an informal opinion from someone in law

"From a legal perspective I am struck by various statements that the scale of the risk is exaggerated and there is insufficient evidence that therapists abuse clients on a scale that warrants the costs of state intervention. That could be an interesting area to focus on:

I haven't looked at the evidence but my guess is that it might be an uphill struggle to persuade a court that the evidence is so weak as to make a govt decision to introduce some form of state regulation irrational or unreasonable. That said however it might be worth really going into the evidence issues as part of the lobbying process and if their answers are insufficient they could form part of a later legal challenge. At this stage you could ask for more detail about what evidence has the government put forward and have they yet done a cost benefit analysis (which they should do for any legislative proposal)

- i.e. sending the Dept of Health a letter saying you would like to know what evidence they are relying upon, e.g. any independent studies as to the scale of the problem, and asking when /whether they have done a cost benefit analysis for the legislative proposals (my guess is that it is still early days and because the exact form of regulation for the different sectors hasn't been decided they haven't yet had to do that sort of analysis). Even worth considering a freedom of information request along those lines (perhaps at a later stage) if you don't get a decent response. And when it comes to deciding on costs for the purpose of the cost benefit analysis it would be interesting to see what they consider to be costs - are they taking into account both economic costs and potential cost to innovation etc. This could be a weak spot to look at and lobby on.

The debate around evidence and lack of sufficient evidence might also be used to help shape the form of the state regulation if it comes to that - there are lots of different sorts of regulation and, for example, the tick box approach, at least in the financial services field, has tended to be replaced by a principles based approach which is less reductive and is better at encouraging innovation. So don't assume that there is only one sort of regulation - it might be possible to have something much more light touch and more suited to innovation and all the different sorts of therapies available. Seems to me that in bringing in this regulation idea, the govt is probably concerned about (1) inflated claims that I can cure you and (2) the range of potential unethical practices. Although in theory the courts can deal with concerns like this the fact is that the courts are expensive and scary and the govt tends to want individual complaints of malpractice to be dealt with by the professional bodies. Perhaps the key is to try to shape the regulation that comes out so that it focuses on misrepresentation (arguably already covered by the common law anyway) and proper ethics (ditto), to keep encouraging something which is very light touch."