This is taken from a paper written by AM
"Has the government has considered the use of the criminal law. Daniel Hogan's 4 volume study of regulation of psychotherapists in USA has the idea that -
"Where special dangers are identified in the psychotherapeutic process and where traditional avenues of dealing with them are ineffective, special laws should be enacted. Existing fraud and sexual harassment laws should be strengthened and used to prevent some of the abuses that currently occur in professional practice. This alone would obviate much of the need for licensing."
('Professional Regulation as Facilitation, not Control' in Ethically Challenged Professions...enabling innovation and diversity in psychotherapy and counselling - Bates and House - PCCS Books, 2003
Hogan devoted Volume III of his massive 4 volume study The Regulation of Psychotherapists to a description of malpractice law and a review of malpractice suits on professional practice in particular (Volume II provided a comprehensive analysis of all laws potentially regulating psychotherapists in the USA at the time of writing). Volume III involved analysing 300 decisions from the different legal systems of the different US states. In other words his recommendation that the criminal law is examined in this way arises out of a very detailed understanding of the ways the law can be used.
What have others said? And has there been any statement by Government that this path has been considered and rejected? AM
Monday, 29 September 2008
Character control - power of HPC
When Richard Reeves did some research for a paper (co-written with Phil Mollon) on state regulation he reviewed cases from the HPC complaint hearings.
He was struck by several instances where police cautions had been issued to an individual which were non-related to professional work (e.g a chiropodist who had been involved in a ‘punch-up’ with his parents). He wondered how HPC had obtained this information – below is their reply.
------------------------------------------
Dear Sir,
Thank you for your email.
The HPC is involved in the Notifiable Occupations Scheme, in relation to the Home Office Circular 6 / 2006.
Notifiable Occupations are those in which the public interest in the disclosure of conviction and other information by the police or other officials, generally outweighs the normal duty of confidentiality owed to the individual.
Our thirteen professions are included in the list of occupations that carry special trust or responsibility under the Scheme.
Notifying bodies, such as the police, courts and other bodies, send us information about criminal offences committed by registrants if the offence is relevant to HPC registration.
I hope this information is useful to you.
With regards
Simon Thompson
Case Manager
Health Professions Council
Park House
184 Kennington Park Road
London SE11 4BU
www.hpc-uk.org
----------------------------------------------------
There is something rather troubling about this - the creation of the HPC seems to be leading to the invention of a pseudo-legal platform that is essentially moral in character. It is this that I noticed at the CHRE meeting earlier in the year, and that makes me wonder whether an unintended consequence of this mistaken endeavour is to lead to the re-invention of a psuedo state related religion.
He was struck by several instances where police cautions had been issued to an individual which were non-related to professional work (e.g a chiropodist who had been involved in a ‘punch-up’ with his parents). He wondered how HPC had obtained this information – below is their reply.
------------------------------------------
Dear Sir,
Thank you for your email.
The HPC is involved in the Notifiable Occupations Scheme, in relation to the Home Office Circular 6 / 2006.
Notifiable Occupations are those in which the public interest in the disclosure of conviction and other information by the police or other officials, generally outweighs the normal duty of confidentiality owed to the individual.
Our thirteen professions are included in the list of occupations that carry special trust or responsibility under the Scheme.
Notifying bodies, such as the police, courts and other bodies, send us information about criminal offences committed by registrants if the offence is relevant to HPC registration.
I hope this information is useful to you.
With regards
Simon Thompson
Case Manager
Health Professions Council
Park House
184 Kennington Park Road
London SE11 4BU
www.hpc-uk.org
----------------------------------------------------
There is something rather troubling about this - the creation of the HPC seems to be leading to the invention of a pseudo-legal platform that is essentially moral in character. It is this that I noticed at the CHRE meeting earlier in the year, and that makes me wonder whether an unintended consequence of this mistaken endeavour is to lead to the re-invention of a psuedo state related religion.
