One year ago I published a short article about a rather unusual prosecution by the Health and Care Professions Council (HCPC) where they brought criminal proceedings against me for calling myself a podiatrist. You will be surprised to hear that the case is still active and has developed into quite an extraordinary legal and regulatory debacle with far reaching consequences for many who have been involved.

When the case concludes later this year, it will present Government with some challenging and important issues for future health regulation. I have attached a paper I published last June that details the background and first prosecution in which I initially pled guilty and was convicted, before overturning the conviction at appeal. When I wrote this article last summer, I was waiting to hear if the HCPC would table a second prosecution or abandon the case. Subsequently, they proceeded with a second prosecution, which commenced in September last year. It may be helpful if I summarise matters again.

You will recall I ceased my registration with the HCPC in September 2008 when the Registrar, Mr Marc Seale, declined to answer correspondence that highlighted a serious flaw in their legislation that permitted clinicians who have been struck-off for serious offences, to continue in practice in the private sector without any restriction or regulatory scrutiny. At the time, I thought I was committing an offence as I still practised as a podiatrist after deregistering – and I had hoped that this might provoke the Registrar into responding. The HCPC wrote to me formally and told me that if I were to call myself a podiatrist without being registered with them, that I would be liable to prosecution. But the Registrar still did not respond and regrettably I felt compelled to maintain my protest.

Between 2008 and 2013, nothing happened other than occasionally I would receive a “cease and desist” letter from the regulator informing me that they were aware I was using a “protected title” and as I was not registered with them then I may be liable to prosecution. Each time I received a letter, I would reply stating I would be happy to register once again providing my concerns on public safety were addressed in a letter from the Registrar. This never materialised.

During this period I practised in a small complimentary clinic in St Annes, which was owned by an osteopath. I rented a room at the clinic in 2006 and worked there until March 2012. Unfortunately, what was a delightful work environment with some exceptional people., deteriorated into an altogether unpleasant experience in 2011 when the owner of the clinic encountered serious financial problems, which eventually led to a breakdown in relationships, both personally and professionally, with most staff leaving by the end of the year. I left in March when I discovered that several hundred pounds had been taken from one of my accounts in cash without my knowledge. We did not part on good terms.

One year later, in March 2013, I received a summons from the HCPC for a prosecution of an offence under Article 39 of the Health Professions Order for “Misuse of Title”. With the Summons was an evidence bundle, which contained two complaints the HCPC had received the previous year from the wife of the osteopath and one of his friends. The complaints alleged that I had deceived the osteopath regarding my registration status by not informing him of my decision to deregister. Accompanying the complaint from his wife were several receipts and invoices purportedly taken from my patient files to demonstrate that I had kept on using the prefix “HCPC Registered” and included my old registration number after I had ceased registration.

These allegations were wholly untrue and the documents in the evidence bundle were copies of computerised patient records retained by the osteopath on his clinic computer and fraudulently altered. It was straightforward to counter these allegations and documents; I have retained my patient records and obtained the original paperwork that clearly demonstrates the documents were altered. I also had detailed witness statements from all the secretarial staff who worked at the clinic at the time which confirmed the documents were false – and that the osteopath was fully cognisant of my decision to cease registration and was actively supportive of my decision to do so.

This spiteful and mischievous act from an individual with a grudge was to have more serious consequences than I could ever imagine at the time.

These complaints gave the HCPC what they believed to be sufficient evidence of “an intent to deceive”. This is indeed part of the offence I was to be prosecuted for, however its importance, as an essential ingredient of the offence, was not something I was aware of at the time – and with good reason.

Since the HCPC came into being in 2003, it has maintained the position that it is an offence to use a protected title – such as chiropodist or podiatrist – unless registration is held concurrently. It is a position that was accepted by the professional bodies – and the profession generally. It didn’t stop the problem of unregulated practitioners – they simply circumvented the spirit of the legislation and adopted a different name – Foot Health Practitioners. But we all accepted that the primary titles were protected and thus there was, at least, some public safeguarding – in the NHS if not the private sector. Thus, when I ceased registration and told the HCPC I was keeping my “title” – I thought I was committing an offence. But I was wrong.

I was wrong because I believed what the HCPC had told me. That it was an offence to use a title without being registered with them. It is not.

During the Old Bailey appeal to my first prosecution, the HCPC barrister made an extraordinary admission to the Judge, HJH Pontius, when she agreed that use of the title without registration is not an offence on its own. There must also be evidence of dishonesty – of “an intent to deceive, either expressly or by implication”. A person can legally use a title without holding registration with the HCPC as long as there is no accompanying deception. They cannot state or imply they are registered when they are not. That is the offence.

This was a remarkable admission given what had gone before. When I ceased registration I undertook to remove all reference to my previous registration details and to inform all patients and colleagues what I had done. The regulator replied, informing me that I was committing an offence and was liable to prosecution. But I wasn’t. Unbeknown to me, I was actually complying with the legislation by making sure I was acting honestly and openly and informing everyone connected with my professional practice what I had done. I have never stated or implied that I held registration with the HCPC since September 2008.

Each time I received a “cease and desist” letter, which claimed I was committing an offence by practising using a “protected title” without registration, there was never mention of an “intent to deceive”. I had no intention of deceiving anyone – quite the opposite – a position the regulator was fully aware of. Yet still the HCPC maintained this deception of its own! They could have advised me that I was able to call myself a podiatrist providing I did not claim or imply that I was registered, but they didn’t.

