Judicial Review and things

The Good Thinking Society's (GTS) application for judicial review of the Professional Standards (PSA) Authority decision to re-accredit the Society of Homeopaths (SoH) has not yet been granted. The judicial review process is described here but relevant parts will be repeated (it is worth reading in full). The date of hearing of the application is currently unknown. Permission should be granted but there are no guarantees.

Reaction

The GTS made their announcement just after Prince Charles became Patron of the Faculty of Homeopathy. This may explain why there wasn't much of a reaction from the media. There was one media story but that was about it. If permission is granted, it may well be become a media story and it certainly will if the judicial review is heard. Lack of media interest may explain why homeopaths were not up in arms - they tend to be reactive and rarely look outside of their bubble.

This from SoH CEO Mark Taylor is as odd as his pronouncements generally are. 

“GTS is a body that often gets its facts wrong about homeopathy and there are also question marks over how it is funded. It has always opposed the idea of the credibility that PSA accreditation provides for homeopaths.” 

The Society will not be involved in any proceedings and will not incur costs, he added. 

“But we will be giving the PSA all the support that we can to rebuff this challenge.”

Actually, the SoH have already incurred costs. This blogpost from Taylor reveals that he simply doesn't get it.

The current threat from the Good Thinking Society (Chair, Simon Singh) to pursue a judicial review against the Professional Standards Authority (PSA) is a case in point. Their accompanying statement is a quite deliberate one-eyed commentary, ignoring the evidence and containing statements that are simply false. 

One example: ‘A patient could, via the PSA’s list of accredited practitioners, find themselves consulting with a homeopath who discourages vaccination and believes they can cure children of autism.’ That is simply not true.

It is true that a patient could find themselves consulting with a homeopath who discourages vaccination and actively promotes anti-vaccination propaganda. CEASE therapy does claim that autism can be cured and some SoH members did repeat those claims. OK, those claims may have been removed from member websites but there is still a lot of linking to the CEASE therapy website and other places where those claims are made. What an individual member believes is not always apparently from their online advertising, especially when that member is aware than there are restrictions on the claims that they can make.

Taylor goes on to say about Simon Singh (Chair of the GTS) -

He was perfectly convivial but he simply didn’t get it. He seemed to treat the whole issue as a game, something from the university debating society, shocked at my assertion he was part of number of campaigns that could put thousands of people out of work.

A ludicrous assertion to say the least. Taylor goes on to say -

Why in a world where things are never set, where questions have to be asked about everything and compromise is always required, do this handful of sceptics feel able to refuse to listen, whip up unfounded hysteria and be selective with the truth?

The answer, I suspect, lies with them, not us.

It is they who have developed an irrational antipathy to homeopathy, who have become addicted to recreational outrage, and who spend too much time on social media.

So, next time you see another hyperbolic statement or a frenzied rant, be comforted that it is homeopaths who are the professionals, who are constantly using and referring to evidence and working within strict guidelines laid down by agencies to ensure patient protection.

It is the sceptics who have no patients, no understanding of homeopathy and no willingness to compromise, adapt, listen or learn.

The SoH has been furnished with ample evidence of problematic behaviours of members that directly contradicts Taylor. And of course, the whole point of the legal challenge is that patient protection has not been ensured.

The SoH board report from July 2019 says -

MT reported on the possible judicial review being undertaken by the Good Thinking Society against the PSA concerning their accreditation of SoH. While this concerns the Society, it does not involve the Society directly and should not incur costs. MT would seek legal advice on the Society’s position. The whole process is likely to take many months. 

It was agreed that, if the review does go ahead, the Society needs to be prepared for a decision that is not in its favour.

MT = Mark Taylor. Unless the SoH get legal advice for free, they have already incurred costs. 

An invitation only meeting would be held in September to discuss the issues around CEASE. LW would chair and SH would attend. Invitees would all be RSHoms, some CEASE practitioners and some not. Any recommendations or options from this meeting would go to the Board. Some of the issues would be wrapped up in the Scope of Practice Review that was currently being undertaken.

