 1938 and moved into a ground floor two-roomed tenement next door to the West School in the town. Two years later their first child appeared – my mother, followed two years later with another girl, both born at home with the doctor in attendance.

It is difficult to imagine today what living conditions were like in this working class mining village during either War when both my parents and grandparents were born. From the stories I have heard over the years it must have been unrelentingly arduous; outside toilets, food rations, freezing winters without any heating other than the coal fire – and yet these times are remembered in good terms and with fond memories. The family lived in these sparse conditions throughout the war and beyond until the incredibly harsh winter of 1947 when they moved into a brand new prefab on the edge of the village opposite the golf club. Perhaps unsurprisingly, they endured the usual childhood illnesses of the time – chicken pox, scarlet fever, mumps, influenza were all unwelcome visitors at some time or another, yet I cannot recall my grandmother or grandfather telling me of a time when they were struck down with anything that required a visit to the doctor, never mind a hospital. Until the bunion started to hurt.

I had just started secondary school in neighbouring Cowdenbeath when she started to feel unwell. It was 1973 and we had just returned from a family holiday near Oban where she had experienced several bouts of abdominal pain over the fortnight. I suspect she consulted the family doctor on her return as her first appointment with the hospital consultant coincided with my first day at Beath Junior High. It was ‘woman’s troubles’, my father explained later. And she was to have another operation.

It was over a decade later before I discovered she had ovarian cancer and that the operation was, of course, a hysterectomy, but at the time it was just another mysterious illness attributed to the fairer sex under the guise of ‘woman’s troubles’. Whispered quietly, it was a subject that was to be acknowledged but not discussed and therefore completely misconstrued. An approach that my father took quite regularly whenever a topic came up that he was uncomfortable with. A few days after her operation, I went to visit her again with my mother and father. This time she was on the seventh floor of the new tower block at Kirkcaldy’s Victoria Hospital, which seemed quite a contrast from the wartime buildings at the Bridge of Earn where she was four years previously. I can recall spending most of the visiting time looking out of the window with its panoramic views over the town rather than speaking with my grandmother, but then what thirteen-year-old boy would do otherwise? Besides, she looked in great health and not unwell in the slightest, sitting up in bed and castigating my mother for making a fuss of her. I cannot say I had any worries for her.

There were a number of follow-up appointments at the hospital; check-ups every now and then, but she made a remarkably quick recovery and by the time the following Easter arrived, she was back on the bowling green and as bright and enthusiastic as ever. There wasn’t anything to warrant any concern as far as I knew. In the years following her hysterectomy she attended the outpatient department at the hospital perhaps once or twice a year. Occasionally, I would accompany her, taking the bus down from Lochgelly through Cardenden to arrive at the hospital forty minutes later for the appointment with the doctor. She was always the epitome of great health, always smiling and always unfailingly respectful and grateful with every doctor that she consulted. And they were always content with her, with good reason, as her progress back to full health was excellent and there didn’t appear to be any recurrence of whatever ‘trouble’ she had that required the operation in the first place. On each visit to the hospital she saw a different doctor, whoever was on rotation at the time in the out-patient department she attended, but the result was always the same – “very happy with your progress and we’ll check you again in six or twelve moths time” – and off she would go until the next visit.

Eleven years pass and the operation was a distant memory. I had left school then taken a year out before starting Podiatry College in Edinburgh, graduating in 1983. My first post was based at the same Victoria Hospital in Kirkcaldy where my grandmother had undergone her hysterectomy and where she still visited very occasionally for her ‘check-up’. She was sixty-seven years old now but still full of the energy and vitality she always exhibited – and still winning competitions at the bowling green. Life was good.

Shortly after I started to work in the September I took her down one evening and showed her my new surgery in a wing of the hospital that had been recently built. The Whyteman’s Brae complex consisted of five specialist wards for psychiatric, psychogeriatric and geriatric patients and several clinics for physiotherapy, podiatry and the other professions allied to medicine that were applicable in such a unit, such as speech and language and occupational therapy. I had been very fortunate as my surgery was pristine and fitted out with the latest equipment and I remember the look of pride not to say amazement when my grandmother walked through the door.

“You’re in a lovely place” she remarked “and if you can look after your patients they way I’ve been looked after here, then you will do very well indeed.” Six months later she started to feel “off colour” and by the time the bowling season resumed that Easter she barely had the energy to play the opening tie. But there was other trouble on the horizon. A week or so before the Bowling Green opened the National Union of Mineworkers called a National Strike and the miners’ walked out of the pits and collieries in protest at the proposed closure program by the NCB under Ian MacGregor. My grandfather, had been retired for five years, but had been through the previous National Strike in 1974, which had been quite traumatic. He was, strictly speaking, not a miner but a blacksmith on the surface and responsible for, amongst other things, the heavy steel cables that raised and lowered the pit cages down the shaft and as such he was permitted to undertake essential maintenance work by the Union, but it was not a comfortable situation for him crossing the picket line every day, albeit with his fellow miners grudging consent. If they were fighting for their jobs, some would have to ensure they had a safe pit to return. Ten years later, these bitter memories were reignited against a different background.

A few days after the bowling season started properly in early May, Agnes visited her GP as she was becoming increasingly tired and exhausted by the slightest effort. A blood test was done and a few days later she was in another hospital for a transfusion. Milesmark Hospital in Dunfermline had a couple of medical wards similar to the geriatric unit at Whytemans Brae and it was here she had her first units of blood. I was unaware of these events at the time and only discovered she had been in hospital a few weeks after the transfusion after I returned from a holiday in Ireland. “It was nothing to worry about”, she said, dismissing my questions. “Just needed a little top-up”.

I don’t know if she knew what was really wrong or whether a diagnosis had been made at that stage, but should that have been the case, it would have been so characteristic of her to play things down. I don’t recall hearing any complaints about her health, ever. Even over the coming months.

During the summer of 1984 and again with a backdrop of a National Strike, Agnes was in Milesmark another three times for more blood; the tiredness and exhaustion returning increasingly and more obvious as the weeks passed. More worryingly, just before her final admission, she began to bruise quite readily and in addition, there were several areas of what looked like pin-prick sized spots on her arms and legs. I had assumed, until then, that her malaise was simply because she was anaemic, but I was wrong. The day after she was admitted at the beginning of October, my father telephoned to say that the consultant had requested a meeting with my mother, aunt and grandfather and the news was not good. She had developed acute myeloid leukaemia and it was unlikely that she would make a recovery this time. By the time I reached the hospital that evening she was already heavily sedated and barely able to speak, but still managed to smile. The following morning she slipped into a deep sleep and four days later, she died.

It was the first close relative to me that had died. Both my maternal grandparents were a huge influence in my life, but my grandmother – or Nana – especially. They lived in Gordon Street a hundred yards from our house and I spent much of my childhood with them. I was the eldest grandchild; my sister four years later then our cousin two years after her. My grandfather, being an engineer and blacksmith, had a fabulous wooden garage he built himself, stuffed full of every imaginable tool and implement for all sorts of jobs; a workbench made from railway sleepers and shelves overflowing with jam jars full of screws, nails and three-in-one oil in copper pourers. I used to stay over most Friday nights and on the Saturday morning I helped wash and polish his car – an Austin 1300 – before we started on a job in this magic den of his. He made me my first ice axe from a miners pick welded on to a tubular metal shaft with a bicycle-handle grip to protect bare skin. He was a short, stocky man with a head of bright, thick, white hair lightly bisected with a nicotine-orange streak in his later years. I can still see him standing at his bench in dungarees – an Embassy Red with two inches of quivering, curving ash hanging impossibly above the heavy vice before him. He managed a full cigarette once, the whole ashy length hanging in flaccid surrender whilst he planed some wood. I doubt he even noticed. He was everything you imagine a miner would be; tough as nails, strong as an ox with a dour Fife personality through and through. There is a photograph of the two of us at the stile in the path above the east sands in St Andrews when I was three years old. It provokes both morbid and sobering thoughts when you realise that after the passage of half a century, you have become the same age as your grandparents in faded family photographs.

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But if my grandfather gave me my love of taking things apart and finding out how they worked – a practical influence – it was my grandmother’s inspiration in so many other ways that I still treasure to this day. She was a calm, sagacious woman and although she only travelled out of Scotland on a handful of occasions and never further than York or Blackpool, her outlook was anything but parochial. She was the one person I could tell anything to; an absolute confidante and on the one occasion I did run away from home aged eight (my father first giving me a hand to pack my suitcase) I made it no further than her back door. As I write this, it is thirty years since she died and there is rarely a day that I don’t still think of her, but at the time of her death I felt strangely unemotional and disconnected. Perhaps it was the relative suddenness of it all – I had just a few days to prepare for the inevitability yet it still didn’t seem to sink in even on the day she died. It was a surreal feeling and not uncommon, as I discovered subsequently with surviving relatives who experience sudden death of a loved one. In the blink of an eye she was gone and you are thrown into the aftermath of things to organize and people to call so that the time to allow grief to have the time to form properly is deferred. That is how it seemed in hindsight, but at the time it was as though I had become a spectator in a drama witnessing the incomprehension of my grandfather to the inconsolability of my mother and aunt and realizing immediately that the guiding insipration that was needed at this time was not there anymore.

Four months later, on a Friday afternoon, I had an out-patient clinic running at Whyteman’s Brae in Kirkcaldy when I noticed my penultimate patient of the afternoon had the same name as my grandmother, however her address was in one of the small fishing villages in the Neuk of Fife. But when I collected the patient notes from the front office, I discovered that the records office had sent the wrong notes and had inadvertently sent those of my grandmother instead. Thirty-years ago it took some months to close patient records, especially where care was spread over different hospitals and all the correspondence and ward notes were gathered and filed manually – and it wasn’t uncommon to receive a number of wrong records in any clinic, but it still came as something of a shock when I noticed the address on the front label. I took it back to my room with the rest of the bundle and sat down and began to read.

The first set of notes were from the Bridge of Earn Hospital about her foot surgery fourteen years earlier including the referral letter from her General Practitioner in Lochgelly, Dr Roy Blues, his illegible handwriting immediately recognisable. I could just make out ‘bunion’ and the name of the surgeon, but that was about it. The surgical and nursing notes followed, then the paperwork changed to the Victoria Hospital and her operation for her ‘woman’s troubles’ – the ovarian cancer. This was my first surprise. Even after the passing of the years and her death, I still hadn’t known that her hysterectomy had been performed for underlying pathology so the notes from her gynecologist, Dr Hill were a revelation of sorts. There was a letter to Dr Blues shortly after her hysterectomy informing him that the operation was a success and that she would be put on a maintenance regime of cyclophosphamide and reviewed in six and twelve months time. This was followed by a series of out-patient records that coincided with her annual or bi-annual check-ups before the final tranche of records from Milesmark leading up to her death. But it was the final piece of correspondence that really stopped me in my tracks. It was a letter from a Consultant Haematologist to the doctor in charge of her care at Milesmark during her final weeks. It was a single piece of A5 white hospital notepaper, neatly typed with two short paragraphs; the first, thanking the doctor for asking him to review my grandmother’s case and the second, informed him that she had “developed acute myeloid leukaemia which will be refractory due to the prolonged exposure to cyclophosphamide.”

I hadn’t heard the term ‘refractory’ before, but could easily make an informed guess as to what it meant, given the eventual outcome. Nor had I heard of cyclophosphamide and why she was on such a regime in the first place. There was no internet and no quick answers then, so it had to wait until the end of the clinic and a visit over the road to the hospital library before I found what I was looking for.

Cyclophosphamide is a drug that was commonly used as an adjunct therapy in the treatment of some cancers, including ovarian tumours. One of its actions is as a bone marrow suppressant in particular to the formation of T lymphocytes, a form of white blood cell that are thought to increase the risk of further cancer developing. The literature went on to state:

“Cyclophosphamide is used for the treatment of numerous malignant processes and certain autoimmune diseases. Goals of therapy are prompt control of the underlying pathological process and discontinuation or replacement of cyclophosphamide with less toxic, alternative medication as soon as possible in order to minimize associated morbidity. Regular and frequent laboratory evaluations are required to monitor renal function, avoid drug-induced bladder complications, and screen for bone marrow toxicity. Cyclophosphamide has severe and life-threatening adverse effects, including acute myeloid leukemia, bladder cancer, hemorrhagic cystitis, and permanent infertility, especially at higher doses.”

I re-read her notes again and couldn’t locate a specific entry for the proposed length of the course she had been recommended after her hysterectomy. The letter from her gynaecologist to Dr Blues was the only mention of the drug and that she was due to be reviewed in six and twelve months time, but that was it. Even on her subsequent out-patient reviews there was never mention of the drug again – most of the entries simply noting that she looked fine and had no problems before suggesting a review at some future point, usually twelve or eighteen months time. I then read through her later notes from Milesmark and found a hand-written entry from her first visit the previous year when she received her initial transfusion, made by a ward doctor following a telephone call with the haematologist. Underlined, it read simply, “discontinue cyclophosphamide immediately”. At the time she had been on the drug continuously for eleven years, but I couldn’t find any information regarding recommended treatment courses so I had no way of determining if this was normal or otherwise, but the ‘prolonged exposure’ was sitting uncomfortably in the back of my mind by that stage and I had an inkling that something was not quite right.

I took her records home with me that evening, in contravention of hospital policy, of course, but I needed to find out whether anyone else I the family was aware of this. They weren’t; at least according to my father. Nor did he know anything about cyclophosphamide or its ability to cause AML or what her recommended course was. Rather he was dismissive. “What do you want to know that for?” he asked, with not a little menace in his voice.

