Written evidence from Angela Woosey (HCP0006)
PERSONAL EVIDENCE OF ANGELA WOOSEY BASED UPON RECENT INTERACTION WITH THE HCPC FTP EXPERIENCE AND FURTHER RESEARCH
Summary
The HCPC FTP claim ‘to safeguard the health and wellbeing of persons using or needing the services of registrants’ and they do this by ensuring restorative and rehabilitative justice along with openness, fairness and transparency to all those who have cause to interact with the processes and proceedings. I have recently interacted with the HCPC’s FTP proceedings and as a member of the public I had concerns surrounding the HCPC’s FTP systems, processes, procedures, organisational behaviours and culture. I raised these concerns in the form of a corporate complaint with the HCPC. This escalated through lower to senior management and finally rested with the FTP Director. All HCPC members of staff who came into contact with my concerns responded in the same disengaged manner of re-iterating organizational procedures and processes. No real answers to my actual questions were received. The FTP Director’s response was that she was unable to comment on issues that should be should be raised through the High Courts!
The Secretary of State for Health recently published the report entitled “the hard truths – the journey to putting patients first”. Included in this report is a section on scrutiny and good questions : “Good organizations should respond thoughtfully, not defensively, and in order to do this an open and transparent culture needs to exist within that organization, creating a climate where critical enquiry, challenge and discussion are used to improve the way the organization works. A mature organization is one that welcomes scrutiny and uses it as the basis for improvements by following up good questions with action and then with further questions to check that change has really happened. The behaviour of senior figures in the organization will make all the difference in this, their genuine engagement with staff and a focus on improvement and achieving high standards will send important signals through the organization.
As an organization whose primary function is to scrutinize the practices and behaviours of others in pursuit of public protection, it would seem from my recent interaction with the HCPC that they do not respond at all well to good questions about their own organizational practices and behaviours. This evidence submission is my opportunity to convey the disappointment felt at being let down by the manner in which the HCPC conduct their FTP business and respond to good questions from a member of the public about their organisation’s practices and behaviours, by ‘hitting the target but missing the whole point’ of what good quality public protection should look like! The HCPC have a real need to recognize that acting with integrity, openness, transparency and accountability is also applicable to their own organizational practices and standards of behaviour and should be consistent and aligned with the standards that are set down for their registrants.
Allowing these ‘official’ counter-cultural messages to remain and persist will destroy any belief that this organization actually means what it says. From my interaction with the systems of regulation, I have concluded a total lack of respect and trust in the HCPC’s FTP systems and look upon their protection of the public with total cynicism and complete failure.
I hope that the HCPC will respond openly and thoughtfully to this document and that it will provide an opportunity for change and improvement to the systems of health care regulation in pursuit of excellence in patient care and safety.
HCPC KEY INFORMATION
- HCPC 2013 FTP Annual Report (October 2013) :
Ensuring processes are aligned with principles of restorative and rehabilitative justice remains core to the HCPC’s FTP proceedings. Along with ensuring openness, fairness and transparency in our FTP proceedings, this will remain central to our approach and work in 2013/14.
We continuously look at ways that we can improve and develop our processes and in 2013/14 this will include looking at ways that we can improve the experience that individuals have with the FTP process. This is to ensure fairness and justice to all those that have cause to interact with it.
- Review of Patients Association Standards For Good Complaint Handling (April 2013) :
Standard 1: The investigation of the complaint is impartial and fair.
Standard 4: The governance arrangements regarding complaint handling are robust.
Standard 6: Investigations are carried out in accordance with local procedures, national guidance and within legal frameworks.
Standard 8: The judgement reached by the decision maker is transparent, based on the evidence available.
Standard 9: The complaint documentation is accurate and complete and the level of detail appropriate to the nature and seriousness of the complaint.
Standard 11: Learning lessons from complaints that occur through the organization.
- HCPC Strategic Intent (2012 -2015)
Guiding Principles: protecting the public, transparency, communication and responsiveness, providing a high quality service, value for money, working collaboratively.
Strategic Objectives: Good governance, efficient business processes, fair, open and impartial.
Vision: To be recognized internationally as a model of good practice in public protection.