My first face-to-face contact with the Prosecution was at Westminster Magistrates on 22 May 2103 at the initial hearing. No one had contacted me from the HCPC before I received the summons in March that year and thereafter, all contact has been through their solicitors Bircham Dyson Bell (BDB).

When I presented the prosecuting barrister with the original patient records and the witness statements from the secretarial staff outside the court before the hearing started, she took them for a short conference with her instructing solicitor from BDB – Richard Langley. When she returned she agreed the evidence was unreliable and could not be used in the prosecution. She then asked what I intended to do. As I thought I had still committed an offence of Misuse of Protected Title – I told her I would plead guilty. But I insisted that all evidence of any dishonesty or deception would have to be removed from the summons. This was agreed – and was subject to a formal notice of agreement, which we subsequently made in June. I then lodged a notice of intention to plead guilty and a sentencing date was arranged later that year.

What should have happened on the 22 May, when the Prosecution agreed the evidence of deception was unreliable and removed it from the summons, is they should have abandoned the case. Without evidence of an intention to deceive, there was no offence and the matter should have ended there and then. But if it had, I would have realised that the HCPC had been giving a completely inaccurate position on “protected titles” all along – and that would have been quite embarrassing, given my public stance. But there is more. What I also was unaware of at this point was the legislation does not provide for “protected” titles. The legislation stipulates only “designated” titles. The term “protected titles” was been created by the HCPC during its interpretation of the primary legislation and does not appear in the Health Professions Order 2001 or subsequent amendments.

The sentencing hearing in November 2013 revealed the HCPC intentions for the first time. I intended to plead guilty and offer a statement in mitigation as an explanation for my actions and hoped the court would understand that I acted honourably and with the interests of the public at heart in an open, honest and transparent manner. I assumed the prosecution would say something similar – but I was badly mistaken. The Prosecution barrister told the court I had “acted dishonestly and mischievously” for “reasons unknown” and that during the period since I had ceased registration, had signed myself “variously as HPC Registered, Registered and State Registered Podiatrist”. The only evidence of this came from the evidence that was removed during agreement. In doing so, the prosecution deliberately mislead the court citing inadmissible evidence that she knew to be unreliable.

My mitigation fell on deaf ears and I was convicted and sentenced to pay a £280 fine plus £5k in costs. I appealed the conviction on the basis that the prosecution had misled the court but as I had already pleaded guilty – the appeal was to vacate my plea. In February 2014, the application to vacate the plea was upheld by HJH Pontius at the Old Bailey who also noted that the HCPC had failed to include the “intent to deceive” element of the offence in the documents submitted to the court that day and it was not read out to me as part of the charge. Judge Pontius also recommended that the Prosecution barrister remove herself from any future proceedings.

I was unrepresented until the Old Bailey hearings but have since had legal representation from Nick Glassbrook in St Annes. Nick’s background is in Pharmacy and he specialises in medical and pharmaceutical regulation. His interpretation of the legislation also suggested that it was not an offence to use a title without registration providing there was no deception – and that was part of the argument we used during the Old Bailey hearing – and one which both the Judge and Prosecution agreed.

After the conviction was overturned and my plea vacated, Nick wrote to the solicitors for the HCPC asking what their intentions were as it was clear that I had not committed any offence and we proposed the case should be abandoned. Between March and June 2014 he wrote a further 14 times without receiving any response. In April 2014, I submitted an application for registration with the HCPC to demonstrate good intent. It was never acknowledged or responded to.

In June 2014 we received notice that another prosecution was being scheduled for September at the City of London Magistrates Court. Same charge as before with the same evidence – including the complaints and altered documents procured by the osteopath.

The Judge in this prosecution was DJ Tan Ikram who had experience as a legal assessor for the Nursing and Midwifery Council. The NMC is governed by the NM Order 2001 – which is analogous to that of the Health Professions Order – indeed they progressed through Parliament together in 2001/2 before enactment. We thought this quite fortunate as during the weeks leading up to the hearing, we discovered the NMC had changed their position on protected titles through an obscure announcement on their website. As the legislative provision on offences for both regulators are identical, we thought it was a critical development. The statement 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:

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.

The hearing in September was scheduled for one day and I entered a not guilty plea. At the start of the case the Judge noted that the statutory provision for evidence for this offence was within a six-month period prior to the serving of the original summons – between September 2013 and March 2014 and most of the hearing was devoted to sorting out the admissible evidence in the prosecution bundle. Judge Ikram also indicated that he would give a written judgement as it was the first case of its kind and that we would have to return to court for that judgement after the trial had ended.

The case was adjourned until January this year and resumed at Hammersmith Magistrates Court where I gave evidence in my defence.

There was no evidence of an “intent to deceive” as clearly that has never been my intention! Within the six month period imposed by the Judge, there was certainly no evidence of any infringement, so I was curious, to say the least, how the prosecution might portray that there was. During my evidence I was cross-examined by the prosecution – Mr Michael Holland QC.

He asked about this blog and produced an introductory paragraph that appeared on the “About” page. It started, “Hello, I’m Mark Russell, a Scottish Podiatrist of thirty years experience…”

I was asked if the blog was under my control; if I had written the above line and whether I intended to deceive the public when I wrote it. I answered: yes; yes and no.

During his summing up, the Prosecutor suggested that even though I had committed no offence in making the above statement – a member of the public who came across this page on the internet, might infer from what I had written that I was in fact a registered Podiatrist and thus a deception could have taken place. I almost laughed out loud when he suggested this – I started my blog as an online record of my case with the HCPC and it contains all my articles and papers on the issue and anyone looking at the website could be under no illusion that I held current registration.