It is worth remembering that the issue of medical malpractice was very much under the radar until a relatively short time ago. In the early 1980s, it was generally accepted that mistakes could sometimes happen, but the apportionment of blame and liability for such a concept was entirely foreign in the National Health Service. I have heard my grandmother say on many a time that accidents occur for any number of reasons but providing there was no intent to harm, there should be no blame or recriminations (most usually when waiting for a confession and explanation of any number of misdemeanors by myself) – and so it seemed a likewise philosophy was similarly adopted by my father as he contemplated what to say. He was by then, a district chiropodist, employed by the same NHS Board in Fife as I was and any thought about raising any concern over an incident like this would not have even entered his head. The Health Service was very much regarded as a big family; a close knit organization with a proud tradition in Scotland but with a definite hierarchical structure and it would, with hindsight, have been a formidable prospect for someone even in his position to challenge established medical practice, especially over something he would have little, if any, authoritative knowledge about. “How do you know she was on it for too long?” he asked. And of course, he was right. I didn’t know that for certain. Perhaps she needed to be on a maintenance regime of the drug for that eleven years and it was just an unfortunate consequence that she went on to develop AML, but it was the prolonged exposure that still sat firmly in my thoughts later that night as I pondered what to do.

On the Monday morning I looked through the hospital directory until I found the number for the Consultant Haematologist, Dr John MacCallum, whose office was located in the main hospital block. I wasn’t at all sure what I would say to him or what his reaction might be. I was twenty-three years old and only been graduated for around eighteen months and I remember being extremely nervous when I eventually dialed his extension. His secretary answered and I asked her if it would be possible to see him about a patient later that day. She suggested after his ward round at 11.30am.

Dr MacCallum was a quietly spoken and extremely courteous man who had taken up his consultant’s post a year earlier and welcomed me into his office with typical grace. “How can I help you?” he asked. My hands were shaking as I passed him my grandmother’s records and opened them at his letter.
“I was wondering if you could tell me what this means?” I said, pointing to his second paragraph. He read the letter then looked back at the previous pages then said, “This patient died last year. What is your interest in this exactly?”
“She was my grandmother.” I went on to explain the circumstances of my discovery, courtesy of the patient record department.
“I see.” He said, before he filled in the gaps. He informed me that he had asked to review my grandmother’s records the previous year, shortly after she had her first blood test in the weeks after the opening of the Bowling Green when she started to feel unwell. Her blood test showed abnormally low numbers of both platelets and white blood cells and he had flagged the result up for further clinical investigation. The transfusion she had was not for haemoglobin for anaemia as I suspected, but for platelets. She had a bone marrow aspiration carried out, which again I knew nothing about at the time, and this fuelled his suspicions that she was starting to develop a form of leukaemia. It was at that point he recommended discontinuing the cyclophosphamide. Later, when she began to exhibit the bruising and the pin-prick haemorrhages on her arms and torso, which he called thrombocytopenia, he made the final diagnosis of AML.
“How long should she have been on it?” I asked, acutely aware I was on difficult ground.
“I would think between six and eighteen months.” He replied. “But that would depend on the diagnosis at the time. I’m not sure what happened here with your grandmother, it was possibly an oversight or a mix-up with her prescription, but she had been exposed to this for quite some time and that wouldn’t have helped.”

I tried to take in what he was saying and thinking how to reply when he said; “I’m sorry you had to find out like that and I’m really sorry for your loss.” And I could tell that he was genuine with it. He handed me back the notes and suggested I return them to the medical record department and that was that. I didn’t find out any more. There was no investigation to determine who knew what or why. I’ve no idea if my grandmother was even aware that it had been the chemotherapeutic drug she had been prescribed all those years that was the likely cause of her death. She may have been informed, I forgot to ask, but if she had, it was probable that she would have kept the information to herself anyway, that being the measure of the woman she was. She certainly wouldn’t countenance a fuss.

Trying to determine what might have happened is simply conjecture. The failure, if that is the correct term, could have been in several areas. There was no computerisation then and medical notes were anything but contemporaneous and standard clinical practice was more of a verbal art form handed down from senior consultants to their protégées than in published guidelines and protocols. Certainly someone should have realised that she had been taking the drug for much longer than usual, but who and when? The environment wouldn’t have helped; the continual merry-go-round of registrars, house officers and trainee doctors through the various specialisms in the hospital set-up provides an obvious impediment to continuity of care where records may not be as detailed as they could be. There was no forward review of her medication written up in the notes for guidance in future consultations, just a record of how she presented and how she felt. It was, in all probability, a simple administrative error; an oversight, as the consultant had suggested; an unfortunate error but one with significant and avoidable consequences.

I returned her notes to the records department later that day and filed the slip with the other Agnes MacDonald’s podiatry treatment from before the weekend in the correct patient file. That was the end of the matter. There was nothing else I could have done and even if there was I don’t know if I had the capacity to take it any further and whether it would have done any good. The philosophy was different then and it was generally accepted that the Health Service, as with most of the institutions of the State always acted in the best interests of the individual and where the outcome was not as expected and someone went on to suffer loss, injury or life, it was seen, from my perspective at the time as a tragic mistake; something to acknowledge and learn from rather than apportion blame or liability. Hospital management was simply administrative and supported clinical practice whose principal oversight was through the various consultant committees. However, changes were on the horizon with the recent publication of Roy Griffith’s report on general management in the NHS but his recommendations would take time to filter through, but even then it is doubtful if they would identify simple failings of the kind that compromised my grandmother’s care.

I am being careful with my words as I do not seek to apportion any blame; I do not find the concept helpful in the slightest as we understand in its current lexicon and I think I still share my grandmother’s philosophy too in that providing there is no intent to harm there should be understanding and a learning rather than retribution and punishment, but I am only too well aware such a view is not in fashion much these days. The pendulum has very much swung in the other direction since my grandmother’s death and after the likes of Shipman, Alder-Hey and the countless other ‘scandals’ in our State Health Service, there is an entire industry devoted to medical malpractice with enormous attendant costs. Countless Public Inquiries with armies of barristers, solicitors and traumatised relatives pouring over endless evidence of failings in care has achieved little more than promoting a defensive culture riven with fear and intimidation, not least because of the enormous liabilities the NHS is accruing from an equally expanding battery of claimants. Such are the times we are in, but it would have seemed absurd, even wrong to seek financial compensation or bring someone to task for a simple oversight that had inadvertently contributed to someone like my grandmother’s death, even though such an approach would not be out of the norm today and probably even encouraged. Especially by the industry geared up to profit the most out of it – our legal profession and in particular those concerned with regulation and compliance.

Thirty years ago I was a new entrant into our National Health Service – a lowly foot soldier, as it were, but nonetheless very enthusiastic about my profession and its prospects. It seemed a time of great promise and hope as I was instilled into a great institution founded on tremendous principles – and there was another more personal connection closer to home. The wife of Aneurin Bevan, the architect of the NHS, was Jennie Lee, later Baroness Lee of Asheridge, was born in Lochgelly and very much one of my grandfather’s favourite people and the subject of many a tale. She was ten years his senior and he could well remember her firebrand style supporting the miners through their various struggles in the years before she became a prominent Member of Parliament in her own right. The prospect of a career in the Health Service was something really I looked forward to. It seemed worthwhile and exciting. It was also set in a time of great innocence and naivety, for me at least. But the coming years were about to change all that.

It would take ten years and a completely different set of circumstances before my views about ‘great’ institutions of State and their responsibilities and functions were challenged again and another two decades after that before that any lingering confidence in them finally dispelled.

The Visit

(First published 3 November 2013)

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There is always a danger, when looking back over one’s childhood, of succumbing to nostalgia and remembering only the happy events – those joyful times that leave an indelible mark in our memories to cherish when we get old.

Growing up in Lochgelly during the 1960s and 1970s offered plenty of opportunities to add to the collection. A proud, working-class mining village set amongst the beautiful scenery of central Fife, perched high on its own little hill with panoramic views over the Braes towards the Meadows and Benarty and Lomond Hills, then out along the East Neuk before turning south over the Loch that gives the village its name. But it wasn’t all Utopian bliss. And sometimes the real horrors lie hidden for years.

Like many youngsters in the town, I enjoyed a number of jobs that would help supplement the weekly pocket money allowance from my father. Picking tatties down at Ernies, doing the shopping for elderly neighbours and bagging the monthly one-ton coal delivery at my grandparents. Grandad’s job as a blacksmith with the NCB came with regular extras, but my steady job was as a paper-boy with Dougie Dickson who ran the newsagent on the corner of Auchterderran Road. The early rise could be a real pain at times, especially if I had been reading under the covers the previous night or when the alarm sounds alongside a thunderous cacophony cascading down from the heavens onto the tiles above my head. But it was also a joy – walking into the sunrise down Auchterderran Road then over to Cooper Ha’, along Launcherhead Road and up the Auld Guige on a warm spring morning with the hedgerows teeming with birds before anyone else was up and about was a great place to cultivate a fertile imagination. Most of the time we just delivered the papers and magazines, but for a short time in 1973 we had to collect the money too, so on a Friday, after school, it was out with the bike and a bag of change and round the doors for a second time that day. We had a small rise from Dougie to compensate for the extra round, but the novelty and pay rise soon wore off and it became a chore.

A Friday collection round during November that year took a sinister turn. My ‘home leg’ was MacGregor Avenue, which used to look out over the Plantin (short for Plantation or Planting – which I have never been able to determine). I lived one street up in Stewart Crescent so I had only a few calls left when I turned the corner by the water tank that looked out over the second green on the golf course – and into the west end of the Avenue. A short way down I stopped to collect the paper money from a house, left my bike at the gate and walked the sort distance to the red door. I was about to knock when it opened and Mr King was waiting for me. He was a familiar figure – a regular on the golf course, he would often give the young boys some advice and coaching. Short, stocky with thick arms and legs – he looked like a celtic Gene Hackman. Whilst the coaching was always welcome, there was an edge to him and he had a quick temper and tongue and was never gracious when playing behind, always the first to shout “out the way” if he wanted to play through.

I hadn’t really spoken with him directly though and certainly never one to one, so I was a little apprehensive when he announced, “Come on in, I’ve got something for you.”

At a time when adults were to be respected and trusted it didn’t cross my mind to refuse, so I walked past him into the hallway as he closed the door behind me. Perhaps what unnerved me most was his attire – a short, grey, toweling dressing gown – and as he climbed the stairs I had a good view of his thick hairy calves. “I’ve seen you on the golf course” he said without looking back, “I’ve got some golf magazines for you, come on up..”

The layout of the house was the same as my own and he turned at the top of the stairs I realized he had gone into the front bedroom. His head appeared round the corner and he smiled and said “Come on – you can carry them down.”

When I reached the top of the stairs and turned around he was waiting by a dressing table just inside the doorway. There was a pile of black and white magazines on the table and he gestured towards them. “That’s them there” he said ‘you’ll get lots of good tips from them.” He picked them up and handed them to me, then he leant down and opened the top drawer of the dressing table and pulled out another magazine. This one was in colour and had a half-naked woman on the front cover. I recognised it from one of the top row collection Dougie had in the newsagent shop. “What dae you think of this?”

As I stared at it, he put it down on the table next to a vanity mirror and brush set – the same as my grandmother’s – then he reached round and grabbed me by the back of the neck. “Have you seen one of these before?” he asked, as he reached inside his dressing gown with his right hand and pulled out his semi-erect penis and started to stroke it.

I was transfixed with fear and couldn’t move – for a second or two – then I lurched back and broke his grip before turning and fleeing down the stairs and out the front door. When I was halfway down the garden path he shouted after me, “Tell anyone and I’ll fucking kill you.”

I was a long way down the road when I bumped into a friend of mine, also collecting paper money and I told him what had happened. “What are you gonna do?” he asked. “You going to tell your dad?”

“No way” I replied.

I had forgotten about this incident. Completely. If ever the topic of paedophillia came up, I would have an opinion, of course, just the same as anyone, but I would always qualify it be stating that I was very fortunate and hadn’t experienced anything remotely like it in my life. Like most, I find the practice abhorrent. Like most, in an abstract, detached way. Or so I thought.

One Friday evening in late may during 1998 I was visiting my parents after returning from London for the weekend. I parked my car outside their house at the foot of Boyd Place and started to gather my things. As I opened the door and looked up, an old man was walking towards me on the pavement and as he passed he looked down at me and our eyes met. In that instant a scene started playing in my head, just like a film – and immediately I was back in his bedroom twenty five years earlier. Again I was transfixed and couldn’t move but this time with shock rather than fear. As he walked past me he turned and glanced back and I sensed the look of recognition in his face.

I cannot clearly recall the next few moments but I remember my mother standing at the window looking out with a smile and waving and then I was walking down the road towards him. I pulled up a few paces behind, keeping up easily as he tried to increase his pace. I didn’t say anything for a minute or two – I was still engrossed at what I was seeing in my mind’s eye. Everything had such incredible clarity – as if it was occurring concurrently with the present time. Out of one eye I was watching an old man walking down a pavement and in the other he was standing over me, masturbating. It was the eyes that made the connection.

“You’re Jimmy King” I said. More of a statement than a question. “Do you know who I am?” I asked. “Of course you do.” I answered for him. “I’m your paper-boy – remember me?”

For the next five minutes until we reached his front door I kept at him, asking about what had happened that Friday in November; what he was doing. What he was thinking. He said nothing. Just kept on walking with a studied determination. By the time we reached his house in MacGregor Avenue he was exhausted and shaking like a leaf. “You just fucking keep away frae me.” He said as he reached his door. I had paused as I reached the gate, unwilling to cross the threshold into his garden; his space, again. I looked at him as he walked through the familiar red door and as he turned, I said to him, “If I find out you’ve did that to anyone else, I’ll be back.”

