HPC Watchdog

Out Now! Regulation in Action. Paperback or Kindle

2011-12-18T12:16:00.001Z

‘…if you feel that something is deeply wrong in the relationship between the state and civil society, and that there is too much interference in professional work, you will find this book both therapeutic and empowering.’ Max Travers, School of Sociology and Social Work, (foreword).

‘This book investigates the claim that regulation by agencies of State is one of the prerequisites for improving professional practice. It displays how the underlying administrative interests of such bureaucracies are detrimental to the structure of professional communities. The “quality indicators” produced by such regulatory bodies lead in general to the weakening of professional activity and research, and to the replacement of quality by its opposite. Janet Haney shows with some verve how this transformation was attempted in the field of psychoanalysis and psychotherapy.’ Bernard Burgoyne, Professor Emeritus of Psychoanalysis, Middlesex University.

‘This incisive study shows that “regulation”, against which many have warned but which some psychotherapists still imagine to be a solution to all their ills, is actually already here. Janet Haney traces her way through this apparatus, and makes a compelling case for taking the HPC seriously as a machine that incarnates the very kind of unhealthy practice it pretends to set itself against.’ Professor Ian Parker, Manchester Metropolitan University.

‘If you want to know about the reality of state regulation, how it works in practice – as opposed to what people say about it – you should read this book. A shocking and unsettling account.’ Paul Gordon, author of The Hope of Therapy and former chair of the Philadelphia Association.

‘Do not let the simplicity of this lucid account of a difficult problem deceive you. This is an important, readable, and informative account of applied regulation at the Health Professions Council.' Andrew Samuels, Professor of Analytical Psychology, University of Essex

New book out soon - Regulation in Action

2011-11-17T17:17:00.001Z

O U T S O O N

Regulation in Action - the Health Professions Council Fitness to Practise Hearing of Dr Malcolm Cross - Analysis, History and Comment by Janet Haney (nee Low). Published by Karnac, price £9.99.

Guest post from John Long Chiropodist - CPD and the HPC

2011-07-29T21:43:00.003+01:00

The HPC publication from which this information was taken can be downloaded from here.....

http://www.hpc-uk.org/assets/documents/10001314CPD_and_your_registration.pdf

The particular reference to CPD, (Continuing Professional Development), and competency will be found on page 4 of the publication.

The text in italics is from the HPC publication shown above.

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There is no automatic link between your CPD and your competence.

That is a very clear statement from the HPC.

This is because it would be possible (although unlikely) for a competent professional not to undertake any CPD and yet still meet our standards for their skills and knowledge.

I think you need to read this again!

Why would it be unlikely?

If a competent professional does not undertake any CPD and still meets the HPC standards for skills and knowledge then surely, by definition, they are competent.

Equally, it would be possible for a registrant who was not competent to complete a lot of CPD activities but still not be fit to practise.

I totally agree.

There is no reason to believe that CPD will improve the fitness to practise, (FTP), of any individual.

We have a separate process (our fitness to practise procedures) for dealing with lack of competence, and this is not linked to our powers to make sure registrants undertake CPD.

OK, I now understand what CPD is not for. CPD is nothing to do with competence or fitness to practise, in fact there is not even a link between CPD and Competence/FTP. So why, exactly, does the HPC get involved with CPD?

The Health Professions Order 2001 says that we can set standards for CPD, and we can link these standards to renewing registration.

The Order says that the HPC can set standards for CPD and that they can link these standards to renewing registration. It does not say that they must do so.

There must be a compelling reason why the HPC does decide to get involved and, as the HPC has made clear, it is nothing to do with competency or fitness to practise.

We can also take registrants off our Register if they have not met our standards for CPD (although there is a right to appeal).

Hang on a minute. The HPC has stressed that CPD is nothing to do with competence or fitness to practise, therefore, CPD is nothing to do with public protection.

The HPC is keen to say that they have the “ powers to make sure registrants undertake CPD”. Note the use of that word “powers”.

Now I am not against CPD at all. In my long experience all professionals are constantly updating their skills and knowledge, that is in the nature of being a professional.

The difference now is that any such updating of skills and knowledge must be done to HPC standards regardless of the fact that those CPD standards are not linked in any way to competency or fitness to practise.

Being “struck off” is the most severe action the HPC can take against a registrant.

A registrant who is struck off is forbidden, by law, to use their professional title.

A registrant who is struck off will lose their job where that job requires a professional title.

A registrant can be struck off for not undertaking CPD to HPC standards regardless of the obvious fact that those standards do nothing to protect the public.

WHY?

Guest post: Ursula Arens, dietian. On CPD at HPC

2011-07-07T15:30:00.006+01:00

This article was published in August 2010 in the Network Health Dietitians magazine, issue 57 (www.nhdmg.com), and is reproduced here with permission. It contains information and analysis on the process of CPD audit at HPC and raises questions about its purpose and unintended effects: what's it for, exactly? Is it for the good of the profession, or for the good of the HPC? JL

Learning about CPD,

By Ursula Arens

[A little over a year ago], about 170 dietitians were in a manic panic; they were amongst the first to have been randomly selected from the total list of about 7000 dietitian registrants, required to submit their continuing professional development (CPD) portfolios to the Health Professions Council (HPC) assessment panel. Bleak futures threatened those whose reflective ramblings were deemed inadequate; appeals could be made against assessment decisions, but the ultimate sanction could be removal from the professional register.

As someone who has only just found out that reflective writing did not mean holding a laptop against a mirror, I thought, what better way to demonstrate CPD, than to write a feature on CPD. Does feature writing count as reflective practice?

What, in a nutshell, do HPC want when they assess CPD? They want evidence and a description of the meeting of five standards that overall, promote reflective professional practice and a commitment to lifelong learning. The HPC concede that for some of the professions, the requirement to write in a reflective way about CPD activities was not well received, but regardless, HPC believe that over time the professions will be persuaded of the benefits of the reflective nature of the CPD standards that have been defined. The aims of the standards are to promote reflective practice and to foster greater emphasis on the outcomes of CPD activity rather than just a demonstration of hours-collection schemes.

Of the 14 professions that the HPC regulate, dietitians have come last into the audit requirement, so in many ways we have the benefits in being able to observe how things have gone for the forerunner professions. The first HPC CPD annual report was published in March 2010, and provides outcomes and discussion of the audits of the first four professions to be audited in 2008-9: chiropodists/podiatrists, operating department practitioners, orthoptists and paramedics.

In my view, the outcomes of the first audit cycle are astonishing. I am further concerned that the conclusions of the report do not ‘reflect’ the obvious issues that arise from the data. There has been one immediate change as an outcome of the first audit procedures: because some of the profiles submitted were strikingly similar, and investigations established that they had been produced on the individuals’ behalf by a third party, an amended wording was approved for standard 5. The previous version was, “present a written profile containing evidence of their CPD upon request.” The amended wording is now: “upon request, present a written profile (which must be their own work and supported by evidence) explaining how they have met the standards of CPD.” The first cycle has also confirmed HPC’s decision to reduce the audit size from five per cent of registrants, to 2.5%.

Of the 650 chiropodists/podiatrists selected for audit, nearly 80% had their profiles accepted. Although none were removed from the register, about one in six of those selected for audit chose not to continue registration, against a reference of about one in thirteen typically expected not re-register every cycle. Of 650 chiropodists/podiatrists captured by audit snapshot, not one single individual was ‘assessed’ as unable to reach the defined five standards of the CPD hurdle, but 103 professionals, an excess of about 50 from the expected number, were lost to the services of foot health. Perhaps this ‘self-selection’ of lapsers has perfectly identified incompetent and incapable colleagues who should not be let near a corn or a bunion. This is far from proven by the HPC’s assessment, and another view could be that perhaps it represents a very unfortunate outcome of audits, resulting in an unnecessary loss to a profession, of experienced and capable colleagues. The nonchalant view expressed, that the twice-the-level expected of non re-registration indicates that this may have been influenced by selection for CPD audit, indicates little concern for further analysis of this leakage from the profession of foot healers, other than a comment that a larger number of lapsers were over the age of 50. The conclusion is not so simple, as the largest numbers of those selected for audit were in the age range 50-60 years, and the largest single age band of lapsers were 40-44 year-olds.

The due-to-audit lapser rates were lower in the other professions assessed, and lowest in the paramedics, where 3.4% did not re-register compared to expected levels of 2.7% - however numbers involved are too small to draw conclusions.

So of all the four professions audited, coming to a total of 1528 registrants, how many complied with the procedures to submit a portfolio, which was then assessed as inadequate? The answer is astonishing. Zero. Not one single submitted portfolio has been given an F-for-Fail. A few registrants have failed to meet the CPD standards, but in all cases, this is because they failed to submit a profile, not because what was submitted was considered insufficient to demonstrate professional reflection and learning. Can 1500+ health professionals really all be learning whiz kids, or could the whole CPD procedure not really be capturing what it was set up to? The very glib and non-reflective audit summary states that this “indicates that the guidance and communication provided by us [HPC] is enabling registrants to complete their CPD profiles in a way that demonstrates that they meet the CPD standards.” This self-congratulatory pat-on-the-back is undeserved, and a more critical analysis is really needed to address the leakage of perhaps competent professionals, and the contrast of the astonishing ‘100% pass rate’ of those who submit profiles.

Are there other ways to keep health professionals under a watchful and critical eye once they have escaped the nest of student hood? How, for example, are American registered dietitians channelled and assessed for quality learning and professional development?

The Commission on Dietetic Registration (CDR) is the independent credentialing agency for the American Dietetic Association (ADA). Their mission statement straddles their website (www.cdrnet.org): “protecting the nutritional health and welfare of the public through dietetic certification.” American dietitians have to pay $50 every year to be registered (less than half of the fee of £152 needed for the 2-year HPC registration). Dietitians need to obtain, over a five year recertification cycle, evidence of at least 75 hours of Continuous Professional Education (CPE), so about 15 hours per year. At the start of each cycle, dietitians need to define individual learning plans, which are verified and approved. Professional activities undertaken are then recorded, and can be logged online, into one (or several) of the predefined Learning Need Codes (see box). For example, attending a meeting presenting research on vegetarianism, would be recorded as LNC 4110. In addition to different themes and subjects, there is a requirement for different activity types of professional development; not all CPE can be gained from one kind of learning (see box for examples of CPE activity codes). For example, reading professional journals is CPE code 200 (such as Journal of the American Dietetic Association). However reading can only contribute a maximum of 15 CPE hours; this is extended up to 35 hours is one is the author of articles in peer-review journals or book chapters. Professional portfolios can be submitted for a mid-point review if it contains at least 30 hours, but required submission for all dietitians is within the five years period of the individual learning plan being set up. All American dietitians have their professional portfolios assessed every five years (but how many submissions fail?)

There are many ways to try to assess professional competency post qualification, but the ultimate aim has to be to support public confidence, and that of other professional colleagues, in the ‘brand’ of the profession. The CDR cites Mark Frankel, an American ethicist: “no longer does any profession enjoy the luxury of uncritical admiration or implicit trust from what is now an increasingly restive public.” Hence, what is not in dispute is the need for Continuing Professional Development.

Examples of Learning Need Codes

1000 Professional Skills

1140 Written communication, publishing

4110 Vegetarianism

5370 Obesity management

7200 Team building

8110 School meal service

9070 Research instruments and techniques

Examples of CPE Activity Codes

110 Case presentations

130 Exhibits

160 Journal Clubs

170 Lectures, Seminars

200 Professional reading

Information Sources

www.cdrnet.org

HPC. Continuing professional development annual report (CPDreport10) published March 2010

More discussion arising from Panorama

2011-06-21T12:06:00.010+01:00

On the HPC website there is a page which details the requirements looked for when considering a new group for regulation. Following the change in government policy calling a halt to this regulatory process, the page now includes the sentence "The new professions/aspirant groups process is now closed and we are no longer considering applications." Nevertheless, we can still read the criteria the HPC claim to use when considering a new group for its register. This set of criteria was constructed after a process which included public consultation, some years ago, in 2002 I believe.

