On 31st March, a week or so after the coronavirus pandemic lockdown began, I was contacted by the HCPC.

“I am writing to inform you that we have received a concern about your fitness to practise” the letter began. “We will now carry out an initial investigation into the potential fitness to practise issues identified in the concern. This may involve gathering relevant information from a number of sources.
  
In order to assist with our enquiries, I would be grateful if you would provide the following information:
  
– Confirmation that you are the owner and/or moderator of the site ClinPsy.org.uk.
– Confirmation of whether you, or any of the other owners/moderator of the site have received any concerns/complaints about the content of the forum, particularly regarding [celebrity psychologists]
– If yes, please provide a copy of the complaint/s and the site’ s response.
– If not provided above, you are welcome to provide a brief response to concerns raised.
– Confirmation of your current employment arrangement.
– If applicable, please provide the name and email address of your line manager and HR director.

I replied the same evening:

I own www.clinpsy.org.uk I can confirm that I have never had any complaints in any form about any comment on [celebrity psychologists] on the forum – in fact I have never even heard of [the complainant], and can find no reference to him on the forum. I’m afraid you will need to let me know what comment is being complained about to enable me to respond to it.
As to my employment, I am self employed and run my own small business, so there is no line manager or HR involved – but I have to ask why you would think that relevant when a person is complaining about an unspecified comment on social media?

I then contacted my professional indemnity insurance provider and spoke to Mike Wang, chair of the ACP (he was my MSc supervisor and then my clinical course director, and we have stayed loosely in touch since then) who were both reassuring that this wasn’t a legitimate complaint. Later I got legal advice through my membership of the FSB, to check I had fully understood my legal obligations as a forum owner. All of us wondered why the HCPC would launch an investigation at all, given that I had never made a comment myself about any of the individuals named in the complaint, and the forum had been very proactive in ensuring no defamatory content was permitted. The forum does have a thread about “celebrity psychologists”, where legitimate concerns are raised about individuals who appear on television or in the newspapers making comment as “psychologists” who are outside of the scope of HCPC registration. But I could see nothing defamatory in it. In fact the moderating team had carefully checked the content and I had even posted a reply to remind people about our defamation policy and how to raise a concern. So I started to draft a full reply to the HCPC.

Just to be sure, I spent many hours obsessionally trawling through content on the forum and my social media and could find no interaction with the individual concerned, or any defamatory content about any celebrity psychologist on my forum. That isn’t to say members of the forum haven’t criticised such individuals, or that I don’t share similar concerns. Quite the opposite, I’ve been raising concerns about the limited scope of regulation for psychologists and therapy professionals for more than a decade and see this as another example of where the legislation fails to protect the public. However, I have never expressed this as a personal attack on an individual, or said anything unprofessional or defamatory.

At this juncture it might be helpful for me to note what defamation is, what a complainant can do about online defamation, and what the legal rights are both of the individual who believes they have been defamed, and the established defences against claims of defamation, as they will set this complaint in context.

Defamation is the action of damaging the good reputation of a person through the oral or written communication of a false statement about them that unjustly harms their reputation. The important part of that definition is that the statement must be false, and it must cause them harm (which must be demonstrable within 12 months of publication). Being rude about someone or insulting towards them would not normally be defamatory, though it might be unprofessional. As a website owner I am technically the publisher of the content shown on the site, and whilst I cannot be held legally accountable for other users being rude or insulting (though we have worked hard to create a professional culture and to have policies that prevent personal attacks or unprofessional behaviour), I would be accountable if something defamatory was published – if I was aware of it and failed to act to remove it when requested to do so by the individual it affected.

The problem here was that the HCPC did not share any details of the complaint with me, and the complaint communicated was entirely vague and did not refer to particular comments or even allege defamation. It was also made by a third party, rather than the individual that the complainant said had been maligned – making it rather extraordinary that the HCPC would give it even a cursory investigation.

But even with the assumption that someone had said something on the forum that an individual had felt was defamatory – which was far from the case – the law requires that individual (not a third party) to inform the publisher and ask them to remove the content, within 12 months from publication. And in this case most of the comments about celebrity psychologists had stood for 7 years, and no complaint had ever been raised with the forum – despite every post having a button to report it to moderators for review, and a prominent defamation policy that was linked by me in the very thread concerned, in a post giving the forum email address to make such a report.

