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

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

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Elaine Buckley

An Absence of Candour

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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 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.

Who’ll Rock the Boat?

scp

Earlier today, my old professional body, the Society of Chiropodists and Podiatrists issued the following statement:

Mark Russell has lost his appeal against his conviction by West London Magistrates in his case with the HCPC. The Society of Chiropodists and Podiatrists believes that regulation of podiatrists by the HCPC is the best way to ensure safe and effective care by podiatrists and protection of the public from unregulated providers. The outcome of the appeal against Mark Russell has demonstrated that there is still work to do to ensure more proactive regulation of podiatrists with the ultimate aim of ensuring protection of the public from unregulated providers.

It has always been the Society’s position that, in order to protect the public, all podiatrists (as with doctors, dentists or nurses) should be regulated by a recognised regulatory body. As the largest UK membership body for chiropodists/podiatrists, the Society has always been resolute in ensuring its members maintain the high standards required to practise safely and effectively as health professionals. Regulation is essential as part of this process, as those who are regulated are mandated to maintain standards in training, professional skills, and behaviour. It is only through regulation that the safety of patients and the public can be ensured, and offers reassurance to the public that their healthcare professional is up to date in their clinical skills and is accountable.

Mark Russell is not a member of the Society, as all our members must be registered with the HCPC in order to become full members with the title chiropodist/podiatrist. Mark Russell de-registered from the HCPC in the belief that it is not protecting the public by allowing unregulated foot health practitioners to practise in an unregulated environment. Although there are a number of issues in relation to those who practise outside of HCPC regulation, we believe that de-regulating and then continuing to practise as a ‘podiatrist’ is not the way to resolve this, nor is it the way to increase public confidence in the profession.

I will issue a statement about the outcome of the appeal in due course, but in response the the statement issued by the Society of Chiropodists and Podiatrists, please note the following.

The Society’s Council, Executive and membership are aware that the Health and Care Professions Council (HCPC) have misled the profession regarding designated title legislation since its inception in 2003. My original concern with the regulator was a safeguarding matter which arises when registrants are struck off for serious misconduct or lack of competence – and are still able to practice in the private sector using a different title. These concerns are well known to the Society and the HCPC, but have yet gone unanswered.

When I raised my concern, I thought our titles of Chiropodist and Podiatrist were “protected” in law and their use restricted to those only on the HCPC register. I was not aware of the qualification that an offence could only occur if use of the titles whilst unregistered was accompanied by an intention to deceive. I suspect my understanding was consistent with all of my colleagues in the UK at the time.

In 2004/5 I served as a Council member with the Society and was part of their Legislative Affairs Committee under the Chairmanship of Ralph Graham. Most of our remit concerned the recently introduced Health Professions Order and the HCPC. Throughout my time on Council, I was never advised of the qualification of an ITD in title protection, nor were any of my colleagues.

The concealment of this essential part of the legislation by the HCPC has been exposed by the examination of the evidence, particularly the legislation – and its relevance in proceedings related to my means rea – or understanding of the legislation at the time of the alleged offence.

In her judgment, HHJ Beech states:

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.

On 10th October 2015, I wrote to the Society’s Chief Executive and Council on the following terms:

10 October 2015

Joanna Brown
Chief Executive
The Society of Chiropodists and Podiatrists
Fellmongers Lane
Tower Bridge Road
LONDON

Dear Joanna and Colleagues

You will recall that during my terms as an elected member of Council in 2004/5, I had some responsibilities with the Committee for Legislative Affairs. At the time, much of the committee’s work concerned the Health Professions Council and the recently introduced regulatory regime under the HPO. This was a divisive and difficult time for the profession with all the issues around grandparenting and the failure of government to address the matters around closure.

Like most of my colleagues, if not all, I was under the impression that the legislation provided protection for the title of the profession ? Podiatry and Chiropody and all the derivatives – and it was an offence to use these titles unless current registration was held with the HPC. At no time was I under the impression that there were circumstances where the titles could be used by unregistered practitioners – when there is no intent to deceive.

During the Crown Court Appeal last week, the Prosecution admitted that there were no ?protected titles? under questioning from the Judge. The legislation only states ‘designated titles’ and these cannot be protected whilst there is a conditional requirement of “an intent to deceive”. The Prosecution was asked directly that if a chiropodist were to deregister from the HCPC and to continue to call himself a chiropodist on all business and advertising material, but somewhere produced a narrative which may be publicly available, would that constitute an offence under this Order? He confirmed that is would not.

This clarifies the statement made at the Old Bailey by the Prosecution when it was admitted that misuse of the title was absolutely conditional on “an intent to deceive” – therefore there were perfectly legal circumstances when an unregistered practitioner could use a designated title.

This was not the impression I was led to believe up until the Old Bailey appeal last year. Last week I spoke to Ralph Graham who was Chair of Council – and the Legislative Affairs Committee – when I was a member and was relieved to find that his views are consistent with my own. If the HCPC were aware of the legislative provisions in the Order from the outset, then it would appear that all the professions have been misled – not only our own.

Joanna has kindly forwarded me the article submitted by the HCPC for publication in the November issue of Podiatry Now. Can I also ask that you read carefully the content of the email addressed to Joanna that accompanies this letter as we are approaching a very interesting time with our relationship with professional regulation.

I am due to give my evidence in chief on December 10th and my perspective of the regulation will be crucial. In that respect I would like to be quite clear with the facts before I present them to the court. At no time whilst I was an elected Council member was I told anything other than use of a protected title whilst not registered with the HCPC was a criminal offence. I would like to know whether the understanding I had was consistent with my colleagues on Council at the time – and the membership as a whole In the circumstances I would ask that a formal response to this letter be provided by Council within 14 days.

I received a reply on 29 October:

Dear Mark
I am writing to confirm the position that I advised you about when you called me yesterday.
Your letter was considered by the Society Strategic Planning and Implementation Board (SPIB) on behalf of Council on Monday. The members of SPIB felt that it would not be appropriate for the Society to provide a comment to be used as part of the evidence in your case. The Society will review the position once the judgment has been published.

In April 2016, Ralph Graham kindly offered a witness statement in relation to our understanding of the legislation which I have attached below. Ralph’s statement was served on the HCPC immediately, but unfortunately he was on holiday on the final day of evidence. His statement was however, seen by the Judge – as were some two dozen other letters and statements from colleagues saying much the same. That we were not aware of the necessity of an intent to deceive to commit an offence by calling yourself a podiatrist without HCPC registration. Unfortunately, for whatever reason, this evidence was disregarded in the case.

It is hugely regrettable that the Society was unwilling to issue a statement about the advice they gave to a former Council member during his time in office as it may have made a difference in the outcome, but it is hardly surprising.

In regard to the final paragraph: I resigned as a member of the Society in 2006 – before I deregistered from the HCPC in September 2008. I resigned as I believed that the organisation was failing in its primary function of promoting the best interest of its membership. Further, the reason I ceased registration from the regulator was simply because the Registrar had failed to respond to my concerns – as an individual registrant – over the safeguarding of the public from registrants that have been struck off for serious misconduct or lack of competence and go on to exploit the weakness in the legislation to carry on practice under a different guise. It is regrettable, as ever, that the Society is once again silent on the risk to the public from these individuals, but of course, to do otherwise would rock the boat.

And we can’t have that.

