A good enough regulator? The controversy continues.

There is a group within the UKCP (United Kingdom Council for Psychotherapy) that cannot give up its wish for Statutory Regulation and clings to the HPC as the route to salvation in spite of everything that has happened. The misinformation produced by the spokeswomen of the group is incomprehensible to anyone who is interested in real information and wary of rhetoric. In a series of exchanges in the journal Self & Society, I recently had this letter published which contains some new information and some summaries of cases remarked upon earlier in this blog. I think it is worth posting it here too. For copies of the journal please go to The Association for Humanistic Psychology in Britain

Thank you very much for the renewed opportunity to join this debate about HPC regulation of the counselling and psychotherapy field, and for showing me Tricia Scott’s letter, also published in this issue, so that I may respond.

The degree of misunderstanding and confusion seems rather high. I think probably the best way forward here is simply for me to present some more information from my ongoing research into the HPC to allow your readers to make up their own minds.

I shall focus on the problem of Fitness to Practice hearings, and their relation to mediation procedures. In her article ‘A Fork in the Road for the Psychological Therapies?’ (Self and Society, Winter 2010), under the heading ‘Misinformation is rife’, Tricia Scott said that ‘There has always been the possibility of mediation within the system prior to a formal complaint being lodged’ and adds the HPC website address as confirmation. I responded to this point in my letter (published in the Spring 2011 edition) by reporting from an HPC meeting where Council members themselves showed their own lack of awareness of the real state of affairs in the organisation for which they are not only legally responsible but answerable to the Privy Council. The mediation available at the HPC comes not before, but after, FTP hearings – which explains why it has never been used. In her letter (this issue), Tricia Scott now states that ‘a regulator will always be the court-of-last resort’.

To judge the truth of the situation I have chosen to present summaries of three hearings, two of which I attended in full. I have read all the transcripts (NB: Readers are legally entitled to request transcripts of HPC fitness to practice hearings. I have supplied the relevant FTP numbers to Self and Society should anyone want to pursue the opportunity to request and read a transcript.) I believe that by paying attention to the way that HPC-regulation is realised in action, rather than listening to people describing what they hope might happen, gives us a better chance to understand what is really at stake.

1. 344894. This radiographer works within the NHS, taking referrals from various doctors in the NHS. One particular patient became disturbed after a ‘trans-vaginal examination’, so much so that she lodged a complaint with the NHS Trust, the Care Quality Commission, and the Health Professions Council. Each of these three organisations undertook an investigation in its own manner, one by one. Each organisation, one by one, found that there was no case to answer. The HPC was indeed the last organisation to consider this case and had the benefit of knowing that both the NHS Trust and the Care Quality Commission had not upheld the patient’s complaint, and of using evidence that had been generated by the extremely thorough work of the NHS Trust. Nevertheless, the HPC chose to advance seven counts of misconduct, none of which was found to be supportable by the Panel when the case was heard (November 2009). The transcript bears witness to the great stress experienced by the registrant, and we may suppose that the patient also experienced a high level of distress that was not reduced by the process (her evidence was held in private, and the transcript is not available). It is not at all clear what benefit was gained by anyone, unless one takes into account the fees paid to the official members of the hearing. It would, however, be important to take into account the expense incurred by the NHS Trust both in terms of sick pay for the registrant (whose experience of the process was clearly unbearable) and the demands on the time of those members of its staff who undertook the in-depth investigations into the allegations.
2. 01053. An altruistic Speech and Language Therapist with ambitions not only to do good but also to advance the work of his profession left his position at the local PCT to take advantage of an opportunity to work, on sabbatical, in a deprived part of the world. A hitch in the technology prevented him from closing the case notes on all his clients before leaving. His replacement, who arrived after he had left and who had never met him, decided to visit one of these cases to make her own assessment about whether to close it or not. The patient was a young married man with Down Syndrome who lived with his parents. The parents were fulsome in their praise of the previous speech therapist, whom they had persuaded to treat their son beyond the prescribed six sessions allowed by the NHS. The new therapist pricked up her ears – are you telling me this man treated your son privately? The parents were shocked and clammed up. This was taken as damning evidence that the predecessor had exploited the family for personal gain. She duly reported him to the HPC, which listed the allegation as ‘you provided private speech and language therapy treatment to client x whilst also treating them on your NHS caseload’. The hearing established that the Registrant had attended a few times, made great progress, and had reluctantly accepted a few pounds from the parents to avoid offending them – the symbolic exchange was paramount. The registrant thought it important to say that the family shared a cultural background (Hindi) spoke the same language (the patient and the Registrant spoke English, Gujarati, and Hindi), and were connected to him via a local charity where he also worked. The case against him was built on the idea that he had a duty to ‘take steps to protect [himself] from suspicion of unethical conduct’. He stated that he would certainly never undertake such work again. The panel concluded that there was no case to answer.
3. 07913. As far as I have been able to establish, this final example was generated not by a complaint to the HPC per se but by the HPC trawling through the records of NHS investigations, which is something the HPC says it does as part of a proactive campaign to ‘protect the public’. The evidence against the registrant was in the form of videotape from a security camera (just vision, no sound). This is what we learned: a paramedic ambulance driver was bringing a pregnant woman into the local hospital one Saturday morning; the baby was in the breech position. As the ambulance driver pulled into the car park (which was almost empty and very quiet), he passed a car that was manoeuvring in a parking bay. The car driver was incensed when the ambulance did not give way to him. He leapt from his own car – leaving the engine running, the door open, and the windscreen wipers still going – and ran after the ambulance, shouting and gesticulating. He thumped on the driver’s window and yelled at him. The driver got out and propelled the man back to his car. This was a slow process and, by and by, a uniformed security guard lent his presence by standing next to the registrant and accompanying him as he backed the man towards his car. The NHS Trust suspended the paramedic for five weeks while it undertook an investigation, then sent him on a ‘conflict management’ course before allowing him to return to work. The HPC thought this unacceptable, and argued that the videotape provided clear evidence that the registrant was unfit for practice. The Panel listened to the registrant, who convinced them of his contrition, and went on to declare the case not well found.

