Fortune Favours The Brave

Claims and complaints in the psychological world - part 3

• Howden Insurance Brokers Ltd

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What's the real story behind the Health and Care Professions Council (HCPC) complaints process, and how has it evolved over the years?

Welcome to the third, and final, episode of this mini-series about claims and complaints in the psychological world. Join us as we sit down with Max Ekstein from Arch Law to peel back the layers on how psychologists navigate the regulatory landscape and how complaints are meticulously handled. 

We take a deep dive into HCPC's hearings and appeals process, the investigating committee panels, and the difference between its and BACP's procedures.

Thank you for staying on the journey with us and listening to this short, but hopefully informative, series on claims and complaints against psychological and related professionals.

Podcast intro/outro:

Welcome to Howden's podcast Fortune Favors the Brave. We all take risks in our everyday life, and business is no different. In this podcast, we're speaking to the experts about a topical challenge or issue and what business leaders can do to overcome it.

Jo Mountain:

Welcome to Howden's Fortune Favors, the Brave podcast. This is part three and is looking at the HCPC, the Health and Care Professionals Council complaints process. Again, I'm joined by Max Eckstein of Arch Law, who's going to tell us about that process. So, max, could you start by telling us some of the history of psychologists and regulation, please?

Max Ekstein:

Yeah, sure, absolutely so. When I first started doing this work in about 2007, psychologists were still regulated by the British Psychological Society, so their own organisation. I dealt with the tail end of the BPS complaints until regulation switched over to the HPC as it then was now the HCPC in 2008. So that was when things switched over from the BPS to the HPC.

Jo Mountain:

And what's the sort of difference between the BPS, as was the BACP, et cetera, and the HCPC in terms of their regulator status?

Max Ekstein:

So the last time we discussed the BACP and they're a membership organisation, whereas the HCPC is like the GMC for doctors, that's set up by statute, so set up by legislation.

Jo Mountain:

And sort of looking at the process itself. Can you sort of discuss how that's changed since HPC to HCPC?

Max Ekstein:

Sure, so in the very early years so probably 2008, 2009, when I first started dealing with the HPC as it then was the first I would be notified of a complaint would be essentially at the first formal stage of the process. So a psychologist would be presented with formal allegations to respond to all the HPC's evidence and I would then be charged with assisting the psychologist with responding to that. Things have changed somewhat over the years since then, in that there seems to be more work done at the initial stages. So the psychologist will these days be contacted by the HCPC, quite often asked to provide an initial response to the complaint, any relevant documents, and the HCPC will then decide whether the threshold test has been met to take things further rather than just launching in at the first formal stage.

Jo Mountain:

Okay. So, looking at the scope for the HCPC to take interim measures where there have been serious allegations, can you tell us about that before we move on to the usual procedure?

Max Ekstein:

Sure, absolutely so. Regulators generally will have some kind of process in place to put interim measures in place pending the final outcome of the hearing. The reason for that is that it can take a long time 12 months and often longer for a complaint to be finally resolved. Now, where there are serious allegations, for example allegations of a sexual nature, the regulator will potentially need to put steps in place to protect the public until the final outcome of the complaint is known. So in those circumstances, the regulator can apply for an interim order. There will be an interim order hearing and the kind of steps that a panel can put in place are some kind of interim conditions on practice, for example, stopping a practitioner working with a particular client base or, alternatively, actually imposing a suspension until the final resolution of the hearing. Just in relation to that, that's obviously potentially a very, very serious step for the psychologist involved. It can impact on their ability to earn a living. It's obviously a very serious step, okay.

Jo Mountain:

So can you tell us about the first formal stage of the process regarding the investigating committee panel?

Max Ekstein:

Sure. So, as I mentioned earlier, if the HCPC decide that the matter needs to proceed to the investigating committee panel, then that will go before a three-person panel. This is all done in writing at this stage. So a complaint the panel will consider the documents the HCPC's documents and the members' response documents and the test that they will apply is whether there is a realistic prospect that the HCPC will be able to establish at a hearing that the registrant's fitness to practice is impaired. So that's the test that the ICP will be looking at.