STATEMENT OF WITNESSRG

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Over the Top

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Tommy Patterson was fifteen years old when he signed up for the Royal Scots in 1914 and packed his bags and headed off to join the ranks of the Royal Scots in France on the western front. He was a small but stocky built boy, two years a miner in the pit in the Wemyss Estate near Kirkcaldy since he left school at thirteen and no idea what he was heading into. He was one of the soldiers who took part one of the now famous Christmas Day football games in No Man’s Land near Contalmaison on the Somme, alongside some of the Heart of Midlothian players in McRae’s Battalion. The following autumn, Tommy was sent to La Boiselle to join the Manchester Boys – specialist labourers who had tunnelled the Manchester sewers over the previous decade and were tasked of digging access tunnels underneath the German lines, perhaps because of his stature or previous underground experience. He never said.

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The Lochnagar Crater was formed at 7.28am on Saturday, 1st July 1916 – the first day of the Battle of the Somme. It was created by the detonation of a huge mine placed beneath the German front lines and its aim was to destroy a formidable strongpoint called ‘Schwaben Höhe’.

Close to a British trench called Lochnagar Street, the tunnellers dug a shaft down about 90 feet deep into the chalk. They then excavated some 300 yards towards the German lines, placing 60,000 lbs (27 tons) of ammonal explosive in two large adjacent underground chambers 60 feet apart. Two minutes before the attack began, the mine was exploded, leaving the massive crater that we see today.

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The reason that it is so large was that the chambers were overcharged. This means that sufficient explosive was used to not just break the surface and form a crater but enough to cause spoil to fall in the surrounding fields and form a lip around the crater. The 15ft lip created protected the advancing troops from enfilade machine-gun fire from the nearby village of La Boisselle.

Debris was flung almost a mile into the air, as graphically recorded by Royal Flying Corps pilot Cecil Lewis in his superb book ‘Sagittarius Rising’

“The whole earth heaved and flared, a tremendous and magnificent column rose up into the sky. There was an ear-splitting roar, drowning all the guns, flinging the machine sideways in the repercussing air. The earth column rose higher and higher to almost 4,000 feet.”

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Tommy Patterson had been one of my first patients I treated after I graduated in 1983. He lived in a small cottage literally next door to a dilapidated clinic in Kirkcaldy where I started work – and he was a real character as anyone who can remember him would attest. He was difficult to understand as he had a speech impediment due to his hearing problems – as he was deafened – along with any other comrades who were within three miles of the detonation – from the shockwave. But he was also just ‘difficult’ and stood for no nonsense from anyone. He had his own stool in the corner of the lounge in the Penny Farthing where he would call for a drink most nights at tea time and if he discovered anyone siting on it when he arrived, a quick poke in their ribs with his stick soon dislodged the offender. He never kept any of his chiropody appointments and would usually just turn up in an afternoon, unannounced and wait his turn. After the traumatic experience of our initial consultation, I thought why not!

I got to know Tommy fairly well over the next five years and heard a few stories of his time in the war. Later in 1916 he was sent back after medical leave and became a dispatch runner near Aras, just seven miles north of La Boiselle and would sprint between the trenches taking messages back and forth from whoever thought they were running the show. I hadn’t studied history when I was at school or university and had a fairly limited knowledge of the Great War when I first encountered Tommy, but I was to gain a fairly unique education over the following years from an incredible personal perspective, His disdain and visceral hatred of authority forged from deeply held views of the officer and political class of the day that had sent so many young boys to their deaths and had shot them as deserters when they were to frightened and shocked to go over the top. Those that did survive the experience were consigned to a decade of poverty and squalor when they returned home just before the depression. I didn’t know that had happened and found it difficult to believe at first. I still find it difficult to understand today and I can well imagine the impact it would have on a terrified, shell-shocked boy as he struggled to make sense of it all.

I was just twenty-three when we first talked, seven years older than he would have been during the Somme Offensive. It made a lasting impression as you might guess.

I managed to visit Contalmaison and Aras as well as La Boiselle during my visit in 2013 and walked over the fields which are now beautifully sculpted holding a range of arables amidst picturesque rolling hills and forests, where a centaury ago it was carnage on an epic scale. It is unsurprising the land is so fertile now.

I was pleased to have made the visit and although Tommy had died nearly two decades previously, it produced an enlightened remembrance to many of his stories and somehow that gave me much comfort and a sense of something being complete, although I’m not sure why or what. I made a promise to myself to return to the Somme during the 100-year anniversary, which of course is today – and remember Tommy again. And all the rest.

Unfortunately, however, I didn’t make it.

Readers of this blog will have realised that the appeal against the conviction by the HCPC was held at Preston Crown Court yesterday on Wednesday (29th June). The verdict given by Judge Beech was to uphold the conviction and to reject the appeal. The written narrative is attached at the foot of this post. I wish I could say I was surprised, but that would be akin to claiming astonishment that Dracula had declined the vegetarian option at brunch. I will leave you to form your own opinion of the judgment but ask that you refrain from commenting at the moment as I do not wish to prejudice the chance of an appeal to the higher court or to be held in contempt by hosting a discussion blog that holds offensive or insulting remarks about the case or persons involved in the proceedings. Suffice to say I am not prepared to let the judgment stand without challenge, for obvious reasons. Regrettably, it also means I won’t be travelling across the channel for the commemoration of the Somme Offensive.

I’ve always thought that if you do something wrong, make a mistake or have an accident, it is always best to tell the truth, no matter how inconvenient or embarrassing it might be. If you don’t and then lie about it, then you are simply digging a hole for yourself and eventually, the truth will out.

I’m not sure how big the hole will be in this matter by the time the dust settles, but at this rate, it will certainly give Lochnagar a run for its money and will doubtless be a major tourist attraction in west London for years to come. Thankfully, this time, the casualties will not be innocent young men.

Crown Verdict

In Limbo

An Intent to deceive

Well, April came and went and the final hearing in this case was heard on the 22nd in Preston. The final witnesses were called and both sides presented their closing arguments. Unfortunately it was another anti-climax as the Judge and her colleagues quite properly want more time to consider all the evidence they have heard since last October. She will deliver a verdict on or shortly after 29 June 2016. A final update will appear here afterwards.

In the meantime I would imagine there will be a period of reflection akin to that commonly felt when the cat finally claws its way hissing and spitting out the bag. At least I would hope so and there are certainly signs that some of the good folks at the HCPC are beginning to understand what being honest actually means. Really!

Last week, they issued new guidance for registrants under the standards of conduct, performance and ethics. A bloke called Michael Guthrie who is a Director of Rectitude and Probity tells us about the new standard…

Standard eight says that registrants need to be open and honest when something has gone wrong with the care, treatment or other services that they provide. This includes letting service users and carers know; apologising; and taking action to put matters right if they can. The standard also says that registrants need to support service users and carers to raise concerns and be helpful and honest in their responses to complaints.

That’s pretty good, Michael, don’t think anyone would have a problem with that. He goes on to explain..

The reports of inquiries into failings in health and social care services in recent years have emphasised the importance of organisations and individuals being open and honest when service users are harmed or could have been harmed, as a result of errors or mistakes in the care or treatment they have received. This is sometimes referred to as a ‘duty of candour’. In England, there is now a statutory duty of candour which some organisations in health and social care have to meet, and similar requirements are being introduced in the other UK countries.

I’m delighted the HCPC have finally realised that being “open and honest” is the best way to serve the public in their primary duty of safeguarding – and I trust they will respond with their new found candour when they are asked some pertinent questions about their own dishonesty. I do hope so…..trust is everything, according to another bloke called Hunt this week. We shall see.