Sunday, 28 September 2008
an informal opinion from someone in law
"From a legal perspective I am struck by various statements that the scale of the risk is exaggerated and there is insufficient evidence that therapists abuse clients on a scale that warrants the costs of state intervention. That could be an interesting area to focus on:
I haven't looked at the evidence but my guess is that it might be an uphill struggle to persuade a court that the evidence is so weak as to make a govt decision to introduce some form of state regulation irrational or unreasonable. That said however it might be worth really going into the evidence issues as part of the lobbying process and if their answers are insufficient they could form part of a later legal challenge. At this stage you could ask for more detail about what evidence has the government put forward and have they yet done a cost benefit analysis (which they should do for any legislative proposal)
- i.e. sending the Dept of Health a letter saying you would like to know what evidence they are relying upon, e.g. any independent studies as to the scale of the problem, and asking when /whether they have done a cost benefit analysis for the legislative proposals (my guess is that it is still early days and because the exact form of regulation for the different sectors hasn't been decided they haven't yet had to do that sort of analysis). Even worth considering a freedom of information request along those lines (perhaps at a later stage) if you don't get a decent response. And when it comes to deciding on costs for the purpose of the cost benefit analysis it would be interesting to see what they consider to be costs - are they taking into account both economic costs and potential cost to innovation etc. This could be a weak spot to look at and lobby on.
The debate around evidence and lack of sufficient evidence might also be used to help shape the form of the state regulation if it comes to that - there are lots of different sorts of regulation and, for example, the tick box approach, at least in the financial services field, has tended to be replaced by a principles based approach which is less reductive and is better at encouraging innovation. So don't assume that there is only one sort of regulation - it might be possible to have something much more light touch and more suited to innovation and all the different sorts of therapies available. Seems to me that in bringing in this regulation idea, the govt is probably concerned about (1) inflated claims that I can cure you and (2) the range of potential unethical practices. Although in theory the courts can deal with concerns like this the fact is that the courts are expensive and scary and the govt tends to want individual complaints of malpractice to be dealt with by the professional bodies. Perhaps the key is to try to shape the regulation that comes out so that it focuses on misrepresentation (arguably already covered by the common law anyway) and proper ethics (ditto), to keep encouraging something which is very light touch."
I haven't looked at the evidence but my guess is that it might be an uphill struggle to persuade a court that the evidence is so weak as to make a govt decision to introduce some form of state regulation irrational or unreasonable. That said however it might be worth really going into the evidence issues as part of the lobbying process and if their answers are insufficient they could form part of a later legal challenge. At this stage you could ask for more detail about what evidence has the government put forward and have they yet done a cost benefit analysis (which they should do for any legislative proposal)
- i.e. sending the Dept of Health a letter saying you would like to know what evidence they are relying upon, e.g. any independent studies as to the scale of the problem, and asking when /whether they have done a cost benefit analysis for the legislative proposals (my guess is that it is still early days and because the exact form of regulation for the different sectors hasn't been decided they haven't yet had to do that sort of analysis). Even worth considering a freedom of information request along those lines (perhaps at a later stage) if you don't get a decent response. And when it comes to deciding on costs for the purpose of the cost benefit analysis it would be interesting to see what they consider to be costs - are they taking into account both economic costs and potential cost to innovation etc. This could be a weak spot to look at and lobby on.
The debate around evidence and lack of sufficient evidence might also be used to help shape the form of the state regulation if it comes to that - there are lots of different sorts of regulation and, for example, the tick box approach, at least in the financial services field, has tended to be replaced by a principles based approach which is less reductive and is better at encouraging innovation. So don't assume that there is only one sort of regulation - it might be possible to have something much more light touch and more suited to innovation and all the different sorts of therapies available. Seems to me that in bringing in this regulation idea, the govt is probably concerned about (1) inflated claims that I can cure you and (2) the range of potential unethical practices. Although in theory the courts can deal with concerns like this the fact is that the courts are expensive and scary and the govt tends to want individual complaints of malpractice to be dealt with by the professional bodies. Perhaps the key is to try to shape the regulation that comes out so that it focuses on misrepresentation (arguably already covered by the common law anyway) and proper ethics (ditto), to keep encouraging something which is very light touch."
Sunday, 27 July 2008
Regulating counselling and psychotherapy via HPC
Excerpts from the HPC doc. I include it here because I am surprised by the rather grand way it states its right to intervene in other people's practise in the name of public safety without saying what that means nor why they (the HPC) are less of a threat than any one else. There are many questions begged by this document which I hope to gradually unpack.
Introduction
We are seeking the views of stakeholders on the potential statutory regulation of psychotherapists and counsellors.
About us:
We are the Health Professions Council (HPC). We are a regulator and our job is to protect the health and wellbeing of people who use the services of the health professionals registered with us. To protect the public, we set standards that health professionals must meet. Our standards cover health professionals’ education and training, behaviour, professional skills, and their health. We publish a Register of health professionals who meet our standards.
