The problem with HPC regulation

Introduction
All of us who work in the field of counselling and psychotherapy, or who have an interest in it in any way, were called to respond to three documents posted on the Health Professions Council (HPC) website on 14th July 2009. The deadline for our responses was 16 October 2009, and the HPC was staggered to receive over 1000 replies. In July I wrote a report to guide some of the training organisations who were formulating their response. This coincided with an invitation to speak at the Psychology of Women Section Annual conference, where I was subsequently invited to submit a report on our HPC experiences for POWS Review. It seems useful to offer you that summer report. It offers an insight into some of the implications of HPC regulation for not only counselling and psychotherapy but for those professions, including practicing psychologist, who are already under HPC regulation.

Here follows the July 09 report …
… Few of us will know much about the background to this consultation but will probably be familiar with the catchphrase that this will ‘protect the public’. However, the lack of proper information, and the surfeit of spin provide an unsatisfactory background with which to approach it. So, it is vital that as many people and organisations in the general field of counselling and psychotherapy as possible respond to the call in order to protect the profession, and hence to protect the practice and the experience of the patient or client for many years to come.

The HPC documents appear straightforward, but are really quite difficult to understand – at times they are just plain baffling. Probably, many people who approach these documents for the first time will find them dull, confusing, and will want to walk away. Here’s an example of what awaits:
“Paragraph 2, Section 8, Education and training (p39): The HPC visits education and training providers to approve pre-registration education and training programmes against the standards of education and training. The standards of education and training are those standards necessary to ensure that someone who successfully completes that programme is able to meet the standards of proficiency for their part of the Register (the threshold standards for safe and effective practise).”
Some may hope they can take a short cut straight to the consultation document, but will find the questions assume an orientation that will need some thought to fully understand. For example, question 3 asks about structuring the register to include child psycho¬therapists as a separate title. This could easily be understood in exactly the opposite way to that supposed by the HPC and go on to produce negative unintended consequences. Most people might think: yes, you need special training to work with children. But this is not what is being asked. The relation between training and registration is not straightforward. The relation between regulation and practice is not straightforward. Nothing here is straightforward.

For the last two years I have been tracking the development of this process, and studying the sociological perspectives. This is a an important moment for the field, and everyone who cares about the tradition of psychoanalytic work needs to engage with it now, the deadline for the consultation is 16th October. There are some particular patches that might throw people off course, and I have tried to clarify these.

A potted history of the new statutory body
It is essential to grasp that this form of regulation is not the statutory regulation that much of the profession has been asking for over the years. That was a demand for power to be passed by statute to the existing professional body that would then administer business on behalf of its field of expertise. The current proposal is quite different and would more correctly be called state regulation. The difference needs to be appreciated when approaching the consultation exercise because the baseline assumptions behind the current proposals represent the complete opposite of what many will be expecting. The two approaches belong to different paradigms and don’t share common assumptions.
The Health Professions Council was created by the Health Professions Order, 2001, a piece of secondary legislation arising from the 1999 Health Act. The following year another piece of legislation (NHS Reform and Health Care Professional Act 2002) created a ‘supreme’ regulatory body, the Council for Regulating Health Professions (later renamed the Council for Health Regulatory Excellence, the CHRE), though the budget supporting it leaves it in quite a weak position. In any event, it is the HPC that receives the statutory powers delegated by Parliament to regulate the profession, not the profession itself. Here is a list of the organisations regulated by the CHRE, which shows the kind of practices regulated within this new regime.
1. General Chiropractic Council (GCC) regulates chiropractors.
2. General Dental Council (GDC) regulates dentists, dental nurses, dental technicians, dental hygienists, dental therapists, clinical dental technicians and orthodontic therapists
3. General Medical Council (GMC) regulates doctors
4. General Optical Council (GOC) regulates optometrists, dispensing opticians, student opticians and optical businesses
5. General Osteopathic Council (GOsC) regulates osteopaths
6. Health Professions Council (HPC) regulates the members of 14 health professions: arts therapists, biomedical scientists, chiropodists/podiatrists, clinical scientists, dietitians, occupational therapists, operating department practitioners, orthoptists, paramedics, physiotherapists, practitioner psycho¬logists, prosthetists/orthotists, radiographers, speech & language therapists
7. Nursing and Midwifery Council (NMC) regulates nurses and midwives
8. Pharmaceutical Society of Northern Ireland (PSNI) regulates pharmacists in Northern Ireland
9. Royal Pharmaceutical Society of Great Britain (RPSGB) regulates pharmacists in England, Wales and Scotland
From a Centralist Government point of view, the HPC sits alongside the GMC and GDC under the CHRE. This view tends to obscure the essential difference between the HPC and all those other bodies, and creates the appearance of equality across a set of practices.