There are also two main complete defences to defamation allegations; truth and honest opinion. If a statement is true it cannot be defamatory. For example, to say that a celebrity psychologist is not a registered practitioner psychologist or does not have a doctorate is not defamatory if these statements are factually correct. The other defence is that someone is expressing an honest opinion or making “fair comment”. This allows discussion of matters of public or professional interest, and means it is not defamatory to express a view that an honest person could have held on the basis of any facts or anything asserted to be a fact by reasonable sources available to them at the time. That is, if I said “Boris Johnson is a liar” this could not be defamatory because numerous sources have asserted this to be the case. Honest opinion can also be a reaction to something else that has been published, and can even defend someone posting something that is incorrect, if it was an honest belief based on the information available at the time (for example, writing “X isn’t registered with the HCPC” wouldn’t be defamatory if a person had their HCPC registration in a different name, or it didn’t show on the website yet, or the name checked was spelt incorrectly because that was the spelling used in the article under discussion).

As far as I could see, all comments that were on the forum about celebrity psychologists, or made or retweeted by me on social media, involved telling the truth or making fair comment about known or published facts.

On the other hand, my investigations showed me that the complainant was someone who frequently threatens properly registered mental health professionals who criticise his favoured celebrity psychologists with referral to the HCPC. I also found that the individual concerned had used anonymous IDs to respond aggressively to critics of his favoured celebrity psychologists, and to place more flattering quotes and reviews about them into the public domain. I also heard from other colleagues who had been harassed for raising similar concerns. One noted:

“This is one of the perversities about the register and use of the title psychologist; as [celebrity psychologists] are not registered they are able to freely mislead the public about their status and not be held accountable and yet they can put in complaints to the HCPC about those of us that are properly qualified.  The complaint is vindictively motivated [and yet effective as a deterrent/punishment for critics]“

So on 2nd April I sent the HCPC a robust reply:

I have had a better look into this and I am now in a position to reply more fully.

For reference, the forum has run for 13 years and contains 152,000 posts on over 15,000 topics. We have never had a formal complaint about our content, and we have a team of moderators who are all HCPC registered clinical psychologists who help to ensure we maintain a professional tone in all content. Every user has to agree a statement about the rules of the site to sign up (which can be read here: https://www.clinpsy.org.uk/forum/viewtopic.php?f=2&t=16012) and we have written guidance for users that spells out our rules (which can be read here:https://www.clinpsy.org.uk/forum/viewtopic.php?f=2&t=10). The guidance is sent to each user in a welcome message as they sign in for the first time and cautions against personal abuse or defamation. Rules 9 and 11 specifically talk about being respectful of others even when disagreeing, avoiding defamation and ensuring posts do not risk bringing the profession into disrepute. It also explains how any post can be reported to moderators by clicking the small triangle button and stating your concerns. We have a pinned post giving specific guidance about defamation (see here: https://www.clinpsy.org.uk/forum/viewtopic.php?f=2&t=9&p=10) that is linked prominently from that guidance, and note it includes the means to contact us to report any content that is potentially defamatory at the bottom of the page: “If you believe a post has been defamatory about you, or an organisation you represent, please email us at clinpsyforum@gmail.com and we will respond as quickly as possible”. 

We have a proper process for responding to a complaint, and a team of qualified CPs who act as moderators that I consult with. However, our complaints process has only been activated once (when an approach to purchase the website turned into correspondence disputing our negative review of a travel agency offering work experience placements to psychology students, but they did not register a formal complaint and we did not find any content that was not factually supported when we investigated) and I can confirm that we have never had any complaint from any of the individuals mentioned in your email. We respond frequently to reports on individual posts, which mainly notify us of spam but can also highlight inappropriate content such as potential breaches of confidentiality. These are dealt with within 3 working days. We have never had a report in relation to defamation or to any content relevant to this complaint.

We do have one thread where [celebrity psychologists] are mentioned – you can read it here: https://www.clinpsy.org.uk/forum/viewtopic.php?f=12&t=13708. It was started in 2012 where forum members raised concerns about “celebrity psychologists” who do not have HCPC registration but appear to be giving the public the impression they are regulated professionals. The thread stood for 8 years and the majority of content was posted two or more years before I contributed to it at all. I did review the entire thread at that point and found nothing defamatory. Nonetheless my response includes the following: 

“The issue of psychological therapists who practise outside the scope of professional regulation is one that is important to many of our members who work hard to gain practitioner status with the HCPC, because we believe in the principle being important to protect the public (regardless of the individuals involved).