Unfortunately, it would appear that the Judge was not so enlightened. When he returned after a short adjournment he announced that he had changed his mind about a written narrative and would instead give a verdict there and then. Incredibly he agreed with the Prosecution that a member of the public might infer that I was registered from what I had written and therefore I was guilty of the offence and fined £200 and £1,000 toward costs. The actual prosecution costs for the day was £27,472 so maybe he thought he was doing me a favour! But it is a perverse judgment for a number of reasons.

If the Judge had considered the context of the statement on my blog, he could not possibly conclude anyone might be misled regarding my registration. My blog is not a practice website. I don’t have one. As mentioned previously, it was set up with the sole intention of highlighting my difficulties with the HCPC. I am reasonably well-known in my profession throughout the UK. When it appeared we had reached an impasse with my registration and concerns about regulation, I started the blog to provide the public with as much information as possible about the issue and why I felt compelled to cease registration. That isn’t deception – it is being open and honest.

If I had written, “I am Mark Russell, a HCPC Registered Podiatrist” – that would constitute an express deception and is an offence.

If I had written, “I am Mark Russell – a Podiatrist” – next to a logo stating “HCPC Registered” – then that is an implied deception and is an offence.

Stating I was “a Scottish Podiatrist” in an introductory on a blog about my case with the HCPC could not possibly be construed as an intention to deceive, yet this was the “evidence” I was convicted on. There are no victims – no evidence that anyone was so deceived – the offence is merely a figment of the Prosecutors imagination, yet the Judge agreed!

When I returned home after the trial, I looked at the blog and noticed the introductory paragraph is no longer there. I realised when we started the blog in May 2012 I had written the introduction when my web designer was at my home setting the website up for me. It was a light-hearted paragraph, which was only on the blog for a few weeks before I turned it into a correspondence page. When I checked with Google Wayback – which tracks website changes – the paragraph was only online between 21 May 2102 and 3 June 2012. That means, of course, that it actually falls outside the admissible evidence window of six months – and should not have been used.

I have been convicted once again of an offence of dishonesty – of an “intention to deceive” – when that is absolutely not the case and I am not prepared to accept that verdict under any circumstances. We lodged a notice of appeal after the hearing and a hearing was scheduled for Preston Crown Court on 21 May 2015. Two weeks before the appeal was due to be heard, the case was adjourned until October 1st as the Prosecuting QC was unavailable, but there has been some significant and deeply troubling developments since then.

None of this case has made any sense to me. It seems incredible that this matter has progressed. I would have thought that my initial latter of concern would merit a response from the Registrar – I was highlighting a serious issue after all – and I couldn’t understand his refusal to reply despite several letters and emails.

Nor could I understand why the prosecution advanced the case when they accepted and agreed to remove all evidence of deception/dishonesty. Without that crucial element there was no offence, as they must have known. Likewise, I failed to understand why the HCPC would advance the argument that using a title without holding registration was an offence without qualifying the essential stipulation for an intention to deceive. The HCPC has clearly been misrepresenting its regulatory authority to the public and the professions since its inception in 2003 – and continued to do so throughout the preliminary hearings until the admission at the Old Bailey – and this I found incomprehensible. Why would the regulator give a misleading position on the legislative provision?

When the HCPC was in the process of being established following enactment of the HPO – the legislation was given to a firm of solicitors to provide a legal framework for its operations. This included an interpretation of what constitutes the various offences and what titles and functions are protected in law. It would appear that the original advice given to the regulator on protected titles and the offence under Article 39 of the Order that I was charged with was wrong. That is the only conclusion one can reach given the admission made at the Old Bailey other than the HCPC has deliberately deceived the public and professions, promoting the position that using a title without registration is an offence under any circumstance, whilst knowing that is not the actual case in law.

In April I submitted a FOI request to the HCPC asking who provided the initial legal advice on the HPO legislation and in particular, which solicitors advised on the interpretation of the offences. It is, coincidently, the same firm of solicitors, Bircham Dyson Bell, who are prosecuting me on behalf of the regulator.

Given the admissions in Court – and the revised policy statement by the NMC – it seems extraordinary that criminal proceedings were commenced when the Prosecutor was fully aware that there was no evidence to support the charge and yet she deliberately misled myself and the court to the necessary provision of the offence. Why would any prosecuting authority advance criminal proceedings when there was no evidence to support it? That is something I would like an answer to.

Running concurrently alongside this prosecution are a number of related matters.

General Osteopathic Council

The osteopath who encouraged the malicious complaints with the altered documents was reported to his regulator – the General Osteopathic Council (GOsC) – shortly after I received the original summons in March 2013. The GOsC gathered independent witness statements and evidence from the secretarial staff at the clinic. The case was put to an Investigating Committee, which concluded that there was a case to answer for unacceptable professional conduct and recommended a Fitness to Practise hearing

The GOsC hearing was initially scheduled for last November but was cancelled a few days before without any reason. In March this year, I was contacted by the GOsC to let me know that they had received a report from their legal assessor that a review of the case concluded a hearing would be unsuccessful as my credibility as a witness was undermined as a result of the criminal proceedings against me by the HCPC. They proposed to table a motion to their Conduct Committee to abandon the case against the osteopath on those grounds.

Again, this made little sense. The osteopath admitted procuring and soliciting others to complain but denied knowledge that I had ceased registration. The facts and evidence easily proved otherwise. I pointed out to the GOsC that there would have been no prosecution if their registrant had not acted dishonestly (and criminally) in the first place. I submitted a supplementary statement to them and gave them permission to speak to Nick Glassbrook to get a clear understanding of the case and appeal, which they duly did.

