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Regulation of Podiatry

Discussion in 'United Kingdom' started by Mark Russell, Apr 19, 2012.

  1. rosherville

    rosherville Active Member

    Re: Health and Care Professions Council

    Don't we have a number of 'colleagues' taking the HCPCs 'shilling' ?

    With colleagues like that what chance of unity ?

    It's laughable hearing some of them trying to justify this flawed organisation.
     
  2. blinda

    blinda MVP

    Re: Health and Care Professions Council

    No worries here. I`ve not written anything that I would not be prepared to say directly to the HCPC, should need be.
     
  3. Re: Health and Care Professions Council

    Colleagues

    My formal Notice of Appeal is being lodged in the next couple of days, however, in light of the press release issued by the HCPC last week in which they stated that I had been found guilty of Misuse of a Protected Title with intent to deceive, I thought I would enlighten you to the grounds to the appeal - I shall post the formal notice once it has been accepted.

    Some background. When I received my initial summons and witness papers earlier this year, contained in the evidence was an email from the wife of an osteopath whom I used to rent a room from in my home town of Lytham St Annes. The email claimed they had been unaware that I had deregistered from the HCPC in 2008 and they had sent several letter, receipts and invoices which showed I had signed these documents as a HPC Registered, Registered and State Registered Podiatrist - all documents dated after 2008 - when I was not registered.

    I had rented a room at this osteopath's clinic for several years. Three years ago I discovered that the osteopath had stolen money from one of my practice accounts and had failed to pay the two secretaries their overtime and holiday pay - which amounted to several thousand pounds - over a number of years. After several bounced cheques from him, the secretaries left and I followed two months later. He is a thoroughly disreputable and dishonest individual and I wanted no association with him. He had, however, been very supportive of my decision to deregister from the HCPC at the time - as have been most colleagues in all the professions - and he had amended all my stationary to reflect the change in status - removing HPC Registered, for example, from business cards etc. Although I continued to call myself a podiatrist - all references to HPC and Registered, ceased from August 2008, in accordance with my notification to Searle.

    When I read the email and looked at the documents they had submitted to the HCPC - then compared with the originals in the patient files and doctors letters - it was clear that they had been fraudulently amended. The various prefixes - HPC, Registered and State Registered had been added to the copy documents submitted to the regulator.

    I obtained the originals back from the patients and GPs - and took two signed statements from the two secretaries - who had typed the documents in the first place - which confirmed that no correspondence from me carried the prefixes after I deregistered - and that the osteopath was fully aware of my status, as were all the staff who worked there.

    These original documents and statements were given to the HCPC solicitors and barrister at my initial hearing in May this year. These were the reason I pled "not guilty" - as had they been factual, then I would certainly have been guilty of deception. After examining the original papers and the statements, the HCPC immediately agreed to remove this evidence from the summons as it had been clearly fraudulently procured. An amended summons was agreed, which contained no reference to the aforesaid documents or any material which would suggest I used anything other than the title "podiatrist" since 2008 - and on that basis I indicated that I would plead guilty to the charge of misuse of a protected title and would seek to mitigate the offence in my plea at the final hearing.

    On 11 November during the sentencing hearing, I was taken aback by the prosecution's case summary, which although presented rather charmingly by the HCPC barrister, it amounted to nothing more than a character assassination, depicting me as a 'mischievous individual' who had not complied with several requests to cease or desist. The prosecution then stated:
    In doing so, the prosecution introduced evidence that had been struck out during disclosure and agreement and formed no part of the case whatsoever. As a consequence, she misled the court and Bench. Leading such evidence, in the knowledge that these documents had been fraudulently amended and after removing them from the evidence, is, I would suggest, a deception of a significant magnitude and gravity. You might understand my anger after reading the press release last week.

    I will leave you to form your own conclusions from the foregoing, but I have just appointed Counsel to lead my appeal - which is to have both the conviction and sentence quashed. At the end of this business, whatever the outcome, I would sincerely hope that there are serious questions asked of both the Registrar and his legal team over their conduct in this case. The question of damages will be considered then.