I couldn’t think of anything else to say. It was a bit pathetic, but it was the only thing I could pluck out of the thousands of other thoughts that were racing through my mind at that second. I did raise my voice a little though, which helped. As I walked away I could see another figure walking across the living room to the door. Someone else.

The remembrance of the incident shook me up for quite a few weeks. Let me be clear. The magnitude of the ‘abuse’ was nothing compared to what we know now after the likes of Savile and the explosion of serious sexual abuse cases that have flooded the media in recent times. I wasn’t hurt physically, merely witnessed at close quarters, the infallibility and weakness of the human spirit. A sordid act, for sure, but nothing physically harmful in the strictest sense. What troubled me most was that I had completely erased the memory in the intervening years and it had only returned – with incredible clarity – when visually triggered by a casual encounter with the protagonist. What else may I have hidden away?

Experiences like this are not that uncommon. Spontaneous recall or memory reinstatement often occurs from a trigger stimulation – smell, sound, sight of an entity closely associated with the original memory. With me, it was the look in his eyes.

After a few weeks I reconciled my thoughts a little and was reasonably content there were no other monsters hiding in the cupboards of my deep memory and soon I had largely relegated the experience to an occasional consideration and by and by, other things took over.

Two years later I was in Fife again, this time during May at a Sunday league football match in Cupar watching my two sons play in the last match of the season. It was pouring with rain as both teams chased a sodden ball en masse up and down the pitch to howls of encouragement from the watching parents. Sometime during the game, a woman came across to me and asked how I was. “Not seen you in years” she said and she started to tell me about her son who was playing in the same match. After a minute or two I interrupted her and confessed that I didn’t know who she was, giving the usual excuses of rapidly advancing senility and incompetence. She had been at the same primary school she explained – in the same class – and once she told me her name I could remember her fine. But not quite the same way as I had with the old man.

We were chatting for a good while when we got round to asking about our parents. “I don’t see mine anymore” she said, as a matter of fact. “Haven’t seen them since before I got married about nine years ago.”

“Why not?” I asked, always curious to hear the unusual.

“Well when I was about eight, my mum and dad got a job at Andrew Antennas but on different shifts. Sometime though they would get swapped over and I used to have to stay with my aunt and uncle if they were working nightshift together. When that happened I used to get raped by my uncle and that kept happening until I was about sixteen. When I was going to get married, I told my mum and dad what had happened because they were going to get invited to the wedding. I didnae want them there. But my mum and dad didnae believe me. Didnae want to believe me. So me and Brian did the wedding ourselves and nobody from my family came and I haven’t spoken them since.”

I was at a loss for words but managed to ask what happened to her uncle.
“Nothing” she said, “he’s still in Lochgelly.”

“You’re kidding” I replied. “Where about?”

“MacGregor Avenue….”

Long after the game had finished and the kids were sitting in the car I finished telling her about my encounter with her uncle all those years ago – and more recently. “What are you going to do?” she asked. I just shook my head in reply.
I didn’t return to London after the weekend, instead I stayed on in the Holiday Inn in Leslie for an extra night and sat up most of the night just thinking about what I had learned.

The following morning dawned cloudless and still – a beautiful day in prospect as I looked out over the ‘Cut’ – that long straight section of the River Leven that runs from the loch towards Auchmuir Bridge, on the road between Leslie and Lochgelly. I parked my car on the south side of Loch Leven and walked up Benarty from Vane Farm – the RSPB reserve – up the long incline to the top and as I reached the summit and Lochgelly came into view, I decided then what I was going to do.

An hour later I walked through the ‘close’ – the alleyway or gunnel, between the house with the red door and its neighbour on MacGregor Avenue. It was just after ten o’clock in the morning and most of the residents were in their back gardens making the most of the pleasant weather. On one side, a woman was hanging her washing whilst her husband was preparing the lawnmower. In the garden that concerned me stood Jimmy King, trimming some plants with secateurs in his hand. His wife was by the garden shed and it was she that saw me first. There was a cast iron and wooden garden seat at the back door and I sat down and waved her across.

“Can I help you?” she asked. “Yes, I think you can.” I replied and patted the seat beside me. She sat down and I introduced myself to her. “Do you remember me?” I asked. “I used to be your paper-boy many years ago. I lived just up in Stewart Crescent. Do you remember? My dad was the chiropodist.” I added as an afterthought. There was a vague look of recognition, but perhaps this was only out of politeness. She said nothing. I went only speaking quite slowly and slightly louder, “I was just wondering, Mrs. King, if you knew your husband was a paedophile and child abuser.” It was not the kind of question that would elicit a conversational response, but I did expect something back from her, but instead she just looked at me with a dread, a fear in her eyes that said everything. She knew. I told her what happened. Then I told her about her niece..

By now the neighbours had stopped and were listening and looked just as shell-shocked as the woman next to me. Jimmy came down towards us, brandishing the secateurs and shouting at me to get out. I waited until he was at arms length then with a calmness I didn’t know I possessed, I took the instrument from him quickly and grabbed him by the throat with my left hand all in one movement then lifted him off the ground.

He was an old man by then, probably late seventies but still quite stocky and muscular. He had worked on the railways and the golf had kept him in reasonable condition, but that morning, with my weaker arm, I managed to lift him clear of the ground then walked him down to the close on an outstretched arm, without even thinking about it. Once I got him there I held him up against the wall and came up close to his face. I could see his eyes reddening and beginning to roll and I realized then I was suffocating him and I squeezed ever so slightly harder. “How does it feel, Jimmy?” I asked “How does it feel to be on the receiving end for a change?”

I held him for a few seconds more then released by grip slightly and lowered him to the ground. In these few seconds I thought about what I was doing and quite calmly and detachedly I debated what I should do. I didn’t have an answer. Instead, I said to him very quietly, “I’m going to tell you something Jimmy. You won’t know when or where, but I’m going to come back for you. Maybe when you’re coming out from the golf course one night, maybe when you’re getting your messages or digging your garden. And I’m not sure yet what I’m going to do to you, but I am going to think of something quite memorable. Every night when you go to bed, and every morning when you wake up. I want you to think about that first and last. You got it?”

I dropped him and he fell to the ground and there was some shouting and some threats as I left and got into my car. As long as he lived then I was reasonably confident the police wouldn’t be involved. Not if Jimmy had anything to do with it.

I was left with a sense of disgust by the whole episode – not just for this man’s behavior and the trauma he had inflicted on one of my classmates from many years ago – but strangely enough for my own. Not the threats or the unpleasantness at the house that day, but in the few seconds that I had held him by the throat against the wall I realized then in that instant that that I was using that horrific power – of overpowering someone who is much weaker – in the same way that he had done against me, only without the sexual element – and that appalled me as much as anything else.

I never returned again to MacGregor Avenue and Jimmy King died a few years ago. I don’t know how. I do hope he thought about me from time to time – and his niece too – but sometimes these people just don’t. They have no conscience or guilt – or if they do, they keep it locked away somewhere deep in their innermost recesses. Like we all sometimes do with unpleasant memories. Just kept in a locked room waiting for something or someone to open the door.

On Demolishing Walls

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Almost three decades have passed since the Lockerbie disaster and we are still a long way from discovering what actually happened that dark December night, never mind who was responsible for the atrocity in the first place. Time itself is proving the greatest handicap as many of the individuals involved in the case have since died and we have to resign ourselves that we may never know the true version of events and ensure justice is carried out for the victims and their families, which will be little consolation to the likes of Dr Jim Swire who has campaigned relentlessly for a new independent investigation, but to little avail. In an interview some years ago, Dr Swire descried the “wall of silence” in the government and media whenever he tried raising the issue – a practice that has become increasingly fashionable in the intervening years.

A week after my 40th birthday I was working in St Albans for the NHS when news began to break of a tragedy in America. Two commercial airplanes had crashed into the Twin Towers in New York and hundreds of people were trapped at the top of the skyscrapers above the impact sites. At lunchtime, we were told that all clinics had been cancelled for the rest of the day and I headed back home to Birmingham and listened to the developing situation on the car radio. Like most people throughout the world I suppose, I spent the next 24 hours after I arrived, glued to the television set, not quite believing what my eyes were telling me. It seemed absolutely impossible that two enormous buildings could collapse so comprehensively when it appeared that the fires that had engulfed the skyscrapers following the impact had largely burned out. Yet collapse they did – at what seemed an incredible rate.

It is worth remembering that in 2001, the Internet was in its infancy. There was no Facebook; no YouTube and no live news sites. Although media coverage was extensive for many months afterwards, most of the focus was on the personal tragedies and the political developments as the USA geared up for retaliation. We were left in little doubt who the perpetrators were – nineteen Arab fundamentalists instructed by Osama Bin Laden – whose guilt was unquestionable following the 9/11 Commission Report a few years later. The case was simple; four planes were hijacked in mid-air, two were flown into WTC 1&2 in New York, one into the Pentagon and the other into a field near Shanksville PA, after passengers overpowered the hijackers in a courageous fight to the death.

In Manhattan, fires from the kerosene aircraft fuel weakened the steel structure of the buildings and caused the top section of the towers to fall onto the building below, where it caused a gravity-driven collapse, pulverising the entire structure into pile of dust and twisted metal with the loss of over three thousand lives. The destruction of each building took less than twelve seconds and it was the manner in which the towers fell that transfixed this individual, perhaps to the point where I failed to register anything else that day. Like the destruction of another New York skyscraper later that afternoon. At 5.20pm EDT, World Trade Center 7 also collapsed from fires caused by falling debris after the towers fell.

It seemed irrelevant at the time. No one was killed as the building had been cleared hours before. It just fitted into the pattern that day – damage from the airplane crashes caused fires, which weakened the building structures causing them to collapse. It was the only explanation offered at the time – and one that was subsequently confirmed by the 9/11 Commission Report and the NIST (National Institute for Standards and Technology) investigations some years later. It is a position that has been steadfastly adopted by every US administration and its allies ever since.

September 11th 2001 became the pretext for a “war on terror” that is still being exercised today – sixteen years later. The official explanation of what actually happened that fateful day does not, however, bear close scrutiny.

Modern hi-rise buildings don’t collapse from fires thankfully. That is not to say they are ‘safe’ places to be in an emergency – as Grenfell so tragically illustrated recently. But it is worth noting that the London building did not collapse, even after an intensive fire that raged for over 16 hours. Neither did the Torch skyscraper in Dubai, which caught fire for the second time just last week. Of course, neither building sustained an airplane crash – but then again neither did WTC 7.

NIST is the US government agency responsible for investigations following major structural failures in buildings and up until the 9/11 atrocity, enjoyed an exemplary reputation for diligence and accuracy. However its conclusions into the failures of the three Manhattan skyscrapers are incomprehensible.

On the twin towers, NIST claims that a weakening of the connecting floor trusses from the kerosene fires resulted in the top sections of both buildings becoming unstable causing them to crash down onto the top of the structure below. This gravity-driven collapse then pulverised the remaining buildings into a pile of dust to the point where only a few sections of the outer walls at concourse level remained standing – at most a couple of hundred feet.

Whilst this seemed plausible on first reading, the explanation for WTC 7 did not. NIST claimed that fires from office furniture had substantially weakened just one support column (of 58) and when this failed at 5.20pm, the entire building then collapsed. However, at a press conference following publication of their report, NIST admitted that they really weren’t quite sure how WTC 7 had collapsed in the way it did, but they were sticking to their story regardless.

In time, when the details of the Pentagon and Shankville incidents were released, even more doubts surfaced about the official explanation. We are asked to accept that both aircraft mostly vaporised after crashing with only a few fragments of fuselage recoverable from both sites. No passengers were identified at either site – not even through DNA analysis – as they too vaporised on impact.

If we are to believe the official position that a passenger aircraft can fly at 560mph a few feet above the ground whilst approaching one of the most secure buildings in the world, knock down five lamp-posts with its wings en route and can still manage to crash a neat twenty foot hole through reinforced walls, then I guess it’s fairly safe to assume than none of the passengers would survive the collision. But parts of them would – enough to conduct DNA analysis for identification – only in this instance, it appears not.

The same with Shankville, where Flight 93, immortalised by Holywood, crashed into a field before reaching its intended target. Here too, the aircraft and passengers were vaporised, leaving only a smoking crater and a handful of fuselage fragments for investigators to look at and scratch their heads.

Why is this impossible?

In every other aircraft tragedy, crash investigators and recue personnel have always managed to recover substantial parts of the aircraft – and passengers. Following Lockerie, much of Pan Am 103 was recovered over a huge radius in the Scottish Borders and painstakingly reconstructed for forensic examination in an aircraft hanger in England. Part of a timer circuit in the bomb that exploded that evening was recovered on a hillside many miles from Lockerbie and became of critical in the subsequent criminal trial in Camp Zeist as the manufacturer’s name and serial number were still readable. All of the passengers on the flight were recovered, some of the bodies remarkably unmarked, despite the rapid descent in an aircraft blown up at 34,000’ whilst travelling at over 500mph. The black box was intact. Nothing vaporised.

Even Malaysian Airlines MH17, which was destroyed by Bulk surface to air missile whist flying at 33,000’ over east Ukraine in July 2014 gave up its ghosts five months later, when Dutch forensic investigators announced on 5 December they had identified 294 out of the 298 passengers and crew that were on board after a major recovery operation in an extremely hostile environment. Much of the aircraft was recovered too. Little, if anything was vaporised.

Of course, there has been no explanation as to why the 9/11 airplanes and passengers simply vaporised leaving no trace behind. There can’t be as it would be even more ridiculously implausible that the reasons offered by NIST for the WTC 1,2&7 building collapse in New York.