I’ve done enough contemplation and reflection though; it’s time to get down to some serious revision of homework. Regular visitors to the blog will notice the addition of a new button at the top of this page and if you are minded, you can pre-order the fruits of these labours when it is published on November 15th this year.

Thank you for bearing with me over these last three years – it’s been a marathon for sure. I’m going to change the tenor of the blog shortly as I have another appeal to mount. This time it’s not legal, you’ll be delighted to know, but something much more worthwhile.

The Wicked Web

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One of many of my Grandfather’s favourite sayings, the one that resonates louder today than most is “jiggery-pokery”. Usually directed at anything he found suspicious or anyone he regarded as untrustworthy or devious, it was normally spat out between clenched teeth – a trait commonly found in Fifers. A kinder variation on a theme was jouking and jiving – a term he fondly ascribed to Cassius Clay whenever he graced the canvas – which, of course, means ducking and diving – or dancing in the case of the boxer. The jiggery-pockery usually reserved for the officials, whenever a questionable verdict was made.

I had always assumed the phrase had limited value beyond Hadrian’s Wall or overseas, but last June there was a mention of it in Time Magazine:

In a blistering dissent, Supreme Court Justice Antonin Scalia wielded an insult on Thursday that has caught the Internet’s attention. Arguing against his colleagues’ reasoning in their decision to allow health care subsidies nationwide, Scalia accused them of “interpretive jiggery-pokery.”

If you’re not familiar with the term, Jiggery-pokery dates back to at least the late 1800s, a rhythmic English phrase describing dishonest manipulation or nonsense, akin to hocus pocus, humbug, bambosh, baloney, berley (among the Australians), bunkum, hogwash (also known as eyewash), flapdoodle, flim-flam, flumadiddle, rubbish, galbanum (coming from a French word for empty representations), hooey, hot air, motormouthing, poppycock or malarkey, as Joe Biden is wont to say.

Editors at the Oxford English Dictionary traced this particular phrase back to the Scottish word jouk, which means to skillfully twist one’s body to avoid a blow—to manipulate oneself like an acrobat. Scalia, in this case, insinuates that his colleagues bend themselves and dissemble in order to work around the truth by misinterpreting words of the law.

Among the Scots, the word jouk led to the notion of joukery or jookery to describe underhanded dealing or trickery. Pawky is another Scottish word, meaning artfully shrewd. A pawk, on its own, is a trick. And by 1686, some inventive Scottish speakers had combined the words in the phrase joukery-pawkery, which they used to refer to clever trickery or slight of hand.

I am reminded of my grandfather today as I look over seven cardboard boxes of foolscap paper, all relating to my case and current appeal with the government regulator, the HCPC. The appeal, you will recall, was adjourned in December until February 26th this year – a delay of yet another ten weeks. A few days ago I was informed that the Prosecutor is unavailable that day so the matter has been adjourned again until 22nd April. The summons was originally served on me in March 2013, which means legal proceedings in this case have been running now for over three years.

It is worth remembering that this is a criminal case, which spans two separate prosecutions and appeals. The eventual costs of these proceedings will be considerable; it is a novel case – the first prosecution of its kind – and despite being heard in the lower courts, senior counsel has been used throughout.

On a scale of criminality, this ranks as a very minor offence; an alleged technical breach of a requirement of registration for a health professional to use a title – which so far has attracted a sentence of less than three hundred pounds – now under appeal for the second time. A conservative estimate of the Prosecution costs might be a hundred fold of the fine – not a particularly efficient use of public money you may think, but my own costs – in loss of earnings and legal fees will easily match that of the other side. You may think it a rather curious business whereby a statutory regulator would be so profligate with their registrant’s money over such a seemingly minor and insignificant matter. I would have to agree – and not just because of the financial aspect.

From the previous essay, you will recall that I have already given evidence to the court in respect of my appeal against conviction and sentence last January. The defence has only two more witnesses to call before the case is summed up and the bench delivers a verdict. I am mindful not to compromise the evidence that is still to be heard, but I can now offer an explanation why this case has been brought and the reasons why an extraordinary disproportionate amount of money has been used to advance a prosecution – especially given the facts of the case.

The entire matter can be summed up simply in four words: An intent to deceive. These four words, central to the allegations in the case play an appropriate overture to the entire matter, for they encapsulate the activity and conduct of the regulator – and government – since the legislation was enacted in 2001 – some fifteen years ago. Here is why.

The concern I originally lodged with the regulator – the ability of those struck off for serious misconduct or lack of competence to continue in practice under a different unregulated title – was not my own discovery. The inherent weaknesses of the legislation are well known to politicians, civil servants and professional leaders throughout the UK – and have been since 1960 when the first Act defining statutory regulation for the health professions came into force.

In 1997, the Blair Government announced a review of health regulation in their first Queen’s Speech in response to the rise in NHS scandals – Shipman, Alder Hey and Bristol – and the following year, consultations began between the department officials, junior ministers and the professions to discuss the proposed new regulatory regime.

A central issue of discussions related to the limitations of what is termed “protected title” regulation. This simply means what it says; that in order to use a title that is protected in law; an individual must fulfill certain criteria – to be registered with a statutory body and to comply with their requirements on conduct and standards. Failure to do so may result in that individual being removed from the register – or struck off – and when that occurs, they would be prohibited from using that protected title in the future.

If that individual worked in the NHS, where registration is a compulsory requirement for employment, they would lose their job – and in theory the public would be “protected” from someone who demonstrated a clear and unequivocal risk with their practice.

However, in the private sector, it is relatively easy to circumvent the legislation by using an ‘unprotected title’, thus a sports and massage therapist can claim to provide the same treatment as a physiotherapist – or a foot health practitioner can undertake the same care as a podiatrist, without being registered or open to regulatory scrutiny.

It would be fair to say that the concerns of the profession and its representatives during the discussions with government officials were geared at primarily improving standards and training rather that mitigating risk. With the 1960 Act, the phrase “state registered” in conjunction with the professional name was protected in law. This meant that whereas a state registered physiotherapist would have to comply with all statutory requirements for training, conduct and competence – someone practising simply as a physiotherapist would not.

These consultations offered a realistic opportunity of improving standards across the professional spectrum and there was a general desire to achieve that from all professional bodies. The easiest and most logical way to address the issue was to incorporate a form of “protected function” alongside “protected titles” in the proposed legislation. This would bring the legislation in line with that of the dentists making it a criminal act for anyone to practice dentistry without holding current registration. That ensured dentists in private practice – as well as their colleagues in the NHS – came under the umbrella of statutory regulation.

Some discussion centered on what “functions” could be “protected”. It would be absurd to pass a law prohibiting anyone from cutting their own toenails or that of a relative – or to prevent any other health professional undertaking similar care – a nurse or GP for example. But the main contention related to those individuals who were currently practicing outside the scope of regulation – and how the proposed legislation might impact on their business.

The officials suggested that in order to provide a more comprehensive level of regulation – protected function and title – the legislation would also have to provide a process to allow unregistered practitioners access to the statutory register without fulfilling the usual eligibility criteria of recognized qualifications. This process would be called “grandparenting”.

That way, it was envisaged that all practitioners would migrate to statutory regulation and be given equal status in law, irrespective of their training or qualifications. A simplified interview and vetting process would take the place of any formal examination for applicants in the hope that all unregistered clinicians would make the transition.