LW = Linda Wicks. SH = Selina Hatherley (and note Vega testing). It is unlikely that any of the attendees understand the issues involved. Mention of Scope of Practice is interesting although because lay homeopathy is not regulated there is no actual legally defined scope of practice. It is not the kind of language that the SoH use and it is likely they mean something else but it is the kind of language used in this blog and in communications with the SoH and other bodies. 

Why Judicial Review?
Whilst the initial decisions to accredit the SoH and other registers such as the Complementary and Natural Healthcare Council (CNHC) and the Federation of Holistic Therapists (FHT) were widely criticised, the PSA's hands were tied by weaknesses in legislation. It claims that it is not allowed to consider the validity of the therapies that an accredited register covers. To do so would be ultra vires.

The PSA's decision to re-accredit the SoH is highly questionable on a whole number of grounds that have nothing to do with the validity of homeopathy. 

It is important to note that there is no direct mechanism for a third party to challenge PSA decisions regarding accredited registers. The registers themselves can appeal decisions but not anyone else. Surprisingly, the PSA are not directly answerable to the Department of Health and Social Care (DHSC) even though it partly funds the accredited registers scheme (it is supposed to be self-financing but it is years away from that at best). It is "answerable to Parliament" but this is not a route of appeal. There is not an Ombudsman with the correct remit either.

The Pre-Action Protocol for Judicial Review from the Ministry of Justice stresses that court should be a last resort and alternative dispute resolution should be pursued. Theoretically, the PSA are able to mount a targeted review of an accredited register. This might satisfy the grievances of the GTS and to quote from PSA guidance -

3.3 If the Accreditation team’s in-year monitoring raises sufficient concerns, or if information is shared with us that raises concerns, a targeted review may be initiated. The process and possible outcomes of this targeted review are the same as for a targeted review initiated at annual review. An in-year targeted review will not negate the need for an annual review. 

The PSA have not instigated a targeted review. It would appear that concerns raised were insufficient in their view to do so.

Legal Duty?
To quote from the GTS Crowd Justice page 

The PSA has said that they have a very limited role in accrediting organisations such as the Society – which is focused on governance and administration. We have responded to reiterate that when deciding whether to accredit the PSA is obliged to consider whether organisations such as the Society include individuals who offer harmful and discriminatory therapies, such as CEASE therapy. This is extremely important because PSA accreditation provides a stamp of respectability and endorsement which – in the PSA’s own words – enables the public to “avoid bad apples”. In fact, the PSA’s stamp of approval is likely to be directing more desperate parents towards CEASE therapy which is precisely the opposite of what should be happening.

As has been discussed before, the PSA must have due regard for the Equality Act 2010. They have a Public Sector Equality Duty. There is no explicit general duty on public sector bodies regarding public health or public safety beyond the Health and Safety at Work etc. Act 1974. There is a public health duty on the NHS, local authorities and the Secretary of State for Health and Social Care but the PSA is no longer answerable to the Secretary of State. 

As stated in the National Health Service Reform and Health Care Professions Act 2002 with regards to the statutorily regulated professions -

(2)The general functions of the Authority are— 

(a)to promote the interests of users of health care, users of social care in England, users of social work services in England and other members of the public in relation to the performance of their functions by the bodies mentioned in subsection (3) (in this group of sections referred to as “regulatory bodies”), and by their committees and officers, 

(b)to promote best practice in the performance of those functions, 

(c)to formulate principles relating to good professional self-regulation, and to encourage regulatory bodies to conform to them, and 

(d)to promote co-operation between regulatory bodies; and between them, or any of them, and other bodies performing corresponding functions.
  

(2A)The over-arching objective of the Authority in exercising its functions under subsection (2)(b) to (d) is the protection of the public.

