Correspondence between HPC and a Practitioner with real concerns for the future of the field.

On 20 September, 2010, Dr Douglas McFadzean (a Counsellor-Coordinator with the Stirling Locality Counselling Service, NHS Forth Valley) wrote, not for the first time, to the HPC. This generated a small exchange with the Director of Policy and Regulation, Mr Michael Guthrie. I have analysed this exchange in some detail in order to bring out the underlying problems that persist between practitioners who have questions both for and about the HPC and the dead-ends they find themselves in when a reply arrives. Between these four email exchanges we can see how the HPC appears to be making a fulsome reply but is not in fact addressing the points that have been raised. By studying the text in this detail, it is possible to uncover the ways in which the process fails, and it may predict the problems that lie in wait if nothing is done about it.

Dear HPC

Today I received an invitation (forwarded by COSCA on your behalf) to an information event to be held in Glasgow on 7 October 2010 as part of the process towards the potential regulation of psychotherapists and counsellors. Unfortunately, I (and several interested colleagues) find that the notice given is much too short - we shall find it exceedingly difficult to rearrange client appointments and other work to accommodate such an important event. I suspect the short notice will skew the attendance profile and make the meeting much less representative of the body of Scottish practitioners (particularly those working at the "coal face" with clients) than it might be. Given the continuing disquiet about the HPC regulatory route amongst many practitioners, the short notice of this event may well add to the disenfranchisement felt during the consultation process.

Perhaps you would be good enough to elucidate why such short notice has been given, and to consider whether the event should be delayed to ensure a good cross-section of practitioners can attend to share their views with the HPC.

Yours faithfully
Dr Douglas McFadzean

Douglas McFadzean asks specifically why short notice was given, and noted the effect this would have on attendance (ie skew it away from practitioners). From his point of view this is clearly a very important event that he wants to participate in, and furthermore, feels disenfranchised when HPC makes it difficult for him. His expectation is that the HPC will want to benefit from knowledge and experience like his, and will want him to know what their plans are too as they will affect him directly. Mr Michael Guthrie, the Director of Policy and Regulation at HPC replied on 6 October 2010 (7pm), the evening before the event in question and although apparently polite and friendly, his words reveal a very different stand point which is at odds with Dr McFadzean’s. I have inserted numbers into the text which link with the comments that follow in order to draw out some points for discussion.

Dear Dr McFadzean

Thank you for your email; my apologies for the delay in responding to your concerns.
The event in Glasgow is an information event and is part of four events we currently plan to hold, one in each of the four countries, (1) in order to provide information to psychotherapists and counsellors about the HPC and about our ongoing work. (2) We know that such a small number of events inevitably means that we will only reach a small fraction of practitioners, (3) but we plan to maximise the numbers who are able to attend each event.

I am sorry that you received an invite to the event at a late stage and therefore some colleagues were unable to attend. I note that you are due to attend the event yourself tomorrow. I think your email provides valuable feedback for us in relation to any future events we may arrange. The invite for the event initially went to voluntary sector and other psychotherapy / counselling organisations in Scotland, as it was felt that this would ensure (4) a sufficient number of attendees whilst avoiding a situation in which we would inevitably have to disappoint large numbers because of the fixed space available. We discovered, however, that we did have some available places and the invitation was kindly sent out by COSCA to its members.
I know that this was far from ideal in terms of notice and (5) I will ensure that we learn from this and that more notice is given for any events we hold. We do not plan any further events in Scotland at this stage, but, subject to a Government decision about whether regulation will proceed, it will be very important that we work with COSCA and other organisations in Scotland to keep practitioners informed.

In terms of the attendance at the event, I am confident that the profile of attendees is not (6) schewed [sic] in any way and we have a (7) good cross-section of practitioners across the psychotherapy and counselling field in Scotland and across different areas in practice, including practitioners from the NHS and the large voluntary sector in Scotland. (8) I understand from my colleagues that the event is now 'sold out'.

