Judicial Review of HPC and The Merits of Statutory Instruments

The proliferation of symptoms in the body politic presents too many different choices to focus on, and many of us just want to turn away and get on with our life and our work. Those who do manage to stay looking at the gorgon get tangled up in debates about the best way forward. There are those of us who want to mobilise colleagues to take an active stance wherever they are: at work, with their MPs, in their training and umbrella organisations. Others are good at writing to the newspapers, intervening in blog debates, or inventing alternative accountability strategies. One has even written a play (see below)! It is difficult to say what act is having which effect – but surely the more that people are acting according to their own abilities, ideas, and local opportunities, the better it will be.

There are two ends of a legal line that represent different positions to take up influence on which are worth looking at again in more detail: The Judicial Review and Merits of Statutory Instruments Committee (MoSIC).

First the JR. As you know, several psychoanalytic training organisations have instructed human rights lawyers (Bindmans) to begin a judicial review of the HPC, and are campaigning for support for this. At the end of this report you will find details of a fund raising event (a new play based on the current shenanigans: THERAPY, by Josh Appignanesi, Friday 9th April). And if you go to the hpcwatchdog.blogspot.com you will find the text of a letter that is full of information that you can use to send to your MP (and prospective election candidates) to keep them up to date.

In brief: in the last few days it has been confirmed that the JR has stopped the Department of Health from drafting the Section 60 legislation that is necessary to pass Counsellors & Psychotherapists onto the HPC register. However, it has also probably antagonised the HPC (and its supporters) and put them onto a more aggressive stance. For example, in recent visits to HPC HQ Bruce Scott (from the PA) and I have noted Council Members and HPC Solicitors (Kingsley Napley) more insistently pushing the message that the British public has much to fear from the skilled workers in this country. By the way, please read Bruce’s excellent account of Malcolm Cross’s FTP hearing. http://hpcwatchdog.blogspot.com/2010/03/guest-post-by-bruce-scott-on-ftp.html

The JR may also have provoked the arrival of a new campaigning group (INTEGRITY, or ISRPT) – whose eagerness to pacify the state and offer themselves up to the HPC machinery has prevented them from noticing that HPC is not at all what they demand. They think that they can change it to fit after the law has been enacted!

Perhaps more surprising is Mind’s publication of a snapshot poll which suggests that lots of its members want to complain about counsellors. This has been spun as ‘evidence’ and reproduced in full on the BACP and BPC websites. It is, however, in contradiction to what CE Paul Farmer said in October last year, and which was reported here, in PP41, 20 January 2010.

The gap between the wishes of centralised staff and those of local working people seems to be getting larger – a trend that is expected in an era of state centralisation. Evidence of this is also emerging in the huge new super-sized trade union – UNITE (created by a merger of TGWU and AMICUS). It is holding a meeting in London on Wednesday 14th April, 12.30 til 4pm for Counsellors and Psychotherapists, at 35 King Street, WC2E 8JG. Their key-note speaker is none other than the HPC Director of Policy and Standards Michael Guthrie! UKCP Chair Andrew Samuels has written to insist that the Union present a balanced case, he has been offered a place at the table.

The tension between small local actions and the leverage gained from organisational cohesion is central to this struggle. But so too is attention to the power of small strategic committees. One commentator, notes the power of the quiet work of the Merits of Statutory Instruments Committee, whose labours she has been monitoring for the last two years.

This committee, buried in the labyrinths of Parliament, published the results of its recent research (A study of post implementation reviews of secondary legislation) at the end of January this year. They have been most concerned about, well, the merits of SI that government increasingly like to use. This is a quote from their conclusion: “The NAO [National Audit Office] conducted a benchmarking study for us: it found that 46% of the sampled SIs with Impact Assessments from 2005 had not been subject to any evaluation of their effectiveness after 4 years, and only 29% had received a full post-implementation review.”

The secretary to this committee has been most courteous and helpful to those of us who wrote in to raise our concerns when the draft Section 60 order (to hand over the psychologists to the HPC) was going through parliament last summer. She also wrote to me recently to confirm that the committee is very aware of the concerns our profession has about the impending HPC regulation. She invited us to get in touch when and if the S60 enters parliament later in the year:

“The Committee is very aware of the stakeholders' concerns over the regulation of psychologists and therapists. Currently it has no scope to influence the development of the legislation, our remit only runs once the final version of the instrument has been laid before Parliament. However as soon as the 2nd Order is laid, if it is laid, the Committee will be very interested to hear your views on the proposals.” (email, 1 Feb).

A colleague has pointed out that the research undertaken by the MoSIC has resulted in a new strategy of action for them and thinks it is this that is the real coup against HPC’s intention to blunder on with the S60.

The report’s main recommendations are:

* Government should take a more active role in supervising both Impact Assessment (IA) and Post-implementation Review(PIR) systems to ensure that the approach is appropriate and the reviews are done. The formats for both should be more closely aligned in terms of content and method.
* Departments should ensure that all IAs include a clear statement of the baseline position against which the change introduced by the legislation can later be measured to assess whether the success criteria have been met.
* Departments should propose arrangements for PIR in the consultation exercise on the draft regulations that are appropriate and proportionate to the content of the regulations. This applies just as much to public sector legislation as to that which affects business.
* All PIRs/evaluations on Statutory Instruments should be published online, alongside the original IA.
* Each Department should establish and maintain an online register of its legislative portfolio to track PIR commitments, aid consolidation, and also to smooth transition when machinery of government changes are made.”
http://www.parliament.uk/parliamentary_committees/merits.cfm

This suggests the MoSIC will not allow any future SI to proceed on its journey through parliament, UNLESS AND UNTIL IT PROVIDES STRONG BASELINE EVIDENCE against which it can then measure an improvement as a consequence of its passage into legislation. That is, unless it is clear what harm already exists, the SI cannot hope to persuade anyone that it will improve the situation. It is now necessary for any government to prove that there is harm of a significant level before it wades in and tries to cure that harm with a SI. If the MoSIC does indeed possess the power to prevent a draft S60 from entering the parliamentary process, then this could also be why the DH has stopped its drafting.

On this theme it is also worth noting that the Alliance wrote directly to Anne Milton (Conservative) and Normal Lamb (Lib Dem) to ask what their policy will be re regulating counselling and psychotherapy in the up-coming election. Tho still awaiting reply from Milton, a response arrived from Norman Lamb’s office within the hour. It said that the Lib Dem position is to support the introduction of statutory regulation (Lord Alderdice must influence this), but to also understand that concerns are loudly expressed in this field. The reply went on to say that regulation should not be used as an excuse to exclude people from practicing legally if there is no evidence that their methods are harmful (email of 2 Feb 10).

By the way, UKIP is opposed to the Government’s intention to regulate counselling and
psychotherapy through the Health Professions Council. It says their proposals are unnecessary,
costly and impossible to enforce properly. Check their manifesto: http://www.ukip.org/media/policies/UKIPhealth.pdf

So, the hard work of the many people beavering away in their various ways seems to have actually managed to bring the headless machine back under some kind of thoughtful control, tho the JR seems to be the biggest spanner in the works, the one that Marc Seale actually has to take account of. The animosity of those still hoping to gain access HPC machinery still has to be encountered and dissipated. We can expect trouble, but also keep on keeping on. And in the meantime, here’s something nice to look forward to:

Friday 9th April, 2.45 for a 3pm start (ends approx 4.30pm) - a special reading of the new play THERAPY about the clash between the values of psychotherapy and those of the Health Professions Council. 'Therapy' is written by Josh Appignanesi (whose new film 'The Infidel' opens in April) and directed by Matthew Lloyd, whose recent production of 'Duet for One' at the Almeida was highly acclaimed. A hilarious satire, drawing on a detailed knowledge of the current debates while at the same time being accessible to those from outside our field. Richard Schiff from 'The West Wing', will play the therapist. Expect terrific actors, and reserve your seats as soon as possible. The reading will take place at the Vaudeville Theatre, 404 The Strand, London, and the proceeds will go towards the JR Fighting Fund. Tickets are £20 and can be reserved by phoning 0845 838 0829

Template letter for your MP: News of Judicial Review of HPC

[Below is a text you might use to write to your MP, and perhaps the other election candidates, to let them know the issues. It has been prepared by the organisations connected to the JR process]

I think you will be interested to read this update on the judicial review of HPC's process regarding the proposed regulation of therapists and counsellors.