The legislation was presented to Parliament in 2001 and started its progress through the two Houses for debate and amendments before it was finally enacted in 2003 – alongside the present Nursing and Midwifery Order, which formally established the Nursing and Midwifery Council (NMC). The two legislative orders are mostly synonymous and contain the same regulatory provisions for offences and use of titles.

The following year, I was elected as a council member for my own professional body – the Society of Chiropodists and Podiatrists – where as part of my allocated duties was a position on their Legislative Affairs Committee under the Chairmanship of Ralph Graham. Much of the committees work related to the new regulator and the published legislation.

When the legislation was published the previous year, there had been a furious backlash from members when it became apparent that the government had reneged on their promise of protecting function as well as title – yet still ensured there was a provision for grandparenting unregistered practitioners untested access to the register. Discussions between the professional body and the regulator proved fruitless; their position has been consistent from the start. The responsibility for the legislation is Parliament’s – the regulator simply functions within the parameters given by Parliament. In plain English that means “It’s not our fault”.

In addition, the regulator claimed that for the first time, the professions now enjoyed full protection of the use of their title. It wasn’t “state registered” that was protected, but the title of the profession. So if the local pervert suddenly discovered a passion for feet and decided to don a white coat and hang a notice under his net curtains, he wouldn’t be able to call himself a chiropodist or even a podiatrist. Not unless they were properly qualified and registered. As a chiropodist; not a pervert, of course. That’s what “protected titles” means. And for that, we should all be grateful. Quite.

The problem with all of that – and the reason why the regulator has done almost everything money could buy to win this case – is that it’s all just a big fat lie..

Parliament did not provide any protected functions for the professions with the Health Professions Order, that was clear, But the legislation did not protect titles either – despite the unequivocal statements issued by the regulator. From the outset they have claimed that anyone using a “protected title” without being registered with them was committing an offence and liable to a criminal prosecution and a fine of up to £5,000. And everyone believed them. After all, governments and politicians and regulators don’t lie, do they?

Unfortunately, it turns out that they have done just that, for actually there is no mention of the term “protected title” in the legislation. None at all. There is mention of “designated titles” where it applies titles to a registrant’s qualifications within a register – but of “protected titles” there is not a trace.

With hindsight – and a little knowledge – it is quite obvious why there is no mention of protected titles; it’s because there can’t be.

For some unfathomable reason, the Parliamentary drafters, whose job it is to write complex legislation whilst under the influence of LSD, included that pesky little phrase I mentioned earlier – “intent to deceive” just after a two letter word of tremendous significance.

If.

It’s a wonderful little word that can mean only one thing in the context of this curious business. “ A person commits an offence if, with intent to deceive…” gives a qualification. If there is no intent to deceive – however that is subsequently framed – there is no offence. It really is that simple and obvious, when you think about it. If you still can’t see it, some acid and Zappa should help clear the confusion..

Luckily, I didn’t have to revert to any class A’s for my enlightenment – His Honour Judge Pontius provided the spark at the Old Bailey two years ago when he secured the admission from the previous Prosecutor that there were indeed circumstances when someone could use a title without registration, providing they made their registration status clear and where they held suitable qualifications. Just as I did – and have – and that really should have been the end of the matter and we could all have got on with more important things in life.

Ah, the naivety – even in the face of blatant jiggery-pokery!

I had forgotten the standard civil service procedure for individuals and departments when they suddenly find themselves in a hole of their own making; they buy a bigger shovel.

That opportunity arose at the end of the Old Bailey hearing when the barrister prosecuting the case was removed from the proceedings and a new Prosecutor was appointed – this time a senior QC.

In legal terms, Mr Holland is the JCB and he has done a sterling job!

Of course, there was also an opportunity to abandon the case at that point as it should have been perfectly clear that no offence could possibly have been committed – and that the regulator had been mistaken in their understanding of the legislation all along. But there you go – naivety again!

The regulators and Department of Health officials in successive governments have been well aware of the provisions and extent of the legislation all along and have full knowledge that the HCPC and NMC’s claims to “protected titles” were not only wrong, but deliberately misleading. Or deceptive, even. What is even more curious, is the fact that it is the same legal firm – BDB-Law – that provided the regulatory framework from their interpretation of the legislation after it was enacted – that is advancing this prosecution on behalf of the HCPC. We now know their interpretation was wrong; yet they are paid handsomely from registrant funds to abuse the judicial system in an attempt to conceal their deception. Nice.

I write this update on the second day of the Junior Doctors strike amidst accusations of dishonest and misleading statements by the Health Secretary, Jeremy Hunt. I am no longer surprised by anything I read about politicians, health officials, the NHS or the wider Establishment – particularly some elements within the legal profession. The last three years finally extinguished any lingering innocence and naivety, for at the end of the day its all about money, exposure and accountability.

Parliament did not protect functions in the health regulation as such a level of protection would seriously impair the ability of the Department of Health to advance the use of “assistants” in the NHS workforce – Healthcare Assistants, Podiatry Assistants, Operating Room Assistants – all unregulated ‘clinicians’ trained to undertake tasks one designated to experienced and regulated professionals. In simple terms – it’s a cheaper workforce, that’s all. The truth of the matter is that the government expects fully qualified doctors and health professionals, nurses and midwives to adhere to a strict and sometimes onerous regulatory regime – to ensure “public safety” at all times – whilst concurrently advancing a workforce redesign which promotes the use of unregulated and unqualified individuals in roles preciously undertaken by experienced and fully registered clinicians. Public safety? Yeah, right. Doctors beware.

So the HCPC have bought another couple of months and will hope that the JCB has managed to dig its way out of trouble for them – and their masters down the road in Whitehall – but somehow I have a feeling that this digger is not having the best of fun with this job. It’s never fun to discover halfway through a case that your patient has been telling porkies – and I suspect that applies across all the professions. Even our legal cousins. Mostly. As my grandfather might also have said; “There’s nae joy wi’ a pig in a poke”.

So, 22nd April in Preston, folks, if I am still here and common sense doesn’t make an appearance in the interim. There’s that word again – if. If I am not and it doesn’t then at least if you’ve read this far you will better understand why this prosecution has been pursued in the manner that it has.

And that’s all that really matters.

Gobbledegook & Tautology: The Establishment G&T

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As so often in my life, it was a patient that provided the enlightenment. I had been working as a locum in Worcester just after the Millennium and the NHS was embarking on another round of what management termed euphemistically as “service rationalisation”, which those at the sharp end of clinical delivery understood to be another term for discharging patients from long-term palliative care.

Historically, the NHS used to provide “chiropody” to people who fulfilled certain criteria – pensioners, pregnant women, school-children and those with an underlying medical condition, such as diabetes, poor circulation, arthritis or those with an incapacity like blindness or what we now call learning difficulties; the mentally handicapped. Over the last sixty years, as the podiatry profession developed its scope of practice, other patients were routinely included in NHS care. Adults with acute conditions like ingrown toenails and gait disorders could be referred by their doctors and by the time I qualified in 1983, some podiatrists had undertaken training in surgical practise – initially in the USA – for routine and complex foot and ankle bone surgery, normally the domain of the orthopaedic surgeon. But these advances in clinical provision – as welcome as they are for any discipline, also stimulate demand – and that brings us back to the perennial problem of cost and funding of NHS services.