TAKING ACTION WHEN A REGISTRANT’S FTP FALLS BELOW STANDARDS
Meeting the HCPC’s Burden of Proof – Evidence Given Based on Personal Interaction
The HCPC lay claim to robust governance arrangements, overall effective casework systems and efficient business processes.
Allegations
Allegations were revised seven months AFTER ICP agreement and AFTER ALL evidence had been gathered from both sides. These amended allegations were accepted by a CCC on the day of a hearing. This process was considered to be ‘fair’ to better reflect the HCPC’s burden of proof. The HCPC considers a CCC to have an inherent power to undertake this process.
- HCPC Policy and Standards Department Internal Audit (October 2013) – Procedural Issues
Out of 223 final FTP hearings between 1st November 2012 and 30th June 2013 103 FTP cases had amendments made to their allegations.
- Why does the HCPC build into their FTP processes a requirement which allows amendment to allegations?
- Why does a Conduct and Competence Committee have an inherent power to accept amended allegations but this inherent power is not published in any procedural policies / guidelines?
- Does the HCPC consider this process to be open, transparent and fair and to be correctly balanced with the registrant’s right to Article 6 of the European Convention of Human Rights and to reflect the common law principles of natural justice?
Civil Rules of Evidence – HCPC’s Reliance on Hearsay Evidence
The HCPC’s burden of proof relied purely upon tenuous witness ‘hearsay’ evidence which was ‘peppered’ with inconsistencies that did not match with documentary evidence. The HCPC withheld and did not disclose evidence from senior NHS management that identified an inappropriate workplace culture to be in existence and provided no cogent reasons for the failure to call such a critical witness.
Information taken from Professor Berwick’s report a Promise to Learn – A Commitment to Act
- Treat your colleagues with respect and courtesy and seek to create supportive teams with common goals.
- Fearfulness amongst colleagues and staff is toxic to patient care and safety.
- Regulatory systems should be respectful of the goodwill and sound intentions of the vast majority of staff and avoid diffusion of responsibility.
Information taken from Kingsley Napley Solicitors’ Legal Updates – Autumn 2011
- Civil rules of evidence within FTP proceedings are applicable, meaning that hearsay evidence is admissible. However, the objective is to uphold the principle of fairness to the registrant by assessing the weight to be attached to it. Therefore the focus should be on whether it would be safe and therefore just to rely purely on ‘hearsay’ evidence.
- The requirement of fairness is something quite distinct and should be considered anxiously in order to ensure that fair and proper procedural safeguards are afforded to the registrant.
- The more serious the allegation the greater the importance of ensuring that the registrant is afforded fair and proper procedural safeguards.
- A Committee that has made inadequate, thorough and robust efforts to secure a key witness’s attendance, who is critical to the issues, and admits hearsay evidence on the basis that the allegation is a serious one is likely to find its decisions the subject of scrutiny.
- There is no public interest / protection in a wrong result.
- How does the HCPC view the principles of fairness and natural justice to a registrant by disclosing only selective hearsay evidence gathered by the HCPC’s investigation processes?
- How does the HCPC view the inherent dilemma of whistle-blowing and the strategic reinterpretation of events that redefines a situation to diffuse responsibility and blame the victim?
- How does the HCPC view consistency of registrants’ behaviours; for example, those that are being investigated compared to those that are utilized as witnesses by the HCPC? Does the HCPC consider it acceptable practice to treat professional behaviours of registrants differently?
- How does the HCPC view inter-professional collaboration and team working for delivering effective, integrated services to patients in contrast to determining individual responsibilities which could pave the way for blame and even retribution?
Documentary Evidence Handling
The HCPC omitted from the investigation process and failed to disclose to the proceedings critical, exculpatory documentary evidence in the form of Patient Care Records, claiming the disclosure of this evidence to be ‘desirable’ but not ‘essential’ to fulfill their burden of proof. A dishonest written statement made by the HCPC exists that states this evidence is no longer available when it is in fact in their possession.
Kinglsey Napley Solicitors – Legal Updates – Autumn 2011
- The potential desirability of admitting evidence cannot trump the requirement of fairness, which is a pre-requisite.
- Justice is not served by excluding evidence genuinely relevant to the issue of guilt, and to see an unrepresented defendant being threatened with the prospect of it constitutes an unedifying spectacle.