The judicial review of HPC is now in its first stage. Documents prepared by Dinah Rose QC and John Halford of Bindmans have been sent to the High Court which point to problems with the HPC's actions to date. It had been charged with assessing the regulatory needs of counselling and psychotherapy and whether its own system was capable of accommodating this field, yet proceeded as if this was a foregone conclusion. Despite stating several times unequivocally that it had not made any attempt to study these questions, HPC could then write to the Department of Health in December 2009 claiming that it had in fact done so. Attempts to query this contradiction proved fruitless.

The JR papers discuss and document this, as well as other major failures in the process, which indicate that the HPC did not approach its work in a rational or fair way. Alternative models of regulation were not given proper consideration despite being repeatedly brought to HPC's attention. Key questions about the nature of the talking therapies were ignored, and hardly any of the HPC's criteria for regulating professions, such as homogeneity of knowledge base or practice, are applicable to our highly diverse field.

The first set of documents will now be scrutinised by the courts. The instructing organisations are 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. Funding of the review has been made possible by contributions from thousands of therapists and members of the public who feel strongly about the issue.

Significantly, the Department of Health has now said that it has "taken no view of the legality of the decision and recommendations [of HPC ] and will await the Administrative Court's decision on the claim. In the meantime the Department intends to continue work in relation to assessing the costs and benefits of different models of regulation for psychotherapists and counsellors". This is an important statement, as until now the DoH has simply repeated that it will regulate the talking therapies via HPC, and the HPC itself has refused to discuss different models of regulation. The fact that other models are being studied is real progress, and we hope that the DoH will work with our organisations and examine the models used in other countries, where regulatory arrangements have been arrived at that are satisfactory to both government and the field itself.



Problems with HPC


Since the 2007 White Paper '`Trust, Assurance and Saftey', the Department of Health has given the Health Professions Council the task of assessing the regulatory needs of the talking therapies and its own suitability to regulate them. This brief, however, was understood as an imperative to regulate, with a resultant neglect of representations from the field and no questioning of the suitability of its own regulatory framework.

The Health Professions Order states that any profession to be regulated by HPC “must cover a discrete area of activity displaying some homogeneity”. Counselling and psychotherapy constitute a diverse field and display little homogeneity. Many therapies do not consider themselves or advertise themselves as health professions. They focus on human relationships and not medical-style interventions with set outcomes or promises of cure. Unlike health professions, many therapies do not aim at removal of symptoms, but at an exploration of human life, understood in a variety of ways.

HPC has claimed recently that it is able to encompass relationship-based work, pointing to its apparently successful regulation of psychologists and arts therapists, yet there are very significant differences between these fields and our own, and there are many psychologists and arts therapists who feel that their work has already been compromised by HPC. Crucial to our work is the way in which elements from early life may be re-enacted in the therapy, and the long process of exploring this is generally not shared by these other fields.

The consultation process initiated by the Department of Health was intended to assess the feasibility and suitability of state regulation through dialogue with all of the professional field. However, the consultation process became monopolised by a small number of people with a narrow view of talking therapy. This reliance on a small number of people with a set agenda has created the illusion that counselling and psychotherapy are a homogenous field. It has also meant the wholesale exclusion of professional groups and user groups, despite initial inclusion in draft documents.

The key issue in the regulation debate has been protection of the public. Therapists accept that their clients need the highest possible form of protection from inadequate and unethical practitioners. No therapy organization or individual has argued against this principle. Indeed, therapists have consistently been open and active to strengthen the effectiveness of their current systems by all reasonable means. However, there is no research based evidence suggesting that the client-group here is in the degree of danger that would justify being forced into a type of regulation that, in many respects, is unsuitable and unworkable for current professional practices.

HPC complaints procedures are formal and adversarial. Most complaints in the field of the talking therapies are resolved by informal process and mediation. HPC gives no place to these processes, and thereby risks alienating potential complainants who do not wish to enter into such formal procedures, held in public with none of the confidentiality that a hearing may require. It also lacks the expertise to deal with the complexity of complaints in this field. Note that HPC reject more than 70% of complaints from the public as 'no case to answer' compared to around 10% in the main therapy organisations. As HPC states on its website, if they don't think a complaint will have a clear outcome, they won't hear the case, in contrast to the acceptance of complex complaints by therapy organisations.

HPC focus on two central issues regarding protection of the public: that any unscrupulous individual may set up a brass plate advertising their services as a therapist, and that, once struck off by a professional body, a therapist can simply continue to practise independently. Yet neither of these concerns is addressed by HPC regulation. HPC regulate professional titles not functions, so as long as the individual does not use a title protected by HPC, they can set up shop through use of any unprotected title: life coach, mentor, therapist, lifestyle consultant etc. Other models of regulation used abroad are much more effective, yet to date HPC have refused to examine them.

The HPC brings with it mechanisms that may be suitable for professions allied to medicine, but which threaten the survival of the very essence of psychotherapy. Therapy is forced into a one-size-fits-all model of healthcare intervention, with its focus on outcomes and protocol-based procedures. By marginalizing and even making illegal those forms of therapy which follow a different model, HPC regulation would deprive the public of their free choice of which therapists to consult.



The Regulation Debate



The field of counselling and psychotherapy in the UK is rich and diverse, with several hundred different schools and orientations. Approaches to therapy differ enormously: some therapies focus on symptom-relief, some specifically avoid this; some aim at insight into unconscious phantasies, some reject the very notion of an unconscious; some try to bolster a patient’s belief-system, some to undermine it; some encourage physical warmth, some proscribe this; some aim to get patients back to work, some do not. The range of practices is extraordinarily wide, and the public benefits from a choice as to this range of different approaches.

Since the early 1970s, the field has organized itself into a small number of umbrella organizations - UKCP, BACP, BPC - which have worked progressively on codes of ethics, practice and complaints procedures. There have been various attempts over the years to add a statutory framework to the field’s own set of procedures, yet these have been consistently ignored or rejected by government. Nearly every practitioner currently working in the UK belongs to a professional association with codes of ethics, practice and complaints procedures, which is inspected periodically by its umbrella organization. These codes were found by the UKCP-BACP mapping project, funded by the Department of Health, to fulfill or exceed HPC requirements.

This situation has not been especially controversial, yet calls for statutory regulation have been made by some therapists and lay people for the following reasons: there is nothing to stop any untrained person setting up a brass plate calling themselves a therapist; if a therapist is expelled from their professional organisation, there is nothing to stop them continuing to practice elsewhere; there are a small number of therapists who do not belong to any organisation and so are not subject to any agreed codes of ethics, practice and complaints procedures. These three factors are deemed to represent a significant risk to the public, which is the main reason given for statutory regulation.