Since the introduction of general management principles in the NHS following Roy Griffiths’ Report in the 1980’s, care has been prioritised in line with funding. As new treatments have emerged, the demand for services and its impact on NHS budgets have increased exponentially, and as always when bean-counters and bureaucrats are in charge, something had to give. In NHS podiatry clinics during the 1990’s onwards, what ‘gave’ was the care provided to millions of people up and down the breadth of the UK, who suddenly found themselves on the wrong side of an administrative line that specified new criteria for access to services, which precluded a subtle shift away from clinical ‘need’ – to clinical ‘risk’.

Now, I don’t really have an issue with that – nor do most clinicians who have worked in the NHS. If someone is in urgent need of care, then of course they should be prioritised; that is simple common-sense, but unless funding increases at the same rate as clinical demand, there will always be a shortfall and some people will lose out. Such are the times we live in.

A few months before I came to Worcester, I was working in a fairly remote clinic in the middle of the North York Moors and had turned up for my first clinic near Helmsley and was met by the Service Manager, who explained they had contracted me for four weeks to help “re-educate” the patients who made up the bulk of the service caseload in rural and remote clinics. Patients (or service users, as they were now labelled) were to be encouraged to look after themselves and their own foot problems. Nail files and callous rasps were provided and I was supposed to encourage the recipient that it would be much better if they looked after their own feet or that of their partner. It was called “empowerment”.

I only lasted a week in that post and found the whole approach distasteful and quite dangerous. No provision had been made for those people to have their treatment provided elsewhere – and it was quickly apparent the new criteria was iniquitous, if not, dangerous.

The “at-risk” criteria included those people with diabetes, thus in some NHS trusts, a twenty-something insulin dependent diabetic could have regular chiropody care – even though their “need” was minimal – but a ninety-six year-old with painful age-related conditions, but no qualifying medical criteria, could not.

In Worcester, the Trust had provided a letter that could be handed to patients to help them understand the new conditions for access. In typical NHS management-speak, it presented a warm, fuzzy illusion of giving everything whilst taking more besides away. My patient that day read the letter with a smile… “How lovely. Just as Mr Blair predicted!” he said, and I thought he was talking about the current Prime Minister before he explained what and who he really meant.

“It’s ‘doublespeak’”, he announced. “Haven’t you read 1984? Rationalisation, prioritisation, empowerment! Monkeys could do better any day…” and he would know, being an authority on primates as well as many other subjects….

My patient that day became a good friend and mentor over the years. Sarel Eimerl was in his mid eighties and lived in a Quaker house near the cathedral, when we first met. He was a literary authority; from the classics to the life of Giotto, but he is better known as the editor of Time-Life Books – and as you might expect, he was nobody’s fool. In an earlier life he served in the diplomatic corps in Mesopotamia (Iraq) and the conversation returned to political events at the time. “This is almost as bad as the dossier the other Mr Blair has just written,” he said waving the letter at me; “why can’t people just tell the truth?”

Why, indeed?

I was reminded of Sarel last Thursday at the conclusion of the proceedings in the Crown Court Appeal with the HCPC in Preston. Sarel had offered countless examples of doublespeak that I should have been familiar with. Simple deception and lies to complex propaganda designed to induce mass deception. Within a few simple sentences he explained what was really behind the Iraq conflict and the rise of Islamic fundamentalism; a view that still holds primacy today. But I never expected the most devious and deceitful examples of this duplicitous practice from a government health regulator and its legal representatives – nor indeed did any other of my colleagues in podiatry or any other of the health professions.

Having given evidence last Thursday and as there are no reporting restrictions, I can now offer a more detailed commentary on this curious and worrying business – and I will do so over the coming weeks.

Those that have the capacity to remember these things will recall I pled guilty to an offence just over two years ago for using a professional title without being registered with an appropriate authority – a medical regulator. It wasn’t an oversight – I had deliberately withheld my registration fee (£74) – and for good reason – but the offence I thought I was pleading guilty to, actually didn’t exist and it turns out, I wasn’t doing anything illegal in the first place. I feel rather uncomfortable writing that as it amply illustrates what a fool I have been, but I do take some comfort in the knowledge that my ignorance was shared with just about everyone else in the health professions and most of the public too!

We have been blatantly lied to – or deceived – if you prefer, by a medical regulator and government who have a different agenda altogether than the one stamped on the regulatory and public-safety tin. In law, this is called fraudulent misrepresentation. Plus ça change!

And nobody was any the wiser.

I was in the witness box for just over five hours and only managed to make Mr Holland lose the plot on two or three occasions, but it was good fun all the same. I’m going to look forward to his explanation of the difference between “unlawful” and “illegal” one of these days, perhaps when I’m adjusting the rope tension when he starts that airy and exposed traverse on Crowberry Ridge. If I can persuade him it might be in his best interests – and providing he’s fully tuned into the dialect, it should be one of life’s more captivating moments. But Thursday was certainly an illuminating and enlightening experience. I’m also looking forward to the day when he can unearth the piece of paper from his client telling me I could write unregistered and still win the lottery. Who would’ve known? Certainly not me…but who did provides the answer to the question; “who is responsible for this prosecution?” Can you guess yet?

Unfortunately, we haven’t finished. I should never have tempted fate by suggesting there might be a prologue, but the Judge had a prior appointment in London and had to scoot away sharpish for the train and we finished at 3.30pm and with another few witnesses to call, she adjourned matters until 26 February next year. For the final time. Hopefully. At this rate, Mr Holland will be able to buy Lochgelly or Cowdenbeath on the fees he’s earned in this case alone and he doesn’t even know what it’s all about yet. Isn’t life funny indeed?

And the 26th February is, coincidentally, the same date as the last successful appeal at the Old Bailey two years ago. Would you believe it?

As I have written elsewhere, I am fast running out of currency – if not monetary then in gratitude – and it was fantastic to see so many colleagues and friends in the public gallery. It is during these occasions that you discover who really matter in your life – and that is never a bad thing. Thank you again for all that made the effort – it was hugely appreciated.

Mass deception is not a new concept – humanity, individually and collectively, has been constantly manipulated, deceived and brainwashed throughout history; it is a curious condition that undermines our perceived status as this planet’s most intelligent beings. If only we could see just what really stands before us. Or maybe blissful ignorance is a trait that reigns supreme…

UPDATE: I was informed at 6pm 14/12/15 that Mr Holland is unavailable on the 26th and a new date is yet to be set. Merry Christmas.

Seating Arrangements on the Titanic

  

Oh dear. Quite a few people mistakenly call the Registrar at the HCPC, Mr Searle. It’s a common mistake and one that I’ve made myself, but it’s actually Mr Seale. Even Mr Holland tripped up a couple of times in October and he gets all the cheques! The memory isn’t quite what it was these days, but I usually find it’s helpful if you just remember ‘slippery’ – which turns out to be quite apt. Twelve years is an awfully long time….

Because we go from this:

“From July 9th, 2003, the titles below are protected by law. Anyone using one of these titles must be registered with the Health Professions Council, or they may be subject to prosecution and a fine of up to £5,000.”

To this….

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….and in our professional journal this month, they tried again….

Questions from the Society of Chiropodists and Podiatrists for the HCPC

Jonathan Jones, Stakeholder Communications Manager at the Health and Care Professions Council, answers your questions about the misuse of protected titles and the action the HCPC takes against those who imply they are HCPC registered when not registered.