Thank you again for contacting us with your feedback.
Kind regards,
Michael Guthrie

Mr Guthrie’s letter presents the following information:

1) the meeting is to provide information to participants, not to glean information from them. This contradicts Dr McFadzean’s expectations. Certainly, the even was advertised on BACP’s website thus: “This is the first of several events the HPC will be holding in the four home countries, in order to consult more widely with counsellors and psychotherapists on the issue of regulation.” (emphasis added).

2) Reaching a small fraction of practitioners might be reasonable if this small fraction were carefully selected to represent the field. There is no evidence that this was done with any statistical elegance. The notice of the event was only channeled through particular organisations, and Mr Guthrie has still not adequately explained the short notice given of the event.

3) The stated aim of maximizing attendance is confounded by the HPC’s action: first it has limited the number of invitations, and then it issued invitations too late for practitioners to realistically re-arrange their work. In the event it was only about half full on day.

4) ‘sufficient’ contradicts the original aim of ‘maximising’, and raises a question about original intention (we already know it was only intended to talk to a small number of selected people). It also contradicts the idea of ‘inevitably disappointing large numbers’. These levels of ambivalence in Mr Guthrie’s reply raise questions about his integrity.

5) It is not clear what it is that Mr Guthrie will learn. The ambivalence about who would attend seemed to prevent him from realizing what he already must surely know (the HPC know the importance of forward planning, and spend a lot of attention on precisely this). It is not knowledge per se that was lacking, but rather a lack of clarity about the purpose of the meeting and thus the audience required.

6) ‘schewed’ means shunned, and appears to be a Freudian slip. The word Douglas McFadzean used was skewed.

7) ‘a good cross section’ implies a rational and thorough analysis of the field from which it might then be possible to draw a ‘cross section’. Dr McFadzean’s point was precisely this: the way that the HPC had gone about things would almost certainly skew the field away from practical knowledge per se. Mr Guthrie effectively deploys statistical jargon as a smoke screen to nullify the point.

8) Mr Guthrie thought the event was sold out, however, on the day, the event was only half filled.

Dr McFadzean wrote again on the evening of the event, and copied the letter to Brian Magee, Chair of COSCA (Counselling and Psychotherapy in Scotland)

Dear Michael

Thank you for your email explaining the circumstances of the short notice given for the Counsellors & Psychotherapists information event held in Glasgow today (Thursday, 7 October). As you noted, I did manage to attend the event myself, but unfortunately had to leave the panel session to travel before my points could be taken.

Perhaps you would be interested to hear my intended input in any case. I was going to express two main areas of concern:

1a) The lack of evidence base for the HPC route to regulation – for both the case for statutory regulation in the first place and for the case that the HPC approach will effectively achieve its aim to protect the public. (Surely a registration structure cannot be properly designed without substantive data and findings about the extent and nature of current malpractice, abuse, etc?)

1b) The lack of evidence base for much of the PLG's work in trying to set standards. (At least, Brian Magee was honest enough today to admit that COSCA’s initial approval for the differentiation of counsellors from psychotherapists was made "on pragmatic grounds", and not on any evidence base.)

2) The fundamental difficulty of trying to regulate effectively by title rather than by activity. The first questioner today hit the nail on the head - she was a CPN who did psychotherapy and counselling as part of her work activities. It is what practitioners do which harms clients, not their job title! It is almost inevitable that the most devious and dangerous practitioners will slip through the HPC regulatory net by simply modifying their title, whilst carrying on as before. In any case, a proper agreed definition of the activities of counselling and psychotherapy would seem essential, and cannot be naively assumed "as what counsellors and psychotherapists do".
These concerns were all discussed in detail earlier in my submission to the consultation about the PLG's recommendations, and I have since heard little to allay them. I would be most grateful if you could enlighten me on how these issues have been or can be properly addressed.

I hope you don't mind me sending a copy of this reply to Brian Magee as COSCA was involved in "passing on the message" about today's event and Brian is directly involved with the PLG.

