On Friday 10th December 2010, a long awaited and crucial Judicial Review permission hearing found against the Health Professions Council (HPC). Six psychotherapy and psychoanalysis organisations have now won the right to take the HPC’s plans for the statutory regulation of counselling and psychotherapy to a full Judicial Review. The Judge criticised the misleading nature of HPC statements to both Government and stakeholders. The implications for the field are immense.
Background to the hearing
Legal action that has now culminated in the granting of a Judicial Review was initiated by a number of organisations who raised serious questions about the legality of the process followed by the Health Professions Council (HPC), a regulator created by Parliament, as it prepared to implement the Labour Government’s proposed regulation of counselling and psychotherapy. The organisations argued that, in an unwarranted extension of its legal remit, the HPC had proceeded as if its capability and suitability as the regulator for this field were foregone conclusions. Despite stating several times that it had not considered these questions, the HPC wrote to the Department of Health in December 2009 claiming that it had. Attempts to question this contradiction or even to have it acknowledged proved to be fruitless. Friday’s hearing finally recognised that the HPC were inconsistent and contradictory in their claims regarding their remit. As QC Dinah Rose put it, they had attempted to "rewrite history".
The papers lodged by Bindmans (solicitors for the six organisations) for the Judicial Review application documented these and other anomalies which indicated that the HPC has not acted in a rational or equitable way. For example, alternative models of regulation were not given proper consideration by the HPC, despite being repeatedly brought to their attention by many organisations and individuals. Key questions concerning the particular and distinctive nature of the talking therapies had been treated as if irrelevant. Indeed, most of HPC’s own criteria for regulating a profession, such as homogeneity of the knowledge base and common entry standards, were incompatible with this highly diverse field.
It appears that the Department of Health is already exploring alternative models of regulation and practitioner accountability. The result of the permission hearing seriously undermines the credibility of HPC's claim to be the right regulator for the field, given its admission to the court it has in fact done no research to support making such a claim.
Summary of the 10 December Permission Hearing Judgment
In his judgment at the permission hearing last Friday, Mr Justice Burton gave the six organisations permission to proceed with what he termed an ‘important’ Judicial Review challenging Health Professions Council proposals for regulating their field.
Representing the groups, barrister Dinah Rose QC maintained that the HPC had unlawfully failed to address critical questions about whether counselling and psychotherapy should be regulated by statute, and whether the HPC is the appropriate body to administer such regulation, given the fact that many practitioners explicitly eschew a ‘medical-model’ orientation.
Despite the HPC’s attempt to have the application ‘timed out’, Mr Justice Burton also ruled that the Judicial Review had been brought without delay and was ‘clearly arguable’. He also criticised the misleading nature of HPC statements. For example, practitioner groups had been led to believe that the HPC would fulfil its legal responsibility to report to the Department of Health on whether it had the requisite capability to regulate the field. This never happened, and HPC proceeded as if the requirement to report on the matter did not exist, despite acknowledging it in an early minuted meeting. Specifically, the judge questioned the HPC's reassuring communication to the Department in December 2009 that it had completed its exercise and was ready to accommodate the talking therapies. He invited the HPC to “reword or revise” that letter.
The HPC was also ordered to pay one-third of the therapy organisations’ costs, an unusual decision to be made at a permission hearing. The organisations understand it as a reflection of the strength of Dinah Rose’s arguments regarding the integrity of the HPC. The HPC will now have five weeks to file further evidence before the case is listed for a full hearing in the Spring of 2011. The judge also suggested a meeting between the parties to discuss the key questions that had emerged from the hearing.
After the hearing, Professor Darian Leader of the Centre for Freudian Analysis and Research, one of the six practitioner groups bringing the Judicial Review, said:
“It is very unfortunate that the HPC has chosen to use its existing registrants’ fees to fight this case to date. We are told by its solicitors that its legal costs already run to £47,000. This money could have been used to produce a meaningful report on how best to regulate the talking therapies. Instead it is being used to defend an empire-building decision that today’s ruling exposes as being legally questionable and, in our view, is perverse and unsustainable. The HPC was charged with investigating the regulatory needs of practitioner groups such as ours and deciding whether statutory regulation was appropriate at all and, if it was, whether it was the right regulator. It simply evaded those questions. We hope the HPC will now show itself to be appropriately sensitive to the indication given by the Court, withdraw its current proposals for regulation and step aside so a body that is actually capable of improving standards and protecting the public in this difficult field can be created.”
The Alliance position
The Alliance believes that its principled and long-standing critique of the HPC’s capability to regulate counselling and psychotherapy has been fully vindicated by this hearing. The HPC has been revealed in open court to be an organisation whose procedures and statements are substantially flawed, and it is now highly doubtful whether the HPC will ever be considered either competent or ethically suitable to regulate this complex and diverse field. Mutual trust, together with practitioners’ willing co-operation, are essential for the effective implementation of any new accountability framework, but following this hearing, practitioners can have little confidence in the HPC’s capacity to implement regulation fairly or appropriately. Many therapists have already been troubled by what they perceive to be the cavalier and often disrespectful approach that the HPC has taken prior to Justice Burton’s decision.
If some form of statutory regulation is eventually deemed to be inevitable – despite the fact that many in the field still believe that the case for it has not been made – then it would be essential that such regulation be sensitive to the particularities of therapeutic practice, the nature of which, for many practitioners and clients, is fundamentally different from other ‘professions’, not least ‘medical’ ones ancillary to healthcare.
The Alliance finds it encouraging that alternative regulatory options are currently under consideration at the Department of Health, including the ‘quality assurance’ model being developed by the Council for Healthcare Regulatory Excellence (CHRE), which might prove more compatible with the pluralistic regulatory system that currently exists in the field. The Alliance is keen to help find the most effective way forward, and we are hopeful that the Department of Health will now engage fully with both the Alliance and with the organisations bringing the Judicial Review, to carefully examine accountability and regulatory arrangements that have been successfully adopted in other countries, and which have proven satisfactory to Government, clients and service users, and to those who work in the field.
The Alliance for Counselling and Psychotherapy is a campaigning group with supporters from a wide range of approaches and interests within the field of the psychological therapies. The Alliance believes that regulation via the Health Professions Council is the wrong approach to addressing accountability and quality of practice in the field. It has previously convened a number of conferences and seminars, and has published widely on the shortcomings of the HPC’s proposed approach to regulating the field.
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