1. What action does the HCPC take when you receive information that that a foot health practitioner is claiming to be a chiropodist / podiatrist?

The aim of the HCPC is to ensure ongoing compliance with the law. If the HCPC receives information that a protected title is potentially being misused, its first step is to contact the person or organisation concerned, explain the law, and inform them that they should not use the title unless they are entitled to do so.

Where there is evidence to show that an offence is being committed, the HCPC will send out a ‘cease and desist’ notice, which sets out what action it will take if the person or organisation continues to break the law. In most cases, people do comply at this stage.

If anyone continues to misuse a protected title, the HCPC’s Chief Executive or Director of Fitness to Practise can authorise a prosecution. Some cases close on receipt of this notice of prosecution. If not, the case goes to court and if convicted, individuals are liable to a fine of up to £5,000.

2. Equally, what action does the HCPC when you receive information that a non-HCPC registered (degree qualified) podiatrist is calling themselves a chiropodist / podiatrist?

It is a criminal offence to imply that you are registered with the HCPC when you are not. We would therefore take the same action as outlined above. {Eh?}

3. What about anyone who calls themselves a ‘formerly registered podiatrist’ and actively makes sure that all their patients are aware they are not registered with the HCPC?

It is important to bear in mind that we must treat every situation on a case-by-case basis. The key consideration when determining whether someone has misused a protected title and be liable for prosecution is if there was an intention to deceive (whether expressly or by implication). The HCPC is unlikely to pursue cases where there is clearly no intention to deceive. On a related note, quite understandably many professions are proud to be part of their profession after retirement so they may choose to use a term like “Retired Podiatrist” or “Former Podiatrist”. Similar qualifying adjectives are also acceptable which do not intend to imply registration such as “Student Occupational Therapist” or “Equine Physiotherapist”.

4. If someone is offering chiropody or podiatry services but not using the title chiropodist or podiatrist will the HCPC still take action?

Yes. As outlined above, it is an offence to either misuse a protected title or to imply that you offer chiropody or podiatry services. Therefore, if someone who described themselves, for example, as a “Foot Health Practitioner” and said that they offered chiropody or podiatry services we would take action.

9. At what point does misrepresentation become a criminal act?

If someone states or implies that they are registered and they are not, or uses a protected titled which they are not entitled to use, they are liable to prosecution and if convicted could face a fine of up to £5,000. The ultimate decision as to whether a crime has been committed rests with the court / judge.

10. What are the penalties for ‘holding out’, and do you think they are a sufficient deterrent?

If an individual ‘holds out’, or in other words pretends to be registered when they are not, then we can take action, as outlined above. In most cases individuals comply having received a ‘cease and desist’ notice, or even before this once we have made our initial contact with them explaining the law. For the period 2013–14 the HCPC received 325 new protection of title referrals, 101 of which related to chiropody / podiatry. Of these cases, 94 were remedied prior to a ‘cease and desist’ notice being sent out.

If the individual fails to comply and the HCPC authorises a prosecution, some cases close on receipt of this notice of prosecution. If not, the case goes to court and if convicted, individuals are liable to a fine of up to £5,000. The fact that most cases close before they reach this stage suggests that the initial letter explaining the law, the cease and desist notice, the notice of prosecution, and the potential fine, all act as deterrents to the misuse of protected titles.

11. Do you think that the current legal framework is robust enough to protect the public?

Yes. The system of regulation that our legislation allows us to operate is based on the protection of titles, not functions. This approach means that the public are protected by using professionals who meet our statutory standards and can easily check registration. Not protecting specific functions has clear benefits for the professions. It means that roles can change and develop over time with minimum intervention from the regulator. We review our standards on an ongoing basis with involvement of the professions as well as service users, employers, unions and others to ensure that they continue to be fit for purpose. Our processes are robust and are regularly audited both internally and externally

Oh what a wicked web we weave….

You know, I can’t find the words “protected titles” in that thick bundle of pages of the legislation that they sent with the summons nearly three years ago now.  It was only loosely tied up when it arrived and I think a few pages must’ve dropped out. Oh dear!

I wonder if he’ll show face? He’s probably busy contemplating an internal audit, but maybe I should call into Lanigan’s on the way through, just in case….

The evidence suggests that some people just never learn.

Parallel Lines

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Well, isn’t life strange? Just when you least expect it, a number of bizarre and quite astonishing coincidences seem to spring up all over the place until they are everywhere you look. Sometimes, a quiet room with a guitar is the safest place to be.

Those following the curious little story that’s been quietly unfolding in some prominent and historic court-rooms up and down the country over the last two and a half years, will realise the final chapter will be revealed in a few days time in Preston Crown Court. I only hope there’s not a prologue.

The previous outing, you may remember, was in the splendid surroundings of Lancaster Castle – which I am delighted to report, is one of the few remaining islands in the now rather large Lune Estuary. Thank goodness the Judge didn’t get her way, as she had a notion to take the final day of the appeal over to Barrow, which is now only accessible by sea. That could’ve been interesting; sharing a wee boat over Morecambe Bay with the solicitor for the HCPC and all that quicksand. Thank goodness indeed, although I wonder if he might soon experience something similar elsewhere.

Anyway, back to the final chapter on Thursday in Preston. They way things have turned out, all that’s left is the defence case, cross-examination, case presentation and the diagnosis. For, that’s really what a verdict is. I was struck by the similarities in the methodology a clinician might use when comparing it to a Judge in a criminal case. Both essentially follow the same principles; careful evaluation of the evidence, both subjective and objective, using strict, reliable methodology to reach the correct diagnosis.

The crusty Department of Health types who are paid huge salaries to complicate things until they break, have renamed it “Evidence Based Practice” – and that’s what all the youngsters in white-coats and stethoscopes are programmed to say these days. The Judiciary call it what it was – experience. I think I prefer – common-sense.

What this really means is that I get to stand in the witness box instead of the dock and answer whatever questions anyone wants to ask. It’s called ‘giving evidence’. I’m hoping it’s similar to the Thursday night Quick-Fire-Quiz at the Legion as I did quite well last week and came second. Never a bad thing in my view – and it was only a bottle of Blue Nun for the winner anyway. I did give a little evidence at the London Magistrate Courts in previous hearings – and at the Old Bailey – but my thick Fife accent must have been undecipherable to the Metropolitan Judiciary and with no translators handy, it’s led to some bizarre decisions, which have prolonged matters interminably. No wonder Gordon Brown looked frustrated all the time. I must remember to speak slowly as I’m certainly no experienced and stylish courtroom orator by any stretch of the imagination, but I have been very privileged indeed to bear witness to a few that are – and not just in this case either…

What very few people know – and certainly none of the present case participants – is that I have been involved in another criminal trial as a defendant, long before this curiosity emerged from the swamp. Twenty-years ago in Scotland, I became embroiled, along with a leading and respected solicitor, in a highly charged police investigation in my hometown of Kirkcaldy.

During the case last month in Lancaster, Mr Holland entertained us during one of the breaks with tales about the Flying Squad in North London where he once practised as a CPS barrister We don’t have the Flying Squad in Kirkcaldy – it’s more like the Goon Show Crew from the local Masonic Lodge on a Keystone Cops Sunday outing. One day soon, you will be able to read the entire unabridged escapade, but in essence it was a spectacularly botched police investigation complicated by an incredibly silly and inept Procurator Fiscal who wouldn’t even make an F minus on the Judiciary’s Report Card for ‘experience’. I even had the exquisite delight of spending a Long Weekend in the dungeons and torture chambers beneath Kirkcaldy Police Station and what fun that was too. No water-boarding though. But I was interviewed for a very long time – and whilst they understood the accent – I was still charged at the end of the day. Not just once, but twenty-one times. And really, really, really serious ones too!