The remit of the PSA was expanded to cover accredited registers by the Health and Social Care Act 2012. It was one of the most contentious attempts to "reform" the NHS ever undertaken. It states that the functions of the PSA re accredited registers are -

1) The Authority has the following functions— 

(a) to promote the interests of users of health care, users of social care in England, users of social work services in England and other members of the public in relation to the performance of voluntary registration functions,

(b) to promote best practice in the performance of voluntary registration functions, and 

(c) to formulate principles of good governance in the performance of voluntary registration functions and to encourage persons who maintain or operate accredited voluntary registers to conform to those principles.

There is no over-arching objective of protection of the public written into it. 

Risk Matrix
One of the papers for the PSA September board meeting is their risk matrix.  One risk identified is reputational damage to due to -

Criticism of the Authority in the face of poor practice / controversial therapies by one or more accredited regulators.

This risk has existed since the start of the scheme. The PSA see the likelihood of this risk as increasing. Mitigation?

Robust accredited registers processes, including QA checks 

Clear explanation of the programme’s role – accrediting registers not therapies 

Regular engagement with the organisations 

Active management of the media when necessary

Perhaps the first might have some effect on mitigating the risk but the others?

But...
It is probably better to let the judicial review play out than speculate on what might or might not happen during/as a result of it. Whilst there are all sorts of potential implications for the PSA and the accredited registers scheme, there is only one certainty.

At some point, the SoH will have to go through the accreditation process again. Whether it is part of a targeted review, a re-run of the annual review or just an annual review doesn't matter that much. What matters more is if it goes before a moderator or a full accreditation panel.

The SoH have recently indicated their intention to renew accreditation.

Re-running the accreditation process
The PSA would be ill-advised to take the same approach to accreditation as they did the last time around. It would increase the risk of reputational damage.

Being focused on "governance and administration" is all very well but the same criticisms of, for example, the ISO 9000 standard could be levelled at the accredited registers scheme.

If you just want the certificate on the wall, chances are you will create a paper system that doesn't have much to do with the way you actually run your business.

This might be said of certain registers.

It is suggested the PSA pay special attention to Standard 2 of the Standards for Accredited Registers -

Standard 2: the organisation demonstrates that it is committed to protecting the public and promoting public confidence in the occupation it registers.
The organisation will need to demonstrate that its purpose and directives are focused on public protection. Additionally, the organisation will need to show that in carrying out its voluntary register functions public interest is paramount and that professional interests do not dominate or unintentionally subvert that interest. 

Evidence of this might include board or committee discussions where issues have been debated and conflicts of interest identified or the ethical interests of parties weighed in the balance; decisions made about admittance to the register where the documented rationale shows due consideration of public protection; outcomes of complaints; particularities of governance arrangements. 

Having meetings, setting up committees, conducting reviews etc are not in themselves evidence of focus on public protection or that public interest is paramount. Too often leadership does these things to satisfy some external requirement. They can be tactics to delay making a decision. The setting up of committees/reviews can be about leadership distancing themselves from something unpopular.

Yes, the SoH were forced by the PSA to (grudingly) implement an action plan to deal with members offering CEASE. But the plan has not achieved overall compliance. This was going on when the ASA enforcement notice was sent out, which both the PSA and SoH knew about before it was sent.

It is all very well for the SoH to have (weasel-worded) position statement on CEASE, homeoprophylaxis and vaccination but if it does not enforce them, they aren't worth very much.

One additional problem for the SoH is that more information has come to light about both the potential risks posed by their members and their prevalence. "Bad apples" have been identified. It's not just CEASE therapy and Homeopathic Detox Therapy. Homeoprophylaxis is openly promoted by only a few members but anti-vaccination propaganda is not uncommon. Questions have been asked about the competence of members to deal with mental health issues. The business of offering bizarre therapies other than homeopathy is awkward for the SoH but is not something that will excite the media in itself (but doesn't help when there is reporting for other reasons).

Homeoprophylaxis is rare. Exactly how prevalent anti-vaccination sentiment is among SoH members is unknown. It's not always openly expressed. Unlike with CEASE therapy, there isn't a list of those who've signed up for training in anti-vaccination disinformation. Of course, CEASE is anti-vaccination but not all of those who are anti-vaccination offer CEASE. 