As tragic as all those events were on 9/11, New York remains paramount in emotive recollection – not least because of the violent deaths of over three thousand innocent victims – and it is here where demands for Pandora’s Box to be finally prised open will become irresistible. Only now, a decade and half later, are all the long-term health implications for Manhattan citizens being fully understood and realised. Many of the conditions were triggered by the inhalation of the toxic dust cloud that enveloped lower east side following the collapse of the towers. What was in the dust that proved so debilitating and fatal to those that were exposed? Could it offer any clues why the buildings collapsed in the manner they did?

If Isaac Newton had been around today, then this mystery could have been solved at the outset. All he would have done was to direct our attention to his Third Law and say “go figure”!

Of course, I have no experience of building construction and regulation and can claim no authority in that field. I’m just a simple podiatrist, but the same Newtonian principles apply in my area of expertise and I would be grateful if you can permit me an analogy.

Imagine one of the athletes competing in the long-jump in London this weekend took his final attempt, but on landing, screamed in agony and was rushed off to hospital. On admission his legs are x-rayed and the films show multiple compound fractures of all lower extremity bones – femur, tibia, fibula and all foot bones and joints completely destroyed into small fragments.

If the radiologist’s report came back diagnosing “multiple compound fractures resulting from abnormal impact stress”, then it’s a fair assumption said radiologist would be facing a Fitness to Practice hearing by my old friends at the HCPC in the near future, not that it would solve much – but that diagnosis is simply not possible, unless there was some other pathology present like osteogenisis imperfecta (brittle bone disease) or extensive bone cancer. We can calculate the forces present in our bones and we can determine how much stress can be applied to these structures before a fracture occurs – but common-sense dictates that a healthy athlete doesn’t sustain that kind of injury doing something he has does on a regular basis unless his bones were badly diseased. Newton’s Third Law is again the applicable principle; for every action, there is an equal and opposite reaction.

Just as in the example of the athlete, it is perfectly possible to calculate the forces present in the WTC building collapse when the top section of the towers fell onto the structure below and from this, an accurate model of damage could be ascertained. But simply applying the principles of Newton’s Third Law renders such calculations unnecessary.

Much argument is focussed on whether kerosene fires could actually weaken steel support columns or floor trusses to the point where they failed completely – but let’s assume for a minute that they suffered the same fate as the aircraft and passengers and simply vaporised. Ten floors of both towers vanished instantly into thin air and the top sections plummeted down 120’ on top of the building below. Applying Newtonian physics to this scenario, one would reasonably expect a fair bit of destruction to occur to the top sections and the buildings below, crushing several floors equally in the impact. But the energy expanded in crushing these floors reduces the force in the falling block decelerating its descent until the resistance from the lower section halts its progress completely. Unless the top section of the building had a mass many times greater than the lower section, the very most that could have been destroyed in the collapse is half of the top section and a corresponding number of floors in the intact building below.

For the WTC buidings to collapse within a second of freefall speed, all three must have been compromised from the basement up. That means they were subjected to controlled demolitions – which doesn’t really square with anything our governments have told us. It doesn’t suit the narrative. But whatever was used to demolish those buildings it is likely that it has contributed to the toxicity of the dust breathed by all those who were present that day and now struggling with the consequences.

I don’t normally recommend YouTube for research, but this short video is worth a watch. Peter Ketcham was a senior NIST investigator and scientist until last August 2016, when he finally concluded his organisation was covering up a major crime and decided to speak out. He is just one of many courageous individuals who have decided the wall of silence must finally be broken.

Not before time.

What does it take?


” It wasn’t just Kensington and Chelsea’s culpability for the way the tower was reclad in flammable material, or the repeated warnings from residents that were either ignored, or astonishingly, greeted by threats of legal action.”

                                                         Jonathan Freedland – Guardian 16.6.17

“It seems that one of the things about what happened in this disaster is that the warnings and concerns that had been voiced weren’t being listened to by those who held power and I think that if anything is going to come out of this is that we must listen to those people who don’t always get heard by people in positions of authority  and  this is a terrible and horrendous wake up call – but it’s got to be a wake up call so that never again can the voiceless be ignored by those who are power – and let us hope that some lessons are learnt and that procedures put in place so that never again do we have to sit here and say: “What more does it take for those people to be listened to?”

                                                         Rachel Reeves MP. – Any Questions BBC Radio 4 

The same question is directed to the following:

# Marc Seale. # Jeremy Hunt. # Sarah Wollaston MP. # Elaine Buckley. # Alan Shillabeer. # Jonathon Jones. # Tan Ikram. #Jacqueline Beech. # Professional Standards Authority. # Health & Care Professions Council. # Nursing & Midwidery Council. # Bar Standards Council. # Liz Truss MP. # Sir Oliver Heald MP. # Lydia Barnfather. # Theresa May MP. # Richard Langley. # Society of Chiropodists & Podiatrists.

Mea Culpa.

Other bits and pieces..

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So there is other stuff going on in the world other than sore feet…although when you have the latter the former becomes insignificant, or so I’m told. But then, my feet are perfect!

I have a few other pastimes and once again I’ve been extremely fortunate to cross paths with some remarkable characters in all spheres, particularly where music is involved. The most recent ‘bright spark’ is a wee Mancunian who professes skills in writing, badminton and paying the guitar – and although he has a bit to learn in all three disciplines, there is already signs of promise and I’m sure you will be hearing and reading a great deal more of him in the years to come. Please pay him a lot of attention.

A few days after I wrote Mother Theresa I sang it to Steve outside his house when he was recovering from a desperate stag weekend in the Lakes. It was the Bank Holiday Monday and a few hours later the events in Manchester made it all seem irrelevant. Sometimes these things provoke a reaction that we all can ascribe to. If you’re a musician – and have a Mojo that’s in tune – you become a conduit. That’s why you should listen to him.

So, here’s a couple of videos of Manchester – please share them wide and far. Of course, just as in everything else – and as Isaac Newton observed in his third law, there is always an equal and opposite reaction – and the counter is below… Not that it is equal in any way… just a grumpy old man’s take on the same thing!

Manchester – Live @ Garstang Unplugged

Manchester – Steve Canavan – a tribute.

Believe

Cheerio!

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With a huge amount of sadness, I have to notify all the fantastic patients who have found their way to my door over the last decade, that I am unable to look after you any longer as I will be leaving St Annes in the next coupe of days.

It has always been a great pleasure and privilege to meet so many incredible people during my day job, but these last ten years in St Annes have been especially memorable and I count myself extremely fortunate to have spent time with you all and I would like to thank you for all your kindness, generosity and support you have shown me, particularly during the last few years. I can’t express in words how much that has meant – but I’m sure you’ll know.

I was also very lucky to have another colleague in Ansdell, John Dudman, who will also be known to many of my patients – as I took over John’s caseload some years ago when he retired. I now have to pass you on again – and once more I am extremely fortunate to have some lovely colleagues in the area who are brilliant foot-fetlers (as they call chiropodists and podiatrists in Lancashire), who will be able to look after you just as well – if not a lot better than I ever was! Click on the name below..

And what’s more they are both registered too – not that it really means much as you will have gathered by now.

Thank you so much – I will miss you all.

Sonia Morgan Podiatry

Ansdell Foot Clinic

I’m taking a wee break for a while and will update the blog in the next few days when I have some more time.

Mother Theresa

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Well, after nine years of trying to do the ‘right thing’ through the ‘usual channels’ and bring a small, but important matter to the attention of the relevant authorities – including our politicians – and been roundly shat upon ever since, I figured it’s finally time for Quid Pro Quo. Unfortunately the three monkeys of the judiciary, parliament and civil service still have their hands covering ears, eyes and mouth, so this time it will have to be the organ grinder herself.

Do join in…

Mother Theresa

Sitting here looking out the window
Wondering what to do
I’m sick and tired hearing all your lies
After all that I’ve been through
You say you care and don’t despair
‘bout what you’ve gone and done
Don’t you realise that I despise
All that you’ve become

Hey Mother Theresa
What you trying to do
You say you have the answers
But you know that it ain’t true
You turned your back on all your friends
Relinquished all their love
For a vanity excursion
Of Eton’s Old Boy’s Club

Being true and strong don’t get me wrong
Is never circumspect
A steady hand will sure command
Loyalty and respect
But when you say the only way
Is to bow to your demands
It’s a grave mistake when you forsake
This green and pleasant land

Hey Mother Theresa
Frack it night and day
Lining pockets of the bankers
Is the price you have to pay
For a tenancy in Number Ten
For the power for the fame
Never mind our children’s future
To you it’s just a game

If led by fools then chaos rules
Is the mantra of the day
Look behind and you will find
Clowns are already there
Political perversions
And dirty shady deals
Britannia’s aristocracy
Consumed by lust and zeal
Continue reading

Normal? If only.

Seale 3

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Word of the week, if not the year, most definitely belongs to “normally” – that innocent little adverb, which has taken on a new significance in the last few days. We all know what it means – at least we think we do – and we probably use or hear it at least a dozen times each day. For me, it formed the basis of a common complaint from patients over the years – “I’m not walking normally”- and often led to an interesting conversation about what ‘normal’ actually means in that context. The online dictionary definition states: “commonly, as a rule, ordinarily, for the most part, generally, more often than not – all fairly straightforward and understandable, but give the word to the curious breed of civil servants whose role is to write up the impenetrable tomes of Parliamentary legislation, it’s meaning and significance take on a much different complexion indeed.

These legalistic wordsmiths are masters of their trade. Their brief is to write up Bills, Orders, Acts and other statutory instruments once they have passed through the various debates and stages in the Commons and Lords and are then enacted “into Law”. These lengthy documents are then published and are supposed to reflect fairly accurately what was agreed and voted on in both places – and at first glance, even to expert lawyers, they often do. But sometimes, hidden away in a minor sub-paragraph is an innocent little word like “normally” and it passes right on by without a second glance because we think we know what it means and most of the time, no one is any the wiser. Then something unforeseen and quite unexpected happens and we discover just how mistaken we really were.

Those with an interest in these things may have heard an enlightening discussion about what “normally” really means during the Supreme Court hearing on Article 50 last week. Never one to miss an opportunity, James Wolffe QC for the Scottish Government, invited the Justices to consider what is known as the “Sewel Convention” – the political agreement promised to Scotland in the wake of their independence referendum two years ago and incorporated into the Scotland Act 2016. Wolffe argued that under the devolved powers granted to Scotland the previous year, its wishes must be respected by the UK government in relation to Article 50. It was a cunning submission.

The following morning, the government lawyer, Lord Keen, dismissed the argument by revealing what the wording of the legislation in respect of the Sewel Convention actually meant. In Section 2 of last year’s Scotland Act, there is a
little note, which seems straightforward enough at first;

The Sewel Convention
In section 28 of the Scotland Act 1998 (Acts of the Scottish Parliament) at the end add—
“(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

What Keen argued was that the use of “normally” in this legislative context implied was that there were circumstances whereby the UK Parliament could legislate with regard to devolved matters without the consent of the Scottish Parliament. According to the British government, the Sewel Convention might be enshrined in law, but with the inclusion of this weasel word, it becomes, to quote Keen “a self-denying ordinance” and can be ignored whenever Westminster sees fit.

This little revelation to a side-argument in a complex and often boring legal case has gone largely unreported, but it is important as it illustrates just how intellectually dishonest our government institutions with their political masters and civil servants have actually become. According to the government, the Scotland Act delivered on the promises made after Scotland rejected independence and enshrined into law the sovereignty of its Parliament in Edinburgh. But with that one little word, it’s not true. The politicians have lied. Cue shock, horror and outrage? Not quite. None of the mainstream media outlets with the exception of the Financial Times reported on the discrepancy.

“Curiously the government reply came in two parts. The QC who started speaking was not their main barrister, James Eadie QC, but the Scottish government minister and advocate-general Lord Keen QC. He wanted to respond to various devolution arguments. The impression was that it was devolution that had rattled the government most, not general arguments about the prerogative or parliament.

If devolution was a problem then the government can only blame itself. The submissions in respect of Scotland, Wales and Northern Ireland were considered by the Supreme Court only because the government chose to appeal against the high court decision. The worst result for the government would be a decision that adversely affected the royal prerogative generally and limited the power of both government and parliament in respect of the devolved administrations. That would be a severe and partly self-inflicted constitutional wound for the government.

To meet the devolution arguments, Lord Keen put forward the view that the devolution legislation — including the “Sewel convention” — did not stop Westminster and Whitehall from doing as they wished. The rule was merely a self-denying ordinance. That may be a good argument to meet the problem in court but it will not go down well in the devolved administrations.”

Or anywhere else. Lies never do. When they are laid bare.

Readers of this website will be familiar to the use of weasel words in legislation, in particular that of the Health Professions Order 2001, which carries its own brand of deception and misrepresentation. In this case, the offending word is “if” – an even more innocuous term than “normally”, but equally as devious. In grammar, it is known as a conjunction – a part of speech that connects words, phrases or clauses and is literally understood to mean “as well as” or “provided that”.

The word is hidden away in the part of the legislation that deals with the use of professional titles, such as chiropodist or physiotherapist and is included in a sentence that prefaces the circumstances where a breach in the legislation can occur. Section 39.1 of the Order starts:

a person commits an offence if with intent to deceive (whether expressly or by implication) –

Since 2003, the Health and Care Professions Council have claimed that the use of a title is restricted to those health professionals who hold current registration and that anyone using a title without registration was committing a criminal offence and liable to a fine not exceeding £5,000.