    Will keep you posted.
     
  4. Craig Payne

    Craig Payne Moderator

    Articles:
    8
    Re: Health and Care Professions Council

    Shame that the HCPC don't regulate Osteopaths - that would most likely be enough to get him struck off! What about the General Osteopathic Council?
     
  5. Re: Health and Care Professions Council

    They hold a formal complaint from me which I will sign and authorise at the end of my case. As it is a criminal case, he may also face a charge of attempting to pervert the course of justice. Did you notice I had changed my signature recently?
     
  6. blinda

    blinda MVP

  7. Re: Health and Care Professions Council

    The behaviour of other health professionals is a matter for their regulatory body at the end of the day, but it is the conduct of the HCPC and their agents, that gives me the greatest concern, Craig. Being accused of not complying with several cease and desist letters is something I fully accept - but that is a world away from not engaging with the regulator regarding registration, especially in matters of public safety, which is their primary function after all. At no time have I received any reply from Searle regarding the problems with podiatry regulation - and no acknowledgement or mention of the subject was raised in court by their barrister. Given the HCPC is concerned with our standards and ethics, I find it incredulous that they would lead evidence that had been removed from the case, for the reasons outlined above, in an attempt to portray me as a mischievous individual who was determined to deceive the public, in the knowledge that said evidence was inadmissible and fraudulently procured. Where does the greatest deception lie? Suddenly, this curious little case has become one of greater significance than even I thought possible.
     
  8. Pauline burrell-saward

    Pauline burrell-saward Active Member

    Quote:
    Since allowing his registration to lapse in 2008, Mr Russell has signed himself variously in doctor’s letters, patient invoices and receipts as a self-styled HPC Registered Podiatrist, Registered Podiatrist and State Registered Chiropodist, in what we suggest is a deceptive manner


    If this so why didn't your legal represent challenge it and have it removed from the proceedings?
     
  9. That, Pauline, is the nub of the argument. I didn't have legal representation - I prepared and presented the case myself, very much on the basis that I couldn't afford legal counsel. I have had informal advice certainly - but the costs of counsel are prohibitive and well beyond my reach. Now that legal aid has been restricted to the minimum, representation at the level required to counter the HCPC barrister and legal team was out of the question.

    That said, I was happy to make my plea in mitigation. I was perfectly aware that I may end up with a criminal record - to be honest, that does't bother me in the slightest. I am happy that the fine is a modest one - very much at the lower end of the scale. What really troubles me is the award of costs - and that is the basis of my appeal. In hindsight I should have challenged the prosecution on leading evidence that was inadmissible and I should have challenged her on leading evidence that I was simply being mischievous and acting without reason and intentionally deceiving the public - all of which are factually incorrect. But I didn't - at the time - primarily because I was so taken aback with her approach and what she was citing in her case summary, which was so patently wrong. That was as a result of my inexperience and amply demonstrates that you should always have someone with suitable qualifications and experience looking after your interests at all times. Just like in the podiatry world.

    Purely out of interest, how do you feel when solicitors or barristers lead incorrect or inadmissible evidence in cases where you are sitting?

    Kind regards
     
  10. rosherville

    rosherville Active Member

    Quite so Mark. I would refer to my post on this thread 21-11-12:

    The ins & outs of the efficacy of the HPC is surely irrelevant to any defence you may make in an action for an offence under the 2001 Act. A court action may well provide a stage for you to voice your opinions on the appropriatness of the Act but any half competent barrister will easily deflect your aim.

    Surely your hope lies in the fact that not only do you have a chiropodial qualification recognised by statute but had also been using that qualification for a number of years prior to the start of the Act.

    A court may well decide that a retrospective disenfranchisement breached your human rights !
     
  11. A date for the diary...
     

    Attached Files:

  12. Pauline burrell-saward

    Pauline burrell-saward Active Member

    Still not sure how you are going to argue against conviction! You have by your own free will pleaded guilty so how can you appeal against that?

    Also how can you appeal against sentence ? It is a very small fine.

    By all means appeal against the costs,but yet again you lost your case and the other side are allowed to claim their costs.