With best regards
Dr Douglas McFadzean

In this letter Dr McFadzean raises directly the main problem that has been brought consistently to the attention of the HPC by many different people since the original ‘call for ideas’ in October 2008. In his point 1a), he clearly states that no rational ground has been given for changing the system of regulation for counselling and psychotherapy, and that (ipso facto) there is no evidence to guide future proposals. In parentheses he adds that that any intelligent man or woman would know that you cannot possibly design or propose a regulatory structure without a solid rational, logical ground, and without carefully collected evidence. He adds, in point 1b that the PLG also has no clear rational ground on which to do their work, nor any proper evidence with which to do their work. Point 2 draws attention to the way things are done now (a focus on function) before reminding Mr Guthrie that he should already be aware of these points having read them in the original call for ideas. He adds, however, that these points seem to have been ignored by the HPC. Finally, he asks how the HPC will address this vital issue now that it has been once more drawn to their attention.

Michael Guthrie replies on 12 October with a very long email indeed. There are many points to make about this email (about 30 individual points in all) beginning with the lack of a subject in the first sentence. In fact Mr Guthrie appears to be hiding behind a series of cut and paste pieces which serve only to obscure the fact that he has no clear reference points. For example, in Paragraph 2 (below) he presents the idea that the HPC is working on a problem about ‘how regulation for psychotherapists and counsellors might work’. For some reason Mr Guthrie has prefaced this point with ‘as you will know’, yet the subtlety of the point being made is something that hardly anyone seems to understand. It is this point, you see, (about how regulation might work – and it is important to note the conditional tense that is used here), that was the very point of contention brought so clearly to light in the hearing preliminary to the Judicial Review of HPC at the High Court in December 2010. There is a slipperiness in the language that requires us to be careful. The next sentence, for example, is very unclear. Is Guthrie saying that the Government asked the HPC to see how regulation might work? If so, his next point is just plain wrong. If the Government have asked how regulation might work, it is reasonable to assume that this will include a comparison with other regulatory schemes on offer (to compare how it does work elsewhere). Guthrie however, says this is not their remit, but offers no reasons to substantiate the statement. What explains the sloppy grammar, the lack of coherence? In fact the third sentence in the second paragraph sets off in one direction, then (as TS Eliot might say) makes a sudden leap, turns once about the house, and falls asleep. Guthrie says the Government has asked HPC to do something, which he then says the Government (or perhaps even Parliament) is responsible for doing itself. It is right here in this dodge that the HPC appears to duck out of any work that might be involved. Presumably, as an organisation created by statute, and with a CEO who claims publicly “The Health Professions Council also has a specific role in advising the Secretary of State of which new professions should become statutorily regulated, and that, I think, is vital in terms of protection of the public” (Confer Conference, 30 January 2010), there is a duty to the make sure that any advice given to the Secretary of State is based on proper research and consideration. This is precisely the point made by the QC in the High Court on 10 December 2010 and which the Judge found convincing.

Paragraph 3 is a vague reference to possible ‘public-friendly’ allies for the HPC’s equally vague position – padding.

In paragraph 4 a point emerges that is relatively new from the HPC. It is also contradictory, which is not new for the HPC. Much has been made of the fact that the HPC’s job is to ‘protect the public’. Here, however, is the admission that this great edifice has been erected to protect the public from ‘a very small minority’. This point completely ignores the other part of the HPC business – that of validating the educational systems around the country, of which we hear very little, but of which there is quite a lot. There is also no effort to rationalise the complicated system that is imposed for such a small minority, nor ‘how’ it ‘might’ actually achieve its ends (which is the question posed by McFadzean from the beginning).

Paragraph 5 is another frequently repeated phrase from the HPC repetoire, which is here used to avoid McFadzean’s specific request for supporting evidence.

Paragraph 6 sees for the first time Mr Guthrie’s own agency – he says ‘I think it is true to say’. What he thinks is true to say is that there is some report somewhere that probably makes it all alright. He cites no reference, and doesn’t even give the year of publication. This is shoddy work, and we are not even half way through the letter.

Dear Dr McFadzean

(P1) Thank you for your email. Very happy to answer the points you have raised.