The Conduct Committee heard the application to discharge the case on 1st June and upheld the recommendation from the legal assessor that the case be abandoned. I was sent a copy of the Committee’s conclusion and deliberation the following day.

Once again I was at a loss to understand how they could reach the conclusion that they did. The connection between the false allegations and the subsequent prosecution by the HCPC were not considered – only the issue of my credibility as a witness and how it was impaired by the current legal proceedings. It did not make sense. But the clue was on the front page of the report… The GOsC had changed their legal assessor. The original legal assessor who concluded there was a case to answer the previous year was a Mr Angus Withington. The legal assessor advising the Committee to abandon during the hearing was Mr Gary Leong.

Gary Leong was the legal assessor appointed to conduct a review of the case in February 2015 and it was he who concluded that the case should be dropped. However, Gary Leong holds another appointment. He is also a legal assessor for the Health and Care Professions Council, where he also holds the position as Chair of their Fitness to Practise Panel.

When I contacted the GOsC the following day, I was informed by their acting head of regulation, Russell Bennett, that they were unaware of Mr Leong’s role at the HCPC and that he had been given all of our defence and appeal documents, which of course are strictly privileged. At the very least, there is a clear conflict of interest in his participation in a case with another regulator, which if it had been heard, was likely to prove quite embarrassing for his other employer…

Nursing and Midwifery Council

BBC Northwest contacted me last month for clarification on nursing regulation following the Stepping Hill and Furnace General cases in the media. The BBC had contacted the NMC and enquired whether the nurses/midwives that had been struck-off were able to continue in practice as unregistered nurses. The NMC stated that they could not. The reporter who was familiar with my case had contacted me to ask for a copy of their revised website statement on use of titles and I was surprised to hear they had changed their position. When I checked with the NMC website, I noted the revised statement had been removed.

I duly contacted their registration department – and spoke to the head of regulation – and asked the question myself. I was told the same as the BBC – that anyone struck-off as a nurse could not practice as a nurse again in the UK. When I quoted their policy statement, I was immediately transferred to their media team who initially tried to claim the same position before conceding there was no prohibition on use in the private sector. Nurse and Midwife are not protected titles on their own.

Quite why the NMC have sought to conceal the actual position in law is beyond me – especially when they have already publicised a revised policy statement online. But I have asked the question to them. I have yet to receive a response.

I am well aware that podiatrists are way down the line when it comes to political and public awareness and it must seem a curiosity why someone from that profession would be prepared to risk their savings and professional reputation over a seemingly minor and restricted matter to that profession. But is not only podiatry – it is all the professions covered by this legislation: physiotherapists, paramedics, social workers, nurses and midwives – to name a few. Many of the nurses who have been struck-off the NMC register are still working as unregistered nurses in private care homes and with employers who do not stipulate registration as part of their employment. As more NHS services are contracted out to the private sector, this problem will continue to develop.

We are constantly, as health professionals, encouraged to report dangerous practice that places the public at risk. The recent Francis Inquiry supported that responsibility whilst highlighting the difficulties ‘whistle-blowers’ encounter whilst trying to do just that. Regrettably there is a growing body of evidence that suggests public institutions are conspiring to impede that process – and improperly manipulating judicial proceedings to secure that goal.

To be continued….

On 11 November 2013, I was convicted at the City of London Magistrates Court of an offence contrary to Article 39 1(b) of the Health Professions Order 2001 and sentenced to pay a fine of £270 plus costs of around £6,000. The prosecuting authority was the Health and Care Professions Council. A week or so later, the HCPC published and distributed a press release on the case which read:

“The Health and Care Professions Council has successfully prosecuted Mark Russell for using the title ‘chiropodist’ without being on the HCPC Register.

On Monday 11 November 2013, the City of London Magistrates’ Court heard how Mark Russell, of Lytham St Annes, Lancashire, had continued to use the title of ‘chiropodist’ despite warnings from the HCPC to stop.

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. Director of Fitness to Practise Kelly Holder commented:??

 “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.” ??

 “Protecting titles is a key component of the work we do to protect the public. We urge everyone to check the Register before they seek treatment from a health or care professional.”

 On 26 February 2014 this conviction and sentence was set aside by the Central Criminal Court at the Old Bailey in an unusual appeal procedure, which was successfully argued in front of His Hon. Judge Timothy Pontius, one of the most senior Judges in England and Wales. At the conclusion of the appeal, the barrister representing the HCPC was removed from participating further in this case,

Six weeks later on 10 April 2014, the HCPC amended the press release on their website stating:

“…the Central Criminal Court allowed an application by Mr Russell and the case has been sent back to the Magistrates’ Court for re-trial. As this case is on-going we will not be making any further comment.”

 For anyone not familiar to the case it would be perfectly natural after reading the HCPC’s press release to assume that I had acted in a dishonest manner and presented a risk to the public and that the regulator had acted in the public interest in tabling this prosecution.

Nothing could be further from the truth.

Background

The case was brought after I deregistered from the HCPC in 2008 – after twenty-five years as a Registered Podiatrist. The reason I did so is quite simple. The present regulatory regime is not protecting the public as claimed, but placing them at real risk from harm. Where professions are both public and private sector providers, protecting titles, as the sole prohibitory measure offers no safeguards to the public from clinicians that have been struck-off for serious offences – then continue in practice using a different, unprotected title. This unfortunate and potentially dangerous situation is particularly relevant to my own profession where the overwhelming majority of clinicians are in private practice and the use of unprotected titles such as Foot Health Practitioner and Foot and Ankle Surgeon are widespread. Once removed from the register, these individuals are able to continue in practice free from any further regulatory scrutiny or control.

