Daniel Hogan's study: regulating psychotherapy in USA

This is taken from a paper written by AM
"Has the government has considered the use of the criminal law. Daniel Hogan's 4 volume study of regulation of psychotherapists in USA has the idea that -

"Where special dangers are identified in the psychotherapeutic process and where traditional avenues of dealing with them are ineffective, special laws should be enacted. Existing fraud and sexual harassment laws should be strengthened and used to prevent some of the abuses that currently occur in professional practice. This alone would obviate much of the need for licensing."
('Professional Regulation as Facilitation, not Control' in Ethically Challenged Professions...enabling innovation and diversity in psychotherapy and counselling - Bates and House - PCCS Books, 2003

Hogan devoted Volume III of his massive 4 volume study The Regulation of Psychotherapists to a description of malpractice law and a review of malpractice suits on professional practice in particular (Volume II provided a comprehensive analysis of all laws potentially regulating psychotherapists in the USA at the time of writing). Volume III involved analysing 300 decisions from the different legal systems of the different US states. In other words his recommendation that the criminal law is examined in this way arises out of a very detailed understanding of the ways the law can be used.

What have others said? And has there been any statement by Government that this path has been considered and rejected? AM

Character control - power of HPC

When Richard Reeves did some research for a paper (co-written with Phil Mollon) on state regulation he reviewed cases from the HPC complaint hearings.

He was struck by several instances where police cautions had been issued to an individual which were non-related to professional work (e.g a chiropodist who had been involved in a ‘punch-up’ with his parents). He wondered how HPC had obtained this information – below is their reply.
------------------------------------------
Dear Sir,

Thank you for your email.

The HPC is involved in the Notifiable Occupations Scheme, in relation to the Home Office Circular 6 / 2006.

Notifiable Occupations are those in which the public interest in the disclosure of conviction and other information by the police or other officials, generally outweighs the normal duty of confidentiality owed to the individual.
Our thirteen professions are included in the list of occupations that carry special trust or responsibility under the Scheme.

Notifying bodies, such as the police, courts and other bodies, send us information about criminal offences committed by registrants if the offence is relevant to HPC registration.

I hope this information is useful to you.

With regards

Simon Thompson
Case Manager
Health Professions Council
Park House
184 Kennington Park Road
London SE11 4BU
www.hpc-uk.org

----------------------------------------------------
There is something rather troubling about this - the creation of the HPC seems to be leading to the invention of a pseudo-legal platform that is essentially moral in character. It is this that I noticed at the CHRE meeting earlier in the year, and that makes me wonder whether an unintended consequence of this mistaken endeavour is to lead to the re-invention of a psuedo state related religion.

an informal opinion from someone in law

"From a legal perspective I am struck by various statements that the scale of the risk is exaggerated and there is insufficient evidence that therapists abuse clients on a scale that warrants the costs of state intervention. That could be an interesting area to focus on:

I haven't looked at the evidence but my guess is that it might be an uphill struggle to persuade a court that the evidence is so weak as to make a govt decision to introduce some form of state regulation irrational or unreasonable. That said however it might be worth really going into the evidence issues as part of the lobbying process and if their answers are insufficient they could form part of a later legal challenge. At this stage you could ask for more detail about what evidence has the government put forward and have they yet done a cost benefit analysis (which they should do for any legislative proposal)

- i.e. sending the Dept of Health a letter saying you would like to know what evidence they are relying upon, e.g. any independent studies as to the scale of the problem, and asking when /whether they have done a cost benefit analysis for the legislative proposals (my guess is that it is still early days and because the exact form of regulation for the different sectors hasn't been decided they haven't yet had to do that sort of analysis). Even worth considering a freedom of information request along those lines (perhaps at a later stage) if you don't get a decent response. And when it comes to deciding on costs for the purpose of the cost benefit analysis it would be interesting to see what they consider to be costs - are they taking into account both economic costs and potential cost to innovation etc. This could be a weak spot to look at and lobby on.

The debate around evidence and lack of sufficient evidence might also be used to help shape the form of the state regulation if it comes to that - there are lots of different sorts of regulation and, for example, the tick box approach, at least in the financial services field, has tended to be replaced by a principles based approach which is less reductive and is better at encouraging innovation. So don't assume that there is only one sort of regulation - it might be possible to have something much more light touch and more suited to innovation and all the different sorts of therapies available. Seems to me that in bringing in this regulation idea, the govt is probably concerned about (1) inflated claims that I can cure you and (2) the range of potential unethical practices. Although in theory the courts can deal with concerns like this the fact is that the courts are expensive and scary and the govt tends to want individual complaints of malpractice to be dealt with by the professional bodies. Perhaps the key is to try to shape the regulation that comes out so that it focuses on misrepresentation (arguably already covered by the common law anyway) and proper ethics (ditto), to keep encouraging something which is very light touch."