Of the ‘utmost gravity’ as my solicitor described the charge sheet when he was eventually allowed in to see me late on the Sunday evening. We had never met before – I thought the police had called him in – and he looked about fifteen. With blonde hair and big glasses, he was the spitting image of the Milky Bar Kid and if he had passed his law degree that year, he had to have been a child prodigy. Whiz Kid or not, I still thought I was finished! As it turned out, he was the same age as me.

The following morning I was taken, hand-cuffed in a police van, to Kirkcaldy Sheriff Court – about 200 yards from my house – and charged with twenty-one offences on indictment from the High Court. My co-accused faced four. The MBK secured bail and off we went, wondering what planet we had just landed on.

Fourteen months later, on a bleak November morning in Kirkcaldy, the trial commenced in front of Sheriff Frances Keane and fifteen true and strong Fifers on the Jury benches. Day after day a succession of Crown witnesses would come and give evidence to the court and it was fascinating to watch. The expert witnesses – the forensic scientists and professionals were very rigorous with their methodology – as were the legal participants. In all, over seventy Crown witnesses were scheduled to give evidence, but not all managed to reach the stand.

I heard a few groans at the end of the last hearing in Lancaster after Mr Holland had taken five-hours presenting the case for the HCPC – and I could well sympathise. But in the other trial, Crown Counsel spent six weeks presenting his case – most of it running round in circles – and whilst it was hugely entertaining, it was terribly frustrating too. Especially as we really shouldn’t have been there at all. And there’s the first coincidence….

On the final day of the Prosecution case, the three principal Crown witnesses took the stand. The MBK had been doodling up until then; most of the Crown witnesses were irrelevant in his view and the QC for my co-defendant concurred. The first week of the case, I was riveted, but by the end of the second week my interest had started to wane and I started doodling too. The following week, someone brought a copy of Kafka’s ‘The Trial’ and the four of us had a turn and this kept us occupied until the final day. If it had gone on much longer, I suspect we might have had to pass it over to Sheriff Keane as he had long developed a look of forlorn despair, but on the last day, it all sprung into action.

Once the Crown Counsel had finished his questions to the principal witness, the MBK calmly and methodically began his cross-examination. What followed was the most forensic examination of a witness I have ever seen – and by the time the last Crown witness was helped from the stand, the Crown case had been fully and ruthlessly dissected – and shown for what it was.

I have a faded post-it note in my diary on that day which I passed to my co-defendant when my solicitor was in full-flow. It reads:

“If Alex had a lump of granite of the stand and thought it was lying, he would get enough blood out of it to keep a transfusion unit going for weeks..”

I don’t doubt he could.

My solicitor – the Milky Bar Kid – was actually a solicitor-advocate; a Scottish criminal solicitor with rights in the High Court. When he introduced himself that difficult Sunday evening in the cells at Kirkcaldy Police Station, it was with such gravitas that I quickly realised he was a little older than he looked; he had, as my grandmother might say, “an auld heid on young shoulders”.

Alex Prentice was a partner in a small, specialised criminal law firm in Edinburgh at the time and was quickly building a reputation as a skilled advocate in complex and serious criminal cases. When he finally sat down that afternoon, no one in that court-room was in any doubt of the verdict on the matter before them – or the potential of that young man who had taken everyone through the evidence with a simple common-sense approach that was both logical and brilliant.

In May 2000, Alex’s firm, McCourts, represented Abdel Basset Ali al-Megrahi at the Lockerbie Trial in the Netherlands and a few years later he switched sides and became a prosecuting advocate-depute in the Crown Office in Edinburgh, where today he is now the Principal Crown Counsel – the most senior prosecutor in Scotland under the Lord Advocate. Some of you may already have seen Alex in action during the Channel 4 documentary – The Trial – the first televised murder trial in the U.K. I have to say, he’s wearing well and still looks like the Milky Bar Kid! And you certainly wouldn’t relish facing him across a court-room these days. Not unless you’re scrupulously honest…

There are so many parallels between both these cases in my rather interesting life. It has certainly not been the kind of career path I had expected dealing with feet, when I first dipped my toes in the water back in 1983 – but it’s been much fun all the same if strangely familiar in a circular sort of way. And the most bizarre coincidence is this:

The Kirkcaldy trial closed in early 1997 when Sheriff Keane formally acquitted myself and Tom Johnston – my co-accused, in a short hearing. His remarks at the end of the case certainly gave much comfort and reassurance over the difficult years ahead and I still remember them well today. But the trial had actually ended a few weeks earlier when Alex had finished his final cross examination. A few minutes later, the Sheriff discharged the Jury amidst some quite incredible scenes and that was that. I had forgotten the date, but when I looked out the diary for the post-it note, I realised it was December 10th…..It sent a shiver up my spine it did!

Oh, for another coincidence on Thursday and I hope I’m not tempting fate by saying so. I also hope it stops raining and the Judge manages to get the car’s winter service carried out before she sets off. And I truly hope Mr Holland can manage too – whatever the expense – and we can get this over with once and for all. And if he’s still talking to me by then we’ll sort out the arrangements for another adventure…if he’s up to it, that is.

Lockerbie

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A few days before Christmas in 1988, I was driving south from Scotland heading down to London for an exhibition at the Design Council. I had left Kirkcaldy at the end of the afternoon surgery but had been held up on the Forth Bridge which was undergoing yet another unsuccessful attempt at resurfacing the carriageway – and as a result, it was just approaching 7pm when I pulled into the service station at Hillend to fill the car up for the long drive ahead. As I resumed my journey, the Archer’s theme tune started up and I put a cassette of John Martyn’s Solid Air on instead.

The drive through the Scottish Borders from Edinburgh is a glorious one. Following the south side of the Pentlands the A702 passes through some delightful countryside and villages with stunning views in every direction. Passing through Biggar you gain the main motorway south – the M74 at Abington – and this is the quickest route. I often branch off at West Linton and take the 701 down to Moffat and it is one of Scotland’s best drives – up to the head of the Tweed valley and over the Devil’s Beeftub then down the head of the Annan to Moffat and the motorway. That would be my preference on most days, but the weather that particular evening was not conducive to a jaunt across the high moors; heavy sleet showers pushed on by a stiff south-westerly lashed the windscreen on the Saab as I rounded the hill just up from the Hillend ski slope, so the car was pointed at Biggar and an hour later I was driving up the slip road to the M74 at Abington and had just set the cruise control, when I was met with another line of stationary traffic – and this one wasn’t moving.

The exhibition was the following day and I had a room booked in London that evening and had estimated an arrival time of between 11pm and midnight. That now looked improbable. A few minutes later, when I switched the radio back on, it became impossible.

At approximately the same time as I was filling the car with petrol on the outskirts of Edinburgh, a small explosive device in a Toshiba Cassette recorder detonated in the hold of a Pan Am 747 airliner at 31,000 feet above Lockerbie about 70 miles to the southwest. The rest, as you know, is history.

We were escorted south many hours later, skirting the crash site well to the west of the village and it was later in the day when I first saw the pictures on the television that the enormity of the incident finally became apparent. The sight of the enormous engine, embedded into the tarmac road and the houses ablaze with kerosene will remain with everyone who was around at the time and the worsening weather just added to the gloom and despair.