This anomaly in the legislation is well known to the Government, the HCPC and the professions. It was due to be addressed when the HCPC came into existence and had been widely discussed during the consultation period for the Health Professions Order. Protection of Function – or functional closure – had been proposed to deal with this weakness, but the Government insisted that unregistered practitioners should not be unduly prejudiced by these measures and would first have to be accepted onto the register through a process known as ‘grand-parenting’ – a contentious scheme that permitted entry from practitioners with unrecognized qualifications – or in some cases, no qualifications at all, providing they were able to satisfy certain requirements. This was seen as an unfortunate but necessary requirement to secure functional closure and was grudgingly accepted by the profession. However, when the legislation was finally enacted, it allowed for the grand-parenting process without any measures to protect function whatsoever, leaving the weaknesses in the old Professions Supplementary to Medicine Act to persist and carry forward to the new regulatory regime – a double whammy for the profession and public alike.

In 2004, with my colleague Jacqui Baggaley from Edinburgh, we addressed a Committee of the Scottish Parliament on this very issue and heard representations from across the political spectrum on the need for better regulation in podiatry. The MSP for Aberdeen, Mike Rumbles, whose wife, Pauline, is a registered podiatrist observed:

“‘I ask members, when they go home or back to their office, to pick up a copy of the “Yellow Pages” and flick through the section on chiropodists. I defy them to tell me which is the registered chiropodist—the proper chiropodist. Advertisements in the “Yellow Pages” state that the people are qualified chiropodists and, as has been referred to, there might even be a warning at the bottom saying, “Make sure you get the right one.” The situation would be funny if it were not so sad and so serious.

 ‘The issue is not really about constitutional matters—committees work best when we do not get involved in that sort of thing. This is a public safety issue. When a member of the general public contacts a podiatrist or a chiropodist, they expect a certain standard of service and a standard of professionalism. If someone contacts a doctor, a member of any medical profession or a member of a profession allied to medicine, they expect the same level of service, but that cannot exist under the current system. The HPC thought that the approach that it has taken would be a solution but, as the committee has heard, the system is not working. It will certainly not ensure the closure of the profession or the safety of the public.’

 Quantifying the risk to public safety is always difficult, but the standard that should apply, is the one that’s adopted and promoted by the HCPC itself – through its fitness to practise process. It claims:

 ‘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 practise at all, or that they should be limited in what they are allowed to do. We will take appropriate action to make this happen.’

Whilst protecting the public is the primary function of the HCPC, this statement is entirely false and misleading – as it cannot legally take any action to prevent anyone from practising, even following a striking-off order – providing they use an unprotected title.

Three recent cases exemplify the seriousness of the situation where registrants from our profession that have been found guilty of serious misconduct – including offences of a sexual nature and fraud and dishonesty – are able to continue in practice with impunity, unrestricted and without statutory regulation or scrutiny. In the case of Stephen Gardiner, the registrant was struck-off the HCPC register for fraud and premeditated dishonesty, yet he still practises under the guise of a ‘Clinical Director’.  Correctly identified as posing a serious risk by its own Fitness to Practise Panel, it follows that in these cases the HCPC’s very function has increased the exposure to danger the public faces from these individuals – in clear conflict to its primary statutory function.

Following the Scottish Parliament Petition, I contacted the HPC on several occasions to seek clarification on what the regulator might do to address this problem, but the answer was always the same – nothing could be done as they had to operate under the existing legislation – and that simply provided for protection of title. Only Parliament could amend the legislation. I then formally wrote to the Registrar and Chief Executive to raise these concerns but received no reply and subsequently in September 2008 I deregistered in protest, advising the HCPC to my course of action.

I had assumed that a blatant breach of the legislation might provoke a response to my concerns, but unfortunately I was mistaken. I had taken steps to remove all references in my practice literature to the terms HPC and/or Registered and informed all my patients, colleagues and other agencies I deal with in my work on my position with the regulator. Nothing happened. Then in April 2010, some 18 months after I had deregistered, I received a letter from a case officer writing on behalf of the Registrar regarding my concerns over Protection of Title. He replied:

“On the effectiveness of the regulatory environment, you will appreciate that the Health Professions Order 2001 is framed in such a way that it protects certain designated titles – including chiropodist and podiatrist – rather than functions. I understand that you may disagree with this approach but it is nonetheless the one that Parliament saw fit to adopt and is therefore the legislative framework within which the HCPC must operate.”

But that is not quite true. When Hearing Aid Dispensers came under the HCPC’s regulatory responsibility in 2010 they were subject to Protection of Title and Function – and with very good reason. The Department of Health’s position of regulatory functions is quite clear:

“There are instances where the use of protection of title is supported by use of protection of function, such as for Hearing Aid Dispensers. In that instance, there is a specific need for both approaches to be used, as the target group for regulation are private sector providers and use of title alone would not have effectively captured the target group, so reference to their function was also required.”

Which, of course, is exactly the point with podiatry where out of 13,500 registrants, only 3,480 practice in the public sector.

By now it was clear an impasse had been reached, as the HCPC were unable to acknowledge the obvious – that instead of protecting the public, they were, by their very function, creating a greater risk. It was equally clear that they were unwilling to do anything about it. It came as little surprise therefore when the predictable “cease and desist” letters started to arrive a few months later, followed in 2012 by more formal demands and threats of legal proceedings from the HCPC’s solicitors, Bircham Dyson Bell.