Unfortunately, just as we have seen with the disclosures over the Scotland Act last week – it isn’t true. The use of the term “if” makes the offence conditional on what follows – an intent to deceive. If someone who isn’t registered uses a title without a clear intent to deceive, then there is no offence. The legislation further provides the circumstances where an offence can occur, providing there is also an accompanying deception. The remainder of the section reads:

a) he falsely represents himself to be registered in the register, or a particular part of it or to be the subject of any entry in the register;
(b) he uses a title referred to in article 6(2) to which he is not entitled;
(c) he falsely represents himself to possess qualifications in a relevant profession.

As so often, it is what the legislation does not say that is important in this context. Given the circumstances outlined above and the qualifying criteria of the intent to deceive, it is perfectly lawful for someone holding a qualification in podiatry or physiotherapy – to take the examples cited – to use a title without registration with the HCPC provided they did so without deceiving the public in the process. Without claiming or giving the impression they were registered when they weren’t.

Well, so what? As we have seen, parliamentary and constitutional legislation is almost always flawed when first enacted and more often than not, requires constant revision. Sometimes events highlight hitherto unforeseen difficulties and urgent amendments are made to protect from any injustice that may result from loopholes or misinterpretation. But this does not apply with the revelations concerning the HCPC that have been highlighted during the court proceedings covered by this blog.

The role of medical regulators like the HCPC is to provide the public with an element of safeguarding against individuals that are unfit to practice in their designated specialism. They function within the legislation handed down by Parliament. Sometimes, the legislation is deficient.

Nine years ago, I raised a concern about a particular aspect of legislation that prejudiced the safety of those I look after during my nine to five routine. It’s one of the few things in life that I take seriously. Who would’ve thought? What followed has certainly been an enlightenment of sorts and if nothing else, has served to explain just how a screwed-up and corrupt ideology has become entrenched in our government and institutions in recent times.

If you excuse the repetition, normally, one would expect an apology and a period of self-reflection from those guilty of deception. Normally, one would expect some honesty. Normally, you would expect the truth. But we don’t live in normal times. We live in what’s become known as the post-truth society where liars seek to convince you that what you see with your own eyes is simply an illusion; that their version of events is the only thing that matters. Even when it is not true.

Below is the final piece of correspondence that I received last week and aptly it is from the civil servant at the centre of this debacle – the very individual that I first raised my concerns to nine years ago this month. I never received a response to my concerns and as you can see he still hasn’t got much to say. But he does purport to answer for the Chair of the organisation, Elaine Buckley, who is clearly having difficulty with the “yes” or “no” answer to my question – whether she was aware of the significance of the weasel words in this legislation. But of course she can’t answer without incriminating either herself or her boss, so mum’s the word and no doubt she hopes that no-one will be any the wiser. Because, given the circumstances, that’s really materially dishonest.

Seale 3

Like every other registrant health professional of the HCPC, Elaine will have realised that her Registrar’s public statements on this matter are incongruous and untruthful. It is claimed that the HCPC has never sought to conceal the relevance of this critical passage in the legislation, but it cannot substantiate that claim by providing any evidence of disclosure, for indeed there has been none.

In the wake of Shipman and Alder Hey, the government promised better protection of the public through a comprehensive reform of health regulation yet two decades on, there is a growing litany of serious failings in our health and social care system whose responsibility lies squarely at the doors of regulators like the HCPC, NMC and CQC. And in every case, concerns were raised and ignored. Sound familiar?

This website is reaching the conclusion of its objective – to inform all you good folk, whether it be friends, patients, colleagues – or any other interested party – about this rather curious and convoluted legal journey of an old and very tired chiropodist – and a health regulator with a very clear intent to deceive.

It’s time to finish the story.

Thank you for all your patience and good wishes in recent weeks. I shall update you over Christmas with a release date for “An Intent to Deceive”.

Best wishes for the festive period and 2017.

An Authoritarian Ignorance

Here’s a post that needs little comment. In August, I wrote to the Chair of the HCPC, Elaine Buckley. At the same time, Mark Menzies MP wrote to her Chief Executive and asked much the same as I did. Here is the correspondence. Those of you familiar with this increasing bizarre tale will no doubt form your own opinion….

Buckley

HCPC Seale

Buckley-2

Buckley reply

Buckley-3

Buckly reply 2

Buckley-4

Parliamentary Replies

A FOI request in August revealed that the costs to the registrants in pursuing this prosecution was over £210,000. I was prosecuted because I called myself a “podiatrist” without being registered with the HCPC. I’m still a podiatrist and I’m still not registered with the HCPC – but now I know that it’s perfectly lawful for me to say so simply by stating the last five words. So I can stop telling you that I’m committing an offence, even though I’ve been convicted of one for doing exactly the same thing. Isn’t British Justice fantastic! Should I expect another prosecution? Methinks not..

Mrs Buckley is about to embark on a UK-wide tour extolling the virtues of the new standards her organisation expects from registrants. Honesty, probity, candour, prepared to admit mistakes. You couldn’t make it up. Really.

Those who hold others to account, must themselves be accountable.

Keith Vaz Sept 2016

buckfast
Elaine Buckley

An Absence of Candour

hear_no_evil__see_no_evil__speak_no_evil_by_design_by_humans-d5mfsvg
Eight years ago in August, I cancelled a direct debit mandate for an annual payment of £72 to an organisation in the UK and set in motion a sequence of events that culminated in two criminal prosecutions that revealed the extraordinary lengths our politicians and public institutions will go to conceal their own significant and serious failings, whilst punishing with impunity, those who try to raise concerns about public safety.

Following the report by Sir Robert Francis into the Mid Staffs Scandal, the Government undertook to strengthen the protection offered to whistleblowers after the disclosure of the bullying and intimidation by the Trust against a number of senior medics, including Dr David Drew, who was dismissed by Walsall Manor Hospital after raising concerns about poor standards of care, then lost an employment tribunal for unfair dismissal. Sir Robert was scathing in his criticism of the Trust’s conduct and made twenty individual recommendations to protect NHS employees when they report incidents or circumstances, which puts the public at risk or harm. These recommendations were accepted by Jeremy Hunt, the Health Secretary and in his response to Parliament on 11 February 2015, he said;

“Sir Robert confirmed the need for further change in his report today. He said he heard again and again of horrific stories of people’s lives being destroyed because they tried to do the right thing for patients: people losing their jobs; being financially ruined; brought to the brink of suicide; and family lives being shattered. Eminent and respected clinicians had their reputations maligned. There are stories of fear, bullying, ostracisation, marginalisation as well as psychological and physical harm. There are reports of a culture of “delay, defend and deny” with “prolonged rants” directed at people branded “snitches, troublemakers and backstabbers” and then blacklisted from future employment in the NHS as the system closed ranks.”

Two weeks earlier, in a bleak magistrates court in West London I was experiencing all of that plus bells and whistles – and more, much more was to follow.

There are some subtle differences. First, I’m not an eminent medic but a chiropodist – or a podiatrist, if you prefer. A lowly foot soldier in a relatively minor but remarkably rewarding profession and one that is vital to so many of us as we build up the miles and the years. Second, I don’t work in the NHS, but in private practice and have done so for the last decade. I’m self-employed, or rather I was until two years ago. And third, the organisation that was – and still is – responsible for putting the public at risk from harm is not an NHS Trust but one of the very institutions whose principal statutory responsibility is safeguarding – the Health and Care Professions Council (HCPC), the second largest health regulator in the UK, which was established by the Blair Government in 2003 as part of a raft of reforms to healthcare regulation in the wake of Shipman, Alder Hey and Bristol.

Up until then, I had been a state-registered podiatrist after qualifying from Edinburgh in 1983. I’ve practised throughout the UK in the NHS and in private practice and count myself extremely fortunate in my choice of vocation – as much for the individual patients who have enhanced my life enormously on a personal level as for the complex and challenging conditions we routinely encounter on a day-to-day basis, that very much keeps the professional interest alive. Even after three decades.

I see patients from all age groups; children with their verruca and ingrown toenails, professional footballers and athletes, high-risk diabetics and ladies with improbable shoes. Many of my patients are elderly, frail and extremely vulnerable, especially when confusion and isolation are attendant companions -and are often susceptible to risk and harm in our world today. Whenever possible, and especially with their health and social care, we must try to prevent that risk and harm from occurring in the first place.

In 2003, I was elected as a member of Council for my professional body, the Society of Chiropodists and Podiatrists – which is our equivalent of the BMA – and for two years I would travel down to London for a day at a time to sit through some mind-numbingly and tedious committee meeting before taking away a vast bundle of papers to try and make sense of in my spare time. That adventure lasted twenty-three months longer than it should have, but one of the matters I had responsibility for – in a limited capacity – was the regulatory regime that was being introduced by the newly formed Health Professions Council (they added “Care” when the regulator adopted responsibility for Social Workers in England and Wales in 2012).

I had little or no experience of regulation or professional organisations until then. Coming from a purely clinical background, I’ve avoided management and committees whenever possible, but after two decades in the profession, I thought I should try and give something back – although what and whether it might be of any value, I had no idea. In hindsight, it might not have been the wisest decision in my life.

One of the ways a health regulator “protects the public” is by maintaining a register of professionals that subscribe to strict standards of care, competence and conduct. When a complaint or concern is raised against a registrant professional, the regulator will investigate and hold a fitness to practice hearing if they consider the individual has a case to answer. If proven allegations against the registrant are of sufficient gravity that they place the public at risk, then the regulator may strike that individual off the register. The HCPC claim:

“Our fitness to practise process is designed to protect the public from those who are not fit to practise. If a registrant’s fitness to practise is ‘impaired’, it means that there are concerns about their ability to practise safely and effectively. This may mean that they should not practice at all or that they should be limited in what they are allowed to do. We will take appropriate action to make this happen.”

What happens is this.

When someone is removed from the register, they cannot use the title of that profession anymore. In the NHS where employment is conditional on a valid registration, an individual who has been struck-off will lose their job and in that respect, the patients in the NHS Trust where that individual worked will be less exposed to harm. In theory, at least.

The problem arises, not in the NHS, but in the rapidly expanding private sector, where clinicians, like myself are often self-employed or work for companies where valid registration with the statutory regulator is not a condition of employment. In these circumstances, someone who has been struck-off following a fitness to practice hearing can perfectly legally practice in the private sector by simply using a different unregulated title. In other words, the HCPC’s claim that they can prevent a dangerous registrant from practising, is untrue.

In the world of feet, chiropodist and podiatrist are titles regulated and protected by the HCPC – but there are a variety of others such as Foot Health Professional, Gait Specialist and Podologist that are commonly used by those who practice outside regulation, without registration. To the casual observer, this may appear quite strange, but for professions with an established private sector presence, it has always been thus.

One of the unforeseen consequences of health regulation in the UK is a two-tier system of care in many health professions. In the regulated sector there is an expectation that your care will be provided by someone of good character, with the requisite training and qualifications and who adheres to all the relevant standards of proficiency and conduct at all times.

But in the unregulated sector, there are no such safeguards or scrutiny and although you may receive satisfactory treatment and good care, you might also find yourself being treated by someone with no qualifications or training whatsoever. Or indeed someone that has been struck-off the statutory register.

One of the features of the HCPC – and indeed all the health regulators today – is their online presence, which includes their Fitness to Practice Hearings. For the first time, the public has access to not only allegations and complaints against registrants, but all the evidence and subsequent outcomes. It can make for an illuminating if occasionally disturbing read.

Towards the end of my two-year stint with the Society, I became aware of two pending FtP cases involving colleagues that alleged sexually motivated conduct of the utmost gravity. Both cases were subsequently proved and the individuals were struck-off, but some time later I was contacted by an officer from the Serious Sexual Crime Unit in Manchester who informed me that the individual concerned was still in practice and had been since the police reported the matter to the HCPC during their investigation.

The regulator carried out its statutory duty, investigated the complaint and held a hearing, which concluded the public was at serious risk and duly sanctioned a striking-off order, but as so often in these cases, the registrant was not present and did not contest the allegations, as they are not compelled to do. Usually, they are too busy working – under a different, but perfectly legal guise.

Over the next two years, however, it became apparent that this was a developing problem and not one restricted to just my own profession. The HCPC regulates sixteen health professions in total, many of whom, like podiatry, have a substantial private sector presence. In addition, the legislation that governs the HCPC is analogous with that of the Nursing and Midwifery Council – the largest health regulator in the UK – and after speaking to colleagues in the nursing profession, it was apparent that many in that profession who had been subject to FtP proceedings and struck-off, were still working in the private care sector in a healthcare/nursing role. In some cases with proven accusations of neglect and elderly abuse.

I first raised this concern with Gordon Brown, my constituency MP in Scotland during a meeting about NHS chiropody provision. He suggested that I raise this matter with the Chief Executive and Registrar of the HCPC and secure a response before he would consider it further.

A few months later, I attended what was described as a “Listening Event” – chaired by the Registrar, Mr Marc Seale, in Preston and during the Q&A session I voiced my concern about the risk posed by those registrants who had been struck-off but were still practising in the private sector using an unregulated title.

He replied that, as I “was well aware, the HPC was governed by the legislation handed down to it by Parliament.” There was no offer of a supplementary question.

The previous year in 2006, I had just started a private practice in a small complimentary health clinic in Lytham St Annes near Blackpool. It had been a busy year. I am a recognised provider and consultant with the Premier League Health Scheme and with Blackpool’s rising ambitions, there was a steady stream of players most weeks in addition to a rapidly expanding caseload from the area’s large retirement community. It was a couple of weeks before I found time to sit down and write the first letter to the Registrar which simply asked if he would be kind enough to answer the question I posed to him at the meeting. I didn’t receive an answer. I wrote again with the same outcome and eventually, in August 2008, I telephoned the HCPC and spoke to a case manager.