Over the following years, I followed reports of the disaster as much as I could. My generation had not experienced anything like this before and the mere concept of international terrorism affecting a small Scottish village was an anathema; an explanation or understanding was certainly needed. But the police investigation and subsequent trial in Holland almost twelve years later raised just as many questions as answers with obvious and perplexing contradictions in almost every aspect of the case. The Trial was held in Camp Zeist – an American Air Base in the Netherlands – but under Scottish legal jurisdiction. It was, in essence, the High Court sitting in Holland – and the entire proceedings were broadcast live on television. It was compulsive viewing and fascinating to watch how the trial unfolded and what logical processes are followed to establish the verdict. I was struck how familiar it appeared.

One aspect of my own day job is arriving at a diagnosis when a patient presents with a problem. Sometimes it’s fairly straightforward and the diagnosis is perfectly obvious, but occasionally it is more complicated than that and in these cases, you follow a logical methodology until you can make an accurate determination. Individuals who have suffered severe trauma and have undergone reconstructive or salvage surgery, may present in later years with conditions that have occurred as a result of either the trauma or surgery or both. Sometimes I am asked to determine which is more likely – no doubt to determine whether there is an exploitable liability for the referring agency – and you have to go through a process to get an answer. This involves taking a detailed history and conducting a comprehensive clinical examination then considering the evidence in context of the presenting complaint. Part of the evidence may be subjective – some objective. The clinical examination – or gathering of objective evidence – may include the use of investigative methods like X-Rays and Magnetic Imaging (MRI) or a pathology report – but once you have gathered all the material you are usually in a position to make an informed decision based on all the available evidence. If the evidence is inconclusive you may have to consider alternative or differential diagnoses then apply the evidence base to each to determine which is more probable. It’s good fun and makes the job something of a cross between Inspector Clouseau and Antiques Roadshow at times, which can never be a bad thing.

With some patients however, the process takes much longer. Occasionally someone may come in with a symptomatic condition – pain in a joint or a tendonitis, but you are unable to determine a cause. These conditions are referred to as idiopathic. However, over time, sometimes years, that individual may present with a variety of symptoms or conditions that appear to be unrelated and in themselves may not prove anything or lead you to a diagnosis, but gradually you may see a pattern building and when you bring the evidence together at the appropriate time you very often arrive at a conclusion that with hindsight, often explains many other symptoms and conditions that patient has displayed over the years that you may not have been aware. Advances in medical technology helps. With the advent of MRI we now know of a condition called bone marrow oedema (or osteopenia), which was hitherto unknown. This usually occurs on post-menopausal women and very often it is one of the bones in the foot that is affected and it can be quite debilitating for several months. We weren’t able to make a diagnosis until this type of imaging became available – it was just ‘idiopathic bone pain’.

The point of this is that the methodology used in arriving at a medical diagnosis is usually fairly robust and I could see similarities with the criminal process that was being televised every day from Holland. The available evidence is tested and examined and considered in the overall context of the charges before the court until a verdict – or diagnosis – can be reached by the Judge or the Jury. In the legal process – we already know what the diagnosis will be – either guilty or not guilty – and in Scotland, there is a third – not proven. That is the context in which the evidence is presented, examined and tested.

Of course it is all done with a great deal more pomp and ceremony than you would normally expect to find in my surgery and it can be quite confusing, especially the legal procedures and custom. Often the most important piece of evidence is something you thought inconsequential, which on its own may seem evidentially weak. But a skilled advocate will have identified the importance of that particular piece of evidence in relation to the others and when they pull it all together in their closing arguments, they hope it makes a strong enough case to convince the Judge. Lawyers call it the “cable analogy” – where single strands of wire that, individually, may be quite weak – but when pulled together make something very strong. It is the same methodology as we use when reaching a conclusive diagnosis in patients with complex and developing conditions.

However, there are some glaringly inherent weaknesses in court procedure that, thankfully, do not encumber clinical practice. For example, the only evidence the Prosecution will table is evidence that supports their case. The principal objective being to achieve a conviction, which is not quite the same thing as solving the crime – or reaching a conclusive diagnosis. Very often, it is the subjective evidence that sways the day – the powerful closing speech or a particular inference or conjecture during the examination of a witness – rather than objective evidence, such as forensic tests and corroboration.

The Lockerbie Trial was largely speculative and circumstantial. To the layman watching the live broadcast, a guilty verdict for either of the accused seemed highly improbable. One of the most important pieces of evidence – a tiny fragment of an electronic circuit board used in timers for detonating explosives – was recovered from a remote hill-side and was identified to have come from a Swiss electronics company owned by someone who had previously sold timing devices to the Libyans. It was a plausible argument, but to me seemed highly unlikely given the atrocious weather conditions that night and the vast area wreckage was scattered over. But anything is possible when you don’t know the truth.

This is neither a commentary about the Lockerbie Trial nor an opinion about the veracity of criminal procedure. It is simply an observation that something many of us witnessed has not yet been adequately and properly explained. Dr Jim Swire, who lost his daughter, Flora, in the disaster, sums it up perfectly when he said recently. “Our governments are not telling us the truth.” Being a medical practitioner, I assume he used his own methodology to reach that conclusion and I can see no reason to disagree. He is probably the most authoritative and knowledgeable voice on the case and yet remains convinced that the verdict is one of the worst miscarriages of justice ever to blight the Scottish legal system.

With Megrahi’s death almost four years ago, the prospect of an posthumous appeal against conviction and sentence seemed unlikely but Jim Swire and other relatives of the victims pushed the Scottish Criminal Cases Review Commission to appeal the verdict. Last week, on the 5th November – a night when the sky is ablaze with explosions – the SCCRC finally decided, with all the sagacious sensitivity of the civil service, to drop the case – and now we will never really know what or who is responsible for the events that night.

Three recent events reminded me of Lockerbie. The announcement by the SCCRC last week was one of them, but the other is a very touching documentary first shown on BBC Four three days earlier. It is about another man’s quest to find out the truth about what happened in the skies above Scotland that bleak December night. Ken Dorstein’s brother David was also on Pan Am 103 and he embarks on a remarkable journey to try and find the man responsible for his brother’s death. It’s worth a watch and you cannot feel anything but admiration for his determination, but I could not help but feel this was an attempt at revisionism as much as enlightenment.

The other reminder was, sadly, the sight of another crashed airliner in a desert in Egypt – in circumstances eerily reminiscent to that we have just discussed. The sight of the twisted fuselage and enormous engines embedded into the charred ground, all too familiar. What chance of the truth being uncovered here?

For me, Lockerbie and the likes of the Egyptian atrocity also illuminate another unsolved mystery – that of September 11th 2001 – where, even more curiously, the aircraft used in the Pentagon and Philadelphia incidents were deemed to have ‘vaporised’ on impact, leaving no traces of evidence behind. Having seen at first hand how robust jet engines are after falling from 31,000 feet into a tarmac road, I find that explanation highly implausible. And when you consider that a tiny fragment of an electronic circuit board could withstand a powerful explosion – and the inclement weather of a Scottish winter – sufficiently enough to be identified and used in evidence, how does a six-tonne Rolls Royce Turbofan jet engine simply disappear into thin air?

One day, we may reach a conclusive diagnosis for all these events and others. But only if we change the methodology of the investigation.