Westminster Magistrates Court

Following a short exchange of correspondence, I received a summons to attend Westminster Magistrates Court on 22 May 2013 to face a charge that:

‘Between 30 August 2008 and 7 March 2013 contrary to Article 39(1) (b) of the Health and Social Work Professions Order 2001 (enacted pursuant to sections 60 and 62 (4) of the Health Act 1999) you did use a protected title to which you were not entitled namely the title of Podiatrist and/or Chiropodist.”

 This was entirely expected. What was not expected was a number of references in the “evidence” bundle that accompanied the summons that I had used the titles HPC Registered and State Registered Podiatrist in correspondence since deregistering in 2008. As all references to the various prefixes had been carefully removed from my practice literature, this came as a surprise, however on closer inspection it became obvious that these “exhibits” had been sent by a former colleague – an osteopath that I used to rent a room from. I was relatively easy to obtain both the original letters from the recipients together with statements from the secretaries who had typed them confirming these had been altered and were submitted as a malicious complaint.

Although there was no specific suggestion on the charge that I had misled or deceived anyone, the implication of this evidence, if unchallenged, would be that I acted dishonestly in claiming I was registered with the HCPC when, in fact, I was not. On that basis, I attended the initial hearing at Westminster Magistrates Court to plead not guilty.

Just prior to the case being called, I was approached outside the courtroom by the solicitors and Counsel for the HCPC and asked if I had legal representation. I explained I was representing myself. Counsel then asked what my intentions were that day – to plead guilty or not guilty – and if we could have an informal chat about the proceedings. The conversation started with:

“Mr Russell, I would like you to know that this is a very reluctant prosecution.”

Against this background it was made clear to me that both Counsel and the solicitors for the HCPC had much sympathy with the argument for more effective regulatory control. This was no surprise. In all previous discussions with HCPC case officers – the same view was offered, albeit unofficially, that the present legislation was, perversely, endangering the public it was meant to protect.

I was then asked how I intended to plead and what skeleton argument would be given to the court that day. On the basis that I objected to the inclusion of the fraudulent documents, I explained that I would be pleading not guilty – before giving Counsel the original documents and witness statements relating to that evidence. The solicitors carefully read these and a short discussion was held in private.

When they returned, Counsel agreed that this evidence was unsound and should not be put before the court. I was then asked directly what would I do in relation to my plea if this evidence was removed entirely from the case? I informed her that my plea would then change to guilty. Counsel suggested this would be a wise move as it would keep costs to a minimum and the court would appreciate a guilty plea when determining how to dispose of the case at some future hearing. On that basis, we agreed to work towards a joint statement of fact and exhibits over the next few weeks.

In court, I lodged my not guilty plea and gave the court an outline argument to support the plea, namely that I considered the legislation deeply flawed and deserved to be challenged. This was duly accepted and a provisional trial date was set for later in the year.

Immediately following the hearing, prosecution Counsel informed me that they would send a revised evidence bundle that excluded all exhibits that had been fabricated and submitted maliciously. This was received by email on 29 May 2013, which read:

Dear Mr Russell

Further to our discussions at the preliminary hearing last week, please find the following documents attached:

        1. The revised witness statement of R.B. Paragraph 15 has been now been amended and pages 27-32 of the exhibits have been removed.

        2. The revised witness statement of J.C. Paragraph 6 has now been amended. (I recall that in our discussion you also raised an issue regarding the evidence produced from third party websites, namely that you do not have any control over their content. The degree of control that you have over what appears on different websites is a matter for you to raise in your own defence, if you wish to defend yourself on that basis. Hence, parts remain in J.C’s statement merely as evidence of what she found when she searched the internet). 

        3. The draft admissions prepared by our Counsel.

On the basis that all evidence which suggested I had acted improperly or dishonestly had been removed, I then indicated my intent to change plea to that of guilty during a joint telephone call with the solicitors and Counsel for the HCPC and confirmed it by letter on 17 June 2013.

I have been asked many times, why I pled guilty at this juncture – and the answer is again quite simple. I considered this the honest and proper course of action. I had clearly broken the law – or so I had thought – by using a protected title whilst not registered, but I had done so for good reason – and I would have expected the court to take this into consideration these when deciding how to dispose of the case. Once my change in plea had been received, a sentencing hearing was scheduled for 11 November 2013.

City of London Magistrates Court

It is one thing for a lay-person to prepare for an appearance at a criminal court, but to represent themselves during legal proceedings is a daunting task, even for those relatively experienced in the matters they are charged with. Whilst I was fairly confident that I understood the legislation and its implications for public safety – and I was reasonably confident I could argue the merits of my case to the Magistrates – I had little knowledge of court procedure and protocol. Until that point I had relied on the advice given by Counsel and solicitors for the HCPC – whom I had found both helpful and considerate.  But I was acutely aware that this was not my usual – or preferred – theatre of operations

It was certainly a unique case – the first prosecution of Protection of Title legislation and the first criminal prosecution ever by a health regulator. It was also unusual insofar as I was not the kind of offender this legislation was targeted for. From my discussions with the HCPC’s solicitors and Counsel it was clear they understood – if not respected – the position I had taken and I hoped the Magistrates would be of similar mind. Was I in for a surprise!