(P2) 1(a) As you will know, the work the HPC is doing is about how regulation for psychotherapists and counsellors might work. This is in line with the White Paper in 2007 and its clear statement of Government policy. Therefore the work we are doing is not looking at the evidence for regulation or at alternative models of regulation as this is a consideration for the Government (and parliament) whose decision it is as to whether the policy contained within the White Paper should be implemented.

(3) Many charities in the mental health arena who have a consumer advocacy role support the statutory regulation of psychotherapists and counsellors because they consider that this will help to provide a more consistent and independent means of dealing with cases of malpractice. For example, the 'We Need to Talk' coalition of mental health charities called on the Government to introduce regulation a number of years ago, alongside calling for increased access to therapy for patients and clients.

(4) In our view, statutory regulation protects members of the public by setting standards, protecting commonly recognised professional titles and providing a way in which complaints can be dealt with fairly and appropriately. Statutory regulation means that the very small minority of practitioners who do not practice safely and effectively can be removed from the Register and prevented from continuing to practise and continuing to cause harm. I would argue that these important functions also increase public faith and confidence in the services provided by registered professionals.

(5) At the moment, a psychotherapist or counsellor who is removed from the membership of their professional body, for example, can simply continue in practice without any legal means for preventing continuing harm to members of the public.

(6) In terms of evidence of malpractice, I think it is true to say that the evidence for this is evolving. For example, the Council for Healthcare Regulatory Excellence (www.chre.org.uk) a few years ago (11) published findings from research which described the profound and long-lasting impact of boundary violations upon patients and clients.

(7) In our view, regulation is necessary to provide an independent means of dealing with the very small minority of practitioners who represent a danger to the public, and to provide the public and the profession with the assurance that the rest of the profession is signed up to standards for conduct and proficiency.

(8) However, I would emphasise that the final decision about regulation is a political one and in moving towards regulation the Department of Health is required to produce a full impact statement, looking at the reasons for and against introducing the policy and the impact or potential impact on all those affected.

(9)1(b) The work of the PLG in setting standards is certainly an iterative process. The reason why we establish PLGs is that whilst I and my colleagues will have experience of regulation, how it works, and our legislation, we are not psychotherapists or counsellors and therefore we need, and reply [sic] upon, the profession-specific expertise of the professional bodies and others with expertise in this area to help us in putting together standards of proficiency.

(10) The PLG has had many long and detailed discussions about the differentiation question which informs the standards, including taking into account the information and evidence gathered in responses to the Call for Ideas consultation in the summer of 2008 and the more recent consultation last year. In its discussion, the members of the PLG have often challenged each other to support their views with evidence. This is an area in which there are a wide variety of different views about the key interest groups with different groups taking very different views as to whether differentiation is necessary or feasible and on the standards that should be published. This seems to be a result of differences between organisations, differences in philosophy and differences in custom and practice.

(11) We have reconvened the PLG to try and resolve these issues. Neither I nor anyone at the HPC has any vested interest in whether there should be differentiation or not, but we want to try to work with the field to reach a solution which is workable, reflects reality, and meets the regulatory needs of the field. This includes and will continue to include scrutinising the evidence that is put forward for and against differentiation.

(12) You raise an important point. However, I do not personally believe that any approach to try and regulate by activity or 'function' would be successful or feasible, or considered to be so by the UK Government who would have to enshrine any such approach in legislation.

(13) In the UK professional regulation (and this includes groups such as nurses and chiropractors) has typically been by protection of titles. The Government tends to favour this approach as it ensures that commonly recognised professional titles are restricted to those who are qualified, whilst ensuring that regulation does not adversely affect those who it is not sought to regulate, or prevent service providers, employers and others in developing new job roles and new ways of working. There are a few examples of where activities or functions are protected in law but these are limited to discrete, physical acts that it is possible to define clearly to the required degree of specificity in legislation. For example, the fitting of contact lens is restricted to registered optometrists and dispensing opticians with necessary training, and the dispensing of hearing aids for retail sale or hire is restricted to registered hearing aid dispensers.