"The criteria we applied when we considered applications is as follows:

* Cover a discrete area of activity displaying some homogeneity
* Apply a defined body of knowledge
* Practise based on evidence of efficacy
* Have at least one established professional body which accounts for a significant proportion of that occupational group
* Operate a voluntary register
* Have defined routes of entry to the profession
* Have independently assessed entry qualifications
* Have standards in relation to conduct, performance and ethics
* Have Fitness to Practise procedures to enforce those standards
* Be committed to continuous professional development (CPD)"

Now, on June 3rd, 2011, Dr Anna van der Gaag, HPC President, wrote (in what the HPC solicitors refer to as her 'private' blog, yet apparently hosted by the HPC website) "We do not have a mandatory system of regulation for support workers in England. I look forward to the time when we do." The HPC is no longer receiving new applications for regulation, but it is still looking for opportunities to expand operations.

The blog entry is in response to the Panorama programme of 31 May (see also my previous blog entry below). You will remember that the abuses exposed by this programme were perpetrated by the unqualified care staff whose annual salary amounts to about £16,000. There is no discrete area of activity, no defined body of knowledge, no 'evidence base' for the practice, no professional body covering this section of the workforce... in fact not one of the criteria written above applies to this group of workers. The wish to regulate this sector of the work force has nothing to do with professional statutory regulation. It has a lot in common with the ideology of 'data-base state' solutions, so popular amongst those in power in the previous government.

In her blog, Dr van der Gaag writes "I worked as a speech and language therapist with people with learning disabilities in the 1980s. At that time, institutional care was still common and stories of abuse were also widely reported in the press – although without the benefit of clever hidden cameras. I vigorously supported the campaign to close these long stay hospitals, many of which I had visited as part of a three year research study. Thankfully, almost all these large institutions had gone by the mid 1990s, replaced by smaller, more home-like residential facilities, closer to communities and families, more accessible to visitors, more transparent in their management." There are three key points to explore here.

First: 'institutional care was still common' - this phrase is very vague and needs to clarified. The abuse reported on Panorama was also perpetrated within an organisational structure, and many of the residents seem to have been placed into that particular hospital by someone like a social worker or a member of a medical team (this wasn't made clear on the programme, but they did say of Simone that she was 'forcibly' taken into care). The money that funds the 'care' (£3,000 per month) comes from the common purse which is maintained via institutional mechanisms whose agents are absolutely invisible to us in this case. I mentioned in my previous blog that I had wished the Panorama programme had gone into this more carefully - perhaps there will be another programme going into this kind of detail soon.

If you remember (and you can still watch this programme on iPlayer), we did learn that the company had brought in a new manager - Lee Reed, the CE of Castlebeck, appointed January 2011. He was credible and articulate yet he functioned as an absolute block to any questions about the role played not only by the company's systems and style. To be fair, he would have seemed to have been making excuses, yet these issues must be explored against their institutional back drop. Castelbeck's web statement says that 'the international consultancy firm PricewaterhouseCoopers (PwC) [have been asked] to undertake a thorough independent review of the company, including its culture, medical protocols and communications systems.' Its difficult not to see this as an expensive show (paid for from the fees from the public purse I suppose) which bears little relation to the actual problem at hand. It might even be expected that one of the Big Five consultancy firms speaks the regulators language - they are not unattached to this ideology (see Max Travers' interesting study of the rise of The New Bureaucracies and Quality Control). The question still remains, why weren't Terry Ryan's words heeded and respected? It looks very much like another attack on local grown professionals while the big institutional players clean up.

By pretending that abuse is a feature of the 'bad old days of the NHS' van der Gaag is playing with words. You might think that this is sloppy, or, bearing in mind that she is a 'speech and language therapist', you might even consider it unethical, or unprofessional. No matter what you might think of her personal behaviour (and this is her 'personal blog', according to HPC solicitors) it would be naive to forget that she is also speaking from of her position as President of a large, multi-million pound concern, where Privy Council holds, in principle at least, the mechanism of accountability and control.

Second: "stories of abuse were also widely reported in the press". I have carefully read van der Gaag's blog, and nowhere does she mention any first hand evidence of the scale or nature of abuse in 1980s NHS institutions. Nor does she explain the link between the 'old' institution and the individual abusers in question. Nor does she quote a single instance of those that were 'widely reported' in the press. Broad brush statements are all very well, but here they simply serve to obscure the view, and cast aspersions over the whole of the 'old' NHS in one stroke.

Third: "I vigorously supported the campaign to close these long stay hospitals." I wonder what she though she was closing down? What, exactly, was the problem that was supposed to be solved by these changes? If we stick close to Anna van der Gaag, we are always too far away to know what is really going on in the world. How are today's institutions better than those which preceded them? Van der Gaag expands her point - the 'old' was to be "replaced by smaller, more home-like residential facilities, closer to communities and families, more accessible to visitors, more transparent in their management" These words might easily describe Winterbourne View, but they didn't help the people being pinned to the floor. There is quite a gap between the words and the reality - and no-one wanted to hear about it when Terry Ryan said it out loud.

Dr van der Gaag mentions that a lot of soul searching has followed from the Panorama programme, and this, she suggests, has led her to conclude that "For me, it highlights yet again the importance of regulating individuals as well as institutions."

One can only marvel at the soul searching that produced this nugget. Here we have the President of a large regulatory institution whose gravy train has recently been derailed by a new government and that is actively looking to diversify its business concluding that the only solution to this tragedy is to regulate not only the institutions and the professionals, but also the unqualified staff, uncle Tom Cobley and all. It rather starkly exposes the way that institutional pressures (and the institution in this case is the HPC) play on the weaknesses of their agents (in this case the President) and reduces them to puppets of an ideology, brushing the real problem firmly back under the carpet.

The only way that institutional power can be prevented from crushing some poor person's nose into the carpet, is the wise wielding of that power by the people who have been put into post. Presidents and CEOs are no exception to this rule, nor should they imagine for one moment that they are exempt from responsibility when things in their organisation go wrong.

Panorama exposé: Winterbourne View and its implication for the Neo Regulators

2011-06-17T08:29:00.005+01:00

A couple of weeks ago Panorama shocked us all with a fly on the wall expose of chaos and tyranny in the Winterbourne View Hospital near Bristol (BBC1, 31 May, 9pm: Undercover Care, the Abuse Exposed; Paul Kenyon and Joe Casey). Residents (whose 'care' costs about £3k per month, paid for through our taxation, and implicating us in the result) were being subjected to regular and nasty bullying by a handful of staff at the lowest level of the hierarchy who seemed to have the run of the show even though qualified nursing staff and a management structure appeared to be in place. The next day on BBC Radio 4 World at One reporters remarking on the programme had been unable to get a minister to speak to them on air, so turned to Unison to provide them with a speaker at the last minute. Perhaps the short notice helps to explain why Christina McAnea (Head of Health) said that what was needed was higher levels of medical intervention and statutory regulation of the care workers. The residents at Winterbourne View Hospital are not sick, but are categorised as having 'learning difficulties'. What they need is something to do, and decent people to do it with. The undercover reporter noted that there was no regime of any specialist medication. The question of why these people were in hospital is an important one to ask, yet no-one asked it.

McAnea's second point, that the care workers should all be statutorily regulated, is one that has been made at the HPC (reported on here recently when Julia Drown raised it at a recent committee meeting). Perhaps McAnea was thinking about how to increase her power base in future negotiations with the government. Perhaps, because she can't possibly be thinking about the reality of the situation presented on the TV the night before. What was happening in the care home was against the law of the land. It wasn't a matter of incompetent professional malpractice. For the last ten years statutory regulation has pretended to be about professionalisation, but the thinly veiled attitude has always been an attack on the status of the professional - here the veil is ripped away and we can see quite clearly the aggression behind the call to statutorily regulate.

One criticism of this highly important programme was that it dwelt too long on the violence (the point was very well made and convincing in the first half of the programme), and so did not spend much time opening up the question of what had happened to the back-cloth of local networks that should have been there to support the qualified staff (Terry Bryan) in his attempt to do something about it. The chief thug on the ward had been there for over three years. This raises a massive set of questions about the structures of reason and control that most of us expect to be in place, (it was there, say, ooo, ten years ago) which could have dealt with the problem before it took hold. The glimpses we got of the senior nursing staff in the programme should at least make us ask what had happened to the structure of support that would have given them the power to act against the thugs. It is this, otherwise invisible, aspect of structure that we really need to pay attention to.

Because no sensible discussion is had of what has happened to local networks of management, the door is left wide open to the opportunistic thuggery of institutionalised power. For example, Minister Paul Burstow (a lib dem in name if not in action) ordered the Care Quality Commission to up its game. A highly centralised arms length government agent is given the order to do more spot checks. Great. This completely overlooks the point that the CQC is not only structurally unable to do anything about the problem we watched on the television (a point made tangentially in the World at One programme), but might even be part of the problem itself. The more the government pushes this style of regulation the more it attacks the thing that might actually make a difference. We are creating a self fulfilling prophecy. Has anyone got the courage to say it out loud?

On Friday 3rd June the HPC published a statement commenting on the Panorama programme. President Anna van der Gaag and her CEO Marc Seale said "We welcome any initiative that will increase the inspection of care services and improve standards. However, this will only happen if it is supported by an appropriate level of regulation of all the individuals working in care homes." They go on to lay the ground work for all care workers to be put under their control. This is presented as self evident fact yet there is absolutely no evidence whatsoever to support the statement. It remains a blatant act of institutionalised self interest with no regard for the real lives of the people - the residents and their families - that matter.

Why did the local network of reason and control fail? What is preventing decent people like Terry Bryan from being able to do his job? It is not the absence of a data base with everyone's name and address on it. Of that much we can be sure.

A good enough regulator? The controversy continues.

2011-06-16T22:30:00.006+01:00

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.

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.
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.
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

Job Description – Chief Executive & Registrar

2011-06-16T22:23:00.004+01:00

One extra note - I originally asked the personnel department to send me the descriptions of these executive jobs (FTP, Case Management and Policy and Standards), but they were diverted to another function and sent to me under the banner of 'freedom of information'. My hypothesis at the time was that this anomaly was a manifestation of employee (or 'executive') angst and muffled resentment. The more recent job description (for Director or Education) was accomplished without invoking the machinery of the law.

Main Purpose of Job

To lead and manage employees and be responsible for the day to day management of HPC.

Position in Organisation

Reports to the President on a day to day basis.

Leads the Executive Management Team.

Liaison with Council and Committees.

External liaison with relevant external stakeholders which include (but are not limited to) consumer and employer groups, governments, other professional regulators, politicians, professional bodies and trade unions.

Liaises with employees at all levels within the organisation.

Scope of Job

The Chief Executive & Registrar shall have such functions as the Council may direct.

The Chief Executive and Registrar shall be responsible for all operational matters as set out in the HPC’s Scheme of Delegation.

Dimensions and Limits of Authority

Oversees the HPC budget and operates within the budgetary limits of the organisation and in accordance with HPC Financial Policies.

Manages financial affairs and functions as the Accountable Officer for the HPC.

Skills, Knowledge and Abilities

Essential

Relevant post-graduate qualification or equivalent experience.

Significant experience at a non-executive Board level.

Experience of leading and directing a team or several teams which have included a diverse range of functions and positions.

A recently held position or equivalent at Board level in a public, private, voluntary or community sector organisation.

Proven track record of effective leadership in driving major organisational and cultural change.

Proven ability to address multiple and complex problems and develop solutions in the light of challenging and sensitive circumstances, and in the face of conflicting pressures.

Excellent oral and written communication skills.

Knowledge and understanding of communications and experience of working with the media.

Sound judgement and ability to reach conclusions which are principled and workable.

Experience of working collaboratively with a Chairman and a Board and having a thorough understanding of corporate financial issues.

A thorough understanding of the role of healthcare professionals and their representative bodies and the system of statutory regulation and Government’s wider plans for the modernisation of health and social services.

A proven ability to engage with a wide range of stakeholders.

Willingness to travel on a regular basis throughout the UK and internationally, including overnight stays as required.