Health professionals on our Register are called ‘registrants’. If registrants do not meet our standards, we can take action against them which may include removing them from the Register so that they can no longer practise.
About statutory regulation
• Statutory regulation of psychotherapists and counsellors
In February 2007, the government published a White Paper on the future of regulation, ‘Trust, Assurance and Safety – The Regulation of Health Professionals in the 21st Century’.
The White Paper said: ‘The government is planning to introduce statutory regulation
for…psychotherapists and counsellors…’ (page 81) ‘…psychotherapists and counsellors will be regulated by the Health Professions Council, following that Council’s rigorous process of assessing their regulatory needs and ensuring that its system is capable of accommodating them. This will be the first priority for future regulation.’ (page 85)
Subject to the necessary legislative approval, the White Paper indicated that psychotherapists and counsellors would be regulated by the HPC in the future.
We are therefore undertaking this project in anticipation of that legislative approval. [emphasis added] However, please note that the outcome will be subject to any final decisions made by the UK and Scottish Parliaments.
Introduction
We are seeking the views of stakeholders on the potential statutory regulation of psychotherapists and counsellors.
About us:
We are the Health Professions Council (HPC). We are a regulator and our job is to protect the health and wellbeing of people who use the services of the health professionals registered with us. To protect the public, we set standards that health professionals must meet. Our standards cover health professionals’ education and training, behaviour, professional skills, and their health. We publish a Register of health professionals who meet our standards.
Health professionals on our Register are called ‘registrants’. If registrants do not meet our standards, we can take action against them which may include removing them from the Register so that they can no longer practise.
About statutory regulation
• Statutory regulation of psychotherapists and counsellors
In February 2007, the government published a White Paper on the future of regulation, ‘Trust, Assurance and Safety – The Regulation of Health Professionals in the 21st Century’.
The White Paper said: ‘The government is planning to introduce statutory regulation
for…psychotherapists and counsellors…’ (page 81) ‘…psychotherapists and counsellors will be regulated by the Health Professions Council, following that Council’s rigorous process of assessing their regulatory needs and ensuring that its system is capable of accommodating them. This will be the first priority for future regulation.’ (page 85)
Subject to the necessary legislative approval, the White Paper indicated that psychotherapists and counsellors would be regulated by the HPC in the future.
We are therefore undertaking this project in anticipation of that legislative approval. [emphasis added] However, please note that the outcome will be subject to any final decisions made by the UK and Scottish Parliaments.
HPC call for ideas for regulating psychotherapy and counselling
If you go into the web-link in this blog's title, you will download a document about the proceedings to include counselling and psychotherapy in the HPC register.
I suppose it is because the HPC is already set up on the basis of a legal statute that they must proceed as if it is ipso facto a good idea to regulate this practice. The questions are already set up on the contentious assumption that the HPC is the right way to register professionals. The call for ideas, then, is a highly particular call, and precludes the possibility that anyone should have a different idea. This is extremely worrying, especially given the field of work that is in question here.
Summary of questions
The following is a summary of the questions we have asked in this document:
1. What are your views about how the Register should be structured for
psychotherapists and counsellors?
2. Which titles should be protected and why?
3. What criteria might be used in considering which voluntary registers should transfer and which should not?
4. We invite voluntary membership organisations to provide us with details about:
o The number of members and the extent to which this number is likely to overlap with membership of other organisations.
o Information about arrangements for determining entry to membership.
o Information about arrangements for considering complaints about members.
5. How long should the grandparenting period be open for and why?
6. Are there are any other matters which the group should consider in recommending appropriate grandparenting arrangements?
7. We would welcome any information about:
o The number and names of existing qualifications leading to the practice of psychotherapy and counselling.
o Types of qualifications including the academic level or academic awards of those qualifications.
o The structure of qualifications including theoretical content and practical experience.
o Quality assurance of qualifications including existing internal and external quality assurance mechanisms.
8. What issues should the PLG consider in determining the threshold level of qualification for entry to the Register?
9. What existing standards or other work should the PLG take into account in putting together draft standards of proficiency?
10. Do you have any further comments?
http://www.hpc-uk.org/assets/documents/1000234Fcouncil_20080703_enclosure08.pdf
I suppose it is because the HPC is already set up on the basis of a legal statute that they must proceed as if it is ipso facto a good idea to regulate this practice. The questions are already set up on the contentious assumption that the HPC is the right way to register professionals. The call for ideas, then, is a highly particular call, and precludes the possibility that anyone should have a different idea. This is extremely worrying, especially given the field of work that is in question here.