(14) Protection of function or activity is often used in the US where the scope of practice of each profession is often highly prescribed in legislation. The drawback from this approach is that it often acts to fetter the development of professions as a legislative amendment is necessary ever time a new technique or approach is developed or the profession wishes to develop into areas that in the past were typically carried out by other professionals. The UK Government typically tends to avoid protection of function because of such difficulties - it is necessary to define a discrete activity to a degree of precision, in legislation. It is often not possible to do this because of the nature of the practice of profession (e.g. interventions which are about communication rather than physical activities are a good example where this is much more difficult to achieve); because protecting a function would adversely affect another group that it is not sought to regulate; or because there is a lot of overlap between the practise of one profession and that of another (for example, in the medical arena nurses now undertake tasks that traditionally were undertaken by junior doctors).

(15) In terms of psychotherapy and counselling, my understanding is that there is no one agreed definition and each of the professional bodies has a slightly different emphasis. Indeed, arguably, this underlines the differences in perspective that we are attempting to work through in the PLG. In my view it would be very problematic indeed, if not impossible, to attempt to protect the activity or function of psychotherapy and counselling for the reasons outlined above. In particular, it would be necessary to differentiate the activities involved from other types of activity (e.g. debt counselling, advice, coaching); and differentiate it from the activities of other professionals who deliver so-called 'talking therapies' (e.g. psychiatrists, counselling psychologists, clinical psychologists).

(16) I think it is important to be honest about some the limitations of protection of title, but also honest about the benefits that protection of title would bring above the current situation in which no titles are protected. (See 1a) above).

(17) I hope the above is helpful and helps explain our perspectives on your questions. In relation to 1(b) this continues to be an ongoing process of debate and discussion within the PLG. I have copied Brian into this email.
Best wishes, Michael Guthrie

Paragraph 7 repeats the point about the work of the HPC being focused on a small minority of practitioners. Paragraph 8 repeats the wish of the HPC executive that the real work is being done by Department of Health. Paragraph 9 sees Mr Guthrie turn towards Dr McFadzean’s second point (1b). This reminds us that the previous 7 paragraphs (excluding the introductory remarks of the first paragraph) have all been, ostensibly, answering his point 1a. This was:
“1a) The lack of evidence base for the HPC route to regulation – for both the case for statutory regulation in the first place and for the case that the HPC approach will effectively achieve its aim to protect the public. (Surely a registration structure cannot be properly designed without substantive data and findings about the extent and nature of current malpractice, abuse, etc?).”
In the long detour presented by Mr Guthrie not one shred of evidence has turned up. There has been no apology for its lack, either. The next section turns towards Dr McFadzean’s second point:

1b) The lack of evidence base for much of the PLG's work in trying to set standards.”
In response to this point Mr Guthrie states that he and his colleagues know nothing about the practice they are proposing to regulate, but have to ask representatives to ‘help us’. This suggests that there is an endeavour on the part of the HPC to understand the area which they will then be empowered to regulate. The phrase in this paragraph (9) ‘an iterative process’ is a euphemism. It adds nothing, and pretends that something technical is going on. There isn’t. In paragraph 10 Mr Guthrie says that long and detailed discussions have taken place in the PLG. He says that members often challenge each other to provide evidence to back up their statement. This would suggest that the evidence Dr McFadzean asks for is ready to hand, yet Mr Guthrie produces none. This is not surprising, as the long and detailed discussions that I observed at the PLG produced nothing approaching the dignity of evidence but rather made the point that Dr McFadzean is making here – that the PLG has been put into an impossible position. Towards the end of this paragraph Mr Guthrie gives his synopsis of the PLG process. He says
‘This is an area in which there are a wide variety of different views about the key interest groups with different groups taking very different views as to whether differentiation is necessary or feasible and on the standards that should be published. This seems to be a result of differences between organisations, differences in philosophy and differences in custom and practice.’
Although he hasn’t offered a firm opinion (after the two years of studying this field), Mr Guthrie is willing to suggest that he thinks it is possible that there are a lot of differences in philosophy and custom and practice in the field. This does not bode well for the HPC’s intention to regulate the field. The HPO2001 requires each section of the register to contain a group who conform to a coherent body of knowledge.