Duties and Key Responsibilities

Your principal duties and key responsibilities will be those set out below. In addition to those duties, HPC reserves the right to require you to undertake additional or other duties within your capacity as may from time to time be reasonably required and necessary to meet the needs of the HPC.

To lead and manage employees and be responsible for the day to day running of HPC.

In collaboration with the Council, develop the vision and strategy for the HPC and oversee their implementation.

To develop and implement an annual business plan in collaboration with Council and Committees.

To inspire confidence in the Council, its employees and stakeholders.

To manage financial affairs and function as the Accountable Officer for the HPC.

To drive and maintain the organisation’s performance and service delivery.

Direct line management responsibility for the Executive Management Team.

Provide leadership and motivation for all HPC employees.

Establish and maintain strong working relationships with key HPC stakeholders.

To present and promote HPC’s operational aims, objectives and achievements to external organisations as required.

To liaise with the President and keep the President informed of developments.

To provide such information to the Council as the Council and President require in order for the Council to assess the performance of the business and the achievement of the agreed strategy and budget.

To carry out the responsibilities of the post with due regard to the HPC's Diversity Policy and to treat colleagues and other HPC stakeholders with respect and dignity at all times.

Job Description - Head of Case Management

2011-06-16T22:23:00.001+01:00

Fitness to Practise Department

Main Purpose of Job

Manage the operation of HPC’s Fitness to Practise directorate case work function.

Design, develop and implement processes to support the work of the department.

To assist in the implementation of the organisations fitness to practise strategy

Position in Organisation

· Reports directly to the Director of Fitness to Practise

· Provides guidance and support to Fitness to Practise Department employees.

· HPC liaison with Council and relevant Committees which include (but are not limited to) the 3 Statutory Fitness to Practice Committees.

· External liaison with relevant external stakeholders which include (but are not limited to) professional bodies, other regulators, government departments and MP’s, consumer and employer groups, police forces, court services, lawyers and employers of registrants.

· Use of statutory powers as delegated by Committees and Council

· Liaises with the Head of Adjudication regarding the management of the fitness to practise process

· Investigates Fitness to Practise allegations, including use of Statutory Powers delegated by Committees and Council

Scope of Job

Management of case management and administration function within the fitness to practise directorate

To assist in the delivery and development of the fitness to practise strategy and be aware of developments in regulation that affect fitness to practise.

Dimensions and Limits of Authority

· Provides support and guidance to the Fitness to Practise employees as directed by the Director of Fitness to Practise

· Line Management of Lead Case Managers of Case Team and Administration Manager.

· Budgetary approval ability and able to order good or services from existing suppliers to a value defined by the Director of Fitness to Practise and HPC Financial Policy.

· Act as HPC’s spokesperson on Fitness to Practise matters as required

· Monitor application of Part V and Part VI of the Health Professions Order

· Monitor application of Article 39 of the Health Professions Order

Skills, Knowledge and Abilities

Essential

Educated to degree level and/or relevant knowledge and understanding

Demonstrated ability and knowledge to manage, support and lead a team, and to motivate employees

Demonstrated ability to manage highly complex cases

Sound knowledge of instructing lawyers and providing appropriate instruction in relation to cases and of stakeholder management

Ability to apply and interpret procedures and law as it relates to HPC’s case work.

A high level of written English and oral communications skills, including the ability to communicate professionally with customers from all backgrounds, including people who may be vulnerable

Proven ability to work and communicate with all employees, including at a senior management level, including the ability to advise senior managers on HPC’s case management function

Highly efficient and organised team player.

Excellent presentation skills.

Sound working knowledge of window based software packages, including word processing, spreadsheets, databases, electronic mail, and the internet

Duties and Key Responsibilities

Your principal duties and key responsibilities will be those set out below. In addition to those duties, HPC reserves the right to require you to undertake additional or other duties within your capacity as may from time to time be reasonably required and necessary to meet the needs of the HPC.

Operational Responsibilities

· Deliver and develop fitness to practise strategy.

· Thorough awareness of all cases.

· Assist in the drafting of particulars and sign off on these before posting.

· Develop, monitor and implement processes for tracking cases.

· Develop, monitor and implement and review process for analysing trends in the fitness to practise department.

· Assist in the development of FTP’s equality and diversity scheme – including making complaints accessible.

· Produce monthly fitness to practise statistics and raise and analyse any anomalies with the Director of Fitness to Practise.

· Identify and lead policy developments in the fitness to practise department.

· Lead in the production of the Fitness to Practise Annual report.

· Maintain a relationship with external lawyers instructed by the Fitness to Practise Department.

· Risk assessment of fitness to practise cases

· Lead (with the Head of Adjucation) in the design, delivery and implementation of partner training

· Lead organisation wide projects relevant to the Fitness to practise function

Employee Management

· Manage the day to day functions of the employees within the Case Management function, briefing the Director of Fitness to Practise on any significant issues.

· Monitoring the workload of the team, ensuring that targets and standards of performance are achieved.

· Being a point of contact and referral for queries about complex issues by team members.

· Liaising with the Director on any relevant Human Resources matters as required.

· Leading and supporting other team members where appropriate – including the development of induction programs.

Publications

· Write and produce future HPC Fitness to Practise publications where appropriate.

Other

· Deputise for Director of Fitness to Practise where required in the Director’s absence.

· Help maintain service standards and external benchmark standards acquired by the organisation.

· Aid in the budget management and planning of the Fitness to Practise budget (including resource management and forecasting)

· To support the operation of HPC’s Council and Committees by preparing papers as required.

· To carry out the responsibilities of the post with due regard to the HPC's Diversity Policy and to treat colleagues and other HPC stakeholders with respect and dignity at all times.

'Director' of Fitness to Practise

2011-06-16T22:21:00.001+01:00

Main Purpose of Job

Overall responsibility and management of the functions of the Fitness to Practise Directorate, including the implementation of the Council’s Case Management Programme

To develop and implement the organisation’s Fitness to Practise strategy, working closely with the Chief Executive, relevant Committees and appointed agencies.

To manage Fitness to Practise functions on a day –to-day basis including budget, external agencies involved in the fitness to practise function (lawyers, partners and other agencies) and employees

Position in Organisation

Reports to the Chief Executive and Registrar.

Member of the Executive Management Team.

HPC liaison with Council and relevant Committees which include (but are not limited to) the three Statutory Fitness to Practice Committees.

External liaison with relevant external stakeholders which include (but are not limited to) professional bodies, other regulators, government departments and MP’s, consumer and employer groups, police forces, court services, lawyers and employers of registrants

Provide instruction to lawyers on issues as they relate to the responsibilities of the Fitness to Practise Department including High Court Appeals.

Manages, leads and provides support to the management and employees of the Fitness to Practise Directorate.

Liaises with employee at all levels within the organisation.

Scope of Job

· Overall responsibility for all Departments within the Fitness to Practise Directorate

· Develops and implements Fitness to Practise Strategy, including the implementation and development of appropriate case management strategies.

Identifies improvement to processes and procedures supporting the work and functions of the fitness to practise department.

Dimensions and Limits of Authority

Manages the Fitness to Practise Directorate budget (approximately twenty five percent of HPC’s overall operating costs), operating within the budgetary limits of this Department. This will include preparing the annual budget and monitoring expenditure.

Acts in accordance with statutory powers delegated by Council.

Ability to act as HPC’s spokesperson on issues that are the responsibility of the Fitness to Practise Department.

Can raise quotes, engage contractors (including instruction of lawyers) or other resources within the limits of the Fitness to Practise budget.

Management of the employees within the Fitness to Practise Directorate.

Deputises for Chief Executive Officer and Registrar in his/her absence.

Skills, Knowledge and Abilities

Essential

Educated to degree level or equivalent skills and abilities.

A sound working knowledge at a senior/executive level of a fitness to practise role within a public sector, health, regulatory environment or private sector organisation.

Significant demonstrated skills in leading, supporting and managing a team or several teams.

A high level of diplomacy and proven ability to communicate with and manage stakeholders, including but not limited to UK government departments, and ability to build relationships and network effectively.

Excellent written English skills with the ability to research and write policy documents and reports of a high standard.

Strong presentation skills with experience of writing and giving presentations to different audiences.

An ability to understand legal and procedural documents and ethical principals.

Knowledge of political and governmental processes.

Sound working knowledge of window based software packages, including word processing, spreadsheets, databases, electronic mail, and the internet.

Sound working knowledge of management processes around hearings management, including instruction of lawyers where necessary

Skills and competencies in project management, designing and implementing complex internal business processes and strategies

Willingness to travel on a regular basis throughout the UK, including overnight stays as required.

Duties and Key Responsibilities

Your principal duties and key responsibilities will be those set out below. In addition to those duties, HPC reserves the right to require you to undertake additional or other duties within your capacity as may from time to time be reasonably required and necessary to meet the needs of the HPC.

Management

To perform the duties expected as a member of the Executive Management Team.

Provide leadership and motivation for the team within the Fitness to Practise Directorate.

To produce and manage business development plans, and performance and service delivery improvement plans and deliver these in support to HPC’s overall business strategy.

Co-ordinate and lead in the work across the Fitness to Practise Department

Develop and implement Fitness to Practise Strategy

Draft overall Fitness to Practise strategy for the Council ensuring that HPC’s resources are managed to their best effect

Develop targeted budget of appropriate amounts.

Manage Fitness to Practice Department budget

Control Fitness to Practise budget within appropriate guidelines

Award and terminate contracts as part of this in relation to Fitness to Practise work

Reports and Strategy

To write briefings, reports, consultation documents, Council and committee papers, material for the website and intranet, and other documents as required.

To ensure that all written information is clear and conforms where possible to plain English Campaign guidelines.

To write or supervise the writing of the Fitness to Practise Departmental annual report.

Legal Matters

Manage the relationship of the legal services provided to the Fitness to Practise Department.

Regular liaison with the HPC’s Parliamentary agent on any legal matters pertaining to the Department.

Attendance at court (including High Court) when required.

Responsible for assisting the Chief Executive in the legal services tendering process.

Stakeholder Management

Contribute to working groups of the Council for Regulatory Healthcare Excellence.

Advise and provide guidance to management at all levels within HPC on Fitness to Practise policy trends and performance.

General

To carry out the responsibilities of the post with due regard to the HPC's Diversity Policy and to treat colleagues and other HPC stakeholders with respect and dignity at all times.

Job Description – 'Director' of Policy & Standards

2011-06-16T18:37:00.001+01:00

Policy & Standards department

Main Purpose of Job

· To develop and implement the Council’s policy and strategy.

· To research, write and develop reports and policy documents relating to the work of the HPC.

· To assist the Council in establishing and reviewing standards.

· To manage the functions and employees of the Policy and Standards Department.

Position in Organisation

Reports to the Chief Executive and Registrar

Liaises with employees at all levels within the organisation.

Liaison with relevant external stakeholders.

Responsible for overseeing content and quality of relevant papers to Committees and Council as required.

Oversees the management and support of relevant Professional Liaison Groups (PLGs)

Manages, leads and provides support to the employees of the Policy and Standards Department.

Member of the Executive Management Team.

Scope of Job

Overall responsibility for the Policy and Standards Department and workplan.

Develop and implement the Policy and Standards strategy.

To oversee the process of consultation and drafting of all policies and related documents, including writing documents as required.

To oversee the creation and workplan of any Professional Liaison Groups or other working groups created within Policy & Standards.

Provide guidance and support to management on all policy and standards issues.

Manage, lead and provide support to the employees of the Policy and Standards Department.

Dimensions and Limits of Authority

· Deputise for the Chief Executive and Registrar when required.

· Responsible for delivery of Policy & Standards strategy

· Ability to act as credible, informed HPC spokesperson on policy and standards issues.

· Manages the Policy and Standards budget operating within the budgetary limits of this Department. Overall responsibility for engagement of contractors and compliance with HPC Financial Policies.

Skills, Knowledge and Abilities

Essential

Educated to degree level or equivalent skills and knowledge.