    I look forward to hearing the outcome.
     
  13. Well, Pauline, you'll just have to make the effort and come down to the Old Bailey for the day....my lips are sealed until then and await a maiden's soft caress to reveal the greatest secret of all! Are you the curious one or the steadfast doubter? Hope to see you on the 14th....;)
     
  14. Pauline burrell-saward

    Pauline burrell-saward Active Member

    Hardly.

    Those of us in the real world WORK, I am fully booked with appointments, can't just take off time and let my pts.down!!!!!
     
  15. blinda

    blinda MVP

    It`s great that you have a busy diary, Pauline. You obviously provide a valued service to your patients. But, just think for a moment; how let down would they feel if they knew that part of their fees are going directly to a regulatory body which fails to protect them from the unsafe practices of former podiatrists, who continue to work despite having been struck off for misconduct?
     
  16. Wendy

    Wendy Active Member

    Mark, as someone who left the profession due to the recession and part due to cost of the HPC (as was) I am currently looking to return (to go alongside my current post in a secondary school), with this in mind I am following your case with great interest and wish you the very best for 14th Feb:D:D
     
  17. Thank you Wendy, that is most kind.
     
  18. Just been advised that the HCPC have requested to vacate the 14th and a provisional date of 28th February has been tabled instead. Will let you know the details when I have them.
     
  19. blinda

    blinda MVP

  20. Hi Bel

    Yes it's been quite an interesting couple of weeks! The date for the appeal has now been changed again to Wednesday 26th Feb at 10.30am. If anyone is in the vicinity of the Old Bailey, then please look in and say hello. It promises to be a momentous day!!

    Kind regards
    Mark
     
  21. Jacky Nowle

    Jacky Nowle Member

    "It promises to be a momentous day"

    Are you sure about that Mark? Yes, I wish the law would be tightened/changed, what ever you call it, but sometimes, I feel that one has to be realistic!
     
  22. blinda

    blinda MVP

    Jacky,

    Not so long ago you said;

    and I asked you (but received no reply);

    So, precisely which part of the HPO wording do you think is creating a ridiculous state of affairs? If you don`t think Mark`s stand is realistic, then how do you propose that we go about highlighting the flaws in current legislation with a view to change?

    Bel
     
  23. Actually, it's what the HPO doesn't say that is crux of the matter. See you on the 26th...:drinks
     
  24. blinda

    blinda MVP

    Sounds it!

    Intriguing.

    Wild, wild horses couldn`t keep me away.

    Cheers,
    Bel
     
  25. Kaleidoscope

    Kaleidoscope Active Member

    Hi Mark

    Ive blocked the morning out on 26th so I hope to be along to support you at the Old Bailey (used to be my old stomping ground!) unless, of course, they change the date again!!!

    Cheers
    Linda
     
  26. Wendy

    Wendy Active Member

    Mark, unfortunately I will be back at school that week otherwise I would have been there and brought my teenagers to see the British legal system in action...Good Luck and am following with great interest and hope.
     
  27. Colleagues

    Please find attached the amended grounds for appeal which have been lodged at court and with the HCPC last week. As they are now effectively in the public domain, I have uploaded them here - as I have with previous documents relating to this case. I will not be answering any questions or queries in relation to its content until after the appeal next Wednesday.

    Best wishes
     

    Attached Files:

  28. DTT

    DTT Well-Known Member

    Thats better ;)

    Good Luck

    Cheers

    D;)
     
  29. davidh

    davidh Podiatry Arena Veteran

    THAT is looking very good Mr Russell.
     
  30. Following on from another thread, this is a summary of the proceedings at the Old Bailey yesterday. Perhaps to illustrate the gravity of the occasion, we were, in court four, sandwiched between the sentencing of Lee Rigby's murderers and the phone hacking trial with Rebecca Brooks - turning up under the glare of TV cameras and reporters was a sobering aperitif for sure.