HPC, like its overseer the CHRE, has no practical knowledge, expertise or experience, and this is an innovation introduced by academic lawyer Ian Kennedy through his chairmanship of the Bristol Royal Infirmary Inquiry (see also his Reith Lectures published by George Allen & Unwin in 1981 as The Unmasking of Medicine). The CHRE and the HPC are not guided by issues of knowledge or practice, but by the very vague mission given by government: ‘to protect the public’. They are answerable not to their membership, but to the State (incarnated in our time by Her Majesty the Queen Elizabeth II) via the Privy Council (a small team of 2 Lord and 2 MPs representing the Government, and whose membership changes from time to time). The relation between the HPC and its registrants is not one of knowledge, debate or democracy but of policing and control through the creation and application of standards. The HPC constructs standards general enough to apply across all the various professions within its domain, and perhaps this is why 75 of them seem to have been written for functionaries working in the NHS (e.g. ‘recognise the need to monitor and evaluate the quality of practice and the value of contributing to the generation of data for quality assurance and improvement programmes’ 2c.1.iii)

The kind of power that sustains the HPC is quite different from that which sustains the professional bodies. In the latter, the practical work itself forms the basis for organisation: to learn from experience, to transmit knowledge grounded in practice, to create structures of supervision and control of work, to guard access to that work, and to protect those who have chosen to follow the practice from the excess vagaries of life, and thus protect the practice. In this way, society can benefit from the knowledge, expertise, and experience of the profession in question. Some problems that arise in this form of organizing include the rise of cliques who might sometimes exert undue influence on groups, or the tendency towards sloth and greed that is said to accompany success and middle age! The laws of natural justice, of ordinary rivalry and competition, a sense of duty, ethics, and pride – and of course the influx of youth – have traditionally been relied on to hold these tendencies in check.

The HPC, on the other hand, is set up on the understanding that, having no interest in or experience or knowledge of the practice, it will not succumb to the pressures of self-interest, (and by the way, it currently appoints to its Director posts no-one middle aged …). This is supposed to reduce the threat of abuse by cliques, and to make it safe for government to delegate statutory power and responsibility over professions without further need of debate in parliament. Once this assumption is accepted, the Government can satisfy the demands of many professional groups wishing to gain access to statutory power without having to consider a separate Bill and Act for each one of them. This effectively circumvents the debate traditionally deemed necessary when forging a new law.

In practice, the Department of Health must still expend the same amount of work to draft legal documents (Section 60 orders, which refer to section 60 of the 1999 Health Act) for each professional group, but the government is spared the work of debating each one in the traditional manner that would normally turn a Bill into an Act. The debating process is, then, delegated to the HPC who in their turn transform the process by managing it through its Professional Liaison Groups. There are, of course, important differences between the two kinds of debate: notably the structure and space for criticism and dissension is removed in the HPC.

As a result of this historical development, the structure and assumptions of the HPC emerge in opposition to the work of psychotherapy and counselling, and there is reason to be concerned about the effect this will have on practice post regulation. Some training organisations believe that they will be able to reform themselves as ‘buffers’ to protect practitioners from the regulator, some practitioners think they can create their own personal defenses by simply ticking the right boxes, and getting on with things as before. Few people have given detailed consideration to the realities behind these ideas, little literature appears to exist on attempts made to date in this field (but see Michael Power’s work on the Audit Explosion, Max Travers on The New Bureaucracy, Marilyn Strathern and Hari Tsoukas on the Tyranny of Transparency, and of course, Andrew Sparkes’ innovative fictional approach to academia post RAE).

To really understand the grounds on which this consultation is made, it is very important to grasp the consequences that follow from the shift in power base away from practise and towards legal standards. As these standards come back at practitioners from the independent and more powerful organisation (HPC) practitioners will find it less and less easy to take their bearings from the truth of their work. The move towards the HPC is one that gives power to the artifice, and opposes this power to that which comes from the real work. As artificial power becomes more valuable, practitioners will be more concerned that their institutions are well placed in the new system to benefit from that power. This tends to amplify conflict in the field, and polarize positions: it can easily generate a vicious cycle.