In depth knowledge of policy environments or policy related roles with demonstrated knowledge of leading, supporting, developing and managing a team.

Demonstrated knowledge of managing and building relationships with stakeholders, including senior management, UK and EU government departments and with strong influencing and negotiation skills.

Excellent written English, with proven ability to research and write accessible, clear policy documents and reports for a range of audiences.

Excellent oral communication skills, with ability to engage different audiences, convey complex information in an accessible way and prepare and give presentations to different audiences.

Ability to gain good working knowledge of the Health Professions Order 2001, and to understand and critically apply this knowledge to the policy strategy.

Demonstrated ability to manage multiple projects, including managing departmental workload in line with the strategy, making strategic decisions, overseeing the successful management of working groups, and proven project management skills.

Excellent interpersonal skills with a high level of diplomacy and political awareness, and ability to work effectively as a member of the senior management team.

Willingness to travel on a regular basis throughout the UK and overseas, including overnight stays as required.

Sound working knowledge of window based software packages, including word processing, spreadsheets, databases, electronic mail, and the internet.

Duties and Key Responsibilities

Your principal duties and key responsibilities will be those set out below. In addition to those duties, HPC reserves the right to require you to undertake additional or other duties within your capacity as may from time to time be reasonably required and necessary to meet the needs of the HPC.

Departmental responsibilities

· Manage the researching, writing and co-ordination of the implementation of HPC policy strategy.

· Manage the budget of the Policy & Standards department, including writing and monitoring the budget.

· Lead the development of the Policy and Standards department.

· To motivate and provide support and leadership for the Policy and Standards Team.

· Co-ordinate work required across the Policy and Standards team.

· Oversee the management and support of any Professional Liaison Group (PLG) established to deal with relevant policy issues.

· To produce and manage business development plans, and performance and service delivery improvement plans and deliver these in support to HPC’s overall business strategy.

· To perform the duties expected as a member of the Executive Management Team.

Research

To monitor developments, policies and actions in relation to health regulation, the work of other stakeholders, patient safety and the work of the HPC.

To alert HPC Council and Executive Management Team to opportunities and threats in relation to health regulation, the work of other stakeholders, patient safety and the work of the HPC.

To undertake research and provide background briefings and information for Council members, management team and external organisations on request.

To oversee the research and preparation of all HPC responses to external consultations, including writing responses when required.

Writing

To oversee the production of briefings, reports, consultation documents, Council and committee papers, material for the website and intranet, and other documents as required.

To ensure that all written information is clear and conforms where possible to plain English Campaign guidelines.

Liaison

Represent and promote the HPC at conferences, meetings and other events.

Working in collaboration with the communications department, develop and maintain close links and co-operation with key stakeholders, including Council members, on policy matters.

To ensure close links are established between Policy and Standards and other areas of the HPC.

Support overall public affairs strategy as required by the Director of Communications, coordinating and managing projects as required.

Management

Manage the budget of the Policy & Standards department, including writing and monitoring the budget.

To motivate and provide support and leadership for the Policy and Standards Team.

Manage and provide support to any Professional Liaison Group (PLG) established to deal with relevant policy issues.

To produce and manage business development plans, and performance and service delivery improvement plans and deliver these in support to HPC’s overall business strategy.

To perform the duties expected as a member of the Executive Management Team.

Co-ordinate work required across the Policy and Standards team.

Project work

Oversee achievement of policy projects, within policy strategy.

Advise management and employees on cross-departmental projects relevant to Policy and Standards.

Communications

Oversee the development and implementation of means by which the understanding of HPC processes can be increased, internally and externally, working with Communications department where appropriate.

Advise management and employees on all policy and standards issues in a fair and equitable manner.

Ensure that the Chief Executive and Registrar is briefed on any important policy and standards issues.

General

To carry out the responsibilities of the post with due regard to the HPC’s Diversity Policy and to treat colleagues and other HPC stakeholders with respect and dignity at all times.

Job Description – Director of Education

2011-06-16T18:17:00.002+01:00

In case you thought that the title of Director at the HPC was reserved for wise old codgers who had gained their experience over long years of immersion in the real world trying to improve the human lot, you will probably be interested to read the job description of the Director of Education. The person spec, tho requested, was not forthcoming. There is little here other than the 'proven ability' to fit into an administrative environment and to be charming and flexible.

I have a couple of other Directors descriptions which I shall dig out and post in due course.

HPC Document follows:

Main Purpose of Job

· To lead and manage the Education Department.

· To develop and maintain processes around the approval and monitoring of education programmes.

Position in Organisation

Reports to the Chief Executive & Registrar.

Member of the Executive Management Team.

Liaises on behalf of HPC with education providers and education programmes (leading to approval) and relevant stakeholders.

Liases with all employees, including (but not limited to) Registrations, Projects, Finance, Information Technology, Human Resources and HPC management.

Liaises with relevant HPC Committees, which include (but are not limited to) the Education and Training Committee and its panels.

Manages, leads and provides support to the Education Department.

Liaises with HPC Partners, including (but not limited to) Visitors.

Scope of Job

Overall responsibility for the Education Department

Manages the approval and monitoring processes.

· Liaises with all parties around the approvals and monitoring processes.

Manages HPC’s approved programmes list.

Liaises with external relevant stakeholders

· Develop and implement the Education Strategy

Dimensions and Limits of Authority

Monitors application of part IV of the Health Professions Order.

Advises HPC management and employees on education matters

Deputise for the Chief Executive and Registrar in his/her absence from the office as required.

Manages the Education Department budget, operating within the budgetary limits of this department

Able to order goods or services from existing suppliers up to the value defined by the HPC Financial Policy.

Skills, Knowledge and Abilities

Essential

Educated to degree level or equivalent knowledge and abilities.

Thorough knowledge & understanding of how educational Quality Assurance is applied within an education, health or regulatory environment.

Proven ability to lead, support, manage, motivate and inspire a team, and foster enthusiasm and innovation.

Demonstrable project management skills and ability to design and implement complex internal business processes or equivalent.

Proven ability in formal minute-taking and a demonstrated high standard of report-writing skills.

Proven ability to adapt to a changing working environment with a flexible approach to working.

Excellent oral and written communication skills, including the demonstrated ability to communicate professionally with education providers at all levels.

Knowledge and understanding of computerised management reporting.

Sound working knowledge of window based software packages, including word processing, spreadsheets, databases, electronic mail, and the internet.

Willingness to travel on a regular basis throughout the UK, including overnight stays as required.

Duties and Key Responsibilites

Your principal duties and key responsibilities will be those set out below. In addition to those duties, HPC reserves the right to require you to undertake additional or other duties within your capacity as may from time to time be reasonably required and necessary to meet the needs of the HPC.

Management

To perform the duties expected as a member of the Executive Management Team.

· To motivate and to provide leadership for the Education Department employees.

· To produce and manage business development plans, and performance and service delivery improvement plans and deliver these in support of the HPC’s overall business strategy.

Approval & Monitoring processes

· To lead and project manage the processes around the approval and monitoring of education programmes.

· To set up procedures and reporting structures for managing the approvals and monitoring processes.

· To set up procedures to ensure cohesion between approval process and monitoring processes.

· To maintain data and statistics as appropriate and provide reports to the Executive Management Team of trends and performance as appropriate or requested.

Communications and Stakeholder Management

· To provide leadership for, and to motivate the Education team.

· To manage and provide training for all HPC Partners, acting as Visitors, in conjunction with the Partner Manager.

· To establish and maintain strong working relationships with key HPC stakeholders, including UK-wide education providers.

· To manage the appointment and training of Visitors in conjunction with the Partner Manager.

· To manage the communications of HPC’s approval, & monitoring processes to education providers, including (but not limited to) presentation, publications and on-line information.

Committees and reports

To prepare reports, draft papers and present papers at Council and relevant HPC Committees.

To assist in the ongoing maintenance and review of relevant guidelines.

General

To carry out the responsibilities of the post with due regard to the HPC’s diversity policy and to treat colleagues and other HPC stakeholders with respect at dignity at all times.

HPC Council meeting, 31 March 2011.

2011-04-09T12:13:00.001+01:00

I had two reasons for attending this meeting: to hear concluding business relating to the new Generic Standards (which will be reported elsewhere) and to listen to the discussion concerning the possibility that HPC would introduce Voluntary Registers. While I was there, a third reason popped up under the heading of ‘Any Other Business’: deliberations regarding the future involvement of the HPC in regulating counselling and psychotherapy. This turned out to be the most interesting part of the meeting, but its true import, in my opinion, can be revealed only by viewing it through the prism of what was said during the rest of the meeting. In this way it becomes possible to grasp the manner in which language and meaning are dissociated at the HPC. Slogans emerged and were repeated as participants struggled to build sentences out of a small number of phrases that had no reference point outside the group. In fact, they appeared to function in order to constitute the group. Which essentially makes the HPC an organisation best characterised as both self-referential and self-seeking.

The Council members had been invited by the HPC to attend a morning meeting to catch up on the implications of various new government publications (the change of status and name, the regulation of Chinese medicine and herbalists, the Command Paper). This may help explain why so many Council members (Malcolm Cross, Deep Sagar, Eileen Thornton, Arun Midha and a couple of others) did not attend the afternoon’s Council meeting. There is also a process of appointment and re-appointment going on, but it’s not clear how this would have affected attendance.

Michael Guthrie, the Director of Policy and Regulation (in this context, by the way, I think that label ‘director’ is highly misleading), submitted a report for discussion on voluntary regulation. Jeff Lucas (Professor of Health Studies and Deputy Vice-Chancellor at the University of Bradford) asked whether anyone knew what ‘assured’ voluntary registration meant before recommending, assuredly, that ‘we need to use this word more’. He might also have asked what ‘voluntary registration’ meant, since no one at the table seemed to have much of an idea on the subject. Julia Drown (a Labour MP from 1997 to 2005) observed that it would mean more money for the HPC. At the same time, she also pointed out that voluntary registration would probably command a lower fee, especially for the social care workers, who are amongst the lowest-paid people in the country. But this, she urged, should not divert attention away from the grave danger posed by such people, who often had the most intimate relations with those they cared for. No evidence was presented of any specific danger posed by social care workers and no one asked for clarification or chose to dispute her claim.

Penny Renwick, Associate Dean of Health, Psychology and Social Care at Manchester Metropolitan University, appeared to want to inject some common sense into the proceedings when she replied that the ‘poor old public’ would be hugely confused and wouldn’t understand the ‘various levels of protection’ offered by the different registers. She even said that a voluntary register might be a ‘chocolate fireguard’ and wondered how the HPC would measure its effectiveness. Then, as if someone had nudged her under the table, she said ‘but I do recognise that this is the direction of travel’ and that ‘potentially there will be higher levels of public protection’. Anna van der Gaag had recently encouraged the education and training committee (which contained many of the people present at the meeting) to embark on a journey without knowing the destination, and John Donaghy (Paramedic, Principal Lecturer at The University of Hertfordshire) had asked that they ‘put the boat in the water before we find the evidence’. They were then talking about standards for ‘user involvement’ in education courses, but the phrase has no doubt gained some currency and was used here by Penny to show that she was ‘in the same boat’.

Joy Tweed (a part-time lecturer at the University of Westminster), who was sitting next to her, was quick to correct her: ‘The challenge to us, then,’ she said, ‘is to communicate to the public. We need to make sure that voluntary registers do what they set out to do.’ She didn’t elaborate on what, exactly, that might be, or on how such registers might be distinguished from the HPC’s statutory registers. The problem here, it seems to me, is nothing if not considerable. For the past ten years, the HPC has depended upon being able to exclude someone from the register to convince the public that it is being protected. Now, however, a rewriting of history seems imminent if the HPC is to maintain what little organisational and philosophical coherence it possesses while also controlling voluntary registers.

Perhaps this was what Annie Turner (Professor of Occupational Therapy at the University of Northampton) had in mind when she offered what I think is a new phrase. She began in the traditional way, referencing the need to ‘capture the risk’, but when she specified the practitioners constituting the cause of the risk, she named them, interestingly, as those who ‘care not’ to be on the register. This manages to imply that those who do not choose the HPC are ‘care-less’. It also, it seems to me, commits the crime of stealing credibility from the altogether different and delightful character of Herman Melville’s Bartleby, who manages his lowly position through the beautiful phrase ‘I prefer not’.