    The appeal, in legal terms, was an application to vacate a plea - in other words, we were inviting the court of accept a plea of not guilty on the basis the plea at magistrates was equivocal. That means that when I pled guilty on 11 November, I did so in the belief that the charge did not include an essential ingredient of the legislation - the intent to deceive.

    The defence incorporated two separate limbs - a challenge to the legislation as outlined in the grounds for defence - and I will return to that in a later post as it is worthy of a discussion on its own - and a specific rebuttal of the element of deception. It might appear obvious to everyone on this site that there was never an attempt to deceive - why would there be? For what gain? The only evidence of any deception in the original summons was considered unsound and removed by the prosecution during disclosure and agreement in May last year - but this was relied upon during the hearing in November - wrongly. Prior to that, I had been given the impression by the HCPC that they accepted there was no intent to deceive - and this contrasting position was accepted by the prosecution during the case summary last year.

    After considering the legal arguments and hearing evidence from myself, the Judge dismissed the defence argument in law to the challenge on legislation - but upheld the appeal on the issue of deception, in particular to the mens rea aspect - which means my intent; which on the balance of probabilities, he accepted there was no intent to deceive - and as this is an essential part of the charge ergo: there could be no offence.

    The sentence, fine and costs have been set aside. We have applied for a defence costs order which is under consideration. There is now a complicated legal position - the HCPC can seek a new trail at magistrates - which we will defend, vigorously. We can ask for a Case Stated procedure at the High Court on the specific point of law which the Judge dismissed - and if that was successful, there would be no further proceedings and the legislation governing the HCPC would fall. All good fun and plenty to think about in the coming days!

    I suspect the HCPC will refrain from publishing this via their press releases, but I'm happy for you to distribute it as you see fit...if you must!


    Best wishes :drinks
     
  31. rosherville

    rosherville Active Member

    Interesting Mark.

    So if/when the HCPC prosecute you, you will 'defend vigorously. Does that mean you will plead not guilty this time, or guilty as before ?

    You can of course apply to rejoin the HCPC !

    Or, your supporters can listen to Kevin Kirby and deregister as well !

    Interesting times.
     
  32. I would have thought 'defend vigorously' might be the clue, John. As intent to deceive is an essential part of the charge, it will be a not guilty plea. If the HCPC decide to proceed.

    I don't advocate mass de- registration, but you might wish to write to the HCPC and ask, in light of the court decision yesterday, what they intend to do about the limitations of Protection of Title legislation - the central issue of the protest - and whether they will seek a re-trial at the registrants' expense. The legal costs for the HCPC will now be in excess of £15,000 - you might consider the money better spent elsewhere. You could always send the letter to the HCPC Chair and Registrar and to your local MP - and you might want to share it with colleagues and ask them to do similar. Sometimes there is strength in numbers. What say you?
     
  33. rosherville

    rosherville Active Member

    Of course when you pleaded guilty you were unaware that there was a possibility that the legislation may only be permissive, Hence a changed approach.

    Confirms my 'time spent in reconnesence is seldom wasted' approach to life. Courtesy of British Army WW1 field manual.

    Regards
     
  34. Yes, but I think the next chapter is far more interesting. It's called action - you should try it sometime! :empathy:
     
  35. rosherville

    rosherville Active Member

    Mark

    It's called action, you should try it sometime

    I have and do, but with great consideration, based on the field manual of course !
     
  36. Pauline burrell-saward

    Pauline burrell-saward Active Member

    From the sounds of it, you may have had legal representation this time????
     
  37. M.C.

    M.C. Member

    Mark ...... Just to say that I am pleased to read that you have had some success and a positive result from your appeal..... It must have been a very stressful time for you of late and you seem to have been a lonely voice apart from a couple of supporters and the odd pessimist !
    I'm not sure exactly where this leaves your professional standing or , indeed the HCPC's.
    Good luck , I hope you can resume your career and pursue your personal stand from a safer place in future........ Mike
     
  38. The charge I faced under the Health Professions Order was misuse of title with intent to deceive, either expressly or implicitly. That is how it is written in Article 39.