It was a friendly conversation and he appreciated my concerns and understood them perfectly, but he also reiterated that the organisation had to function under the constraints of the existing legislation and only Parliament could amend it. I asked if the Registrar would acknowledge my concerns, particularly the risk to the public in the private sector following a striking-off order, but was informed that was all that the Registrar had to say on the matter.

Without, I have to say, a great deal of consideration I wrote a short, final letter to the Registrar. That month, my annual registration fee was due to be collected by direct debit. It was my twenty-fifth year in practice as a registered podiatrist but with little hesitation, I telephoned my bank and cancelled the mandate then sat down and composed my letter. I advised the Registrar that I was withholding my fee until he replied to my correspondence. Furthermore, I would still practice calling myself a podiatrist. Two weeks later, I received my first “cease and desist” letter informing me that I was breaking the law if I used a “protected title” without registration and may be subject to a criminal prosecution with a fine of up to £5,000.

I’ve never broken the law before – although that is not to say I haven’t had a few interesting adventures – and whilst my personal life has been dramatically chaotic at times, I’ve always taken a great deal of pride and care in my professional life, not least because of the trust that is so vital in the relationship with our patients. But I really didn’t give it a great deal of thought at the time.

I had no idea why the Registrar would refuse to reply other than to say we must all do what we are told, but I’m afraid I don’t respect that kind of approach. I thought it a legitimate concern – after all, his organisation quantifies the risk in the first place. The only problem is that because of the legislation, the risk is simply moved elsewhere, out of sight, away from further scrutiny. Unless, of course, you are an unsuspecting member of the public.

If I hoped that being stubborn might provoke a change of heart, I was badly mistaken. Three months pass without any contact, then a second “cease and desist” letter appears in time for Christmas and I realised then that any expectation for a satisfactory conclusion was diminishing rapidly.

It still didn’t trouble me greatly. I couldn’t imagine any circumstance where a regulator that I had been affiliated to for twenty-five years would launch criminal proceedings against me for withholding a registration fee in protest for the aforesaid reasons.

It is worth remembering that these events took place fours years before the Francis Inquiry was published and although the culture of provocation and intimidation was well established and prevalent in the NHS and the Institutions by then, I had little personal experience of it. That would soon change dramatically.

I had discussed the situation with my colleagues at the clinic where I worked, including the owner, an osteopath and all the secretarial staff and they were in full agreement with my decision. Over the coming months the clinic changed my stationery and business cards and removed all references to the HCPC and I started incorporating the story of my criminal behavior into the daily dialogue with my patients. Those that had the capacity to understand what I was wittering-on about were always fully supportive and didn’t mind one bit if I was registered or not. As far as the public were concerned, it made no difference.

However, some patients have health insurance policies that reimburse some of the costs of private care from chiropodists and other health disciplines and most of these companies stipulate that care is provided from registered professionals. I knew this. It had been discussed and promoted by the Society’s Council when I had been a member and something I had supported enthusiastically, but now that I had ceased registration, some patients would be unable to claim any reimbursement for my fees.

I clearly had an obligation to ensure they were aware they couldn’t claim and established a register of all those affected. From a caseload approaching 2,000 patients, sixty-three individuals held policies that could no longer be used unless they changed practitioner. No one did.

Over the next two years there was intermittent contact with various case managers at the HCPC usually following receipt of another “cease and desist” letter. One email correspondence also concerned the presence of “HPC Registered” underneath a photograph of me on the clinic website that their IT consultant had omitted to remove, when first instructed. It had gone unnoticed for two years but had been seen by someone at the HCPC and I was asked to remove it – which was duly done by the clinic’s owner. Our conversations were, without exception, polite, professional and friendly, as I would have expected. Like most colleagues, I thought we were on the same side. In 2010, a case manager asked if I would re-register if he could secure a reply from the Chief Executive and I said that I would. A fortnight later, I received a letter from the same case manager thanking me for my concerns before adding that “the HCPC had to function within the constraints of the legislation handed down to it by Parliament…”

Needless to say, I didn’t re-register.

Three years later on the 4th April 2013 and in much different circumstances, I received a summons to appear at Westminster Magistrates Court charged with using a Protected Title (chiropodist/podiatrist) without being registered with the HCPC – and a nightmare that I could not possibly have foreseen, began in earnest.

I am not one for protests normally. Experience has shown that in the main, they are an ineffective way of securing real change, especially with Government policy. Consider the anti-war demonstrations before the Iraq conflict, for example – and more recently, the Junior Doctors industrial action in the NHS. If anything, ‘protest’ leads to entrenchment and polarised opinion and this usually inhibits any resolution of any contested issues at hand. I have always taken the view that voicing concerns should be a starting point for meaningful discussion – and with an underlying principle of co-operation rather than conflict, one can usually make progress. Open, honest and transparent communication is the key, however it has to be acknowledged that is not always possible, especially with national security issues like the war in Iraq. There are clearly circumstances when Government and its institutions cannot provide full disclosure and candour, however refusing to acknowledge and respond to a valid and genuine concern for public safety created by a weakness in health regulation, wasn’t one that I had envisaged. Nor was the prospect of a criminal prosecution, despite the threat of one each time a “cease and desist” letter arrived informing me that I was breaking the law by practising under a “protected title” without valid registration. In hindsight, I was terribly naïve.

I had a number of difficulties that I had not considered or even envisaged. I worked in private practice. Like most of my colleagues, I was self-employed – a sole trader in every sense – and as such, we have none of the ‘protection’ that is offered to employees of the NHS when they raise concerns. The so-called Whistleblower’s Charter.

Also, it was a regulator, not the NHS that was creating the risk – an organisation whose principal responsibility is to “protect the public”, not create circumstances that potentially puts them in harm’s way. The danger to the public was quite clear in my mind and I could not fathom why the Chief Executive would not even acknowledge there was a problem never mind discussing a solution. It would be some time before I discovered the reason.

The summons included the charges, witness statements and file notes from the HCPC, a copy of the relevant legislation and an evidence bundle that was several inches thick. I was to appear on 22 May 2013 at Westminster Magistrates Court for an initial hearing and to make a plea of guilty or not guilty. During the previous three years I had published several articles online about the dispute, primarily to keep colleagues in the profession informed about any developments – and also to keep a publicly available record explaining the reasons why I was no longer registered. A number of these articles were also included in the papers and in all of them I had stated that I was breaking the law by practising as a podiatrist without being registered. I had admitted my guilt numerous times over the previous five years – and although I had not envisaged ever being in a position of answering to these charges in court – I had deliberately flouted the legislation by withholding my fees and on that basis I would have to plead guilty. However, when I read all the supporting documents in the evidence bundle, I changed my mind.

It had been almost five years since I ceased registration when the summons appeared and it was not without incident elsewhere. The year before I was charged, the atmosphere in the clinic where I worked deteriorated rapidly when the owner encountered serious financial difficulties. Over the course of a difficult and acrimonious year, all the staff and clinicians left and found new premises leaving behind much animosity.

Contained within the evidence bundle was email correspondence from the clinic owner’s wife complaining to the regulator that I had been practising using a “protected title” without current registration. Attached to this complaint were copy invoices and letters taken from my patient files that stated I was HCPC Registered and included my registration number. The documents post-dated my de-registration, but when I checked them against the originals in my patient notes, references to the HCPC and my registration number were absent. In addition to the fabricated file notes, there were other documents that I had not seen before, including an insurance claim for a minor surgical procedure but no details of the patient or any reference number.

Whilst I had resigned myself to pleading guilty, I wasn’t prepared to have erroneous information retained in the summons as a matter of public record. I sought legal advice from a local solicitor who advised that I take all the original documents to court and seek agreement from the HCPC to remove the complaint and all other contested documents from the evidence before making a plea.

We also discussed legal representation. The cost of instructing Counsel and preparing a defence for a London hearing was prohibitively expensive – and as I was intending to plead guilty once agreement had been reached on the evidence, I decided against it. Legal aid was not an option.

I have often wondered whether this was a mistake, but as I thought I had clearly committed the offence and that the only reason I had for doing so was not a valid defence in law, I had no intention of wasting court time or incurring needless costs to appoint a barrister to plead guilty in any event. With the benefit of hindsight, it would not have made much difference anyway.

Had I any worries about the proceedings, I was immediately put at ease by the prosecuting barrister and solicitor who were courteous, professional and very understanding. I was told that this was a “very reluctant” prosecution and they had much sympathy for my concerns about the regulation. However, the only consideration was whether I had broken the law and how I intended to plead. I explained why I was unhappy about some of the evidence and gave them copies of the original paperwork and two witness statements from the secretaries at the clinic where I had worked. After reviewing these documents, they agreed this evidence was unreliable and should not be put in front of the court. I was then asked how I would plead if the contested documents were removed from the evidence and I confirmed I would plead guilty to the charge of using a protected title without valid registration.

Two weeks later, agreement was reached to remove the offending evidence and the court set a date for 11 November 2013 for sentencing at the City of London Magistrates. I was to prepare a Mitigation Statement that I could read out in court before sentence was passed and a copy was sent to the solicitors in early September.

I had no idea what to expect. At 2pm on Armistice Day, I walked into the court and was met again by the same agents for the HCPC. The barrister explained that the charge would be read out and I would be asked to make a plea. Thereafter she would present a case summary before I gave my statement in mitigation of sentencing. Finally, I was handed a hand-written sheet of the prosecution costs and was told that they may ask the court for some of the costs to be awarded along with any fine that might be imposed.

I had assumed the prosecuting barrister would tell the court that whilst I had used a protected title without being registered, I had done so for good reason; but they were reluctantly seeking a conviction to uphold the law. My assumptions were badly misplaced.

I was characterized as being a mischievous individual intent on pursuing a relentless campaign against the HCPC for reasons unknown; that I had lapsed my registration following a dispute about the legislation and that I had deliberately misled and deceived patients, colleagues and the public into believing I was registered by signing myself variously on letters, invoices and other documents as a HCPC Registered Chiropodist/Podiatrist. The motive for acting dishonestly was to ensure I maintained an income to fund my ill-conceived campaign against the regulatory regime.

From that moment, life has taken a rather different direction to what I am accustomed to.

I was stunned with what I heard – as were two colleagues who had come along to court to give some support. I could barely think straight as I rose to read my statement – and in any event I was stopped by the magistrate after a few sentences and told I didn’t need to read any more as they had been given a copy before the hearing. I was fined £270 and told to pay the HCPC’s costs of just over £5,000.

Four days later, the HCPC issued a press release:

The Court found Mark Russell guilty of an offence with intent to deceive under Article 39 of the Health and Social Work Professions Order 2001. He was fined £270 plus a victim surcharge of £27 and was ordered to pay the HCPC’s legal costs. Individuals cannot practise in the UK using one of our protected titles unless they are registered with the HCPC. It is a criminal offence for someone to claim that they are registered with us when they are not, or to use a protected title that they are not entitled to use. We will prosecute people who commit these crimes, as we have done with Mr Russell.

I was still in a state of shock from the court proceedings a few days previously, but that was nothing to the feelings of despair and anger I felt when I read this statement. When I contacted the HCPC’s solicitor to ask why they had written “an intent to deceive”, I was told, curtly, that was the offence that I had pled guilty to and the regulator was entirely correct to publicise it as such.

Two days later, the HCPC contacted my local newspaper in Blackpool and asked if they would publish the press release, but thankfully the reporter contacted me first and I was able to explain the reasons why I had ceased registration and a balanced article was published early in January 2014.

I had no idea what to do. I could not comprehend that a prosecutor would present evidence in court that she knew to be wholly wrong and misleading and to refer from documents that were removed from the case by agreement, as they were “unreliable”. I was only concerned that this evidence was removed from the case as it suggested I had been dishonest with a former business colleague – and that was untrue. As far as I was concerned, I had committed an offence, but I had done so openly and honestly and had never deceived anyone.

I was utterly despondent over Christmas and New Year. I may be terribly naïve at times, but I am not stupid and realised with not a little embarrassment that I had been completely duped by the prosecution and was baffled why they would try and depict me in the way that they did. Over the festive period, I researched what grounds of appeal I might have, but as I had already pled guilty, my options were limited, if any at all.

After writing to the clerk at Westminster Magistrates Court and explaining my predicament, I was advised to submit an application to the Central Criminal Court at the Old Bailey for consideration. Later that week, I was contacted by a local solicitor who had read of my conviction in the newspaper and he suggested that I had grounds for a successful appeal as I could not possibly have committed the offence in the first place unless I had an “intent to deceive”. He explained that although the legislation provides three circumstances where an individual can be guilty of misusing a title, they are all conditional of an accompanying intent to deceive. In his opinion, if I was qualified in podiatry, did not claim to be registered when I wasn’t and did not deceive anyone into believing I was registered, then it was perfectly legal for me to call myself a podiatrist without breaking the law.

I found this difficult to believe, as this was contrary to everything I had been told by the regulator – and my professional body, the Society of Chiropodists and Podiatrists. However, on close reading of the legislation there is indeed a qualifying sentence before the offences are described which states:

Article 39.1: A person commits an offence, if with intent to deceive, either expressly or by implication –
(a) he falsely represents himself to be registered in the register, or a particular part of it or to be the subject of any entry in the register;
(b) he uses a title referred to in article 6(2) to which he is not entitled;
(c) he falsely represents himself to possess qualifications in a relevant profession.

I was charged under section (b) and as I am entitled to call myself a podiatrist by virtue of my qualification, the essential ingredient of the offence in my case was the “intent to deceive”. Without any dishonesty or deception, I could not have committed the offence.