The scare stories circulated to the media by HPC and by Witness, an advocacy group that the HPC has worked closely with and that is largely funded by the DoH, serve to inflate the risks involved and confuse the relevant issues. No therapy organization in the UK to date has shown any opposition to regulation. The question for them is whether HPC regulation is the best way to deal with these issues of protection of the public. HPC regulates professional titles, so if it regulated the title ‘psychotherapist’, it would be illegal for anyone to use this title without being HPC-registered. Likewise, being struck off the HPC register would make it illegal for someone to continue to offer services as a psychotherapist. This seems to solve the issue of public protection, yet HPC regulation in fact fails to do so since the practitioner may simply set up shop using another title not regulated by HPC: life coach, therapist, life skills advisor, mentor etc. It thus fails to deal with the brass plate argument or the practicing after expulsion issue.

Even if it were to close these loopholes by regulating functions and not simply titles, HPC regulation poses a number of very serious problems to the field of the talking therapies. It subscribes to outcome-based notions of health and wellbeing which are rejected by many schools of therapy, as well as redefining the actual concept of therapy itself. Therapy is defined as the correction of developmental and psychological dysfunction via the application of a set of techniques to the patient. Yet many schools of therapy see their work as totally opposed to this model based on the health/illness framework. For them, therapy is a joint work, a collaborative effort to explore human life, with no manifest aims to ‘correct’ dysfunction or promote health.

The very notions of health, wellbeing, normality and dysfunction are rejected by many schools of therapy. These schools of therapy have a tradition of social critique, and distance themselves from the contemporary industry of ‘wellbeing’. Terms like ‘health’ and ‘wellbeing’, they argue, often carry a political agenda in any given society, and the work of therapy has to go beyond them. Psychoanalysis, for example, has always aimed to subvert received forms of knowledge, and hence the current objection from most of the UK’s psychoanalytic groups to subsume analysis into a framework which is based on received forms of knowledge and power.

Given that the notions of health, wellbeing and illness run through HPC regulations, and influence its requirements regarding education and training, conduct, performance and the hearing of complaints, they naturally see HPC as unsuited to regulate their work. To construe therapy as a set of techniques to be applied to a patient, rather than as a relationship, an ongoing work between two people which can have no predictable outcomes or set goals, is to misunderstand its basic principles and ethics. HPC has redefined therapy though a medical lens which is not appropriate to the relationship-based paradigm of analysis and many therapies.

HPC uses a model of health professions as service industries: a client pays an expert for a service, which they deliver. But for many schools of therapy, the service is actually provided by the patient. Like an artist’s studio, the therapist provides a space where the patient can create something, following their own rhythm and logic. Therapy is thus not about the performance of any procedure. No outcome can be predicted in advance and so, contrary to the service industries, it is not self-evident what product the patient is paying for. This inherently risky work is clearly not served by pretending that its results and procedures are clear, predictable and transparent.

So where medical interventions may involve set outcomes which the patient could complain about if not achieved, many therapies are about the open-ended work done not by the therapist but by the patient. One could visit a therapist’s office for years and not actually be doing a therapy, in the sense of being authentically engaged in an activity of self-exploration. Therapy, for many schools, is about what the patient manages to invent and construct in their encounters with the therapist, who does not apply the kind of protocol-based procedure envisaged by HPC.

Likewise, some schools of analysis and therapy hold that patterns of thought and behaviour that produce suffering in the patient derive from childhood responses to what is unknown and unpredictable in their caregivers. The compulsion to please others, for example, may have its roots in interactions with an erratic and unpredictable parent. Therapy will play out this situation, so that the therapist may behave in an erratic and unpredictable way, allowing an access to the process by which the patient’ patterns of response were established. HPC’s emphasis on clarity of communication and behaviour may fit a small group of therapies, but cannot subsume this latter model.

Many clinicians who do not subscribe to the healthcare model see their work as an exploration of the human condition, a journey in the same sense that becoming a Buddhist monk involves a long process of questioning one's life, ideals and expectations. Like a Buddhist training, this long process of psychotherapy cannot be identified with a set of techniques or procedures to be applied to a human being, but forms rather a strange kind of relationship which operates in unpredictable and unexpected ways. One cannot know what will happen in advance, and change often takes place through surprise, bafflement, shock and disappointment. HPC regulates professions within a framework which explicitly aims to remove these variables, and so it cannot accommodate those therapies which give a valued and central place to risk, shock and disappointment, seen as tools of growth and development. With HPC, will therapists really continue to challenge their patients or, fearing complaint, will they little by little change the way that they work?

A further and critical reason for the unsuitability of HPC as regulator lies in the field of ethics. Psychotherapy has, for the last 100 years, offered the patient a system of values freed from the moral judgments of social authorities. This has indisputably been the central characteristic of psychotherapy and what set it aside from the mental hygiene movement and from techniques of social engineering. Therapy provides a space for challenging received wisdom, social imperatives and norms of all kinds. Yet HPC regulation, for many schools of therapy, would involve the wholesale application of such norms to the therapeutic encounter. The therapist would have to become a ‘health professional’, whose practice must adhere to a moralistic and normative framework. Failing this, the practitioner would be struck off.

This tension between psychotherapeutic ethics and social morals is a crucial issue, yet it must not be misunderstood to suggest that therapists see their work as somehow beyond the law. All therapy organisations agree that rigorous codes of ethics and conduct must be in place, as well as complaints procedures. In the event of any instance of sexual assault or financial fraud, the criminal justice system should be appealed to. In line with international practice, in other cases, mediation and informal resolution of complaints are the first step, rather than automatic escalation of a complaint to the level of litigation.

For some critics of traditional models of regulation, mediation and informal resolution are a profession’s way of avoiding responsibility for mistakes and misconduct. Yet escalation to the level of litigation and formal complaint may constitute barriers to real resolution of issues for those working within a non-healthcare model. For those therapies that are relationship-based, the parallel is less with HPC-regulated disciplines such as radiology or physiotherapy than with the introduction, encouraged by government, of mediation procedures as a first step when the divorce of a married couple is considered. Although this might seem surprising, it reflects more accurately the kind of problems some patients may experience in therapy - which, for many schools, is about re-living problematic relationships from the past – than the model of a failed medical intervention.

Yours sincerely

Guest post by Bruce Scott on the FTP hearing of Malcolm Cross

A case of dialectical disease: A tale of a Health Professions Council fitness to practice hearing of a psychologist.

Bruce Scott
Philadelphia Association, London

Whilst attending the Health Professionals Council fitness to practice hearing of Dr. Malcolm Cross on the 15th and 16th of March 2010, a conversation came to mind that took place between the playwright and poet Goethe and the philosopher Hegel in 1827. Their conversation highlighted the problem of “dialectical disease” of what this hearing, I felt, was suffering from. The conversation between Goethe and Hegel went as follows:

The discourse then turned upon the nature of dialectics. “They are in fact” said Hegel, “nothing more than the regulated, methodically-cultivated spirit of contradiction which is innate in all men, and which shows itself great as a talent in the distinction between the true and the false.”
“Let us only hope,” interposed Goethe, “that these intellectual arts and dexterities are not frequently misused, and employed to make the false true and the true false.”
“That certainly happens,” said Hegel; “but only with people who are mentally diseased.”
“I therefore congratulate myself,” said Goethe, “upon the study of nature which preserves me from such a disease……I am also certain that many a dialectic disease would find a wholesome remedy in the study of nature.”

It became clear during the course of the hearing that it was afflicted with this “dialectical disease” as they (i.e. lawyers, judging panel, complainants etc) were focussing upon and arguing about the notion of what amounts to “misconduct”. In effect they were trying to make the false true and the true false in their logical argumentations of what constitutes misconduct. As I sat in stunned silence, a fear came over me. I felt unsafe amongst these diseased dialecticians as the concerned parties , for what appeal to reason, or to nature as Goethe advocated, would or could be heard? Human nature had been left aside, human freedom had been forgotten, and common sense had been replaced by an authoritarian pseudo-psychological medico-empirical scientific dialectic pertaining to the notion of misconduct that was divorced from any “alternative” or freer way of looking at misconduct (if it could be called that). This lead to an abusive and violent hearing and sad conclusion to the hearing. Let me explain why.