Shortly before the case called at 2pm at the City of London Magistrates I met the agents for the HCPC outside the court, where they explained what would happen during the proceedings. The charge would be read to me and I would enter a plea. Counsel for the HCPC would give a brief outline of the case and then I would have an opportunity to offer a plea in mitigation before the Magistrates passed sentence. I was then handed a sheet of hand-written notes and advised that the prosecution may ask the court to award some or all of the costs against me. The notes were the HCPC’s legal costs – which amounted to almost £6,000

We then proceeded to court where the charge was read out by the Clerk of Court in papers prepared by the HCPC. I entered my plea of guilty before the prosecuting Counsel stood to give her case summary. What followed was a highly misleading version of events, depicting me as a “mischievous individual” whose reasons for breaking the law were “unknown”. The court was told that I had “self-styled” myself in “signing various letters and invoices as a “HPC Registered, Registered and State Registered Chiropodist and Podiatrist”. In doing so she had cited directly the exhibits that had been removed from the evidence during disclosure and agreement in June.

I was so shocked and taken aback by these turn of events that I lost a little of my composure when I was asked to make a plea in mitigation – and what I did say fell largely of deaf ears.

With the benefit of hindsight and acquired knowledge, I should have objected to this evidence as soon as it was given to the court on the grounds that it was inadmissible. I should certainly have changed my plea to ‘not guilty’ and asked that the case be remitted back for trial. But I didn’t. One doesn’t usually encounter these circumstances in a podiatry surgery…

I did however have the foresight to inform the court that an appeal would be lodged immediately after sentence was passed, but to whom and on what grounds – given that I had already pled guilty – I had no clear idea.

A couple of colleagues had come along to court that afternoon to lend their support and we adjourned to a nearby bar afterwards to recount what had taken place. Rarely have I been so grateful for company and their kind words were a welcome passenger on the long train home that night.

Over the following week I lodged an appeal with the Magistrates Court on the grounds that prosecuting Counsel had misled the court during her case summary and had relied on inadmissible and unsound evidence which had unfairly influenced the court when determining their sentence.

The week after the appeal was lodged, a colleague called to advise the HCPC had posted a press release on their website and distributed it to various media stating I had been convicted of an offence with intent to deceive. I immediately contacted their solicitors to ask that it be removed but was advised that as ‘intent to deceive’ was written in the legislation, the HCPC could say what they like.

It was at this point I realised that I had pled guilty to an offence that contained an element to the charge ‘with intent to deceive’. Whilst I had read the provisions in the legislation many times – and had understood what the term ‘with intent to deceive, either expressly or by implication’ actually meant, I did not realise it was part of the charge I faced. It was not part of the alleged offence in the summons for the case and was never referred to by the prosecuting Counsel or the solicitors for the HCPC during our discussions. When the exhibits that might have supported a charge of deception were removed, I had assumed there was no question of dishonesty. Why would there be? I was protesting against a system of regulation that is endangering the public – why should I mislead or deceive anyone into thinking I was registered when that was not the case?

Shortly before Christmas, I was contacted by a reporter from my local newspaper in Blackpool, who said the HCPC had been in touch asking if the Gazette would be interested in publishing a press release of a recent court case in London. She wondered if there was another side to the story.

The Blackpool Gazette published the first article on 20 January this year. The HCPC refused to comment. A week later I was contacted by a local solicitor who had read the article and thought he might be able to help. An amended appeal was lodged with the court on 4 February and a hearing was granted in the Central Criminal Court at the Old Bailey on 26 February 2014.

The Old Bailey

The case at the Central Criminal Court was held amidst tight security and substantial media interest. Three other cases taking place in adjacent courtrooms that day – the serial killer, Joanna Dennehy; the sentencing of Lee Ribgy’s killers and the media trial of Rebecca Brooks and Andy Coulson – commanded most of the attention – as did the vociferous presence of the BNP and English Defence League outside.

My submission to the court was made by Barry Smith in an unusual legal procedure – an application to vacate my guilty plea. Although we were asking the court to set aside the conviction, sentence and costs – because I had pled guilty to the offence, I did so in the belief that the charge did not include a vital element – the part that stated ‘with intent to deceive’.

After hearing argument from both prosecution and defence Counsel, I was asked to give evidence under oath and answered questions from both Counsels and the Judge – the critical questions centering on the means rea – what was my intention at the time of pleading guilty and why?

In summing up, the Judge allowed the application and set aside the conviction and sentence on the grounds that my plea was equivocal; that I believed or was given to believe the charge I faced did not include an intent to deceive. Furthermore, his decision was reinforced when he observed this part of the legislation was missing from the charge sheet given to the Clerk of Court by the prosecution on 11 November – and was not read out to me on the day.

As it turned out the term “with intent to deceive, either expressly or by implication” is an integral and essential part of the charge. If one does not deceive, there can be no offence. As the prosecution barrister pointed out, I could have used, Formerly Registered Podiatrist or Previously Known as a Podiatrist without infringing the legislation – which really does make a mockery of the regulation.  I had simply used Podiatrist – nothing else.

At the conclusion of the case, the Judge recommended the prosecution barrister, Lydia Barnfather , should excuse herself from participation in any future proceedings.

The current legal position is that the case has been sent back to the Magistrates Court for re-trial, if the HCPC decides that is what they must do – and despite several attempts to contact them, they have yet to return our calls and I am none the wiser to what may lie ahead.