Those in favour of HPC regulation often misrepresent those who are not in favour as being ‘anti regulation’. This, of course, flies in face of the facts. My argument, which is grounded in the information produced by my ongoing research (which commenced in 2008 and has involved my attendance at numerous HPC meetings and hearings), and which is situated in sociological and anthropological traditions of organisational research (from Max Weber through to the more recent studies of audit culture by Michael Power, Marilyn Strathern, Andrew Cooper, and Max Travers), is that regulation by the HPC is highly likely to seriously damage the structures necessary for safe and enlightened practice. It will not lead to better protection of the public; on the contrary, it is likely, at least, to mislead the public into a false sense of security.

The HPC Fitness to Practice annual report (2009-2010) notes a steep rise – from 2 per cent in 2005 to 30 per cent in 2010 – of cases not well found. What this tells us is that cases presented by the HPC are 15 times more likely to be wrong now than they were five years ago. In real numbers, this means that 76 cases out of the 256 that were heard (out of the 772 cases registered in the whole process) in 2009-2010 were not well founded. Which, in turn, resulted in only 0.09 per cent of HPC registrants being found to be either incompetent or guilty of misconduct in that period. While attending the case of the speech and language therapist (summarised above), I exchanged a few words with the FTP Panel Chair at lunchtime. He thought that of the cases heard at the HPC about 5 per cent were really necessary, which suggests that 95 per cent of them, in his experience, don’t require this kind of approach. Five per cent of 256 cases accounts for 13 people. To track down and drive out 13 people from (then) 205,311 registrants in 14 different practices (now 210,000 in 15 professions), the HPC spent approximately £6 million (40 per cent of its expenditure) on FTP hearings, and by implication, subjected many more to an overblown, adversarial, expensive, time consuming process. It is an example of bureaucracy displacing rational thought, like a juggernaut with no-one in the driving seat.

In the process of eliminating a few predators and rogues, a lot of money is spent on making reliable and diligent practitioners, and members of the public, very miserable indeed. Each of the cases mentioned here was eventually found to be unnecessary (not well found). Nevertheless, each of the registrants found themselves and their practice to be in serious question for about 18 months to two years (the waiting time for a case to be heard), without their being able to do a thing about it. This was clearly very unpleasant indeed, and a waste of resources. The last period of waiting is put on public display (allegations are displayed on the HPC website four weeks before the hearing), and the press are often encouraged to attend hearings and report on the allegations before the Panel actually comes to a decision as to whether or not a case is well found. For an example of the way the press can get drawn into this pernicious web, see http://www.telegraph.co.uk/health/healthnews/7449822/Psychologist-tried-to-kiss-male-colleague-in-front-of-wife.html, where the story remains on the internet one year after it was thrown out as ‘not well found’ by the HPC Panel. This case, by the way (which I report on in a forthcoming publication), actually proceeded after an apology was both made and accepted. The HPC has not been set up to resolve disputes, but to ‘protect the public’ by excluding unfit practitioners from their register. The organisational structures and practices follow from this. The difficulty of changing an organisation when it is in full swing are well known and widely documented. Shape shifting can be more easily achieved in speeches and even in documentation, but not so easily in practical reality. This needs to be borne carefully in mind when listening to the HPC rhetoric.

This is only a small glimpse of some of the problems that can be uncovered by observing the HPC in practice and thinking about what it means. There are other examples from the FTP process which indicate other kinds of problems, some of which have been discussed on the hpcwatchdog.blogspot.com. There are also questions around the way that Council and committees conduct their discussion, make decisions, and construct strategy (see my report on Council meeting 31 March 2011). There are also signs of fundamental problems connected with the invention and application of Standards (eg in Council Committee documentation the art therapists claimed that for nine years the generic standards never applied to them – reported in my article in Self & Society, winter 2010). The process of educational assessment also shows signs of distress between administrators, council members, and educational establishments (Education and Training Committee meeting, 10 March 2011). Each of these areas is problematic (both from a theoretical and a practical point of view) and there are very few signs that HPC agents are even trying to find realistic and practical solutions. No doubt there are some problems within some training organisations in the counselling and psychotherapy field, but this does not mean that there are no problems outside the field, or that those other problems are less important or less problematic. The question, surely, is how to resolve real problems in a realistic way that is true to our experience, knowledge, and theories.

Before the 2007 White Paper, all the major organisations in the field publicly stated their opposition to the HPC as regulator of this field – it was widely deemed to be inappropriate. This proved to be true. Even with government support, the HPC was forced to go to double time with the Professional Liaison Group, and even then failed to find the definitions and material they claimed to need to ‘set the standards’. One member of that PLG group, Annie Turner (Occupational Therapy member of Council) repeatedly advised the group to ignore the way the field actually practiced, and tried to persuade them to invent standards that would fit the HPC mode! This sign of an active split between methods of regulation and practical reality is very troubling. There are very many reasons indeed to hesitate before recommending the HPC as any kind of regulator (statutory or voluntary) for our field.

Yours faithfully

Janet Low