- Would the HCPC view patient care and safety to be paramount to its FTP proceedings?
- How would the HCPC view patient care and safety when senior HCPC FTP employees confirm critical Patient Care documentation is considered to be only ‘desirable’ but not ‘essential’ to disclose to FTP proceedings?
- How does the HCPC view fairness to the registrant by withholding critical Patient Care documentation from FTP proceedings taking into account the Standard of Acceptance of Allegations: striking the right balance will not be achieved by adopting a superficial approach which leaves out salient facts?
- Does the HCPC recognize a legal duty and responsibility to disclose ALL exculpatory evidence to FTP proceedings or do they believe it fair, open and transparent to ONLY disclose carefully selected evidence which is seen as necessary and sufficient to fulfill their own burden of proof?
- How does the HCPC view withholding critical documentary evidence in the form of Patient Care documents and relying purely upon only hearsay evidence as an acceptable standard of proof to establish dishonesty?
- HCPC Policy and Standards Department Internal Audit (October 2013)
identified “an increase in administrative errors on the part of the HCPC, which included evidence missing from bundles, incorrect information given to panels and not enough notice being given to a registrant.”
- What objectives have the HCPC put in place to correct these administrative failures which impact upon FTP decisions and judgements?
FTP Proceedings – HCPC Legal Representation and Committee Membership
- The HCPC FTP proceedings are presided over by a Legal Assessor (external legal professional), a Hearings Officer (internal employee) and a Panel consisting of three panel members: A chairperson, a registrant member and a lay member. The HCPC advertise externally to recruit into these roles. These professionals once recruited by the HCPC become ‘partners’. The HCPC provide, training, annual appraisals and pay fees and expenses to these partners.
- HCPC HR Workplan for 13/14 – Risk Assessment identifies high risk scores for ‘partners’ poor performance, lack of technical and managerial skills to deliver their strategy, employee and ex employee litigation and employee inappropriate behaviour.
- How has the HCPC mitigated the risks identified above?
- What external training does the HCPC provide to their partners and FTP staff?
- How does the HCPC view the independency of their FTP proceedings when legal advisors and Panel members are ‘partners’ and are recruited, trained, appraised and paid for by the HCPC.
- Is the remuneration package of the FTP Director based upon annual performance?
HCPC Audit Conducted by Professional Standards Authority - September 2013
We identified “weaknesses or areas for improvement in 53 of the cases, including 25 cases where we had concerns about the HCPC’s decision making and six cases where we considered there were potential implications for public protection and/or maintaining public confidence in the profession or its system of regulation. Failing to gather sufficient information, which resulted in decision makers taking decisions without the benefit of all potentially relevant evidence in 15 cases.
Credibility of decisions
Weaknesses in customer care
Inadequate record keeping
“Of the 100 cases audited, we identified 31 cases in which we had concerns around risk assessments and compliance with the HCPC’s operational guidance.
More specifically, we found 27 cases (including cases closed by HCPC staff and following an ICP decision) where risk assessments had not been completed at all required stages in the process.
Conducting a robust risk assessment on receipt of a new complaint and updating that risk assessment in light of new information is an important part of public protection within a risk-based regulatory approach. Unless the regulator has conducted a proper evaluation of risk, it is difficult to make sound judgements about whether any regulatory action is necessary,”
We recommend that the HCPC reviews our findings in these cases and considers whether improvements can be made to its processes and procedures to minimise the risk of any of the issues highlighted above reoccurring in the future.
In response to this external audit, the HCPC published:
“Overall the PSA found that “the HCPC continues to operate effective systems and processes in all areas of its initial stages of the FTP process”.
Taking into account the overall failures to casework systems and business processes as identified above:
- What objectives have the HCPC put in place to correct these failures; in particular the concerns surrounding the failure to comply with the HCPC’s operational guidance in 31% of the cases audited?
- How does the HCPC view these failures impacting upon their ISO 9001:2000 accreditation of effective application of systems and the assurance of conformity to customer requirements?
- What consideration does the HCPC give to their accountability where concerns were found around their decision making? Does the HCPC consider they have a duty of candour and accountability to be open about their own errors and failures which seriously impact upon their registrants?