Summary of questions
The following is a summary of the questions we have asked in this document:
1. What are your views about how the Register should be structured for
psychotherapists and counsellors?
2. Which titles should be protected and why?
3. What criteria might be used in considering which voluntary registers should transfer and which should not?
4. We invite voluntary membership organisations to provide us with details about:
o The number of members and the extent to which this number is likely to overlap with membership of other organisations.
o Information about arrangements for determining entry to membership.
o Information about arrangements for considering complaints about members.
5. How long should the grandparenting period be open for and why?
6. Are there are any other matters which the group should consider in recommending appropriate grandparenting arrangements?
7. We would welcome any information about:
o The number and names of existing qualifications leading to the practice of psychotherapy and counselling.
o Types of qualifications including the academic level or academic awards of those qualifications.
o The structure of qualifications including theoretical content and practical experience.
o Quality assurance of qualifications including existing internal and external quality assurance mechanisms.
8. What issues should the PLG consider in determining the threshold level of qualification for entry to the Register?
9. What existing standards or other work should the PLG take into account in putting together draft standards of proficiency?
10. Do you have any further comments?
http://www.hpc-uk.org/assets/documents/1000234Fcouncil_20080703_enclosure08.pdf
Monday, 14 July 2008
HPC & Psychology
The Health Professions Council was set up by the Health Professionals Order passed by the Privy Council in 2001. The Privy Council is a Government operational arm which is separate from the judicial system, and operates through the Lord Chancellor and the courts. Traditionally it is reckoned to be an unusual way of using power, and is reserved for extreme emergencies such as would happen in war. Tony Blair's Government, however, made frequent use of it. The object or aim of HPO2001 is to 'safeguard health and wellbeing' by State registration and regulation of a whole range of people who practise a very wide variety of professions. A secondary function of this legislation, tho not named in the documentation, is to give government approval to those who sign up in the form of legally protected titles. The psychologists have wanted this status since the early 1980's, for example. It allows them to protect their practise from any competition.
Earlier this year (2008), there was a 'consultation' about section 60 of the Health Act 1999 which sets out to enrol psychologists into the HPC. Section 60 is contained in the Health Care and Associated Professions (Miscellaneous Amendments) No 2 Order 2008, and is tabled for consideration in the 08-09 session where it is expected to be passed in the Commons Select Committee on Health. The BPS (British Psychological Society) comment on this can be consulted on their web site (under ‘statutory legislation’, ‘latest updates’, ‘20 March 2008, 29 April and 22 May’.
The consultation took the form of a very biased questionnaire. It was biased in that it took for granted that everyone shares the government's opinion that 'professionals' must be regulated through the State machinery. The rhetoric that pretends to underpin this idea is that professionals are ipso facto a menace to the public. It is not uncommon for someone to start talking about Harold Shipman at this point as if this highly unusual man is somehow representative of professionals who are not registered by the State. This, of course, is nonsense.
The philosophy behind the HPO 2001 shares much with the work of Ian Kennedy, an academic lawyer. He chaired the commission of enquiry into the Bristol Royal Infirmary and is well known for his sustained attack against the medical profession published in his book (1981) The Unmasking of Medicine.
Earlier this year (2008), there was a 'consultation' about section 60 of the Health Act 1999 which sets out to enrol psychologists into the HPC. Section 60 is contained in the Health Care and Associated Professions (Miscellaneous Amendments) No 2 Order 2008, and is tabled for consideration in the 08-09 session where it is expected to be passed in the Commons Select Committee on Health. The BPS (British Psychological Society) comment on this can be consulted on their web site (under ‘statutory legislation’, ‘latest updates’, ‘20 March 2008, 29 April and 22 May’.
The consultation took the form of a very biased questionnaire. It was biased in that it took for granted that everyone shares the government's opinion that 'professionals' must be regulated through the State machinery. The rhetoric that pretends to underpin this idea is that professionals are ipso facto a menace to the public. It is not uncommon for someone to start talking about Harold Shipman at this point as if this highly unusual man is somehow representative of professionals who are not registered by the State. This, of course, is nonsense.
The philosophy behind the HPO 2001 shares much with the work of Ian Kennedy, an academic lawyer. He chaired the commission of enquiry into the Bristol Royal Infirmary and is well known for his sustained attack against the medical profession published in his book (1981) The Unmasking of Medicine.
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