In a feeble and distasteful attempt at (I can only suppose) satire, the impressionist Jon Culshaw, portraying the TV presenter Gok Wan, was shown on BBC 1 this week fondling a woman’s breasts in public, causing her evident distress. What’s to be done? Perhaps vigilante groups are the answer.
That’s what the law of the land is for. Specifically (although I am not a lawyer), Section 3 of the Sexual Offences Act 2003 specifies:
3 Sexual assault
(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.
This is only the first paragraph of four. It goes on to specify, amongst other details, fines or imprisonment for those who are convicted in the courts of this offence.
That’s the answer, then. If it happened in real life, not between actors on a TV show, it would be a criminal offence. No need for vigilantes after all.
Former physiotherapist Ashok Chitte Sreenivas is said, in various newspaper reports yesterday, to have touched several women’s breasts inappropriately last year in the course of his work. His work does, as a matter of course, involve touching people, but this particular touching was held to be sexual.
However, it was not held to be so by any court of law, but by a panel acting, in effect, as vigilantes. The panel did not accuse him of any criminal offence, and they appear to have made no reference to the law of the land on these matters. Instead, they simply made up their own minds and imposed their own sanction on him, as vigilantes generally do.
The sanction was that he must change his business cards. That’s all. He must change the word ‘physiotherapist’ to something else.
That’s not how the papers report it. The papers say for dramatic effect that he was ‘struck off’, and indeed his name was removed from a national database of physiotherapists. But the reality is that he can perfectly easily continue to do whatever it is he does if he simply calls it something else. He only needs to change his business cards. He could claim to practise Reiki, or any related therapy, real or fictitious, and perhaps he already is.
The Health Professions Council (HPC), the quango responsible, operates in a grey area created by statute. On the one hand, it exists by law. On the other hand, it exists to subvert the law.
On the basis that a civilized society should be free from vigilante groups making up their own law and imposing their own sanctions, the Health Professions Council should not exist. This is a matter of civil liberty. We should be at liberty to live under the rule of law and to be judged, if necessary, by the courts, but on those matters where the rule of law applies we should be at liberty to be judged nowhere else but in the courts, and on no other basis but the law.
In addition, as I explained a while ago in Jeopardy, the HPC creates double jeopardy for health professionals, who can be judged both by the courts and by the HPC independently (and possibly with conflicting outcomes).
The HPC exists because of previous governments’ fondness for regulation, and because of political spin implying that regulation protects the public. But it is only spin. The existence of the HPC can have no possible effect on the number of therapists who touch women’s breasts inappropriately. The HPC only has power over the use of the word ‘physiotherapist’ and some other words, not over what actually happens.
The real effect of regulation like this is only to suggest to the public that professionals cannot be trusted, that they need government officials to watch over them. The HPC and regulators like deliberately undermine the trust in each other that we all should have in a functioning society, and the particular trust that we should have in the most knowledgeable and responsible people in society, amongst whom are health professionals.
Of course, there will always be some health professionals who do wrong from time to time. If they break the law, they should be charged with criminal offences like anyone else. If they are convicted and found to have abused public trust in order to commit their offences, then they should face stiff penalties. These mechanisms are well established.
So the HPC not only corrodes trust within society generally, it fails to protect the public in any real way, and the regulation it imposes is not necessary or useful.
Although the NHS is generally over-managed, a certain amount of management in healthcare is essential. The HPC makes effective management harder.
In addition to local procedures for resolving disputes and for dealing with mistakes and wrongdoing, there is the HPC lurking in the background, always ready to duplicate and contradict local arrangements. Its presence makes local management in healthcare more complicated and more expensive.
The NHS does not mind having things made more complicated — it simply recruits yet more managers to deal with it. But in the private sector and the voluntary sector, the unnecessary complication forces costs up, and reduces the effectiveness of healthcare organizations. It might not be long before the NHS, too, must start to examine its management costs and its effectiveness.
Healthcare managers should normally aim to deliver good service, and to do that they need to know what is going on in their organizations, even when what is going on is not good. It’s only by finding out that things are wrong that they can be put right.
The remote HPC discourages whistleblowers by providing a punishment service that can be used against them. Ignorant of the local context, the HPC acts against individuals in cases where local management really needs to address broader issues.
In this way, the HPC forces down standards of care by making healthcare management more difficult.
In advance of the government’s forthcoming spending review, HM Treasury has published a framework for considering value for money in public spending. Section 2.5 (page 12) lists nine general criteria. The HPC fails on all nine:
- Is the activity essential to meet Government priorities?
- Does the Government need to fund this activity?
- Does the activity provide substantial economic value?
- Can the activity be targeted to those most in need?
- How can the activity be provided at lower cost?
- How can the activity be provided more effectively?
- Can the activity be provided by a non-state provider or by citizens, wholly or in partnership?
- Can non-state providers be paid to carry out the activity according to the results they achieve?
- Can local bodies as opposed to central government provide the activity?
The HPC raises its own tax, in effect, in the form of statutory fees, which deprive the general economy of wealth so as to support centralized bureaucracy, just like a tax does.
The courts, employment tribunals, local management procedures or professional associations already deal with wrongdoing by professions more effectively, more cheaply, more locally, and more accountably to the public.
The cosy fiction that having ‘regulated’ professionals makes the public safe causes one last destructive side-effect. It actually encourages professionals to act unprofessionally in those areas where the ‘regulator’ is known to turn a blind eye.
The area in which I see this happening most is in CBT in the NHS, which is frequently delivered by people with wholly inadequate knowledge and skill in CBT, even though they may be well-qualified (and ‘regulated’) in some other area like nursing or psychology.
In this way the HPC, along with other regulators, helps to create a smokescreen behind which phoney CBT has become the norm in many parts of the NHS. The professionals who do this are ‘regulated’, the public is ‘protected’, but the quality of CBT treatment is often dismal.
Prime Minister David Cameron and Deputy Prime Minister Nick Clegg, along with the rest of the Coalition Government, invite you to collaborate on ideas for freedom and change.
This will form an important part of our commitment to cutting red tape, repealing unnecessary laws and supporting civil liberties. Your ideas will inform initiatives such as the proposed Freedom Bill and the streamlining of regulation, particularly for businesses and other organisations.
In my submission, I summarized the ideas that I have written about here. The HPC is constantly criticised on other grounds, too, some of which you can read about at the HPC Watchdog blog.
A similar quango ‘regulating’ teachers, the General Teaching Council for England, is already due to be abolished in the autumn, according to an announcement made to Parliament by the Eduction Secretary.
The HPC’s days may be numbered. I hope they are. (I kind of hope Jon Culshaw’s are, too, unless he can come up with some actual satire.)