The facts of the case have recently been circulating within various media (i.e., newspaper reports), but let me summarise . Dr Cross was the Chair of an accreditation team (4 in total) visiting a university to carry out its evaluation of a university counselling psychology course to see whether it was up to the job of being accredited with British Psychological Society (BPS) validation. The team met the night before at a hotel and had a brief discussion about the paperwork and any issues pertaining to the accreditation visit. Dr Cross felt (as Chair of this team) that there was very little to go over and that everything was in place for the visit the next day. Then team then went for dinner to a restaurant along with the wife of one of the team members. At dinner wine was drunk (4 bottles in total) and everybody was drinking. Dr Cross was not working as a psychologist at this dinner; neither were any other of the team in their respective roles. It was purely a social occasion. I will relate the facts of what happened during this meal in a moment, but suffice to say, Dr. Cross carried out his duties the next day as the head of the accreditation team perfectly well. Indeed, all the members of the team, which included the two complainants against him, described his performance the next day as “exemplary”. So one might ask what was the problem that occurred the evening before?
During the course of the dinner (and short informal meeting before dinner) Dr Cross was accused of:

1) Being drunk (at the dinner and when he arrived at the hotel for the informal accreditation discussion).
2) Being rude, lewd and condescending during the course of the evening.
3) Touching himself in a sexual manner.
4) Making sexual gestures to two of his colleagues: trying to kiss, express his love and offer oral sex to one colleague and touching the leg of another.

Some people may jump to the conclusion that these events are indeed misconduct and in need of judicial/HPC treatment. Such people might shout, “What! A psychologist drunk, rude, condescending and being sexually disinhibited! What scandal, strike him off, take him to the gallows!” Well obviously some people did, and it went through the laborious administrative process at the HPC and thence to hearing.

Here is an extract from a clinical psychology internet forum from a blogger after I had alerted their attention to the case of Dr Cross and the nature of HPC hearings . This blogger’s comments highlight the pervasiveness of diseased dialectical processes in the pro-HPC camp. It clearly does not see everything as it is in the clearing to quote Heidegger .

“….it would be highly concerning to me that such behaviour might have an impact on the people they work with, and beyond a certain threshold it would be appropriate to make a complaint. After all, a complaint is then investigated and a hearing is held, where parties can appoint solicitors, in which the person can challenge the allegations, and other witnesses can be called, and their peers can comment on their behaviour and what is outside of acceptable limits.”

Well, that makes it all ok then! Bring on the trial, justice will be done, the law will prevail – or does it?

The HPC lawyer cross-examining Dr Cross obviously believed in such a process. In her summing up of the case she brought the hearings attention to point 3 of “the Standards of conduct, performance and ethics” of an HPC registrant. This states:

“You must keep high standards of personal conduct, as well as professional conduct. You should be aware that poor conduct outside of your professional life may still affect someone’s confidence in you and the profession.”

Following on from this, point 4 on the Standards of conduct, performance and ethics states:

“You must tell us (and any other relevant regulators) if you have important information about your conduct or competence, or about any other registrants and health professionals you work with.”

The HPC lawyer then went on to argue that one has to consider the wider public policy (i.e., protection of the public). She argued that Dr. Cross’s behaviour was evidence of misconduct and was of interest to the confidence and safety of the public as he is a psychologist and treats vulnerable people. Concluding, she argued that the alleged misconduct of Dr Cross is evidence of his impairment of his fitness to practice. She referred to a case brought to the attention of the General Medical Council a few years ago where a Doctor had crossed the boundaries of the patient-doctor relationship (the Doctor had sex with his patient which was consensual). When I heard her mention this case I thought to myself what relevance is this to Dr Cross’ case.

These assertions of misconduct were bolstered earlier in the hearing by the fact that one the complainants (a psychologist) argued, whilst on the stand giving evidence, that Dr Cross’s behaviour was indicative of a potential serious problem that needed to be addressed. Don’t forget, this complainant had also been drinking on this evening. He confessed to drinking three glasses of wine. Perhaps it was more, maybe 4, or 5 perhaps. The second complainant (a British Psychological Society secretary whose role it was to takes minutes during the accreditation meeting the next day) was, according to the testimony of all others who gave evidence, texting, twittering, or emailing on her mobile or blackberry throughout the dinner. She accused Dr Cross of being rude to her and belittling her. She said he was nicer to everybody else compared to her. Dr. Cross had said to her that if she missed her friends that much, she should have stayed at home. Doesn’t the new DSM manual have a new disorder called something along the lines of “internet addiction” which leads to difficulty in social interactions and interpretation of social cues and interaction?

My mention of binge drinking and internet addiction is said with tongue in cheek. I was quite surprised that the HPC panel, the HPC lawyer, and Dr. Cross’s lawyer did not bring these facts up for any real discussion. However, the lay member of the panel did mention that she would find such “twittering” behaviour very rude.

Yes, Dr, Cross did admit to trying to kiss one of the accreditation team, told him he loved him and offered to give him oral sex. But he did say it was a joke, a bad joke perhaps, and not well received by one member of the team. The other male member of the team in his statement to the hearing (a paper submission) reported that he just laughed at Dr. Cross’ disinhibited sexual jokes and antics and did not think they were serious, and he was not offended by them in any way and neither was his wife who was also present.

So, the panel adjourned on the second day at around 11.15am to see if Dr Cross’s behaviour amounted to misconduct of an HPC registered psychologist and if it amounted to an impairment of his fitness to practice. I had to wait for 6 hours to be called back for the result.

Luckily for Dr Cross, although the panel thought that he was drunk, lewd, and rude, it was not proven if he touched himself in a sexual manner (evidence submitted showed that the complainants could not see this occur as he was sitting in such a way that he was obscured). It was also not proven that Dr Cross was serious in his gestures of love and affection to people at this social occasion. The panel ruled that his behaviour did not amount to misconduct and thus the allegation of misconduct was not well founded. “Justice was done!” the pro-regulation brigade might shout at such a result. “You see,” they might say, “it is a good process, everything was done above board, witnesses were called, and he was cleared.”

Was he cleared? Is Dr Cross in the clear? Not according to the newspapers. He was written about as though he was guilty. The story was sensationalised with all the lewd bits highlighted to the omission of more balancing facts; that two other people were present at the dinner and they thought Dr. Cross’s behaviour was fine; disinhibited, joking, and fun yes, misconduct, no. It was not reported that nobody left the dinner and walked out in disgust; everybody enjoyed a two-course dinner with wine. It was not reported that everybody was drinking, and that no restaurant staff or diners made a complaint about Dr Cross. It was not reported that the BPS, who had been initially consulted about this incident by one of the complainants, wanted to deal with the incident in house. But this complainant was not satisfied with this; it was subsequently taken to the HPC. A grudge perhaps? More importantly, it was never reported in any of the newspaper reports that Cross was not on duty as a psychologist at the time, and also that he carried out his duties in an exemplary fashion (to everybody’s testimonies given) the next day.

What was most upsetting to me just when the HPC panel finished delivering their verdict, Dr Cross broke down into tears, and rushed out of the hearing room. Nobody flinched. I was almost brought to tears myself witnessing this. It was terrible. Dr Cross had been brought to trial, and I call it trial because it had all the hallmarks of a legal trial, and his reputation has been “sullied” by the press and his colleagues and the HPC process in a most disgusting way. This will no doubt affect his working life and livelihood and perhaps even his personal life and relationships. But never mind, justice was done, he was cleared. Of course, I am being ironic in this last statement.