Another is problem that is it clear that the SoH are either ineffective in mitigating/managing these risks or simply don't want to. In particular, no obvious action has been taken against identified "bad apples", they remain members and the problematic behaviours continue.  One result of taking action could be to lose members, either through expulsion or voluntarily leaving because they don't like the direction the SoH is taking. 

Whilst it is unlikely a new CEASE therapy/HDT is going to come along soon, it's clear that the SoH did not recognise CEASE as a risk and to some extent promoted it. They should have recognised it as a risk as soon as they applied for PSA accreditation. It is questionable whether they would recognise new risks or if an existing risk is increasing.

Some might say that the SoH has no reputation worth speaking of to be damaged. This isn't strictly true if you accept that PSA accreditation leads public credibility to them. It is unknown what mitigations the SoH have in place re reputational damage but this recent article about dealing with the media includes - 

Pamela Stevens, the Society’s Marketing Manager, said the My Voice guidance was aimed at helping members whose experience of the media may be limited. 

“Homeopathy makes the national news from time to time and recently some members have had particularly negative experiences. We’ve compiled this guidance to equip our members to deal with journalists who may be seeking a sensational story so they can avoid feeling under pressure and, where appropriate, respond with authority.”

It is unknown what the guidance says. Although the risk is external, a main causes are the claims of members and the SoH's failure to combat them.

Of course, the reputation of the SoH is not something that directly impinges on the PSA. It's not something that it can control either. 


Outcomes
Not re-accrediting the SoH might be a bridge too far for the PSA. It's unknown how much store the DHSC or politicians place in the accredited registers scheme but it might not be politically palatable. It would likely raise questions about why the SoH was accredited in the first place.

It is difficult to judge whether the SoH would appeal such a decision. The SoH make a big deal out of accreditation but the June 2018 board report states -

SC asked whether there would be a point when it was not feasible for the Society to continue with the re-accreditation process. The feedback currently from  members was generally positive and members did value the Society being accredited by the PSA. 

Further discussion took place about the advantages and disadvantages and the organisational structure of the PSA. 

MT proposed that it would be sensible to analyse and reassess the whole accreditation process at some point. This would be something to consider inserting into the Strategic Plan.

SC = Sue Crump.

It's important to note that the decision to remove accreditation is made when "the Accreditation Panel finds that the organisation does not and cannot continue to meet one or more of the Standards." Read one way, accreditation is only removed if a register has a complete inability to meet one or more Standards. This is very clear cut in the case of financial non-viability, less so for other issues. 


The PSA has a number of options open to it in terms of dealing with a problem register short of removing accreditation. It can can suspend accreditation whilst the register fixes things. This may involve the register and its members having to remove mention of PSA accreditation and the logo from advertising. If it can't provide evidence of fixing the problem within 10 days, accreditation will be removed.

Alternatively, the PSA can accredit conditionally as it did with the SoH in 2018. If a register does not meet the Conditions, it can have its accreditation removed or suspended. The PSA hasn't placed Conditions on any register recently. There could be a number of reasons for this - for example, registers that have been accredited for a number of years have addressed major shortcoming. Even so, conditional accreditation of the SoH is a strong possibility. But what kind of Conditions? How long would the SoH have to meet them? Very difficult to say. 

An adverse Court ruling against PSA accreditation of the SoH because of CEASE would force the PSA into a position of demanding that the SoH prohibit it if they want to retain accreditation. But even without such a ruling because of the ASA enforcement notice, the associated media reporting and other factors, issuing mere Recommendations would invite criticism. Nor would it look good if the PSA accept SoH fiddling around with changing the name of CEASE etc as dealing with the issues.

Would prohibition of CEASE be too much for the SoH?

How anti-vaccination disinformation is dealt with is going to be very interesting. It gives nothing away to say that a website sampling exercise is being conducted to gauge how prevalent openly expressed anti-vaccination sentiment is.