As with any other thread on the forum, if any of the content of this thread is considered defamatory the the individual involved is welcome to email the site (clinpsyforum@gmail.com) and point this out and we will remove it.” 

The thread was then dormant for nearly six years, before being raised to discuss the way some “celebrity psychologists” were using BPS membership to give the impression of professional qualifications, whilst apparently breaching BPS guidance. I had raised these concerns with the BPS and mentioned doing so on the forum and on twitter. However, as with the content in the thread, the concerns were about the misrepresentation of professional titles and skills, and the role the BPS take in giving credibility to psychologists who are not HCPC registered practitioner psychologists, and their lack of will to intervene or regulatory teeth when concerns are raised about these individuals. Whilst one or two of my posts are critical of specific things that [individual celebrity psychologists have] written or said I cannot see any defamatory content. I have made no direct criticism of [the individuals named in the complaint], and there has never been any mention of [the complainant] on that thread or elsewhere on the forum.

Nobody has raised a complaint about that thread. I have reviewed it today, and whilst there is legitimate concern about misrepresentation of qualifications and the public perception of psychologists, based on things written or said by various unregulated “psychologists” in the media, I cannot see anything defamatory in the content. [Far from being unprofessional, I believe we have gone above and beyond requirements to prevent defamatory or unprofessional content. I posted in that very thread] how to report any concerns about defamation, and have been mindful to allow only appropriate professional concerns about misrepresentation to be raised on the forum, rather than personal attacks or potentially defamatory content.

I do not believe that it can possibly impair my fitness to practice as a clinical psychologist to have hosted or participated in discussion about potential misrepresentation of professional qualifications by “celebrity psychologists”. This has not been defamatory, and I believe it to be legitimate for members of a clinical psychology forum to raise professional regulatory concerns about public figures – especially when these are factually based, shared by many practitioner psychologists and early career stage psychologists, and have been raised appropriately with professional bodies including the BACP and BPS. The posts on the forum that were critical of these individuals were based on the content of their newspaper columns and television appearances, how they are introduced in TV programs, and their stated qualifications and experience on their websites. For example, it is a true fact that Emma Kenny is not a clinical psychologist, despite being introduced in a BBC television series as being one, and this being a breach of the regulations that brought us under the auspices of the HCPC.

I would note that it is entirely lawful for individuals to publish honest opinions on a matter of public interest and based on facts which are true – this is known as “fair comment” or “honest opinion”, and has been tested through the courts by cases such as British Chiropractic Association vs Simon Singh, which led to the Defamation Act, 2013. This introduced a number of protections against allegations of defamation, including truth, honest opinion, public interest, and a defence for website operators hosting user-generated content, provided they comply with a procedure to enable the complainant to resolve disputes directly with the author of the material concerned or otherwise remove it. This ensures that individuals who own or run websites that allow comment are not liable for the content of other user’s comments on it. It requires that the complainant must contact the site owner or administrator to raise a complaint in which they specify the complainant’s name, the statement concerned, where on the website it was posted and explain why it is defamatory, before taking any other action in relation to alleged defamation. These complaints can only be made by the person who has allegedly been defamed or their legal representative.

We have never received any complaint or notification of potential defamation, or any communication from [celebrity psychologists] or their legal representatives, and as previously stated we have never mentioned, heard of or communicated with [the complainant]. Thus a non-specific complaint to the HCPC made by an individual who has never been mentioned on the site seems quite inappropriate as a means to address concerns. I would therefore hope that the complaint can be quickly dismissed.

Yet the case still wasn’t dismissed, despite the fact I had demonstrated that a) I had not made any defamatory comments about the individuals concerned and b) there was no legal basis to hold me accountable for posts made by others on a forum that I own (even had any been defamatory, when none of them had been).

I was then asked on 6th April to provide proof that no complaints had been made to the website. Aside from the fact that it is not my burden to prove a negative, and almost an impossible task, I spent the next 3 hours responding to this request, searching the email correspondence, administrator and moderator report logs for each name or the word complaint, and submitted screen shots of every search. These were acknowledged on the following day.

Yet the case still wasn’t dismissed.

I then heard nothing for 4 months. So I wrote on 12th August to ask whether the complaint had been dismissed. This email was acknowledged, and I was told I would receive a reply within 5 working days, but received no reply. I therefore emailed again on 20th August, which again had no reply. So on 26th August I raised a complaint.