I think at this juncture it might helpful to again look at this idea of “misconduct”. Dictionary definitions of misconduct pertain to: behaviour not conforming to prevailing standards of law, bad management by persons entrusted or engaged on another’s behalf, and deliberate wrongdoing, especially by government officials or military officials. The thesaurus, just for interest, gives some unsurprising results: to behave oneself improperly, rude behaviour, horseplay, and naughtiness.

There are also legal definitions of misconduct. These pertain to ideas of wrongful, improper or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one’s acts.

There are many other definitions of misconduct, but to draw the reader’s attention to these most common and helpful one’s presented here and re-direct the reader above to the HPC standards of conduct, performance and ethics (points 3 and 4), it is clear there is a huge scope for the application of misconduct that the HPC can pursue. Therefore it is clear from this that the HPC has become a dangerous monster. It is quite clear, that in their use of their idea of what constitutes misconduct, the HPC have in effect committed misconduct (mismanaged) themselves in the case of Dr Cross.

Why do I charge the HPC with misconduct in the case of Dr Cross and in general of becoming a dangerous institutional monster? Taking into consideration the scope of what misconduct can cover, and also how the HPC standards of conduct, performance and ethics are laid out, their system is open to abuse, as has occurred in the case of Dr Cross, by the HPC, registrants and patients or the general public. Points 3 and 4 of this document covers personal conduct but also the proviso that a “registrant must tell us (and any other regulators) if you have important information about your conduct or competence, or about other registrants and health professionals you work with.”

This framework encourages denouncements by colleagues and negates the possibility of talking to colleagues about problems, encourages defensive personal and professional conduct, and promotes a lack of trust in oneself or the possibility of efficient self-reflection. I think this is what Michel Foucault calls the panoptic society whereby, we overly self-govern ourselves out of fear of being caught out by the surveillance of the institution that makes the rules.

The HPC has however has wildly distorted any ordinary self-governance so that people denounce their colleagues to those who pretend to be the guardians of the public. In other words, we cannot act freely because the “Big Other” as Zizek explains, is always in the background, haunting our being, and robbing us of our ontological freedom. The HPC mistake themselves for the “Big Other”, in a Big Brother Orwellian way. Others are watching our behaviour for any flaws and will report this, not to us, but to the HPC. But we even have to watch out for our own flaws, and must report ourselves to the HPC if we notice any in ourselves. Has the HPC panoptic machine not gone too far?

It is clear from the HPC’s framework, that anybody who is offended by somebody’s (e.g., a psychologist) conduct such as swearing, smoking too much, not sleeping properly, being unfaithful, driving too fast, being late for work, eating unhealthy foods, spending too much time shopping or watching too much television, could make a complaint to the HPC. The examples I list could all be classed as misconduct. But please note, it also depends on who is offended. Some might be offended by such behaviour, others not. This is what occurred in the case of Dr Cross; some people were offended, or perhaps frightened by their duty to the HPC panoptic machine. Or was it because that they felt he didn’t like them as much as they thought or wanted him to like them?

What I am trying to say is this; was there not a better way to do things in the case of Dr. Cross and does the HPC not realise (maybe it does) that their dialectic concerning misconduct has reached monstrous proportions? I put it to the HPC that they have breached their own codes of what amounts to misconduct. They have badly mismanaged their position; protection of the public, and brought a case to hearing that had already been dealt with by the British Psychological Society. This case could have been dealt with (by the BPS for example) in a much more humane, civil, and satisfactory manner). Instead, they have infantilised a profession (psychologists) by encouraging them to snitch on colleagues for matters that previously could be dealt with face-to-face or in-house at work. In the past one could actually talk to a colleague or have word with your manager if someone offends you or if you are concerned about someone’s behaviour. But it seems that such simple gestures seem to be regarded by pro-HPC persons and bodies as obsolete and unreliable; we cannot be trusted anymore! God forbid the HPC cry, stop people from negotiating personal and professional relationships by talking to each other. Dr Cross has been dragged through the papers and his reputation sullied by offending two people. Dr Cross is a member of the public and has not been protected by this shambolic process. The HPC’s fitness to practice is impaired as they have damaged a psychologist’s career and livelihood (and perhaps eroded what it means to be human and the freedom of what this entails) whilst disregarding their ridiculous standards of conduct, performance and ethics of how they deal with misconduct.

We do unfortunately live in world where we will at some point offend someone. We will get up peoples noses and have disagreements. We will all also live lives and engage in behaviours that others will feel are unhealthy, dangerous, and in need of change; we all will. So the sorry state of affairs we all have to accept is that all psychologists, psychotherapists, and counsellors will at some point break the HPC standards of conduct, performance and ethics, and so will the HPC. Let’s all hand ourselves in and get it over and done with! The rock solid idealism of the HPC and how an HPC registrant should be is a fairytale and represents a quite frightening delusional fantasy of what the world should be like. The way the HPC lawyer and two complainants spoke about misconduct painted a picture of reality where no risk, fallibility, or pain (psychic) should enter human life or behaviour. This is dialectical disease.

We live in a world where there are unjust wars being waged (by our own and other governments), there is the banking crisis which exacerbates the greed and deceit by the bankers, politicians are fiddling their expenses and engaging in dodgy lobbying for private companies which affects government policy. The gap between rich and poor is bigger than ever, and there are thousands of homeless people roaming the streets of our country who do not have a warm bed to sleep in or hot plate of food to eat. Thus, I ask, why is it that health professionals (and psychotherapists and counsellors) are being targeted by such a massive projection or demand for “safety” (by the HPC and society in general). I feel we should take Lacan’s lead and seriously look into this demand and see what it has to say. I think underlying this demand may be something quite sinister or at least, fraught with dis-ease. However, I think we have right to feel ill at ease in today’s times, but I feel it is a cheap shot to target health professionals (and psychotherapists and counsellors) . The last thing we need, considering the state of the world today, is a panoptic state breathing down our necks accompanied by a diseased dialectic of what it means to be human or a psychologist (in his or her personal life). The HPC and similar constrictive institutions seem to want to impose a world view where no risk ever takes place, where human beings conduct themselves like robots and are rewarded for perfect behaviour, but severely punished for straying from the (ur) model.

I wonder what Goethe would have thought if he had witnessed the HPC hearing of Dr Malcolm Cross? I am certain that he would have felt that HPC’s dialectical disease would find a wholesome remedy in the study of the nature of the situation, instead of a dialectical process of trying to make the true false, and the false true, which is what occurred on the 15th and 16th of March 2010 in Kennington, London.


Footnotes
i Conversations of Goethe, with Johann Peter Eckerman. Da Capo Press (1998). Extract taken from page 244.
ii The HPC lawyer, Dr. Cross’s lawyer, the “independent judging panel, and witnesses including Dr. Cross.
iii There is no record of the case or the result of Dr. Cross on the HPC website for the public to consult. I have been in touch with the fitness to practice hearing department at the HPC and they told me that as this case was “not well founded” it automatically becomes deleted from the past hearings list. However, if Dr. Cross wished his hearing details and result to be left on the list (for whatever reason), it would be left on. However, other similar cases’ details and results have been left on the list. It remains to be seen if the HPC have “erased” the case of Dr Cross Orwellian style, for fear of what this terrible, abusive, and highly mismanaged case might signify to a public critical of the HPC regulation of psychologists, psychotherapists, and counsellors.
iv www.clinpsy.org.uk
v Martin Heidegger. Zollicon seminars: Protocols-conversations-letters. Published by Northwestern University Press in 2001.
vi Michel Foucault. Psychiatric power: Lectures at the College de France, 1973-1974. Published by Palgrave Macmillan in 2006.
vii Slavoj Zizek. How to read Lacan. Published by Granata Publications in 2006.
viii Jacques Lacan. Ecrits. A selection. Published by WW. Norton & Company in 2002.
ix I do not subscribe to the view that psychotherapists or counsellors are health professionals.