Sheila Drayton (a consultant in professional and organisational development) said the voluntary register had fewer benefits since there was no protection of title. She also warned her colleagues of the dangers posed by care home managers. ‘No group,’ she added, ‘posed less risks than any others.’ She gave no reference to support this statement but appeared not to notice that, within normal protocols of meaning, she was also advancing the proposal that management consultants, Roman Catholics, blue-eyed boys, writers, poets, hairdressers, Uncle Tom Cobley and all would also need, one day, to be captured.

Mary Clark-Glass (a founder member of Northern Ireland’s Women’s Rights Movement) referred vaguely to her dreadful experience with voluntary registers in the fields of dry cleaning and estate agency in order to underline the need to ‘capture the risks’ involved. Mary has been a Council member since it began and might perhaps be expected to know that the HPC has never actually identified any specific risk or attempted to assess its own capacity to have an impact on any such risk.

Someone then asked what happened with voluntary registers in other countries, and a murmur of answers rippled around the table: ‘it doesn’t happen elsewhere,’ the UK ‘is unique in the world’. I eagerly await the research on registration in the solar system, the Milky Way, and the cosmos in its entirety.

Anna van der Gaag summed up: ‘we are gathering evidence, staying flexible – what we are looking for today is agreement in principle’. She clearly felt she had got it, though to the inexperienced eye, it only looked like she had done nothing other than move the agenda on.

The next topic proved controversial and generated some heat. The particular history, customs and practices of social work have led to the situation where students are also registered (at a nominal £10 per head). As the HPC has been given the responsibility for taking over this register, it has to figure out what this means within its context, the logic of which excludes students. Julia Drown, ever mindful of the great risk that people pose to each other, asked how the vetting and barring scheme operated in relation to students. I don’t know what relevance this had, and no one else seemed interested. Mary Clark-Glass seemed quite indignant and stated that the CHRE was ‘against student registration’. She even wanted to know what evidence there was that student registration ‘worked’. Then, really letting go, she asked, ‘Do we just do what a Minister tells us to do?’ The Council attempted to sidestep this outburst with a quiet and polite laugh. Meanwhile, Prof Lucas doggedly listed four reasons against student registration before demanding to know ‘what intended benefits are claimed for statutorily registering students?’ Di Waller (arts psychotherapist) agreed in principle, though I’m not completely sure what that principle was because she also said (and here it’s important to note the twist to the logic) that she wanted to ‘safeguard students on placement’. There is, I believe, a double trap here. She seemed to be agreeing with Council but at the same time disagreeing with them and agreeing with the Government proposal (which others had spoken against). Then she used the idea of regulation and registration as a method of protecting the practitioner – even though regulation and registration are actually supposed to protect the public from the practitioner (cf Julia Drown and Sheila Drayton). But even Di admitted it would be useful to see ‘the evidence’.

It is interesting to notice what provokes the Council to ask for evidence. Here, it seems they ask in the hope that it will help to protect them from the will of the Minister. Yet throughout the past three years psychotherapists and counsellors have been asking for evidence that regulation by the HPC would actually improve the level of public protection and have been consistently ignored by the HPC. Probably it is just a ploy, which won’t actually lead the executive to actually respond to the request; the HPC has never been interested in evidence and has not set up any processes to generate real evidence, preferring, as QC Dinah Rose said (when she represented the PsyReg group at the Royal Courts if Justice in December, in pursuit of a Judicial Review) to duck the hard work and pretend.

Richard Kennett (a chartered accountant) was, of course, worried by the £10 fee and concluded that ‘it must be subsidised by full registrants’, though he didn’t say what, exactly, ‘it’ was.

After all this hot air Mr Seale (CEO) told, or perhaps, reminded the Council that ‘the Transfer Order of 2nd April will give us the students’, and added that the HPC were looking for a grant from the DH to cover the costs. One wonders what the purpose was of the discussion, in the light of this timing and context. The process to register the Social Workers has in fact been ongoing for some time now.

The agenda imposed the image of order and cut the discussion off. Then, when the Council was being apprised of the fate of the anaesthetists (a group which had asked to be regulated by the HPC before the Government announced a halt to statutory regulation), Julia Drown piped up again and opened up the real problem for the group. She said she felt it was premature to say that statutory regulation is not available for any new professions. She seemed not to care – or maybe even to realise – that this view is in flat contradiction to the present Government’s Command paper, which clearly states an end to the process begun by the previous Government (of which she was a part, at least until 2005). She was neither supported nor contradicted in this section of the meeting, but the topic returned with a vengeance under ‘Any Other Business’.

One more thing is worth noting before we get to that part of the meeting. Kelly Johnson, Director of Fitness to Practice (again, I would caution against assuming you know what the word ‘director’ means in this context), remarked that in one of her reports ‘there is some language that has crept in’. An interesting phrase, I thought to myself. She was, in fact, referring to her use of the word ‘patient’ in relation to the audiologists, who apparently prefer the phrase ‘service user’. She didn’t say ‘I’m sorry, I made a mistake’ – she simply said ‘some language has crept in’. Poor old language! Reduced to creeping around at the HPC and promptly blamed when staffers stumble under the burden of so much linguistic legerdemain. George Orwell must be spinning in his grave.

Anyway, under the heading of ‘Any Other Business’, the Council finally turned its attention to the problem of capturing counsellors and psychotherapists. As is well known, the Command Paper issued by the Government in March made it clear that no new professions would be statutorily regulated, including counselling and psychotherapy (this latter point was set out in a footnote). The HPC wrote to Anne Milton (Under Secretary of State, DH) on 18 February to ascertain if this meant that there would be no statutory regulation for counselling and psychotherapy. Anne Milton wrote back confirming that there would be no statutory regulation for counselling and psychotherapy.

Here are two paragraphs from her letter: ‘As you have noted, the Command Paper Enabling Excellence makes clear that for the overwhelming majority of occupational and professional groups which are not currently subject to statutory regulation, including those groups recommended by the Health Professions Council for statutory regulation in the past, the assumption will be that assured voluntary registration would be the preferred option.’ She adds: ‘I can therefore confirm that it is not currently our intention to proceed with statutory regulation of psychotherapist and counsellors. However, we will keep this under review in the light of the experience of assured voluntary registration.’

If the HPC were a rational organisation, it might have conducted research into the prospects involved in a new product or line of work, considered the evidence thus collected and finally come to a decision. It might decide that the proposed venture was not viable, and that the costs already invested were ‘sunk costs’. ‘Sunk costs’ is a phrase from the language of accountancy and was no doubt invented to help get over precisely this problem: the organisation needs to find the time and method to mourn the loss of the hoped-for new venture and then to move on. If the HPC were not a rational organisation, individual members might mistake their place and promote their personal interest over and above that of the organisation, and then be unable to drop their objective. As someone from the onlookers said later, in place of mourning, melancholia might set in.

Jeff Lucas (a member of the Professional Liaison Group for Counselling and Psychotherapy) remarked that Anne Milton was merely reflecting the ‘politics of the day’. He said he would be ‘uneasy if we decide to abandon’ the capture of Counselling and Psychotherapy, adding ‘on the principle of public protection’ as if this actually meant something.

Let us pause for a moment to remember that at no point in the process (a protracted one that began in the summer of 2008) have the HPC looked for or produced one shred of evidence that the public will be better or worse protected through HPC statutory regulation. This was precisely the point on which Mr Justice Burton allowed the PsyReg group to proceed with their petition for a Judicial Review of the HPC procedures on 10 December 2010. The HPC agreed to write a letter of apology to the Secretary of State for Health for misleading him into thinking that the HPC had done the work necessary before it recommended itself as capable of regulating this field. It is to no one’s credit that the HPC Council, responsible to the Privy Council, continue to pretend that what happens in the High Court has no bearing on them.

Lucas stumbled on, bolting together ready-made phrases that, although still incomprehensible, nevertheless do reveal his personal investment in this matter and his reluctance to give up the prize: ‘…ignore the playing field... Statutory Regulation is not politics… public protection is still an option open to us... I would be reluctant to abandon, and would want to be active for assured voluntary registration.’

Mary Clark-Glass (another member of the PLG for C&P) joined in in the same way: ‘There is a compelling risk, and that, to me, tells me that the matter is still within our power and grasp. If we can show that patient safety is at stake, this will overrule the political wish. Otherwise it will be seen as closing the door, which is certainly not the case.’ She did not elaborate on the nature of the ‘compelling risk’ or on the source of the evidence that there was one. My best guess is that she is hoping to find a Dr Shipman lurking amongst the ranks of counsellors and psychotherapists which will trump logic, reason and politics and allow the HPC to romp home with their prize. It is worth recalling the warning Mr Seale gave to the College of Psychoanalysts when they visited him on 27 March 2009: the HPC would, he said, launch a media campaign to discredit them, using the message ‘Don’t use these people’. When it was pointed out to him that this would create a lot of protest, Seale replied – with glee – that ‘We can afford a better advertising agency than them’ (http://www.psychoanalysis-cpuk.org/HTML/HPCMeeting0209.htm).

Then Annie Turner (PLG member for C&P) picked up the theme: ‘The current climate appears to be through voluntary regulation, but we shouldn’t abandon what we have achieved. It would be a mistake. We have learned a lot, and we could use it to advance public protection. Let’s look at voluntary regulation. When we set it up, let’s look at standards, areas of risk, and assess whether voluntary regulation is appropriate. It would be foolhardy to abandon work we’ve done.’ What she can possibly mean by ‘we have learned a lot’ is anyone’s guess. Annie Turner constantly showed her inability to understand the issues at stake in regulating counselling and psychotherapy and consistently advised the PLG to invent standards that had nothing to do with current practice but that could, rather, fit the HPC. The PLG ended in disarray. Even after double time had been allowed, they failed to reach agreement on any of the basic questions – see the report by eIpnosis at http://ipnosis.postle.net/pages/LastPLGReportl.htm .

Of course, you won’t find this acknowledged at the HPC, and, as might have been expected, the chair of the PLG, Di Waller, said: ‘We have done what we have done for public protection, this has always been our remit, and I see no reason to abandon our principles right now…’ Mostly, what Di did at those PLG meetings was ‘park’ difficult issues, ‘put them in the pot’ until later, and postpone things.

While we are on the subject of principles, it might be worth remembering that the Arts Therapists recently wrote to the HPC saying that they had never considered the HPC Generic Standards as applying to them. Those standards are frequently cited as the method by which the HPC assures public protection. There is no evidence that they do, in fact, improve public protection, but this should not deflect us from the presence and acceptance of the cynical attitude here (reported in this blog on 3 Dec 2010, and published in Self & Society, vol 38, no 2, winter2010).

Then Mary Clark Glass, whose dander was still up, said: ‘We assess the risk, and we decide… We do not see this letter [from Anne Milton] as saying ‘no more statutory regulation’. To reflect a moment – it was at the first PLG meeting that a couple of observers in the ‘public gallery’ shouted ‘What is the source of your evidence?’ when two members in particular were playing fast and loose with statistics. At the second meeting, Mary Clark-Glass approached me with a pamphlet, and, riffling through its pages, stated that the evidence was ‘here’. I found none and was unable to persuade her to acknowledge this. She appeared confused and gestured vaguely at the pages before turning away altogether. It was one of many Kafkaesque moments I’ve experienced at the HPC. Exactly what she means by ‘we assess the risk’ is anyone’s guess. In the light of her radical rewriting of Anne Milton’s letter, we might expect it to mean ‘we do what we like’.

Three Council members with less personal involvement nevertheless echoed the tribal call: ‘we have a duty of care towards the public, we’ll do voluntary first, or statutory’… ‘step by step we’ll … proceed with assured voluntary regulation first, then …’ Finally Anna van der Gaag quietly assured the Council that they had concluded. She ‘summarised’ by saying ‘there is huge complexity, more work to be done, we have made an in-principle decision … our actions must be based on Public Protection, and that Statutory Regulation is still an option.’