This took a little time to digest. I contacted several colleagues who were closely involved with the discussions with Government during and after the consultation period when the HCPC was established and without exception, they too were ignorant of the necessity of a qualifying criterion for an offence to be committed.
At no time were we informed of the significance an “intent to deceive” – we were led to believe that the crime was one of strict liability – that using a title without registration was an offence on its own. At the time, I could not comprehend why.

An application to vacate my guilty plea was made at the Old Bailey on 26 February 2014. This time, I was represented by my solicitor and Junior Counsel and was presided over by HH Judge Pontius. During the evidence, the barrister for the HCPC agreed with the Judge that the defence submission that specified an intent to deceive was an essential part of the offence, but argued that if I had wanted to ensure compliance with the legislation, I should have prefixed the title of podiatrist with “unregistered” or “formerly HCPC registered” so the public would be in no doubt of my registration status.

No one had told me I could do that. During evidence, I explained this to the Judge when he asked me why I had pled guilty at the Magistrates. He enquired whether the prosecution had told to me that “an intent to deceive” was to be omitted from the charge during any discussions, but I could not recall it even being mentioned; certainly the significance as part of the offence was never explained.

The Judge granted our application and procedurally, the case was sent back to the Magistrates Court and the prosecuting barrister was asked to dismiss herself from any further proceedings. It was a remarkable day, not least as the hearing was held in all the splendor of the Old Bailey on the same day as the murderers of Lee Rigby were being sentenced and Justice Coulson was hearing evidence in the Brooks/Coulson phone-hacking trial. It seemed surreal that this insignificant matter had progressed to this stage. It was also quite terrifying.

I had stopped practice at Christmas after the HCPC issued their press release. I had rented a room in a family run clinic adjacent to a pharmacy with a radiographer. They were incredibly supportive over what had been a difficult year, but I felt I could not carry on in practice whilst the regulator was promoting a conviction, which is essentially one of dishonesty. After the Old Bailey hearing, I thought the HCPC would issue an apology and retract the press release, but a month later they simply amended the notice to confirm my application at the Old Bailey was successful and the case had been sent back to the Magistrates and offered no further comment.

I assumed that would be the end of the matter – my prosecution, that is. But I was also aware that the HCPC were in a difficult position too. It appeared that the regulator has deliberately concealed the important relevance of an “intent to deceive” since it was established in 2003. None of the professional bodies or registrants would have been aware that it is possible to use a “protected” title without registration in some circumstances – and whilst it was not the subject of my own concerns, the implication of the actual legislative position is that a registrant who has been struck-off is not only able to remain in practice – and at risk to the public – they can also practice under a “protected” title provided they make it clear they are no longer registered. If anything, my concerns were even more justified.

Two months pass and there is no contact from the HCPC but during May 2014 I am notified that there is to be a second prosecution and a hearing is set for the City of London Magistrates Court for 17th September.

The HCPC appointed a leading QC to prosecute; I have also appointed a barrister and this time have entered a “not guilty” plea. The case was listed for one-day, however the prosecution case took until 3.40pm and the District Judge adjourned the matter until 29th January the following year. Once again I am characterized as being a mischievous individual, but this time the court was told that I am also responsible for a relentless political campaign against the regulatory system and the HCPC, which the latter was forced to defend through a criminal prosecution – at great expense to my colleagues whose fees were funding the prosecution. I’m sure the forty or so podiatrists who were in the public gallery were thinking the same as I was at the time; if the Registrar had only replied to my initial concerns, there wouldn’t have been a prosecution in the first place.

I’d not practiced for nine months and had no income and what little savings I had at the start of the year, had almost gone. I wasn’t sure how I was going to manage for another four months. I already borrowed some money from my family to help meet the legal costs for the September hearing and I would have to find the same again for the final hearing in the New Year, although how and from where, I wasn’t sure.
The case resumed in Hammersmith Magistrates Court in January. I was very confident after the first hearing; much of the legal argument concerned the legislation and once again it was admitted that “an intent to deceive” was an essential element of the offence. As I certainly never intended to deceive or mislead anyone, I couldn’t see how I could possibly be guilty.

Another admission was that there is no such thing as “protected” titles in the legislation as only “designated” titles appear in the Order. One of the functions of the HCPC is to “protect” the titles, but their ability to do so is impaired by the “intent to deceive” element. If an individual can legally use a designated title without registration, then it is misleading, at best, to claim the titles are “protected” in law – as they had done since 2003. Another layer was being peeled away.

Unfortunately, I was found guilty. The Judge decided that a sentence I had written on my website that read “Hello, I’m Mark Russell and I am a podiatrist..” constituted a breach of the legislation on the basis that a member of the public reading that sentence might infer that I was a “registered” podiatrist if they had knowledge that podiatrists were subject to registration with the HCPC, therefore a deception could occur. I was fined £200 and ordered to pay £1,000 in costs.

The sentence appeared on my website – a blog that was set-up solely as an online record of the case with the HCPC. Anyone visiting the website could be in no doubt that I ceased registration – and why. In his summing up, the prosecuting QC once again averred that I could and should have prefixed the title with “unregistered” or something similar to ensure there was no prospect that anyone might be misled. Which is quite true. But I hadn’t been told that.

I wasn’t prepared to let the matter rest. I hadn’t deceived anyone and was completely open and honest about my protest with the HCPC since I ceased registration, yet I had a criminal conviction, which specified just that. It is over a year since a stopped my full-time practice and I am already heavily indebted.
The conviction was appealed and an application made to transfer the case to Lancashire. Each hearing in London had incurred costs of over £4,000 and I wasn’t sure if I would recover any of these even in the event of an acquittal. All I could hope for was a quick, successful appeal so I could get back to some sort of normality.

The HCPC opposed the application for a change of venue to Lancashire and another hearing was set for September in Preston to resolve this and eventually, a two-day Crown Court Appeal hearing was scheduled for 1st and 2nd October 2015 in Lancaster Castle. The nightmare was about to take another twist.

I had realised the previous summer after I received notification that there was to be a second prosecution that I was in the middle of something I could not have possibly foreseen. What started as a stubborn protest over a unacknowledged concern about medical regulation, had developed into a criminal trial of Kafkaesque proportions, which I had no control over. I most certainly had not deceived anyone, yet I had been publicly accused of being dishonest by a prosecuting authority who had deliberately concealed the true nature of the offence I was charged with since they had been formed in 2003.

I published an article that summer in our professional Journal about the case and was immediately inundated with calls and messages from colleagues throughout the UK whose understanding of the legislation was consistent with my own and who were similarly unaware of the “intent to deceive” requirement. A few weeks after the article was published, the Nursing and Midwifery Council issued a notice of guidance on their website regarding titles. It read:

The NMC’s position regarding the use of qualifications after registration has lapsed is governed by article 44 of the Nursing and Midwifery Order 2001:
“44 – (1) A person commits an offence if, with intent to deceive (whether expressly or by implication):
(a) he falsely represents himself to be registered in the register, or a particular part of it or to be the subject of any entry in the register
(b) he uses a title referred to in article 6(2) to which he is not entitle
A person guilty of an offence under this article shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.”

Article 6(2) states:

“Each part shall have a designated title indicative of different qualifications and different kinds of education or training and a registrant is entitled to use the title corresponding to the part of the register in which he is registered.”

It is important, therefore, for nurses and midwives to distinguish between their qualifications and registration status. Those who allow their registration to lapse can still refer to the fact that they are a qualified nurse, midwife or specialist community public health nurse but must not give the impression that they have a current registration.

As the NMC legislation is analogous with that which governs the HCPC, I thought, for some reason, that might be an end to the matter, but as the start of the second prosecution drew near, I realised that was a forlorn hope. What was equally concerning was the inclusion of the contested evidence from the first case – the malicious complaints solicited by the osteopath and the fraudulent documents.

I was astonished after the Old Bailey hearing and angry enough to lodge conduct complaints with the General Osteopathic Council and the Bar Standards Board; the former against the osteopath whose malicious conduct had provided the “evidence” of dishonesty which the HCPC considered sufficient to fulfill the intent to deceive requirement. The Osteopathy regulator investigated the complaint and took witness statements from the staff at the clinic where we worked and concluded that there was a case to answer and scheduled a FtP hearing for October 2014 – a month after my second prosecution was due to be heard.

The other complaint concerned the barrister from the first prosecution. With hindsight, I could understand the reluctance to explain the necessity of proving an “intent to deceive” as I would have realised that was not consistent with her client’s – the HCPC’s – publicly declared position. I thought it was sharp practice and would have thought that someone in that position would have been completely forthright about the charges I was actually facing. Following the completely unexpected character assassination at the sentencing hearing and the admission at the Old Bailey that I could have used “unregistered” to evade prosecution, I realised to my great embarrassment that I had been completely hoodwinked from the outset, but on 11 August 2014 the Bar Standards Board informed me that there was insufficient evidence to take the matter to a formal investigation.

In late September, three weeks after the second prosecution started in London, I received a letter informing me that the Osteopath’s hearing had been postponed and a new date would be set in the New Year. The week following my conviction at Hammersmith Magistrates Court in January 2015, another letter notified me that following legal advice, the Osteopathy regulator has decided to abandon the conduct hearing altogether on the grounds that my conviction rendered me an unreliable witness and they would be unable to prove their case. When I received the formal notice of discharge, I was shocked to discover that the legal assessor advising the GOsC is also a legal assessor for the HCPC.

Over the course of last summer and in the months leading up to the appeal in Lancaster I became completely overwhelmed by these events. The last two years had been spent in some tortuous limbo punctuated by single days of intense activity in court – followed thereafter by a period of reflection and redefining perspective. The whole business seemed mad; I was on the edge of losing my career, reputation, income and savings and much more for simply raising a concern about public safety – and in doing so, I had incurred the wrath of just about every authority imaginable. There seemed no way of stopping it as I was plunged into a world where common sense had withered and died.

My local MP had become involved. Mark Menzies had written to various Ministers about the case and I was grateful for his support – but no one in Government was willing to become involved when legal proceedings were still in force. In October last year, Lancaster, Dr Sarah Wollaston MP, the Chair of the Common’s Health Select Committee wrote to Marc Seale, the Registrar at the HCPC to ask for clarification about the legislation. He replied:

“In your letter, you raised the following hypothetical question:

If a practitioner de-registered and made it clear they they were not registered, but continued to use the title “chiropodist”, would they commit an offence?

Given that “chiropodist” is a designated title associated with a part of the HCPC register, we would certainly investigate conduct of this kind. However, whether an offence is being committed would depend upon the facts and the surrounding circumstances.

To take one example, if the person concerned had resigned) or been removed) from the register but was continuing to practice from premises where his or her services as a chiropodist were still advertised prominently, but only informed patients in a fairly minimal way that he or she was no longer on the HCPC register, we would regard that as evidence of an offence”

This was the first time the Registrar had publicly acknowledged that there are circumstances where someone could legally use a “designated” title without registration – where they took adequate precautions to inform patients, public, colleagues that they were practising without registration. Which is exactly what I did. I wasn’t made aware that I could or should promote the fact widely that I had ceased registration – but I had done so in any event. I thought I was breaking the law and as it had a professional connection, I felt I had a duty to inform not only all my patients that had sufficient capacity to understand the issue but also anyone who knew me in a professional capacity. Many people knew me as a registered podiatrist; it was only right and proper to let them know what I had done – and why.

However, I didn’t receive a copy of Dr Wollaston’s letter until early December and by that time the appeal was already underway.

The case was listed for two days at Lancaster Castle. Two days before the hearing my solicitor informed me that he had discovered there was a problem when the summons was first issued in London and that it might not even be valid. If that were the case then the conviction would automatically be overturned. Three colleagues had helped meet my legal costs for the two-day hearing and the prospect of it finishing early was certainly attractive. He suggested submitting an application for the court to consider and I agreed.

The appeal was due to start on Thursday 1st October at 10am, but unfortunately we were delayed when the Judge’s car broke down on the way to court and we didn’t start until 11.40am. A legal discussion ensued about the summons and continued into the afternoon until the Judge dismissed the application at 3.20pm. We then rose for the day.

The Prosecution presents its case the following morning. There were no witnesses and the evidence is all paperwork – documents, letters, statements etc. Once again I was characterized as a mischievous individual who embarked on a political campaign to undermine the HCPC and conducted myself dishonestly by misleading and deceiving my patients and the general public. The Judge questioned him extensively and one question I recall with clarity was almost exactly the same as Dr Wollaston was to ask of the Registrar of the HCPC later that month.

“If a chiropodist de-registered continued to use the title “chiropodist” but made it clear that they were not registered in a publicly accessible document, would that constitute an offence?

The Prosecution QC confirmed that it would not and I wondered what on earth this was really all about. I had been expecting to give evidence that day, but the Prosecution case lasted until 3.10pm and the Judge decided another day was required to hear the defence case and closing arguments – and adjourned the appeal until 10th December in Preston.

I was absolutely despondent. When I stopped full-time practice, I thought it would be no more than a few weeks before the HCPC would correct their website – but even after the Old Bailey appeal it remained on public view. Eighteen months later and I’m told it will take another eight weeks before the matter is resolved and I realise it will be two years since my practice closed and what future prospects I had of recovering my business was fading rapidly.

Coupled with that, the stress and pressure of trying to deal with the prosecution and its effects was having an enormous impact not only on myself, but those around me too and a few days after the appeal was adjourned in Lancaster, a seven-year relationship came to an end and the misery of waiting another eight weeks until the nightmare finished was compounded even further – and for the first time in my life, I was aware of slipping into a dark place.