New Play - THERAPY, by Josh Appignanesi (Fund raiser for the Judicial Review of HPC)

9 April, 3pm - a rehearsed reading of the new play about the clash between the values of psychotherapy and those of the Health Professions Council.

'Therapy' is written by Josh Appignanesi (whose new film 'The Infidel' opens in April) and directed by Matthew Lloyd, whose recent production of 'Duet for One' at the Almeida was highly acclaimed.

A hilarious satire, drawing on a detailed knowledge of the current debates while at the same time being accessible to those from outside our field. Richard Schiff from 'The West Wing' will play the anti-HPC therapist, and the rest of the casting is being done now.

Expect terrific actors, and reserve your seats as soon as possible. The reading will take place at the Vaudeville Theatre, 404 The Strand, London, and the proceeds will go towards the JR Fighting Fund.

Tickets are £20 and can be reserved by phoning 0845 838 0829

I just had occasion to revisit this letter, sent to my MP last year. Plus ca change...


18 February 2009


Rt. Hon. Tessa Jowell MP
House of Commons
Westminster
London
SW1A 0AA

Dear Tessa Jowell

I came to West Norwood library towards the end of last year to see you, and spoke to one of your very helpful and friendly staff. The upshot of that meeting was that I would write you a follow up letter (in addition to the one I wrote earlier in that year). At last, this is that letter.

I have created a blog: HPCwatchdog.blogspot.com based on a whole series of visits I have been making to the HPC as a member of the public. If you read the case of Mr R (part 1, part 2, part 3), watch the video of Richard Gombrich explaining Popper's Nightmare, and consider the questions raised by Max Weber, this will give you a quick insight into my concerns and my orientation.

I am very worried indeed about the centralisation of power and the destruction of local knowledge that is the unintended consequence of the kind of regulation that is practiced by the HPC. From what I have seen it is already causing harm to ordinary decent people, and I truly believe that this harm has a pernicious quality that will be exponentially increased if the HPC draw the psychological practices within its domain.

Onora O'Neil has publicly voiced her concern about the destruction of trust that will follow the state regulation of psychological practices (especially of psychotherapy and counselling, but the psychologists are also very much in this domain). Michael Power has been writing about the way our audit culture ends up emptying the meaning out of words and practices, and leave us vulnerable to the collapse of the resulting empty shells, and Marilyn Strathern has also pointed to the hostile and aggressive undercurrents at play in moves under the banner of transparency. Aggressivity will increase where real meaning decreases – this is a lesson learned many times over throughout history.

Each of these great British scholars has been working away quietly revealing the otherwise hidden 'mechanisms' that hold our society together. None of them pretends to have the answer, nor the whole truth, but each of them is shedding very helpful light in very careful ways on things that we need to be very aware of.

I don't believe there is one answer to the situation we are currently in, but I am trying to find a way of approaching the questions without fueling aggressivity nor unduly increasing levels of anxiety. I suggest that a space be created which makes it possible to think. The rapid expansion of the HPC is not conducive to thinking. When I attended the Investigating Committee meeting last week (blogged on 12 Feb 2009) I was chilled to learn that the Kent Police had been invited in to train staff how to deal with escalating aggression. A much more sensible approach would be to ask why the aggression is escalating. From the hearings I have observed, and from comments I have received as a result of my blog, I can see a very strong argument that the orientation and mechanism of the hpc (the grounds on which it is empowered) actually fuels aggressivity - this creates a spiral which echoes Popper's nightmare and adds to the idea that this is what is being created.

It is difficult to know how to intervene, but I very strongly believe that we need to slow the process down, and give ourselves more time to think. How can I help to postpone the process of the Statutory Order that would pass the psychologists onto the HPC register? If you can advise me of this, I would be extremely grateful. If you would like me to explain my ideas in more detail - I am easily contactable. I would be happy to respond to a call and very receptive to any help you can give in shaping a parliamentary question on this issue.

Yours sincerely



Janet Low, MA PhD

Template letter you can use to send to your MP

Template letter which can be filled in and sent to your MP.


Dear ,
I thought that you may be interested in an update on the judicial review of HPC's process regarding the proposed regulation of therapists and counsellors, and an important bit of news from the DoH.

The judicial review of HPC is now in its first stage. Documents prepared by Dinah Rose QC and John Halford of Bindmans have been sent to the High Court which point to problems with the HPC's actions to date. It had been charged with assessing the regulatory needs of counselling and psychotherapy and whether its own system was capable of accommodating this field, yet proceeded as if this was a foregone conclusion. Despite stating several times unequivocally that it had not made any attempt to study these questions, HPC could then write to the Department of Health in December 2009 claiming that it had in fact done so. Attempts to query this contradiction proved fruitless.

The JR papers discuss and document this, as well as other major failures in the process, which indicate that the HPC did not approach its work in a rational or fair way. Alternative models of regulation were not given proper consideration despite being repeatedly brought to HPC's attention. Key questions about the nature of the talking therapies were ignored, and hardly any of the HPC's criteria for regulating professions, such as homogeneity of knowledge base or practice, are applicable to our highly diverse field.

The first set of documents will now be scrutinised by the courts. The instructing organisations are 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. Funding of the review has been made possible by contributions from thousands of therapists and members of the public who feel strongly about the issue.

Significantly, the Department of Health has now said that it will await the outcome of the judicial review before acting on the HPC's recommendations and that it is exploring alternative models of regulation. This is an important decision, as until now the DoH has simply stated that it will regulate the talking therapies via HPC, and the HPC itself has refused to discuss alternative models of regulation. The fact that other models will now be studied is real progress, and we hope that the DoH will work with our organisations and examine the models used in other countries, where regulatory arrangements have been arrived at that are satisfactory to both government and the field itself.

Power without responsibility spells disaster for people in HPC FTP case

On Monday this week (15 March) I attended the Fitness to Practise Hearing of Council member Malcolm Cross. It has been a few months since I last attended an FTP meeting, and I was surprised to be asked to leave the room shortly after the proceedings began when the panel members left to deliberate in private. I asked the Hearings Officer to tell me the reason for this new and petty inconvenience. She was unable to. She promised to discover the reason and let me know (she did not take a note of my name or contact details, and I have heard nothing since). While I was in conversation with her the legal assessor of the case, Simon Russen (a freelance Barrister), came into the room and addressed me directly, cutting through my conversation with the clerk. He demanded to know if I was refusing to leave. Stunned, I told him I wanted to know the reason for being asked, as I am reluctant to obey rules that have no clear and rational basis. I had been asked to sit in the corner on arrival, but had failed to do that too. He left the room immediately. To my utter amazement, when the panel returned shortly afterwards Mr Russen interrupted the Panel Chair to say ‘I don’t know who that woman is in the brown jacket (pointing at me), but she refused to leave the room when the Panel left, and you might want to exclude her from the proceedings either now or in the future.’ The Panel Chair looked surprised, ignored him, and continued with her business.

Is this not way outside Mr Russen’s jurisdiction? He certainly didn’t bother to avail himself of the facts before throwing his weight around. I experienced it as an intense use of power with no other purpose than of frightening and humiliating me. It was very Kafkaesque.

The hearing’s officer had fetched the adjudications officer to explain that I must leave the (large and empty) room in case the lawyers wanted to have a private word. This is a very weak argument – lawyers are capable of having quiet words, if they really need them, without putting the public to any particular inconvenience – but I agreed to her request to prove that I was civil. As soon as I had crossed the threshold I was invited in again as the hearing was about to restart. So, this was a ritual designed to exercise power to show who had it and who didn’t. It was blunt and unnecessary. It was rude and disrespectful. It is outside the field of reason and rationality. It suggests the HPC does not understand the power it holds –that it is incompetent; or, worse, that it does understand and likes to play around. Either way, it undermines trust in the HPC.