    When I received the summons from the HCPC last March it contained the charge and a bundle of evidence gathered by two FtP case officers. In both bundles were separate evidence which suggested that since 2008, I not only had misused the title, I had done so by using a prefix – either HCPC/HPC/Registered or State or a combination of. This evidence I knew to be unsound.

    Since deregistering and notifying the registrar of my intention and decision, I took every precaution to remove all reference to these – for obvious reasons. I still consider myself a podiatrist and wasn’t going to be duplicitous and call myself something else to evade the regulation. But I wasn’t registered to the HPC or the State – so it was obvious that had to go. I wrote to the HPC case officer in 2008 and informed him that I had done so. My stationary, business cards, website all removed references to these prefix – and an explanation of my registration status was posted online and sent to all agencies. An explanation was necessary to my patients as many held health insurance policies that required HPC registration to qualify. Those patients who decided to stay with my practice – and that was the majority, I treated at the usual fee less their insurance contribution, which varied between 50 and 100%.

    Looking at evidence that suggested I had used these prefix in the date specified by the charge I knew had to be wrong. When I examined this evidence I noted it came directly and indirectly from an ex business associate – an osteopath from whom I rented a room. This evidence had been tampered with – letters purportedly coming from me had some of the various prefix added as well as my old registration number. Thankfully, I was able to trace the originals and retrieved them from GPs and patients and so, when I attended the court in May 2013 for the pleading diet, I pled not guilty.

    Just prior to the hearing I was approached by Counsel for the HCPC and two solicitors and asked if I had legal representation. Of course, I hadn’t. The next thing Counsel said to me was that “this was a very reluctant prosecution” – and that very much set the tone of that and subsequent discussions. I was asked what I intended to do – and on what grounds I intended to defend.

    I explained the only evidence in the summons papers I contested was that which suggested I had misused the titles by using the prefix – and the various websites that have been discussed previously – all historical to my deregistration. I produced the evidence to the Counsel and solicitors and they examined and discussed these together. I was then asked if that evidence was dropped, what would be my intention then. I advised them I would plead guilty.

    In front of the bench I submitted my plea of not guilty and I offered a skeleton argument which he accepted – namely that I wished to challenge the legislation. The plea was accepted and a trial date for 2 September was set.

    In court, following the hearing, I was again approached by Counsel for the HCPC and the solicitors and they suggested we work towards an accepted agreement of facts. On June 13 I had a four-way telephone call with the Counsel, and the two solicitors and I again reiterated my position that at no time had I deceived or misled anyone and that I had never used the prefix to the title since 2008. I was again assured that they fully understood and respected my position and they agreed to remove the evidence submitted by the osteopath as it was clearly unsound. On that basis, Counsel drew up a set of agreed facts and I indicated to the HCPC that I would be willing to change my plea. This was remitted to the court.

    After a few hics and ups a sentencing hearing was set for 11 November last year and I attended the City of London Magistrates Court where the charge that I had misused a professional title, namely shiropodist and podayatrist, to which I was not entitled – and of course I pled guilty.

    The Counsel for the HCPC then gave her case summary, which not only referenced the evidence that was struck out as unsound, but depicted me as a mischievous individual whose reason for committing this offence was unknown and that by doing so, I had, by implication, misled and deceived the public. My plea in mitigation – the text of which had only been given to the magistrates a few minutes earlier – fell on deaf ears and I was sentenced to pay a fine and costs.

    The basis of my appeal, letters to solicitors and the HCPC – and the nature of the prosecution have all been uploaded here and serves as a historical fact.

    In court four of the Old Bailey on Wednesday the crux of the appeal centred around the term ‘with intent to deceive’. This is an essential ingredient to the charge as it is written thus in Article 39.1(b) “a person commits and offence if he uses a title to which he is not entitled with intent to deceive, either expressly or implicitly.” You will also find this on the HCPC website in their press release of the case on 11 November. If you read the legislation closely, you will note that the ‘intent to deceive’ is integral to the charge. Without an intention to deceive, there is no offence.

    I could have used Former HPC Registered Podiatrist – or as Bel has suggested the Artist Formerly Known as a Podiatrists. AFK Podiatry – sounds pretty good. According to the Counsel on Wednesday, that would not be a breach of the legislation. But Podiatrist – with or without a prefix – is.