Paragraph 11 takes us further into the bog. Mr Guthrie states that they have reconvened the PLG to overcome the difficulties stated. Yet this must surely be nonsense. Can you overcome the differences in philosophy, custom and practice of a field by selecting eight people and subjecting them to a process configured to achieve a different end? If you wanted to achieve a particular end, it would be sensible to construct a process conducive to that end. The process in use here is a ready made routine used to produce standards in an already unified and coherent field.
The reference to ‘scrutiny of evidence’ suggests (again) that there is some, (which could therefore be presented to Dr McFadzean), but this, again, is not forthcoming, adding to the growing conviction that there isn’t any.

Paragraph 12 again sees the emergence of Mr Guthrie’s personal opinion. He acknowledges the importance of the point made by Dr McFadzean and many others (notably the CPN at the meeting in Glasgow), that real regulation of this practice is done by attending to what actually happens in practice. Yes, it is an important point, but one that the HPC cannot accommodate because it regulates according to a different principle. Mr Guthrie frames this as a general point of regulation, but this completely ignores the fact that regulation takes different forms, and the regulation that is current in the field, at least of psychotherapy, is one that is based on function. Had the government maintained the tradition of passing statutory power to a professional group, this would have maintained the tradition of regulating according to function. Mr Guthrie, (a professed expert in regulation) appears not to know about this other kind of regulation. Even if we allow Mr Guthrie to remain within his own sphere of ignorance, or speciality, he still has to face the fact that the ‘good point’ made by Dr McFadzean and others is a serious spanner in the works, and this might constitute good grounds to advise the Secretary of State against passing statutory power to the HPC to regulate this field.

There are still five paragraphs left to comment on, but by now it seems clear that Mr Guthrie (consciously or otherwise) is weaving a web of waffle to stop Dr McFadzean in his tracks. What is completely absent here is any information about how the HPC’s form of regulation actually works, and how Mr Guthrie understands the costs and benefits of imposing this structure on a field which is actively and repeatedly telling him to take great care.

The most interesting thing in this exchange is what has not come to light. We know that Dr McFadzean specifically asked for the evidence upon which the HPC were acting, and Mr Guthrie was able to give him none. But in the 1,300 words of Mr Guthrie’s second reply neither was there any clear information about the nature of the relationship between the HPC as Regulator and the field itself. While the quantity of words suggests that Mr Guthrie genuinely wanted to respond to Dr McFadzean, it does seem rather clear that he has, unfortunately, nothing to say. He did explain that he and his HPC colleagues know nothing about the field, and that this was the reason they needed to convene the PLG, yet what has he learned from the two years’ work he has been engaged with? In spite of having read all the responses to the Call for Ideas (2008), and all the responses to the Public Consultation (2009), attended all the meetings, and so forth, he can only say that the field seems to be full of different philosophies and customs and practices. He makes no attempt anywhere to say how the regulatory function of the HPC has or will struggle with this. Judging from the reference to the ‘iterative’ work of the PLG it seems that the HPC are simply sending the professionals back to their homework until they have evacuated all the inconvenient signs of difference. He does not explicitly say that the HPC are trying to reduce the complexity to a singularity, yet this does seem to explain the otherwise mystifying ‘iterative’ process inflicted on the PLG.

At the Confer Conference practitioners were surprised to discover that the PLG membership had been selected by the HPC in a kind of job recruitment exercise. Practitioners had assumed that the field itself had exercised some control over who was to speak on its behalf. This recruitment process will be repeated if the field is captured, and the various people selected to scrutinise training and practice will be left to the judgement of the HPC. Mr Guthrie says nothing about the trouble that this might bring to his organisation given the range of philosophy and custom and practice that will still exist in practice (even if it has disappeared from the standards written by the PLG). He is supposed to be an expert in regulation, yet he says nothing about the practical problems that he and his colleagues will need to face if they succeed in capturing this complicated field. Why not?

We saw earlier that the QC at the High Court hearing concluded that the HPC had ducked the work they should have been doing to assess the regulatory needs of this field. This view seems to be supported by the evidence of the correspondence analysed here. This does not auger at all well for an organisation whose job will be to submit practitioners to its regulatory authority.