There have been some other developments however. My local MP has taken up the case with the Health Secretary and I received a letter from the Parliamentary Under-Secretary of State for Health – Dr Dan Poulter – who helpfully explained the Government’s position and I am delighted we are in agreement. The Government has since published the Law Commissions Report of the Regulation of Health Professionals and predictably it has side-stepped the issue of functional closure, despite recommendations from the Department of Health, the Association of Disciplinary and Regulatory Lawyers and the Society of Chiropodists and Podiatrists. The Law Commission has simply passed the buck back to Parliament and recommended it undertakes a full review of regulation of titles and functions for the health professions. So what exactly was this review supposed to be about then?

I am left with a sense of disappointment. Disappointment that a glaring weakness in medical regulation can be ignored for so long. What does it take to focus attention and fix the problem? A few deaths? A scandal or two?

Raising awareness about serious regulatory failings doesn’t appear to work either – despite what the Government might claim. Whilst those in the public sector might be offered some protection under the Whistleblowers Charter, those of us in self employment have no such protection – and when our concerns are raised about a regulator who has all the powers of a criminal prosecutor and is willing to use them, then the consequences of standing up for such principles can be severe indeed.

The greatest disappointment is the Health and Care Professional Council – whose approach to this case has been highly unfortunate. Aside from the highly damaging and erroneous press release – issued whilst an appeal was in process – in recent days the HCPC have now stated in correspondence to colleagues that I have been subject to a Fitness to Practise hearing and the claims on their website are “factually accurate”.

“Dear ……..

Thank you for your email of 14 April to Jacqueline Ladds. Jacqueline is out of the office and has asked me to respond on her behalf. I should like to reiterate that we believe our press release is factually accurate. We do not comment on individual Fitness to Practise cases and have no further comment on this matter.

Yours sincerely

Jonathon Jones

Stakeholder Communications Manager, HCPC.

On November 11 last year, I was prosecuted by the Health and Care Professions Council (HCPC) at the City of London Magistrates Court, where I was convicted of an offence under Article 31 of the Health and Care Professions Order and fined £270 plus costs of almost £6,000. The following week, the HCPC published a press release on their website and distributed it to the media and health service agencies. http://www.hcpc-uk.org/mediaandevents/pressreleases/index.asp?id=706 It read:

The Health and Care Professions Council has successfully prosecuted Mark Russell for using the title ‘chiropodist’ without being on the HCPC Register.

On Monday 11 November 2013, the City of London Magistrates’ Court heard how Mark Russell, of Lytham St Annes, Lancashire, had continued to use the title of ‘chiropodist’ despite warnings from the HCPC to stop.

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.

Director of Fitness to Practise Kelly Holder commented:

“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.

On February 26 this year, this conviction and sentence was successfully appealed at the Old Bailey in front of His Hon. Judge Pontius who set aside the conviction, sentence and costs. The prosecution barrister for the HCPC was also removed from the case at the conclusion of proceedings. A full report on these proceedings will follow shortly.

Meanwhile, one month after the Old Bailey appeal the HCPC have still not updated their website which is altogether rather misleading – and given the central issue of this case – “with intent to deceive” one wonders who this really applies to….

Now, a rather more mundane subject. You will have heard a lot about medical regulation over the last few years – Shipman, Alder Hey,Bristolall conspired to keep the regulation of health professionals if not headline news, then certainly regular topics of discussion. My own profession is regulated by the Health Professions Council which was set up after the enactment of the Health Professions Order 2001. It may seem a boring subject but please stay with me.

Regulation is a necessary part of professional life. It offers the public some assurance that the person they seek services from provides them within a proper framework and under guidelines that reflect their skills and qualification, all of which falls within the scrutiny of the regulator. In political parlance, the regulator is there to “protect the public”. If only that were so.

For regulation to work it has to be effective. Should someone fall below an acceptable standard of practice – or behaviour – then it is correct and proper that that person should not be able to continue in practice – if the offence warrants such sanction. But in most medical regulation – all the offender need do it to change the name of which they operate under. For example – from chiropodist to Foot Health Specialist or Podologist (the standard European term for my profession – Podiatry being an American and Australian import!). This is because the regulation – and Law – only protects the title of the practitioner. Unlike dentists – for example – whose practice regulation covers what they do clinically rather than what they are called. You follow?

Is it important? I think so. It also means that someone who has little or no clinical training can set themselves up in business and offering “foot health services” to members of the public who may not appreciate the little nuances in the field and who may be significantly at risk under their care. As NHS services contract and more people are forced into the private sector for their personal care, should we be entitled to expect that all care in the private sector be properly and effectively regulated?

Three years ago I deregistered from the statutory register and informed the regulator – the HPC – of my reasons for doing so. I continue to use the name – Podiatrist – that I have used since qualifying in 1983 in clear breach of the regulation – as only those who subscribe to the register are entitled – legally – to use the name. I am, in other words, breaking the law. I don’t do so lightly – it makes life even more busy and complicated – just what I need after recent times – but I don’t feel I have an option. About six years ago I managed to table a petition to the Scottish Parliament regarding the HPC and presented evidence to the committee at Holyrood with one of my colleagues in Edinburgh, Jacqui Baggley, the result of which was that some of the regulator’s powers in Scotland have been reserved by the Scottish Parliament to the Crown Office.

But the situation regarding circumvention of the law persists nationally. It would require a simple parliamentary amendment to close the loopholes, but of course there are more pressing matters like servicing the great capitalist money machine and getting politicians and law makers to think about the deficiencies of podiatry regulation would be even more difficult than getting you to read this far. But it is important to me – so I hope that be inviting prosecution from the regulator – and of course by inviting a magistrate to consider that there is indeed an need for change – if a prosecution results, then perhaps we might get a little way to secure a change in the law which governs how people like me get to do what I do to people like you!

Will keep you posted!