I tried to keep busy by going over all the evidence to see if I could make some sense of it. On one hand, the answer to the Judge’s question was unequivocal and as I had literally dozens of articles and internet posts – all publicly accessible – stating I was no longer registered and why, then clearly I hadn’t committed an offence. But I was concerned about two things.

The evidence that was considered unreliable in the first trial – the complaints solicited by the Osteopath, had been re-introduced into the evidence and was referred to by the Prosecution to demonstrate that I was still referring to myself as a Registered Podiatrist after I ceased affiliation – which I had never done. The court was also told that I was well aware of the “intent to deceive” element of the offence and that I could have avoided prosecution if I had just called myself an “unregistered podiatrist” from the start. But that was manifestly untrue. I had seen the “intent to deceive” in the legislation and in letters from the HCPC many times, but its significance in relation to the offence had never been highlighted or explained by the regulator, or at least, not to me. I would have expected the HCPC to tell me what I needed to do to comply with the legislation when I told them I was de-registering – that if I was going to call myself a podiatrist, I had to ensure nobody could be deceived or misled into thinking I was registered, otherwise I would commit an offence. But they didn’t – and eight years later a court is being told that I “must have known” about the necessary requirements of the offence and had I written “unregistered” on practice stationery then this hugely expensive prosecution would have been avoided. I had the feeling that an apology was not on the cards.

A week after the appeal was adjourned in October, I wrote to the Chief Executive of my old professional body, the Society of Chiropodists and Podiatrists and asked if Council would issue me with a statement to confirm that my understanding of the regulation was consistent with that of the rest of the profession, from the information provided by the HCPC. Three weeks later I received an email to inform me that Council did not think it would be appropriate to become involved in the case. A few days later, my MP sent me a copy of the correspondence from Dr Wollaston and I was as confused as ever.

During November, colleagues organized a few fundraising events and I was again humbled by their generosity and support as they raised enough to cover the legal costs of the final hearing in December. I borrow some more from friends so I can survive through until Christmas, when hopefully, I will be able to recover my legal costs to date and repay all those who have been so kind.

I gave evidence before being cross-examined by the prosecution. I was taken through the evidence and I stress once again that I did not intend to deceive or mislead anyone. I was asked why I did not use “unregistered” on practice material such as business cards and letters instead of being “silent” on the matter, but of course, no one had told me that I could. When I told the court that the HCPC had concealed the important relevance of the “intent to deceive” requirement in the legislation from not only myself, but all the professions they regulate – and the first admission from the regulator that this had to be fulfilled for an offence to be committed was at the Old Bailey – the Prosecutor dismissed the claim as “nonsense”. It was obvious that the Judge shared the Prosecutor’s view. When I suggested the documents and the complaints solicited by the osteopath were fabricated and malicious, it was clear that I was not believed.

I finished giving evidence at 2.45pm and had two other witnesses to call, however the Judge had a prior engagement in London that evening and decided to finish early and adjourned the case until 22nd April 2016 to hear the final witnesses and closing arguments. I was thoroughly dejected and incredulous that the case had still not finished. This had been my ninth appearance in court at an average cost of £3,000 per day and the prospect of surviving another five months without any income seemed impossible. What’s more, the Judge’s reaction to my evidence did not fill me with much confidence for a successful outcome, as it was clear that she considered my assertion, that the HCPC had concealed the true nature of the offence, implausible. For the third year in a row, the Festive period was spent under a dark cloud of depression, isolation and insomnia.

I had started to record a diary of events the previous year and regularly updated my website to keep colleagues and patients abreast of developments in the trial – but it was evident that my commentary of proceedings was not appreciated by the court. As the case progressed, I received many letters and emails from colleagues across the professions who were astonished by the revelations that were unfolding – particularly in respect of the “protected” titles. It was clear that I was not mistaken in my belief that the HCPC had never explained the absolute necessity of an “intent to deceive” when claiming the titles were “protected” in law and that the offence was one of strict liability. If that was correct, then this raised the possibility that the HCPC had fraudulently misrepresented the regulatory position to the professions from the day it was established. The Registrar’s letter to the Health Committee Chair was an explanation of the legislative provision for designated titles. He did not say that it was a revised position nor that his organisation had consistently neglected to explain the requirements of the legislation before then. In court, my suggestion that they had was met with derision.

The first couple of months of this year were extremely difficult. I was astonished by the intermittent progress of the case; six hours in court followed by months of anxious waiting for another hearing – and what was estimated to take two days for an appeal would now run into its fourth day spread over seven months. By now, the case was approaching its third anniversary.

Many of my colleagues who had attended court during the trial and appeal were shocked to hear the prosecution suggest that there had been no concealment by the HCPC. That was clearly untrue. In April, a few weeks before the final hearing, over two-dozen registered podiatrists wrote independently to the Judge to express their own opinion that the HCPC had never advanced the actual legislative position before and their views were consistent with my own. I asked Ralph Graham, Chairman of the Society of Chiropodists and Podiatrists during the period when the regulatory regime was being introduced, to comment. Ralph was also the Chair of the Allied Health Federation and was highly respected across the professions and the NHS. He kindly offered a Witness Statement, which explained in detail what our profession had been led to believe.

In addition to confirming my own position, his statement also illuminated another issue and this perhaps offers an explanation why the regulator acted to conceal the “intent to deceive” in the first place. Regarding discussions the profession had with the regulator and government officials, he wrote:

Part of those discussions related to protection of title. The profession was obliged to admit as equals on the new register several thousand previously unregistered chiropodists. These had not been eligible under CPSM rules because they had not attended fulltime education. They were to be “grandfathered” on to the new HCPC register during a three year window if they were in full time practice on the date the HCPC came into existence.

This was considered a great price by those already on the register following 3-year degree courses and was unpopular among the profession. After the grandfather process was closed the only way onto the register would be via University degrees. The only attraction to this process was that the Health Professions Orders gave protection of title. We were assured the named titles would be reserved for those registered with the HCPC and ‘that it would be an offence to use such a title without being on the HCPC register’. I have no recollection whatsoever of the requirement ‘intent to deceive’ ever being mentioned.

We were informed that only two titles per profession would be protected and despite our wish to see the European title podologist also protected this was denied. The information was clear, the use of the agreed protected titles (without registration) would be an offence.

I have provided HCPC documents for the court and these make no mention of any requirement to intend to deceive. I also have provided documents from a review of the regulatory process by the Council for Healthcare Regulatory Excellence (CHRE) which again in examining cases against unregistered persons for misuse of protected titles makes no mention of any requirement to show ‘intent to deceive’.
I have spoken with a colleague who was appointed to the first HCPC Council who confirms that my understanding of the position and hers are the same, that the offence is simply to use one of the designated (protected) titles.
I now understand that the Health Professions Orders require intent to deceive thus it would be possible to use a designated title in combination with a statement such ‘not registered with the HCPC’ to evade the intention of the Orders. If this had been apparent in 2003 it is highly likely that the profession would have been persuaded by those arguing to refuse to register with the HCPC.

And of course, that would have meant the loss of up to £1 million annually in registration fees from those in the podiatry profession – and that is always the predominant consideration these days. It would also represent a breach of promise – and trust – that was implied during the negotiations and consultation period; that the professional titles would be fully protected by the HCPC in the proposed regime. The professions were sold a lie.

When the court reconvened on 22 April 2016, the Judge was clearly annoyed that colleagues had written independently to her and said that she was disregarding all the correspondence as irrelevant. Ralph Graham’s statement was served on the Prosecution in early April, but unfortunately he was on holiday later in the month and was not able to attend court in person. His statement, however, was also given to the Judge by the prosecution – but this was dismissed as irrelevant too.

I was surprised at this. Under cross-examination at the previous hearing the prosecution averred that it was nonsense when I stated the profession had been misled by the HCPC and did not understand the significance of the intent to deceive element. I would have thought that a corroborating witness statement from an authoritative source would have been of some significance, especially if the court had been unclear about the history when the regulation was introduced.

To me, this was the central issue in the case. The HCPC had concealed an important part of the offence to create the mistaken impression that the mischief was simply using a title without being registered. Why else would I have pleaded guilty at the first trial? From that perspective, the evidence takes on a completely different hue.

The rest of the day was spent hearing more evidence from my witnesses and then the closing arguments after lunch. We had been told that morning that a verdict would be reached that day, but after hearing both Counsels, the Judge decided she would like more time to consider the evidence and adjourned the case again until 29th June.

This had turned into a sick farce long ago. I kept expecting someone from the HCPC to appear and say how dreadfully sorry they were and that they had made an unfortunate mistake, but that was never going to happen. That would be what most ordinary people would do, if they were honest. But that’s not how Government and its agencies work these days. There it is obfuscation rather than clarity and concealment instead of transparency. And a willingness to use the legal system to intimidate and punish anyone prepared to speak out when they dare to raise a concern. It’s just a game after all – where the preserving the system becomes more important than any individual consideration. I’ve had my reputation traduced, my honesty questioned and had been branded deceitful by a statutory authority whose own conduct has been that and more.

I don’t care to dwell on the impact this prosecution has made on me personally, suffice to say it has been profound and of a magnitude I did not expect. There will have to be a time for recovery, but that would now have to wait another two months, at least.

On 29th June 2016, Her Honour Justice Beech delivered a narrative and written verdict. This was my eleventh court appearance in total, nine of which my only objective was to correct the misleading claim that I had acted to deceive. However, I was found guilty again. Within the judgement, it noted:

“Mr Russell maintained that he did not understand the wording of the offence despite the fact that he had taken an avid interest in the legislation and had lobbied the Scottish Parliament on it and that when he was a member of the Society of Chiropodists and Podiatrists, he had been a member of the Legislative Affairs Committee and in that role, he had scrutinised the legislation.

The Next issue is whether Mr Russell appreciated the true import of paragraph 39(1) of the 2001 Order in that it involved an intention to deceive. We repeat that Mr Russell is an intelligent man. He has been a member of the Legislative Affairs Committee of the Society of Chiropodists and Podiatrists and had taken a great deal of interest in the proposed regime and the legislation.

We find his evidence on this point is incredible and not worthy of belief.”

The judge went on to say of me:

“his declarations have been inconsistent…”
“he has not impressed us as a witness”
“his answers to difficult questions have been unbelievable…”
“that explanation was nonsense…”
“Mr Russell is audacious and misleading to say the least…”
“Meaningless and deceitful”…
“We find a textbook case of ‘smoke and mirrors’..”

This judgement was predicated on the notion that I must have understood the wording of the legislation and with that knowledge, I had acted dishonestly and deceived patients and the public into thinking I was registered when I was not – with the motive of funding a misconceived political campaign to undermine the HCPC. That is clearly wrong.

The fine of £200 remains and I was ordered to pay a total of £2,000 towards the HCPC’s costs

I completely reject this verdict and with all due respect to the court, I consider it perverse.

I am unable to progress this case any further as I have long since run out of money and I am unwilling to borrow any more. Even if I could, I doubt if I would consider an appeal to a higher court as I now have just about as much faith in the criminal justice system as I do with medical regulation and governance.

I do however, have some questions and would like to make a few polite requests:

To Mr Marc Seale, Registrar at the HCPC:

1. Why have you concealed the importance of the intent to deceive element of the offence from the professions until last year?
2. Why did you not advise me, when I ceased registration, that I could practice, lawfully, as an unregistered podiatrist, provided I took every precaution not to deceive anyone?
3. Why did you repeatedly send me “cease and desist” letters threatening prosecution when you were aware that I was complying fully with the legislation?
4. What justification is there for spending hundreds of thousands of pounds of registrant’s money to prosecute an individual for simply raising a concern?
5. Will you publicly acknowledge that your organisation cannot prevent individuals who have been struck-off the register from continuing in practice under a non-designated title – and when that occurs, those individuals continue to endanger the public with the risk that you identified in the first place?
6. Will you take immediate steps to inform the Court that I could not possibly have known that the offence was conditional on an accompanying “intent to deceive”?
7. Will you, as the prosecuting authority, seek leave to appeal this conviction on my behalf on the grounds that the evidence submitted in court by your legal agents was factually wrong?

To Rt. Hon. Jeremy Hunt, Health Secretary:

1. You have stated repeatedly that everyone in healthcare should speak up when we identify circumstances that endanger public safety. When we do, what response should we expect?
2. Speaking up has cost me £342,000 in legal costs and loss of earnings. I have lost my practice, savings and livelihood and in three weeks time, I will be homeless. I have been branded dishonest and deceitful and dragged through a nightmare by a health regulator intent on covering-up its own failings. What message does that send to anyone in the health or care professions who may be faced with the dilemma of reporting dangerous practice that endangers public safety?
3. Will you acknowledge that the health professions regulated by the HCPC and NMC were not fully and properly informed about the scope of the legislation in relation to the offences for the misuse of titles – and will you take steps to ensure the “intent to deceive” requirement is removed so that the designated professional titles are properly protected in law?
4. Will you also undertake to address the risk that is clearly evident in private sector provision from unregistered and unregulated clinicians who have been struck-off the statutory register for serious misconduct or dangerous practice?
5. What safeguards can be considered for whistleblowers in the private sector or for those who are self-employed who remain vulnerable to punitive and malicious practice from public institutions with powers to prosecute?

Finally, I once again thank all my colleagues and friends who have shown incredible generosity and support over the last three years – without it I wouldn’t be here now. I am especially grateful to those who have travelled far and often to watch this charade and just to be there.

One final request to visitors who are registrants of the HCPC.

Were you aware of the necessary requirement of “an intent to deceive” to commit an offence of Misuse of Title before this prosecution?

I would be grateful if you can leave your answer in the comments.