On the steps outside the HPC, one attendee from the public gallery noted that the HPC were delusional in their misreading of Anne Milton’s letter. They had also managed to completely avoid any mention of the letter sent to Council members by the Alliance for Counselling and Psychotherapy, or from the Psychological Professions Alliance Group (PPAG), who wrote to say that ‘while we are exploring with CHRE the main option of a system based on the accreditation of existing voluntary registers, it would be helpful if HPC did not pursue for the moment the setting up of its own voluntary register. Such a move might serve to muddy the water of the dialogue we now need to have with CHRE’ (quoted from New Associations, Issue 5, Spring 2011, p2).

It is quite clear that the HPC has no interest at all in the real problems involved in the regulation of this group of practices, most of which depend on networks of knowledge and experience amongst its practitioners. In opposition to this, the HPC has declared itself willing to break the networks and has probably set in motion a process to seek a scandal to frighten the business into its nets.

In the meantime, the murder of language, the ongoing lack of rational discussion about the kind of regulation that is implied by the HPC and the absence of credible evidence in the decision-making process cry out to be addressed before any more business is passed its way.

Alliance for C&P - Open Letter to HPC Council Members

2011-03-14T12:04:00.004Z

Here is the text of the Open Letter from the
ALLIANCE FOR COUNSELLING & PSYCHOTHERAPY to
Members of the Council of the HEALTH PROFESSIONS COUNCIL

12th MARCH 2011
CALL TO COUNCIL MEMBERS
The Government's unmistakable and welcome change of policy concerning statutory regulation means that the time has come for the HPC to withdraw from the fields of counselling and psychotherapy. The Alliance has consistently argued, as did all the professional bodies when it was first announced, that the HPC is an inappropriate regulator for the activities of counselling and psychotherapy. Thousands of practitioners have agreed with us.

In addition, the recent decision in the High Court to allow a Judicial Review of the HPC's conduct has seriously undermined public trust in the HPC.

We now call upon the Council Members of the HPC to instruct the Executive to desist from claiming that there is a compelling public-safety risk attached to the professions of counselling and psychotherapy, such that a case might be made for statutory regulation.

We further call upon the Council Members of the HPC to instruct the Executive to desist from attempting to open a voluntary register, or registers, for counsellors and/or psychotherapists.

NO CASE FOR STATUTORY REGULATION
In seeking to justify statutory regulation, alarming figures on the prevalence of abuse have frequently been claimed. However, such data stem from research carried out on other professions, usually in other countries, and often many years ago. There is no evidence whatsoever of a correlation between studies of American psychiatrists and psychologists conducted decades ago and the behaviour of counsellors and psychotherapists working in the UK in 2011; yet such unsubstantiated claims of statistical equivalence have been misleadingly presented to the HPC as if they were established fact.

Even allowing for under-reporting, the incidence of complaints in our field is very low in both absolute and comparative terms, and the number of cases that lead to practitioner striking-off is tiny. For instance, in 2008 the British Association for Counselling and Psychotherapy (BACP) conducted an audit which found that the rate of upheld complaints had not exceeded 0.072 per cent over a ten-year period. The Alliance shares the view, held by most practitioners in the field, that the Government’s preferred option of quality-assured voluntary regulation (QAVR) will be more than adequate to deal with any existing or future misconduct; and the Alliance will do all in its power to ensure that QAVR is robust, effective, and consonant with the core values of the field.

We are particularly concerned about the credibility of any ‘research’ which may be produced by private companies describing themselves as 'clinics' who offer to work with the victims of professional misconduct by counsellors and psychotherapists. Such companies offer therapy – on a private fee-paying basis, often at extremely high rates – for those who may have suffered from, or engaged in misconduct. Given the obvious potential for a conflict of interest, we would urge Council to be very sceptical indeed about the objectivity of any such research. In fact, serious academic research into misconduct is, at present, lacking.

The Alliance believes that professional misconduct by counsellors and psychotherapists should be dealt with by a complaints system that is fit for purpose, being robust yet sensitive to the unique particularities of work in counselling and psychotherapy. HPC's Fitness to Practise system was widely criticised across the entire field of counselling and psychotherapy, even by those who are in favour of statutory regulation.

SAY 'NO' TO VOLUNTARY REGISTERS HELD BY STATUTORY REGULATORS
With regard to the power given to the HPC to establish voluntary registers for groups of health and care workers not currently statutorily regulated: we do not believe that the Department of Health ever anticipated that the HPC would seek to establish such a voluntary register for counsellors and psychotherapists. Given the model of accreditation to be employed by the Council for Healthcare Regulatory Excellence (CHRE), we can anticipate a potentially schismatic situation wherein the HPC and the existing professional bodies effectively compete to register counsellors and psychotherapists on a voluntary basis.

The CHRE has clearly stated that it believes statutory regulators should not hold voluntary registers where an existing alternative already exists. The CHRE believes that this would be confusing to the public, and would undermine the credibility of the entire accreditation system. The Alliance strongly concurs with this view.

The HPC has no experience whatsoever of working as a regulator outside of its existing approach based on legal protection of title. To expect a major culture change to take place within a short period as the organisation is forced to embrace the voluntary principle is entirely unrealistic.

HPC MUST WITHDRAW
For all these reasons, the Alliance seeks a clear declaration from the Council, to the effect that it will instruct the Executive that HPC should now gracefully withdraw from the fields of counselling and psychotherapy.

ALLIANCE FOR COUNSELLING & PSYCHOTHERAPY www.allianceforcandp.org

E&T Comm 10 March 2011: a problem for hearing aid dispenser graduates

2011-03-14T09:25:00.003Z

At the end of the E&T committee, about 1.05pm, there was a small discussion about a problem that had arisen for new graduates of courses for hearing aid dispensers. This profession had been transferred without comment into the hands of HPC on 10 Feb 2010, and the old Hearing Aid Council (HAC) had then been dismantled.

A little glitch had led to a problem for students on courses during this takeover period. People who graduated under the HAC were eligible to apply for HPC registration, and graduates on courses which commenced after the handover date were also clearly eligible. But students who were on courses during this period were left in a black hole when administrators interpreted the handover date ('approval date') to mean that only training courses begun after the date of approval were eligible pathways for HPC registration. Hundreds of application forms had been returned to the new grads who were rejected as HPC applicants, and therefore denied the right to work.

These recent Graduates had no other option but to appeal the decision as the bureaucratic machinery was in motion. The administrator reported to the E&T committee that 'a former member of the Hearing Aid Council happened to be sitting on one of these appeal panels, and he confirmed to us that the approval date was meant to apply to all courses in action, and not just for those yet to begin.'

The administrator showed no sign of embarrassment at the botch up, and I wondered whether he thought that it wasn't the HPC's responsibility. It is also perhaps worth mentioning that the Director of Education at HPC is young woman, which is simply to say that the title 'director of education' probably doesn't mean that she 'directs' any 'education' and may even have no experience of ever having done so. I shall ask for the job spec to be sent.

Ed & Training Committee 10 March 2011. Service User Involvement

2011-03-14T06:51:00.007Z

At last week's Education and Training Committee (10 March 2011), there was an item on the agenda for discussion about 'service user involvement'. A difficult issue which had been discussed at previous meetings. A member of the exec had prepared a paper to help.

Discussion was opened in a careful and measured way by acting chair Jeff Lucas ('lay' council member, and Deputy Vice Chancellor at Bradford, where he is also Prof of Health Studies) who noted the absence of any definition of the term SUI. Is it a patient, a student, an employer? It is a very general notion. Di Waller (art therapist, council member and Professor at Goldsmiths College) backed him up - 'we need to know what we are on about before we put in another standard, a legal standard.' They both welcomed the opportunity to commission some research into the question before going ahead, tho Prof Lucas did note that the budget would only pay for 25 days of research time.

Then Joy Tweed (a lay council member, and part time lecturer in integrated governance in health care at Westminster Uni), who seemed frustrated and quite passionate, invoked a 'democratic right to be involved' and argued that 'even if we can't find research that it adds value, we need to do it'. She added a slogan to reinforce her point: 'nothing about us, without us'.

Penny Renwick (chiropodist/podiatrist, council member and associate dean of health, psychology and social care at Manchester Metropolitan University) said "I strongly support Joy, we have to get the boat on the river before we find the evidence', and John Donaghy (paramedic, council member, and lecturer at Hertfordshire Uni) said 'this is best practice in the NHS whether the evidence is good or bad'.

Anna van der Gaag (not a committee member, but Chair of the HPC, and a speech therapist) encouraged the committee to get going 'on a journey we don't know the end point of' and Marc Seale, CEO, brusquely chivvied things on by reminding the committee that 'this has been discussed ... you must give us a clear steer in an ambiguous ... we can't help you ... you must provide us with ammunition... we really need to get going ... if we do the research it will take till April ...' etc. Practical problems were thus thrust firmly out of view.

Jeff Lucas admitted defeat when he closed the discussion saying 'we believe it has been proven elsewhere,' he seemed somewhat cowed when he added 'we have this belief, this value'.

This committee of 19 people come together quarterly to make decisions which the HPC exec and administrators implement through the agency of the partners.

The standards are the instrument of legal power, delegated by Parliament via statutory instrument.

Gov dumps plans to regulate psys by HPC. Statement fromThe Alliance for Counselling & Psychotherapy

2011-02-17T10:28:00.003Z

February 17th 2011

Statement from the Alliance for Counselling and Psychotherapy on the Government’s Command Paper, ‘Enabling Excellence: Autonomy and Accountability for Healthcare Workers, Social Workers and Social Care Workers’ (Cm 8008)

GOVERNMENT ABANDONS STATUTORY REGULATION IN FAVOUR OF NEW VOLUNTARY APPROACH

The Government yesterday published its Command Paper ‘Enabling Excellence’, which provides further detail of how proposals in the recent Health and Social Care Bill affecting counselling and psychotherapy are to be implemented. The Alliance for Counselling and Psychotherapy is delighted to see that, with the exception of herbal medicine (as required by EU law), the Government is not proposing to extend statutory regulation to any further professions. Thus the state regulation of counselling and psychotherapy by the Health Professions Council (HPC) and the legal protection of the titles counsellor and psychotherapist – as proposed by the previous government and consistently opposed by the Alliance – will not now go ahead.

Instead, a voluntary system for unregulated professions will be developed under the umbrella of the new Professional Standards Authority (previously the Council for Healthcare Regulatory Excellence: CHRE). Rather than a costly and intrusive system requiring compulsory registration and the monitoring of thousands of individual practitioners, the new approach will be based on ‘quality assurance’ of voluntary registers, such as those already held by many organisations in a number of fields. Under certain circumstances, existing statutory regulators will also be empowered to set up voluntary registers, though it is as yet unclear whether they will do so. The Government’s rationale for this substantial shift in policy echoes many of the arguments put forward by the Alliance, recognising that the case for across-the-board statutory regulation has not been made, and that its imposition would constitute a disproportionate and inappropriate response:

“Regulation of the health and social care workforce is sometimes necessary where there are significant risks to people using services which cannot be mitigated in other ways. However, in recent decades compulsory blanket statutory regulation of the health and social care workforce in England has too often been seen as the first resort, rather than the last, in deciding how best to assure safe, effective and respectful care. Where regulation has been extended, there has not always been a robust and transparent case made based on the level of presenting risk.”
(http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/dh_124374.pdf p. 16)

The Government has also clearly taken account of the potential negative impact that statutory regulation could have in the voluntary and lower paid sectors, where many counsellors in particular work:

“If regulation of this type were to continue to be extended to all groups where the previous administration had made commitments to introduce regulation, an additional 1.3 million workers (many of whom are in relatively low paid support roles) would be obliged by law to pay registration fees in order to continue to pursue their livelihoods.” (ibid., p. 16) (note: the paper states that this figure includes counsellors and psychotherapists)

The Command Paper goes on to say that:

“For the overwhelming majority of occupational and professional groups which are not currently subject to statutory regulation and which are generally not considered to present a high level of risk to the public, but where recommendations that regulation should be introduced have been made (including those groups recommended by the HPC for statutory regulation in the past, but not yet registered) [such as counsellors and psychotherapists – Alliance note] the assumption will be that assured voluntary registration would be the preferred option.” (ibid., p. 18)

The Alliance welcomes the Government’s change of direction, awaits with interest further details of the voluntary registration model, and looks forward to making a significant contribution to making the new arrangements work effectively to enhance accountability across the field. We recognise the key role that ministers Anne Milton and Lord Howe have played in this policy change, and are hopeful that this may herald a more flexible and consensual approach, not only with regard to regulatory policy, but also in other areas of concern such as the National Institute for Clinical Excellence (NICE) guidelines and the limited range of therapies which are currently available within the Increasing Access to Psychological Therapies (IAPT) programme. The Alliance will continue to argue strongly, as it has done since its inception, that it is neither appropriate nor helpful, for the public or for practitioners, that the Health Professions Council continues to involve itself in this field. The Alliance has always believed that a counterweight was needed to the centralising, standardising and protectionist tendencies which all professions tend to exhibit, and which were exemplified by, and a key driver of, the HPC project. To the contrary, as people who work therapeutically with the human condition, we stand for diversity, responsibility, autonomy and innovation.

