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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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