Jo Mountain:

So, in terms of that impaired fitness to practice, can you tell us about how that fits with insight shown and where that will take that?

Max Ekstein:

Sure. So this concept of impaired fitness to practice is something that's used by a number of regulators. One of the key features there is that it's a forward-looking test, so it's obviously informed by what's happened in the past, but it looks forward to the future. So, for example, if there have been some kind of failing on the part of the psychologist, but they've shown insights in relation to that and they can satisfy the panel that it's unlikely that such a failing will be repeated in the future, that can be relevant in deciding whether there may be impaired fitness to practice.

Jo Mountain:

So if the ICP find that there is a case to answer, then the case will proceed to a hearing. So could you tell us what that will look like?

Max Ekstein:

Sure. So I mean one of the main features of HCPC hearings. Last time we discussed the BACP BACP hearings will generally be done in one or two days. The HCPC hearings will often last much longer than that. I've been involved personally in hearings that have lasted for weeks, so they can be very long.

Max Ekstein:

The reason for that is that at the HCPC all the witnesses will generally be called to give evidence. They'll be cross examined by the other side's barrister. They'll be asked questions by the panel. If there are a number of witnesses, that can all take time. There may also be expert evidence if required at these hearings. Again, the experts will be called to give evidence and cross-examined. Again, that will take time.

Max Ekstein:

The other factor is that at the HCPC the process is split up into different parts effectively. So there are a number of things that the panel will need to decide upon. They'll need to decide on the facts of the case. So what allegations, from a factual point of view, they found proven. They then need to move on to consider whether there's been misconduct, lack of competence on the part of the psychologist. From there, it's a question of this concept of impaired fitness to practice that we were discussing earlier, whether the fitness to practice is impaired. And then finally, if they get to that stage, they move on to sanction. And the reason that this all takes time is because at all these different stages the panel needs to write up their decision, go away, consider the next stage of the decision. So a lot of the time at these hearings can actually be with the panel going out, formulating the decision and writing the decision.

Jo Mountain:

If the practice committee panel finds that a registrant's fitness to practice is impaired, what options does it have available?

Max Ekstein:

So at the lowest end they can find, even if fitness to practice is impaired, they take no action. That's very rare, but I have had that on one case and that sort of I think went back to the learning points that the psychologist showed. So they were persuaded that even though fitness to practice was impaired, they didn't take any action. That's a rare occurrence. From there they move up, considering what sanction is necessary, they move on to a caution order, which is effectively a formal warning, possibly conditions on practice as the next one, and again conditions on practice will basically be tailored to fit the circumstances of the case. Again, conditions on practice will basically be tailored to fit the circumstances of the case. So the conditions on practice may require, for example, extra supervision, something along those lines. From there you move to a suspension order and then the most serious outcome, which is a strike off the register.

Jo Mountain:

So there's obviously a distinct difference between the BACP, for example, process and HCPC, in that the process is longer because the outcome is delivered at that time. What do you feel about the differences there? Which option do you prefer?

Max Ekstein:

I mean I think they've both got their advantages and disadvantages. I think that at the BACP the hearings are shorter, so there's less time that the BACP member needs to go through the stress of the actual hearing process. But equally it can take them a month afterwards to find out the outcome, which obviously isn't going to be a pleasant period for them. At the HCPC the hearing itself is longer, but you know the outcome at the end of the hearing. So I think there's probably some swings and roundabouts there.

Jo Mountain:

And can you tell us about the appeals process through the HCPC?

Max Ekstein:

Sure. So again, last time we discussed at the BACP how an appeal process was internal to the BACP. It's not like that with the HCPC. So if an appeal is made at the HCPC, that'll actually go through the court process. So that will be in the court rather than an internal process like at the BACP.

Jo Mountain:

That's fantastic. Thank you for joining us for this podcast, the last of a series of three and thank you so much to Max Eckstein of Archlaw for joining me and providing an invaluable insight into this topic. Find out more about Howden Allied Healthcare at howdenbrookincom forward. Slash therapists with an S on the end. And, max, how can our audience reach you?

Max Ekstein:

Thanks, Jo. They can contact me via the ARCH website, which is at archlaw.

Podcast intro/outro:

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