Finally the Alliance wishes to thank its many supporters for their much-valued role in helping to bring about this notable change of policy.

Contact: info@allianceforcandp.org web: www.allianceforcandp.org

Good news: statement from Andrew Lansley

2011-02-16T23:31:00.003Z

Written Ministerial Statement

DEPARTMENT OF HEALTH

Regulation of healthcare Workers, social workers and social care workers

Wednesday 16 February 2011

The Secretary of State for Health (Mr Andrew Lansley): Safe, respectful and effective care is essential and should be what all users of health and social care services experience.
The vast majority of those who work in health and social care are committed individuals with a strong sense of professionalism who aspire to deliver the highest standards. However, where there is poor practice or behaviour that presents a risk to the public, it is vital that swift action is taken, whether by employers, or by national regulatory bodies.
Ensuring a strong and effective system for regulating health and social care professionals is one of the cornerstones of our strategy for delivering improved outcomes for people who use health and social care services. The current system of professional regulation helps to ensure this by setting high standards of education, training, conduct and ethics and by taking action to remove unsuitable workers in the rare cases when things go wrong. Regulation of healthcare workers and social workers therefore makes an important contribution to safeguarding the public, including vulnerable children and adults.
However, the regulatory framework is also complex, expensive and requires continuous Government intervention to keep it up to date. More generally, reducing regulation is a key priority for the coalition Government. By freeing society from unnecessary laws, the Government aims to create a better balance of responsibilities between the state, business, civil society and individuals, and to encourage people to take greater personal responsibility for their actions.

Whilst regulation of some professionals is vital to ensure high standards of care, it is only one component of a wider system of safeguards, controls and clinical governance and ultimate responsibility for the provision of high quality services must rest with employers and those contracting with health and social care workers. We believe that the approach to professional regulation must be proportionate and effective, imposing the least cost and complexity consistent with securing safety and confidence for patients, service users, carers and the wider public.

I have today laid before Parliament a Command Paper, Enabling Excellence - Autonomy and Accountability for Healthcare Workers, Social Workers and Social Care Workers (Cm 8008) setting out the Government’s proposals for how the system for regulating health care workers across the United Kingdom and social workers in England should be reformed, to sustain and develop the high professional standards of those practitioners and to continue to assure the safety of those using services and the rest of the public.

The reforms, many of which are being progressed through the Health and Social Care Bill, will give greater independence to those who work in health care across the UK and social care in England, to their employers, and to the professional regulatory bodies; balanced by more effective accountability in how they exercise that freedom.

We will seek to drive up standards for some groups of unregulated health and social care workers to improve service users' experience through a system of assured voluntary registration. Employers and commissioners will be able to give preference to workers on voluntary registers to ensure that they contract with suitably skilled and qualified workers. In line with the Government’s overall social work reform programme, the proposals will also strengthen social work as a profession in England.

Enabling Excellence - Autonomy and Accountability for Healthcare Workers, Social Workers and Social Care Workers is available to hon Members from the Vote Office and to noble Lords from the Printed Paper Office.

LINK TO COMMAND PAPER HERE

The collapse of HPC procedure on capturing Counselling & Psychotherapy

2011-02-07T10:41:00.003Z

Here's a link to a report of the final meeting of the Professional Liaison Group for Counselling and Psychotherapy. As we know, the process for capturing this field was originally supposed to end in October 2009. It failed. Instead of recognising its inappropriateness as regulator for this practice, the HPC scheduled another set of meetings, and relied on its power to shove things through regardless. The PLG was given another year to come up with the all important standards and entry requirements. It failed again. Instead of admitting defeat, the HPC still clings to its power and in a dazzling display of nincompoopery Di Waller and Marc Seale vowed 'this is not the end'. Annie Turner, true to form, reckoned the Council would settle it all with a vote. After all, it will be easier for them to decide on entry standards etc, not being cluttered up with any knowledge of, or responsibility for the practical problems and all. In fact this will even guarantee them a good supply of complaints from the field in future which can be counted as 'proof' of their indispensability! Click the heading to read the report.

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

2011-01-29T11:40:00.003Z

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.

Some context to this HPC struggle - The state of British Higher Education

2010-12-28T12:31:00.004Z

My thanks to colleagues who pass links on to me. This one was received last night (Simon Head, The Grim Threat To British Universities, January 2011), and is a grim reminder of the context of problems we are struggling with here. The HPC is one particular manifestation of an ideology set in motion decades ago and which has wide reaching and multiplying effects. Richard Gombrich's speech in Tokyo 2000 was one of the earliest accounts of the structural shifts playing a part in today's drama. The transcript of his talk has been mentioned here before, but is always worth a re-read, and can be found by following this link here.

Prof Gombrich was one of the dons referred to early in Head's article (click here for link to full article) who moved against giving Mrs Thatcher an honorary doctorate. Here is the paragraph from Head's NYRB article:

"In the UK this system has been gathering strength for over twenty years, which helps explain why Oxford and Cambridge dons, and the British academy in general, have never taken a clear stand against it. Like much that is dysfunctional in contemporary Britain, the imposition of bureaucratic control on the academy goes back to the Thatcher era and its heroine. A memorable event in this melancholy history took place in Oxford on January 29, 1985, when the university’s Congregation, its governing parliament, denied Mrs. Thatcher an honorary Oxford degree by a vote of 738–319. It did so on the grounds that “Mrs. Thatcher’s Government has done deep and systematic damage to the whole public education system in Britain, from the provision for the youngest child up to the most advanced research programmes."

Other recent articles on this theme include Stefan Collini's 'Browne's Gamble' in the London Review of Books Nov 2010 (click here), Terry Eagleton in the Guardian 17 Dec 2010: The Death of Universities, and Stanley Fish 'The Value of Higher Education made Literal" New York Times, 13 Dec 2010, which begins like this:

"A few weeks ago at a conference, I listened to a distinguished political philosopher tell those in attendance that he would not be speaking before them had he not been the beneficiary, as a working-class youth in England, of a government policy to provide a free university education to the children of British citizens. He walked into the university with little knowledge of the great texts that inform modern democracy and he walked out an expert in those very same texts."

Simon Head's article, like that of Richard Gombrich, Conrad Russell (Academic Freedom, Routledge 1993), Max Travers (The New Bureaucracy, Policy Press 2007), Marilyn Strathern (Audit Cultures, Routledge 2000), and Michael Power (The Audit Explosion, Demos 1994), to name but a few, all point to the particular mode of administration that is used in this new wave, and the vacuum that it creates. The collapse of the system comes a few decades down the line by which time no-one is in any position to know what caused it. The creation of a muddle is one of proliferating the effects of the wave. It abandons the field of explanation to currents of less enlightened action. The HPC is modelled on just such a 'particular mode of administration' with signs of just such a vacuum in the making.

Letter from Bindmans to HPC Monday 20th Dec 2010

2010-12-23T17:49:00.000Z

Dear Ms McIntyre,

Thank you for your confirmation of the arrangements for filing the draft Order.

I write on a related matter of considerable concern to my clients. It is that, following their agreement to your client’s proposal for an extension of time to enable a dialogue to take place about whether this claim might be settled, they became aware of a blog entry posted by Ms van de Gaag, the text of which is reproduced below.

The blog is objectionable on a number of levels. It presents the HPC’s arguments highly selectively; nothing is said of its contention that my clients’ case was unarguable, which was roundly rejected. It does not report the Judge’s actual decision on delay which was that there had been none and, in any event, that my client’s and others had been actively misled by the HPC about what was, and what was not, under consideration. It trivialises a case which the Judge described as “important” as a technical dispute about “points of law”. Fundamental questions about whether the HPC exceeded its legal powers are characterised as ephemera (“who did what and when and according to which process or guidance or directive”). It positively asserts that my clients’ complaints should be directed at the government, notwithstanding that very argument being rejected by the Judge. Last, it inaccurately describes progress in working relationships and development of standards, when the reality is that views on these matters remain polarized. One of the reasons for that is that the PLG has a narrow membership and has taken no meaningful steps to engage with those professionals who hold different views.

Had my clients been aware of the blog at the time they were considering your proposal for an extension of time, it is very unlikely they would have agreed to one. That is because, despite the nod to seeking common ground, the remainder of its contents suggest that the HPC’s position is entrenched and defiant (e.g. “[w]e can and probably will continue to argue”) rather than constructive and conciliatory.

My clients have no intention of responding in kind. They would like the blog removed from the HPC’s website immediately, however. When considering whether to not to agree to that request, your client should bear in mind the impact that refusing to agree to this reasonable request will have on the prospects for success in negotiations which, I remind you, it has sought.

I hope to receive confirmation the blog has been removed by close of business today.

Yours sincerely,

John Halford
Bindmans LLP

UKCP Statement following Judicial Review Permission Hearing

2010-12-23T13:50:00.002Z

Below I have reproduced a report that has been widely circulated both within and outside the UKCP. I have posted it here for information of those who might not get to see it via the usual channels. Also, if you click the title of this blog you will find it linked to a statement by UKCP Chair and CEO.

REPORT FROM LEGALLY QUALIFIED LAY TRUSTEE OF UKCP TO THE BOARD

Having just returned from the preliminary hearing, I would like to provide the Board with a brief report.

As you can imagine, there was a great deal of detailed discussion as to matters of fact and law but it boiled down to the following: the judge declared that the claimants (AGIP, AIP, Centre for Freudian Analysis and Research, College of Psychoanalysts – UK, Guild of Psychotherapists and The Philadelphia Association) were entitled to proceed with their application for judicial review of the conduct of HPC in making recommendations to the Secretary of State for Health regarding the regulation of psychotherapists and counsellors. This is what HPC were seeking to avert at today’s hearing.

Specifically, the judge rejected HPC’s arguments that the claimants were too late to lodge an action for judicial review and ruled that the claimants were entitled to proceed with their application for judicial review on all the grounds they had claimed. He suggested that there was some common ground and that the parties might meet.

There was considerable and detailed discussion about whether in acting as it did, HPC was simply conducting a feasibility study to assess its capacity to regulate psychotherapists and counsellors, as opposed to undertaking a broader exercise of making recommendations about statutory regulation of those professions. The judge concluded that the claimants were entitled to believe that it was the latter and not the former (despite HPC’s argument to the contrary) in view of the evidence presented to the court.

In a move I understand to be unusual in cases of this kind, the judge ruled that HPC must pay 1/3 of the claimants’ costs of today’s hearing.

From my observations of the hearing, the salient points were:

None of HPC’s arguments succeeded on the day;
Having heard the claimants’ submissions, the judge informed counsel for HPC that he was looking for some “knockout points”, which I took to mean he thought the claimants had made a convincing case. Having heard HPC’s case, he still ruled in favour of the claimants;
Unusually, a costs award was made in favour of the claimants so HPC is having to pick up some of the claimants’ costs.

