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.
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.