- Would the HCPC FTP see their central focus becoming contaminated by putting their own reputation for successful ‘public protection’ above patient safety?
A PROMISE TO LEARN, A COMMITMENT TO ACT AND A DUTY OF CANDOUR, DISCLOSURE AND OPENNESS
- The FTP 2013 Annual Report (October 2013)
225 final hearings came before a conduct and competence committee. 14 registrants had conditions of practice imposed, 40 had a caution imposed, 44 were struck off and 61 were suspended.
292 registrants made a self-referral of disclosure to the HCPC.
- A Promise to Learn – A Commitment to Act – Improving the Safety of Patients by Professor Don Berwick, August 2013
NHS staff are not to blame, in the vast majority of cases it is the systems, procedures, conditions, environment and constraints that they face that lead to patient safety problems. Well intentioned people who make errors or are involved in systems that have failed around them need to be supported, not punished.
Genuine errors are not misconduct and do not warrant punishment?
- How does the HCPC view Professor Berwick’s recommendations as described above?
- How does the HCPC view a culture where errors become synonymous with incompetence?
- How do the HCPC FTP procedures distinguish between those registrants who have made genuine errors and have acted in a candid and open manner and those who have behaved willfully, recklessly and maliciously?
- How many of the 159 registrants that had sanctions / conditions of practice imposed by the HCPC in the past year made genuine errors and disclosed these?
- Does the HCPC view judgments made at their FTP proceedings as contributing to a blame / fear culture within the NHS?
- The Chartered Society for Physiotherapists told the PSA about the HCPC “very little credit is given to registrants who are open and honest in identifying issues and errors. Registrants often perceive that they are punished for openness. The HCPC does not seem to have any systems for supporting registrants to improve or to help them access the means to improve”.
- The HCPC’s own recently commissioned research on the understanding of public protection identified “that members of the public were most concerned to explore why a scenario may have happened and in particular to identify possible mitigating factors. Many expressed a wish to assist a health professional in improving. This research also identified perceptions of excellence in care which was described as someone who was person-centred, who listened to them and kept them informed. When the participants spoke of excellent experiences of care, they said that competence was not enough – it was the personalized approach that made the difference.
- Would the HCPC FTP processes take the aforementioned perception of ‘excellence in care’ as identified by their own research into account whilst concluding a judgement of FTP impairment?
- Does the HCPC view their FTP processes and proceedings as supporting or supplanting the appropriate application of professional judgement in given situations?
- What processes and guidance does the HCPC have in place to facilitate discussions about any pressures in the workplace that may have contributed to an untoward incident?
- What processes and guidance does the HCPC have in place to fostering the growth and development of staff, especially with regard to their abilities and opportunities to improve?
- What processes and guidance does the HCPC have in place to support newly qualified registrants in the early stages of their career?
- HCPC Annual Report (July 2013) Foreword by the Chief Executive :
The work of the Public Inquiry into the failing in care at the Mid Staffordshire NHS Foundation Trust will be of importance to us on many levels, and we are looking at our own culture as well as at our regulatory functions to see what changes we might make to ensure that we are also putting patients and service users first in all we do.
- What mechanisms have the HCPC found that will ensure a positive FTP experience as identified in the 2013/14 FTP workplan?
- Why does the HCPC only publish and promote details of established and proven impairment but does not publish those cases that have not been well founded? Would the HCPC consider this to be putting their own reputation above the care, safety and wellbeing of patients?
- What consideration does the HCPC give to the assumption that the purpose, role and influence of regulation, as perceived and experienced by registrants, is not always that which they intend?
- What measures does the HCPC undertake in order to understand those influences and better assess the potential to exert their regulatory influence in such situations?
- Does the HCPC consider their FTP processes to be open to criticism and change, using public involvement to develop their FTP services by listening to complaints about FTP complaints?
- What changes to the HCPC’s culture and regulatory functions have been identified since the publication of the report by Robert Francis QC? What barriers does the HCPC see to making these changes?
- Taking into account all the information contained in this document, does the HCPC view their FTP processes to be fair, open and transparent and effective at protecting the public in the areas where their research has identified that protection is most needed i.e. skills and behaviours?
December 2013