The HPC consultation lists about 50 standards applicable to both counsellors and psychotherapists, with a further 3 specific to psychotherapy, and 2 specific to counselling. These latter appear on the last pages and give the HPC something with which to differentiate their register. It is worth noticing that in this context there is no need to protect each title separately, but to ask the practitioner concerned to decide which one they are fit to use. NB: If the HPC are to successfully protect the title of Counsellor they will have to amend the law (HPO, 2001) and specify the field as one pertaining to mental-health wellbeing.

Engaging with the consultation
If you have asked for the consultation document to be sent to you in the post, you will have a thick set of papers printed back to back and held together with a very large staple. If you have downloaded it from the website, you will have three separate documents that you can manipulate a bit more easily. The actual consultation (stapled at the front of the posted pack,) asks 20 highly configured questions and attempts to keep the consultation within the frame already decided. However, question 14 asks whether there are standards which should be added, amended or removed which does allow for something more unexpected to be said.

The longest document is Michael Guthrie’s report. Michael is the Acting Director of Policy and Standards, and in spite of the grand title (and enviable youth) is not experienced in any of the areas that he now has jurisdiction over. It has been Michael’s job to turn the process of regulation into a written record, to negotiate off- stage with the solicitor on questions of legal possibilities, and to make sure the capture takes place with as little fuss as possible. He has produced a rather confusing summary of the outcome of this work, which you could look at on page 3, but that I have edited here for simplicity.

The HPC propose that:
1. The register be structured to differentiate between psychotherapists and counsellors by making each one a protected title.
2. The criteria for transferring databases from existing registers be those laid out on page 29, section 5.3 paragraph 18: i.e. prospective registers need to be clear about criteria for entry onto their register; show how its people meet those criteria; have an obligatory code of ethics tied to a complaints process; demonstrate a well functioning complaints process; CPD; commitment to supervision consistent with theory;
3. The minimum national educational level for entry into the profession for Counsellors be 5 on the National Qualifications Framework, and 7 for Psychotherapists. (This does not mean that a counsellor with level 7 qualifications can enter as a psychotherapist, it only means they have more than the minimum required to enter.) Level 7 qualifications are at a level equivalent to Master's degrees, postgraduate certificates and postgraduate diplomas.

There are 8 numbered sections to the report, but the real business is found in section 4. Michael’s job is to produce an object (Psychotherapy and Counselling) that can be taken into the HPC database, bringing onto the Register as many people in as simple a way as possible. The data will be ‘cleaned up’ later, and the entry level to the database will be ‘gradually raised’ over time. Section 4 is where discussions begin about structuring the register and protecting the titles. Once this is settled – which is essentially a job of setting the shape of the database – the rest of the sections address themselves to the practical difficulties of bringing data across. This is why the proposal is to protect the titles counsellor and psychotherapist. They have rejected splitting the register into more specific areas (e.g. modalities) because the two proposed titles capture everyone concerned. The aim of the HPC is not to protect the various divisions within the field, but to hold a database of practitioners that can pay a fee and be held to account if a complaint is lodged against them. The practitioner has a duty to train specifically for any particular practise they are interested in. The database represents a minimum entry point, and to a large extent has in mind those freshly graduated from university. In fact, it is not really necessary to protect both titles. Once the section of the register is established (Psychotherapy and Counselling) registrants could be given responsibility to choose which title to use, when. This does not actually mean that anyone can be anything, because there is a demand that people only practice at the level to which they are qualified, it is here that the fault line of the HPC is probably most clearly exposed: on the one hand there is enormous reliance on people to do the right thing (which leaves the HPC open to the charge of being irrelevant, ineffective, and wooly), and on the other hand there is a very harsh and punitive public application of law for the minority of people (less than 0.5%) who are reported on, (which leaves the HPC open to the allegation of running show trials). If you want to argue for more specific titles, e.g. modality based, then you should bear in mind that the HPC is not designed to cope with this. To specify modes of practice implies constructing specific standards that allow a lawyer to argue effectively in a fitness to pratise hearing or at a Magistrates court (where use of title may be contested).

Section 5 wonders which existing databases should be transferred from the psychotherapy and counselling organisations already in existence. Section 6 considers how to structure the entry point for individual practitioners who are not already on those lists.