This, however, is but a local instance. The real travesty is demonstrated by the treatment of the registrant in question. As you know, I have written about Fitness to Practise cases I’ve observed before. The highly centralised nature of the process is fundamentally at odds with the aim of dealing justly with a case. The premise upon which the process has been built is profoundly un-British – it presumes guilt of the professional as a starting point. Not only does this ensure a never ending supply of work for the FTP lawyers, administrators and panel members, but it also allows unproven allegations to be posted in public, which in turn attract (perhaps even bring forth) the salacious appetite of the media, who then publish details from the witness statements before the process is complete. This damages the reputation of the registrant, the profession, and indeed the country as a whole. The harm is done, multiplied and distributed through the networks of national (indeed global) media – it cannot be undone. The next day the independent Panel (after 6 hours of private deliberation) held that the HPC case was not well made: the Registrant had No Case To Answer.

How is the HPC held to account for its unwise allegation? I cannot see how this is to be done.
The politics of the case help to bring into view the fault at the heart of the HPC: who counts as ‘we’ in any particular moment and who holds them to account? On the one hand, the HPC is independent of the professionals – here ‘we’, as CEO Marc Seale has said, are the men in grey suits, the boring bureaucrats, the administrators that service the computers and meetings and that carry out government policy. ‘We’ are the people who receive complaints, shuffle the papers, avoid making decisions, hire the lawyers, and proceed as if we are protecting the public. However, at other times, the ‘we’ presents a face that includes some professionals: those appointed by the HPC to sit on the various committees, panels, and to visit the universtities on the ambiguous edge of the power. In this mode, from a certain point of view, it appears as if the HPC is in fact a professional organisation – which is not, really, the case.

At the FTP of Dr Cross, then, it was the HPC who brought the case against him. It was the HPC who believed he had a case to answer. The Panel, independent of the HPC, ruled this an error of judgement.

The committees that assess the complaints and decide whether a case should go forward or not – who exactly are they? Are they part of the HPC or not? Where is the inside and where is the outside of the HPC?

The HPC has allowed, created and promoted the opportunity for the reputation of a registrant, of a Council Member, and arguably of a whole profession, to be publicly displayed falsely. Dr Cross would find his picture and his name published in the Daily Telegraph next to a range of spurious allegations. The procedure of the HPC had manufactured a set of facts that the journalists were invited to report. Does this not make the HPC responsible for defamation – defamation of Dr Cross, of the Psychology Profession and ultimately, perversely itself!
The twisted logic that lies at the heart of the law that established the HPC makes the HPC really rather dangerous. It behoves those who manipulate HPC power to actively understand it, and to understand their position within it. It is certainly not the remit of a boring bureaucrat in a grey suit. This job demands someone wise.

As things stand the administrators are given the power to proceed with cases against registrants (and to hire lawyers) without ever having to think about, much less face up to, the consequences of their actions.

The fault in the law can be traced to the thoughtlessness of Professor Ian Kennedy whose political promotion to the chair of the BRII led directly to the invention of the HPC. It appears that Kennedy’s idea played directly into political beliefs that neither the professionals nor those closely associated with them could be trusted to manage themselves, so a QUANGO that knows nothing about either of these things was created as their ruler. In effect Kennedy’s recommendation insists that the HPC remains stupid, as any sign of wisdom renders it liable to the pernicious accusation of being professional. This is clearly rubbish.

Wisdom is required to make sensible assessments in disputes and conflicts around work. Wisdom and information. Although the people delegated to do this work on behalf of the HPC may indeed have these capacities, the structures and channels in which they work clearly undermine, and even destroy, this valuable resource.

Classic and modern - power play remains the same no matter what the date is

Do you remember the excitement of watching the milometer clicking over from 9999 to 10000? Do you remember the excitement of the supposed millennium-bug ten short years ago? Did you read those interesting books that came out then to teach us what we’d forgotten about zero? Georges Ifrah – The Universal History of Numbers; John D Barrow – The Book of Nothing; Robert Kaplan – The Nothing that Is; Brian Rotman – Signifying Nothing; and Charles Seife – Zero: The biography of a dangerous idea. They all reminded us that zero was an invention very tricky to grasp rationally. The first Civilisation that grappled with it, used to sacrifice members of their underclass when zero clicked over on their clock.

We’ve come a long way since then, yet there remains a certain madness that feeds off the notion of newness.

In today’s copy [Issue 2, Spring 2010] of the BPC’s (British Psycho-analytic Council) publication New Associations we find Julian Lousada (Chair of the BPC, hitherto the BCP) is quoted in bold as saying ‘in this day and age, self regulation is a dirty word’ and proceeding as if the slander is a fact. This is part of a three-page transcription of a discus-sion between Lynne Gabriel (Chair, BACP), Andrew Samuels (Chair, UKCP) and himself on the current state of HPC-play.

Lynne is quoted as saying, quite openly, that she is “challenged by [the UKCP’s] multifaceted position on regulation.” She can’t grasp the UKCP’s multi track position which recognises members who are pro-HPC and also builds a position for those who are opposed. If a future law forces people to sign up to HPC it will be even more important to establish positions of objectivity and rationality from which people can play the power implied by the new arrangement. The power that is circulating in the HPC has nothing whatsoever to do with that drawn from real work. It has even less to do with Hippocrates or Hephaestus – of which more will be said later. There is no genuine work to help hold it on course. Nor are there mechanisms by which people can call it to account. Those who pay the tax levied by the HPC are not entitled to vote. Ever. There is even less possibility of using the power of reason or argument on an ordinary everyday basis. The power in a practitioner-based organisation at least has the virtue of being linked to the rationality of knowledge and reality of praxis, as well as to a membership that can put forward arguments, call for information, and, indeed, vote. Lynne, are you saying that if a more powerful body threatens you, you must discreetly pretend otherwise, and do your best to not speak out against it?

This position finds a slightly different expression in Julian Lousada who invokes an image of a ‘good citizenship’ in order to thwart opposition (“The problem is that PNC [principled non compliance] is not a strategy of citizenship, it’s a strategy of individualism.” p3). Under what conditions does a man of such education, experience and position, seek to short-circuit a debate? Earlier in the piece he presented a slightly more ambiguous position which saw some value in a dissenting citizen: “My sense is that a combination of robust opposition (to the HPC as regulator) and the sustained discussions that we’ve been having with them on the same issues have together resulted in their [HPC] acknowledgement that there will have to be a substantial rewrite (of the generic standards of proficiency) in order to accommodate us. Perhaps wrongly, I trust that they are going to do that…” I’d like to ask Julian: on what grounds do you place your trust – it looks very much like an identification? And from the slippage in your position you have already answered who you think should be sacrificed – those who robustly challenge the HPC.

Dr Gabriel states openly that she is (and others are) pursuing HPC regulation to gain status, respectability, and money (p3). It would be a relief to hear this acknowledged more widely as the reason, and to ask how it fits in with the more usual rhetoric about ‘protecting the public’. Throughout the conversation Lynne talks about what the HPC will do, is going to do, has promised to do. She ignores the fact that the process, according to the HPC (and which her organisation has been an active participant in for at least the last 18 months) should by now be over!

I think it worth noting in passing that the word ‘modern’ is supposed to denote NOW, something happening in the moment, not the future, and much less in the conditional, and to remark that the only reason the HPC is still making promises (the proposed new generic standards, the proposed new FTP process, the proposed new changes to GP statements re health etc, etc, etc) is because active individual subjects took the time, trouble, and inconvenience, to remind everyone of the necessity to think.