Press release from The Alliance on the HPC's misleading statements to Government and Stakeholders

2010-12-14T11:57:00.005Z

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.

Report of the Preliminary Hearing of request for Judicial Review of HPC, from The Alliance

2010-12-12T15:45:00.003Z

Arrive at the Royal Courts of Justice, The Strand, London, Friday 10 December 2010, around 10.00am. There’s a gaggle of press outside waiting for the protagonists in the South Africa murder case. Pass them, and up the steps to the main front door, into the right-hand queue to pass bag through the X-ray scanner, and walk through the magnetic doorway. No need to give a name, or say where you’re going. Up the stairs and down the grand corridor, men and women flying past in billowing black gowns and curly wigs, piles of papers under their arms.

Room 7, on the right, has a little antechamber for your hats and coats; the hearing room within is wood panelled, with high ceiling and dangling dark chandeliers; the windows are all leaded lights. In the corner of the room, there is a door leading into a kind of enclosed balcony that juts out into the room – metal bars define its sides and extend completely over its top. There are rows of wooden pews sloping down to the little platform for the administrators, behind them the high wooden wall of the platform atop of which a line of green lamps stand ready to light the Judge’s volume of papers. The pews fill up. An earnest and affable young man in gold-rimmed glasses approaches to introduce himself - John Halford, solicitor - and the legal team that are representing us. Three other teams are there – there are four cases that make up the business of his Lordship Justice Burton today. Marc Seale, Anna van der Gaag and a handful of HPC administrators turn up and sit just in front of us. A rap on the door at the top of the room, and Mr Justice Burton bursts in with a huge lever-arch file of papers under his arm. ‘Court Rise’, says a voice, and we do. Then, bang – straight into the business.

Justice Burton dispatches the first case (a willing deportation) in less than fifteen minutes, telling the representative for the Home Secretary to rewrite his letter to the Saudi Arabian embassy and to ask for a reply within four weeks. In Saudi there is no Christmas delay, said the Judge, as the barrister tried to remonstrate about the shortness of time. There is a sigh of relief amongst our party, now crammed into the back rows of the pews – this man is practical, sensible, humorous, and efficient; there is hope for our case.

We learn that we are the main case of the day when Justice Burton apologises to the quiet, elderly gentleman sitting in the front row that his case won’t begin till 3.15pm. So many cases here are listed as little people versus big institutions. The judge invites the man to come back at 3.00pm, warning him that it would be boring to sit through the detail of the Health Professions Council. Mr Justice Burton checks himself with a wry smile, and looks at Dinah Rose, QC (representing the PsyReg group) and says ‘though it’s never boring when you are on, Dinah Rose’. Our hearts lift again – this might even be fun!

It was not yet 11am when Ms Rose stood up and she was still on her feet nearly two hours later. At lunch a colleague compared her performance to that of a dancer. She won the Lawyer Awards’ Barrister of the Year in 2009. She certainly had grace and dexterity, she had precision and energy, she was not clumsy or brash, and showed no sign of personal enjoyment in the points she was making, she nimbly stepped past all interruptions; and by the time she had finished, and she had put in place the basic principles and context within which the case against the HPC should be heard.

One question for exploration in this preliminary hearing was the relation between the HPC's activities and the mandate they had apparently been given by the 2007 White Paper – Trust, Assurance and Safety. This was at the heart of the HPC defence. It gave the HPC the task of regulating psychotherapy and counselling following the assessment both of the ‘regulatory needs’ of the talking therapies and whether ‘its system is capable of accommodating them’. A key issue was what ‘following’ meant: was it a contingent detail or, as the judge suggested, to be understood in the conditional sense of ‘provided that’? The HPC argued that they had simply told the Government that they were capable of accommodating the numbers, doing a kind of logistical, ‘mechanical’ exercise, without making any actual recommendation in their final letter to the Secretary of State in December 2009. The Judge summed this up as, ‘They had big buildings and enough photocopiers’. The HPC argued that it had not addressed the question of whether they had ‘the right standards and approach to regulate this field’ and therefore couldn’t be faulted on points of procedure or power. Dinah Rose repeatedly produced documents that proved the HPC were progressing as if they had done the prerequisite work on their capacity to regulate the field. The inherent duplicity of the HPC’s position was repeatedly exposed with written evidence, and, of course, succeeded in undermining the HPC argument. In the December 2009 letter, they actually stated that they had assessed the regulatory needs of the field and their capacity to accommodate those needs, while, in other correspondence, denying that they ever attempted this.

Rose quoted from the 1999 Health Act, the Health Professions Order 2001, the HPC’s own Guidance Documentation, the Government White Paper (Trust, Assurance and Safety, 2007), and from the Maresfield Report 2008, to build her case. A point made early in the proceedings was that the HPC often implies that those who disagree with them are seeking to avoid regulation for scurrilous reasons – the facts, she said, show quite clearly that the opposite is the case. Yes, echoed Mr Justice Burton, the opposite.

Rose stated that the HPC has no inherent power and cannot do what it likes, but has powers designated specifically to it via the legal statutes. By careful scrutiny of these statutes, she argued that they had been acting outside their powers, and that even if they weren’t acting outside these powers, then they were not following correct procedure. ‘The main purpose of this application’, she said more than once, ‘is to inform Government that when it makes its decision it should not listen to the HPC recommendations because, these are flawed’.

The HPC tried to argue that the Secretary of State for Health should have done the background work on whether the HPC was capable of actually regulating this group of practitioners. Dinah Rose countered this by saying it ‘cannot possibly have been the Government’s intention’, and produced letters (e.g. from the then Secretary of State, Ben Bradshaw, and from Mr Seale himself) and even reports (from the PLG) to show that this cannot have been true. All the evidence clearly showed that the HPC was ambivalent, at best, on the question of whether or not they were simply offering their hardware to help the government out, or whether they were seriously considering the reality of regulating this particular practice.

The second question which this hearing had been asked to consider was the point that the PsyReg group was too late to raise objections. Plenty of evidence (again, including letters from the HPC itself) was produced by Ms Rose to prove that they were not at all too late.

The HPC had been asked to consider how to regulate counselling and psychotherapy, and how it might be achieved. ‘Our submission’, said Rose, ‘is that they start off, decide it is too difficult and controversial, and duck the issue’. She points out that not only does the HPC know (as early as 2007) that this is a controversial question, and that many oppose it, but that this is even noted by Baroness Thornton (Labour & Co-op Peer) in Hansard in May 2009. She refers to the published minutes of the first PLG meeting which was already dealing with the tensions in the field, whereupon the Judge asked ‘Do you have people on the PLG?’ – ‘No’ she replied in a flash. ‘Hmmm’, said the judge.

Rose kept pushing her points that either the HPC didn’t have the power to say it could regulate C&P, and even if it did have that power, then it hadn’t followed the right procedure to accomplish it. There are two strands here, each one showing the HPC to be at odds with itself. They were shown to be acting inconsistently and, arguably, without integrity with respect to their own stated requirements. It was a letter from Bindmans that produced clear evidence of Marc Seale’s double-talk: in two separate letters written within a month of each other, Mr Seale claimed two conflicting and contradictory positions. ‘It is my submission’, said Dinah Rose, ‘that they’ve re-written history, taken different positions, used different reasons, are inconsistent’. She added, ‘It is not clear what their case is, they give mixed messages’. She concluded that ‘the purpose of this application is to make clear to the Government that no weight can be placed on recommendations of HPC: they have bypassed their statutory power, and their own guidance’.

When the HPC representative, Mr Fordham, stood up at 12.35pm, Mr Justice Burton looked him straight in the eye and said ‘I’m going to need a knockout point from you’, which we all took as a very good sign indeed. The QC began rather weakly, and wobbled his way forward for half an hour, managing only to muddle the various acronyms – before he sat down again we had an ‘LPG’ instead of a ‘PLG’, and an ‘HSPC’ instead of an ‘HPC’ – clearly confusing the name of his client with the name of his bank.

After lunch he came back in stronger voice, but his ‘knockout’ point still eluded him. After another half an hour, the Judge was ready to sum up. He began by saying ‘I propose to grant permission and will summarise’. A smile lit the faces in the back pews. He noted that the HPC claimed that it had not made any recommendations to the Government, yet this would be difficult to infer from their December letter. He invited HPC to rewrite or revise their December 2009 letter to the Secretary of State, to reflect the conclusions of today’s hearing. He pointed out that even if it were not decided to move to Judicial Review, the claimants would still have wrested an important statement from the HPC.

Nevertheless, Dinah Rose again pressed home the fact that the HPC was ignoring vital points, spinning others, and was happy to waste everyone’s time in order to try to save face. The Judge was persuaded, and awarded the JR permission to the claimants. Quick as a flash she stood up again and asked about the costs. In a move that seemed to be unusual at this stage of a case (i.e. costs are not normally awarded at a preliminary permission hearing), the Judge stated that the HPC must pay one third of the claimants’ costs. It was an elated group that stumbled out of the courtroom (the door of which had a hand-written note pinned to it stating ‘Court Full’) into the corridor. Their case, at last, had been genuinely heard.

Press release on JR from Bindmans LLP

2010-12-11T11:55:00.004Z

Psychotherapists win the right to challenge Health Professions Council plans for statutory regulation

Mr Justice Burton has given six psychotherapy and psychoanalysis
practitioner groups permission to proceed with what he described as an
“important” judicial review challenge to proposals for their
regulation by the Health Professions Council (HPC).

The groups' barrister, Dinah Rose QC argued that the HPC had
unlawfully ducked critical questions about whether psychotherapy and
psychoanalysis should be regulated by statute and, more importantly,
whether the HPC is fit for purpose in this context given its focus on
the measurable outcomes of medical-style interventions. Their judicial
review was ruled to have been brought without delay and was “clearly
arguable” in the judge’s view. Giving a short oral judgement, Mr
Justice Burton went on to criticise the misleading nature of HPC
statements. Practitioner groups had been led to believe the HPC were
considering and would be reporting to the Department of Health on
whether it should be the regulator in circumstances where this was
apparently never planned or done.

During the course of the litigation the Department of Health has
maintained a neutral stance and put plans to introduce legislation on
hold to await the Court’s decision. The HPC will now have five weeks
to file further evidence before the case is listed for a full hearing
in the Spring.

Professor Darian Leader of the Centre for Freudian Analysis and
Research, one of the six practitioner groups, said today:

“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 be 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 protect the public
in this difficult field can be created.”

Notes

1 The claim was brought by the Association for Group And Individual
Psychotherapy, the Association of Independent Psychotherapists, the
Centre for Freudian Analysis and Research, the College of
Psychoanalysts-Uk, the Guild of Psychotherapists and the Philadelphia
Association.

2. The campaign has been supported by many well-known artists, writers
and philosophers, including Rosie Boycott, Tracey Emin, Brian Eno,
Sophie Fiennes, Bella Freud, Esther Freud, Antony Gormley, John Gray,
Oliver James, Anish Kapoor, Hanif Kureishi, Lee Hall, Susie Orbach,
Cornelia Parker, Adam Phillips, Will Self, Gavin Turk and Slavoj
Zizek.

Judicial Review hearing goes against HPC

2010-12-10T15:47:00.002Z

The judge agreed with the psyreg groups - there should be a judicial review of the HPC. More later

Time and place of hearing re Judicial Review of HPC

2010-12-09T23:23:00.001Z

COURT 7
Before MR JUSTICE BURTON
Friday 10 December, 2010
At half past 10
FOR HEARING
CO/11791/2010 Nursing And Midwifery Council v Beja

APPLICATION(s)
CO/12334/2010 The Queen on the application of Abdullah
v Secretary Of State For The Home Department

Applications for Permission
CO/4391/2010 The Queen on the application of Jallow-Halake
v Commissioner Of Police Of The Metropolis
CO/3229/2010 The Queen on the application of Association For Individual And Group Psychotherapy
v Health Professions Council

Ours being fourth on the list may mean that we don’t get started until midday or the afternoon.

See you there