Section 7 is more problematic, and refers directly to Appendix 2. Here is where things can become very confusing unless you appreciate the function of the Standards of Proficiency (SoPs) from the HPC point of view. You will notice that most of the standards begin with the words ‘understand the need to’ rather than ‘be able to’. This is because the HPC see things very much from a mass educator point of view. The University sector is a major source of registrants for the other sections of the HPC register, and the HPC spend a lot of effort laying the tracks for students to roll straight onto the register when they graduate. The parts of the register, then, are not intended to create boundaries around specific sub-practices, as this would create a protected market for the practitioners concerned. From the HPC point of view, they want to make it possible for as many different practitioners to enter onto the database in as simple a way as possible. For our part of the register, this has a direct bearing on the question of working with children. The HPC doesn’t need a separate category for those who work with children. If a separate category is made, then specific SoPs have to be created. The slogan ‘to protect the public’ gets in the way here. The HPC is essentially a database that allows complaints to be made, lawyers to be engaged, and cases to be heard. The protection of the public is not achieved through prevention, nor by enlightenment and it is here that the real tension between ideologies begins to become clear.

Section 8 presents another set of problems. Here is where the HPC begins to exert a backward pressure onto the work of the various training institutions. Even though “The HPC only approves programmes that lead directly to an individual’s eligibility to register and gain access to the relevant protected title for their profession” (paragraph 4). The trainings are only interesting to the HPC in so far as they produce the right shape of data for easy entry onto the register. However, their interest, together with the power invested in them, has a distorting effect on the structure and delivery of training. Here is another potential stumbling block for practitioners. Unless the nature of the HPC is understood, power will be handed over to a body that will not be capable of wielding it wisely.

The list that appears under the title Standards of Proficiency has never really existed until now in our practise. There have been many attempts over the years to find a way to reduce what we do to a centrally applicable list, but the attempt always fail. That the list has now been created is not due to a sudden scientific breakthrough, but because the HPC need it in order to function and set a deadline for its production. It is an artifact of the HPC and has no practical relevance to practitioners nor to training institutions. It will acquire relevance in future in order to satisfy the HPC in their future demands. It is helpful to bear this in mind when reading the list of standards. Many of them have no obvious logic behind them – they were written by a committee under a deadline, and an imperative to appear united.

The Existing, and the Proposed Standards of Proficiency
The Standards of Proficiency have been divided into three numbered groups:
1. Professional Autonomy and Accountability;
2. Identification and assessment of health and social care needs; and
3. Knowledge, understanding and skills.
Each of these sections is split further and given letters, and many have yet a third and even a fourth level of division, giving the impression of structure and order yet it is almost impossible to distill any logic from the sections and the sub-sections. It makes more sense to read them as a managerial agenda.

A second dimension also exists, and has been depicted with three different inks. This distinction refers to the kind of professional implicated in the particular standard of proficiency. The three levels are:
1. All Professionals on the HPC register,
2. The specific section in the register relating to the single profession now known as Psychotherapy & Counselling, and finally
3 either (a) Counsellors or (b) Psychotherapists.

The generic standards will be going forward for review in a separate exercise, though these standards represent a central spine of the HPC. Any comments you wish to make about them will be held until the designated review, but if you want to comment on their impact on counselling or psychotherapy practise, or their relevance for such, then you should certainly make your views known now. Remember, any review of the generic standards will be subject to input from every other profession, and this set of standards are in a sense the back bone of the HPC. All the professions in the HPC are supposed to be equivalent on a certain level - “the Government believes that all professionals undertaking the same activity should be subject to the same standards of training and practice so that those who use their services can be assured that there is no difference in quality” (Trust Assurance and Safety, White Paper 2007, para 7.17).

References
Ian Kennedy (1981) The unmasking of medicine, LondonGeorge Allen & Unwin
Michael Power (1994) The audit explosion, London Demos
Michael Power (1994) The audit society, rituals of verification, Oxford: Oxford University Press.
Andrew Sparkes’ (2007) Embodiment, academics, and the audit culture; a story seeking consideration, Qualitative Research, 7, 581
Marilyn Strathern (2000) The tyranny of transparency, The British Educational Research Journal, V26N3
Max Travers (2007) The new bureaucracy; Quality assurance and its critics, Bristol, Policy Press
Hari Tsoukas (1997) The tyranny of light; temptations and paradoxes of the information society, Futures 29(9) 827-43