    What was vitally important was establishing the Means Rea – my intention at the time of committing the offence – and as the appeal was to change my plea – what was the reason(s) I changed my plea to guilty and what was was “in my head” at the time. I was asked to take the stand and take questions from both Counsels and the Judge. It was suggested by prosecuting counsel that I was a sophisticated man who knew fine that the charge had included an element which stated “intent to deceive”. I explained that throughout discussion and agreement with her - a sophisticated QC with a good understanding of the law - I was assured they knew that there had never been any attempt to deceive and that I had acted only in the interests of our patients. I was given the impression and had wrongly assumed that this part of the charge had been dropped and would not form any basis of the case from the time of agreement in June. I explained that when this issue of deception had raised during the prosecution’s case summary in November – I had been taken aback. In my view, she had not only misled me but misled the court.

    The first I knew I had been prosecuted with an offence with intent to deceive was when I was alerted to the HCPC Press Release on this site.

    What proved really critical, however, was something that the Judge noticed himself – a minor detail that we were not aware of. When the charge was read out by the clerk of court on November 11 – in papers prepared by the HCPC – the phrase “with intent to deceive” was not read out or included in the notes by the clerk. I only pled guilty of misuse of title – and that, I’m afraid, really isn’t an offence under this legislation.

    The appeal was upheld.

    Legally, the ball is back in the HCPC’s court. There are some political developments as I have been told to expect a letter from the Health Secretary – still waiting. But I shall be writing to the HCPC again to ask them for another meeting in the very near future to discuss how we go forward from here.

    If there is another case at the magistrates, it will not include the Counsel who prosecuted up until now as she has had her papers withdrawn. But if there is another case, it will be defended vigorously - but I really do hope that is the end of the matter. We shall see. At the end of this I have only one question for the regulator. What is really more important in a case such as this? To secure a conviction or to establish the facts and the truth? We shall see.

    http://www.blackpoolgazette.co.uk/news/crime/podiatrist-at-appeal-court-1-6468478
     
  39. rosherville

    rosherville Active Member

    It seems that we await clarification as to the legality of using title and how this is affected by intent to decieve.

    Interesting how a court would view the fact that you'd called yourself a chiropodist/podiatrist for 30 years and continued without registering, maybe it would be held that you had no intent to decieve.

    I'm sure many would rush to deregulate. However those in the NHS would have difficulty as registration is a condition of employment.
    Those in PP would maybe in a different position.

    Consider after passing your driving test you called yourself a 'driver' but did not maintain your driving licence, title is not protected but function is. Difficult to do that in dealing with feet. If you carried on driving but allowed your licence to lapse your insurance would be invalid.

    I wonder how we would stand if our indemnity was dependent on maintaining statutory registration, I know many companies specify this. Perhaps Mark can tell us who insured him as a chiropodist/podiatrist and did not require registration !
     
  40. M.C.

    M.C. Member

    Yes ,..... Very interesting times ......
    Continuing on Johns Driving licence analogy , all learner drivers have to be trained to a sufficient standard to pass their driving test and apply for a full licence !... You can't just say , Well, I've done a quick course so ,I have a different type of licence....I drive quite slowly and don't go too far! ...... You either drive to the recognised standard or you don't drive.

    These analogies are pesky things , In Ireland ,up until the 80's huge numbers drove without having taken any test whatsoever!...... Their simply weren't enough Testers or test centres , so , in a flash of inspiration , it was decided that , if you had been driving for a while you could consider yourself as passed ! (Grandparenting ?), even up till 2008 their were huge numbers driving around on provisionals , semi-illegally and as for the insurance implications ?... No idea ,but, I.m guessing they must have been waived as it affected a huge number of drivers, (400,000) .

    Anyway, back to the plot, If you have been practising as a Podiatrist for many years with a recognised degree can somebody take that title away from you ?... Is it possible or legitimate to describe yourself as an Un-regulated Podiatrist ?
     
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