There are two other articles in this BPC paper that I’m going to mention. The first is written in a very strange style and is placed (on page 9) in opposition to an essay by Andrew Samuels (which is entitled Regulation: do we have a choice? and appears on p8). It has no attributed author, but is presented under an Orwellian pseudonym: INGEGRITY. This turns out to be the cover for a group calling itself Integrating Social Responsibility into Psychological Therapies (ISRPT), which is described as “a number of practitioners [who] have recently come together to form a new group called Integrity that supports statutory regulation under the Health Professions Council”. We are not told who these people are. The mystification grows ever thicker as the text takes up the style of journalistic objectivity: ‘Integrity is a new body promoting statutory regulation … It came from a group of practitioners who were [sic] interested in working constructively with the government … Integrity say they want to gather voices… They want to harness our profession’s vision … The group says that regulation will free up access to funding… They want us … They believe that an independent regulator is vital in the 21st century… The group point to several facts… They claim that … ” Etc, etc, etc. It is only in the final paragraph that the author appears to acknowledge his or her relation with ISRPT, tho there is still some room for doubt: “It is the belief of INTEGRITY that if we enter into an effective partnership with HPC, they [the HPC] will become fit for purpose”. If the author is in fact not INTEGRITY, then INTEGRITY appears in the text like a kind of all knowing, all powerful presence: “It is the belief of INTEGRITY that if we enter into…” What on earth is going on here, and why does the BPC, in the voice of Malcolm Allen,‘welcome’ (p1)?

Finally, CEO Malcolm Allen (whose evident love of the classics does not stop him from using of a less sophisticated kind of power) writes the front-page news. Although he book ends his piece with two classical references (a quote from Hippocrates, and a reference to Hephaestus) the bulk of the text simply pushes the reader to buckle under the HPC. Malcolm, do you really think that Hephaestus would have earned his reputation in history if, seeking power, money and status, he had buckled under such a regime?

Trust, Humbleness, Wakefulness - 3 virtues for a hale and hearty society

At last year’s Convention on Modern Liberty author Philip Pullman stepped up to the podium and invoked courage, humble-ness, and wakefulness as essential virtues for a nation. The text has just been reprinted (an anniversary debate held at the British Museum gave the occasion) in a Guardian pamphlet, which can be consulted on the website. “A nation whose laws express fear and suspicion and hostility cannot sustain delight for very long” he said, and for my money, comes closest to indicating what is wrong with HPC-State Regulation, and why we need to pay attention.

Last month, a general news item reported that an “NHS chief executive has been sacked for swearing too much at work”. He was sacked seven months after that Trust's chairman resigned (he said he was being put under pressure to meet targets). The implic-ation is that the swearing was just an excuse to get rid of someone no longer liked. It was implied in the report that his fall from grace came when he voiced the opinion that meeting government targets would put patients at risk. For full article see Guardian, Wednesday, 10 February 2010

Pullman himself shows what happens when you become ensnared in the modern ‘protection’ racket. Thinking back to July last year (2009) the Guardian reported the launch of yet another data-base ‘solution’ masquerading as protection for the public. The ISA (Independent Safeguard¬ing Authority) was proposed as a register for anyone coming into contact with children in schools. The idea was that bureaucrats could vet entries to the database and exclude all potential paedophiles, thus preventing them from access to children at school. Pullman was reduced to outrage: "When you go into a school as an author or an illustrator you talk to a class at a time or else to the whole school. How on earth – how on earth – how in the world is anybody going to rape or assault a child in those circumstances? It's preposterous”. The discourse already presumes that someone is going to rape a child, the work then becomes trying to defend oneself against the implicit accusation. The loud public protest against this led the Government to climb down, but rather than chuck out the faulty logic, they have ‘watered down’ the requirements (The checks will now involve only those working with the same children once a week, not once a month, for example.)

Meanwhile, I am grateful for the diligent work of Bruce Scott from the PA who has drawn attention to an interesting case due to be heard in the Fitness to Practise panel at HPC on 15th March. A counselling psychologist has been accused of drunk and lewd behaviour at a BPS dinner, which the HPC Panel deem prima facie evidence of potential danger to the public.

But this psychologist is not an ordinary case, he holds a position on the HPC Council. How did the HPC appoint someone to the Council when there was a FTP allegation against him? Perhaps the allegation came after the fact, in which case we can marvel at the speed with which it is actually being heard (it is more typical to wait at least 18 months, according to the HPC documenta¬tion, but here only 8 months will have passed by). But another question emerges: is the public appointment itself implicated in the allegation? The logic of the HPC, like that of the ISA, already skews the case.
The allegation is printed on the HPC website in the usual way, and it will be up to the players on the day to bring information to light to enable the panel (one lay, one other profession, one from the ‘same’ profession) to come to a sound conclusion. It is tempting to conjecture and analyse the allegation before the hearing, but this simply spreads the allegation farther and wider before the case has had a chance to be heard. Any damage done cannot then be undone. All questions must be answered at the time of the hearing (15th March). The underlying logic presumes the professional is probably guilty.

I am grateful to Dr Jay Watts, CPsychol AFBPsS, for the following report:
“I have some knowledge of the effects of HPC regulation on Clinical Psychology as a lead psychologist in the NHS who recruits clinicians, and someone involved in doctoral training programmes. Marc Seale (CEO HPC) has often said that psychologists have gone into the HPC with no complaint. This is not true. I am one of many people who have formally written to the HPC objecting to them as the regulators. Further, there has been substantial discord within the profession about being allied to a health/illness opposition to which many of us fundamentally disagree. Though the critical sections within psychology have been less active in opposition to the HPC than psychotherapists, this partly results from an exhaustion following the mock consultations associated with the Mental Health Act (and especially the process of the Bill) in the early years of millenium (when we literally took to the streets).

“Some speakers at the recent ‘Confer’ conference gave the impression that psychotherapists would have a choice about whether to have their data transferred to the HPC or not. Our experiences with data protection were far murkier than that. All chartered psychologists registered with the BPS were automatically transferred to the HPC. Those of us who then chose not to register were chased for our fees as we were deemed to have “forgotten” to re-register (as opposed to having opted-out in the first place). The HPC then wrote not only to the psychologist but also to their employing organisation (NHS, voluntary organisations) to say the psychologist must have “forgotten” to pay and to remind them and their employing organisation to do so immediately for the “protection of the public”. A risk adverse NHS reacts jumpily to that, as you can imagine.

“Furthermore, national job descriptions have changed for psychology: HPC registration is already an 'essential' criteria for both NHS and clinical academic posts. Already, trainees in clinical and counselling psychology now have to receive their clinical supervision and personal therapy from HPC registered psychologists. The delights of modern computer applications (whereby one can't start writing an application form until one has ticked 'yes' to the essential criteria) make it very difficult if not impossible for organisations to even short-list psychologists who support principled non-compliance. At best, this produces a two-tier system where the NHS and many voluntary organisations keeps the more conventional psychologists whilst those opposed to increased governmentality find themselves restricted to private practice. This is unacceptable given that the majority of the poorest, most marginalised potential patients have reduced to centrally controlled treatment approaches. However, there are still many practitioners in the NHS and other organisations (such as Mind) that offer therapeutic spaces that are not about mental hygiene or the seeking of mature object relations. Whilst we all support a proper system of regulation for the psy-professions, state regulation by the HPC is already having a constraining effect on clinical psychology practice and training in the NHS. The structural changes which occur so quickly when HPC enters the scene make it naïve to believe some psychotherapists will be able to opt out of HPC. If something is precious, then it is worth fighting to protect it even if one makes some enemies on the way.”

Thanks, as ever, to colleagues for bringing news to my attention.