My complaint was that this “fitness to practise concern” was obviously spurious from the start, and should never have reached the point of even a cursory investigation (given the complaint was from a person I had never interacted with, about comments made by people other than me about people other than him). But even if it did, in error, reach a cursory investigation, surely the information I provided within 3 days was enough to say “sorry, it is now clear this isn’t a legitimate complaint” and not keep me under the stress of a formal fitness to practise investigation? How this can still be hanging over my head five months later is very troubling. Surely there must be a process for checking the prima facie validity of complaints, that should have dismissed this? What if I had been employed, and this had led to me being suspended or fired? How you could do this to a person struggling to sustain their business through a pandemic lockdown over such a trivial and spurious complaint is beyond me.

On 4th September the investigation was officially closed. The HCPC informed me:

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I am writing to let you let you know that we have now completed our initial investigation into the concerns we received about your fitness to practise.

During our investigation, we obtained information from the Complainant and yourself. We have now assessed the concern, and all the information we received, against our threshold criteria for fitness to practise investigations.

In doing so, we have considered whether this matter may be a breach of the following HCPC Standards of Conduct, Performance and Ethics:
2. Communicate appropriately and effectively
6. Manage risk

The outcome of our assessment is that the threshold criteria for fitness to practise investigations has not been met in this instance. This means that we do not consider that the concern, or the information we have obtained about it, amounts to an allegation that your fitness to practise may be impaired.

The reasons for our decision are explained in more detail below:

Issue 1 – comments of an offensive, bullying or inappropriate nature on social media

Registrants are not prohibited from expressing their opinions on social media, provided the content or language used is not inappropriate or offensive.

HCPC Guidance on Social Media advises Registrants: ‘ When using social media you should apply the same standards as you would when communicating in other ways. Be polite and respectful, and avoid using language that others might reasonably consider to be inappropriate or offensive. Use your professional judgement in deciding whether to post or share something.’

From the links and screenshots provided, the content of the forum appears to be confined to a discussion of professional concerns and information already in the public domain. Regarding the opinions and concerns expressed in the forum, the HCPC would be out of place to prohibit its Registrants from having a free discussion about their concerns or limit their ability to express their opinions. Of the information provided and the search conducted, I am unable to find any statements which amount to ‘trolling’  or bullying.

As our process is evidence based, we cannot proceed with our investigation without evidence to support the concerns. The Complainant was given multiple opportunities to provide evidence that you contributed to and offensive or inappropriate content, but has failed to provide information which supports the concerns.

Issue 2 – hosting comments by others of an offensive, bullying or inappropriate nature on your site

You have provided evidence that you have put multiple protections in place to ensure the tone, language and content of the forum is not defamatory and does not stray into inappropriate content or language. Where members breach these terms, you have a team of moderators who will respond.

In providing individuals the ability to report specific posts and comments, you have acted in accordance with your professional duty to support and encourage others to report concerns(SCPE 7.2). You have evidenced that you have not received complaints on this thread, and therefore have not been in a position to respond to such concerns.

In the absence of any evidence to suggest you have not complied with the relevant obligations, there is no information to suggest that your fitness to practise may be impaired.

We will therefore not be taking any further action in relation to this matter and have closed our file on this case. However, please continue to be aware of our communication guidance when reviewing your forum/website.

We appreciate that this has been a very stressful time for you and would like to thank you for your co-operation and patience during our investigation.

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So, to my relief, they got there in the end and the complaint has been dismissed. However, my question is why the complaint got through the starting gates, and why it took 5 months, 2 emails and a formal complaint to resolve.

But more than this, why do the BPS continue to endorse these “celebrity psychologists” and do nothing to protect or support genuine practitioner psychologists against this kind of attack? Despite numerous complaints about “celebrity psychologist” Jo Hemmings in the context of her article about Meghan Markle being manipulative, the BPS sat her down for a chat and took her at her word that she would be more careful in future. And they’ve not replied to any of my emails in the six months since I suspended my membership, saying I would not continue membership until they responded to the concerns I raised about their endorsements not protecting the public.

And more than this, why does the legislation not distinguish genuinely qualified and accountable professional psychologists within the scope of regulation from anyone who calls themselves a psychologist? In Australia it is an offence with enormous financial penalties to misrepresent someone as a psychologist or claim to be a psychologist if not within the scope of statutory regulation. So the public cannot be misled by the media citing quacks or charlatans who claim qualifications, but actually have to check their registration before using them as experts. Here we haven’t even got that protection for who can be called as an expert witness to inform critical decisions in the courts. The scope of current regulation fails to protect the public, yet nobody – not professional bodies or politicians – seems to care.