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

What is the Health Professions Council (HPC)? Paper published in Self & Society

[You can get the full journal by emailing admin@ahpb.org.uk or go to the website.]

This is an important question that has yet to be adequately answered. The question is a logical one, not a political or rhetorical one. It is important to understand what a new ‘regulator’ is in terms of what it does on a daily basis, and how it organises its resources to accomplish its aims. Without a clear idea of the mechanisms at play it is not possible to predict the consequences of its actions, nor to hold it properly accountable for those consequences. If we only read the statements published by the HPC itself we won’t be any wiser. Statements like “We are the Health Professions Council (HPC). We are a regulator and we were set up to protect the public. To do this, we keep a register of health professionals who meet our standards for their professional skills and behaviour” are practically meaningless - we need to have some idea of how these statements are translated into practice, what grounds them in the truth. Much of the HPC publicity stresses the importance of Fitness to Practise hearings, and although these do take up a huge amount of time and money at the HPC, and a huge amount of PR space, in fact they account for a very tiny proportion of people on the register (see the Maresfield Report at maresfieldreport.com for a detailed analysis of this aspect of the HPC). Without knowing what the HPC think regulation really is or how it really works, it won’t be possible to know how to act in relation to it, nor how to judge whether it succeeds or fails.

One way to tackle the question is to approach the HPC as an organisation with everyday activities, committees, and budgets. From this point we can begin by saying that the HPC is an administrative centre which holds a database (known as The Register), which currently contains the details of 205,000 practitioners from 15 different occupations. Most of these occupations had previously been known as ‘professions supplementary to medicine’ and fell under the jurisdiction of the Council for Professions Supplementary to Medicine (an organisation created by the Conservative Government of 1960 in order to register those practitioners who worked in the NHS). The professions became known as Health Professions when the new Labour Government enacted the Health Professions Order 2001 (HPO 2001) in order to regulate these professions whether they worked for the NHS or not. The Order instituted key changes, and swept away the CPSM. Of course, many of the same people are still involved, and the organisation is still at the same address, but the new Order turned registration into regulation and centralised the power of the organisation by getting rid of the Professional Boards which had up until then guaranteed a place for each different practice in the organisation.

The Order states that the HPC must ‘set the standards necessary for safe and effective practice for each part of the register’, but it does not define what it means by standards, it does not define how to measure safe and effective practice, and it does not stipulate the necessity for generic over-arching standards. These are for the HPC to define, and in order to do this, it can consult practitioners – or as Chief Executive Officer, Marc Seale, put it at a conference in London (organised by Confer to put questions from Counsellors and Psychotherapists to HPC January 2010): ‘we invite them in to do a job, they do it, then we say good bye’.

There are three main areas of intervention where the HPC makes its presence felt as a regulator. Continuing Professional Development Audit and Fitness to Practise hearings each intervene at the level of individual registrant, Education and Training involves the validation of courses leading to professional qualification.

In each of these activities (CPD, FTP and E&T) the HPC recruits practitioners and lay people to help its Directors and staff to make decisions. The place of the practitioner in relation to these structures is new. Many of those who attended the Confer Conference were astonished to discover that the HPC recruit and select members to the Professional Liaison Group as if to a job vacancy. The assumption amongst practitioners had been that representatives from the various professional groups had been given a place on a forum, and had control over who attended. But this is one of the ideological changes introduced by the HPO2001. The HPC Council is appointed by the Government Appointments Commission; at Fitness to Practice Hearings lay people outnumber those with expertise or experience of the field in questions; in the new CPD audit, each registrant’s file is assessed by one lay-person and one person from the same part of the register. In brief, the HPC structure deliberately introduces a series of breaks between the knowledge of, and the regulation of, practice. This is problematic and contentious because it interrupts the flow of knowledge both in its development and in the natural regulation of practise, and obscures what actually happens by creating blind spots.

One member of the PLG responsible for distributing certificates of practise to people on courses across the country gave voice, privately, to his concerns that the expanding market for counselling courses was making it more and more difficult to be confident that certificates meant what they said. The changes introduced into the education system, making it more market driven, were weakening the processes of natural regulation and raising anxiety. Looked at from this point of view he quite liked the idea that the HPC would absolve his responsibility by offering a centralised system to punish people who transgressed. Great, if numbers is what interests you. Not great if knowledge and practice is important to you.

So, why are lay people so heavily relied upon in the HPC? If there are good reasons behind this innovation, they are not easy to find. More obvious, unfortunately, is the pernicious dimension overtly expressed in a variety of phrases (‘club culture’, ‘old boy networks’ ‘protectionism’ ‘self interest’). These invidious ideas found overt expression in the first major advertising campaign. It used photographs of people dressed up in white coats, but wearing false noses, eyebrows and glasses and invited the public to doubt the integrity of their practitioner. Four large posters from this campaign were proudly displayed as ‘art’ – framed and placed in the corridor at the HPC until only recently. What this extraordinary act seems to convey is that the organisation itself is not functioning as a thinking rational entity, but is animated by a rather simplistic idea. If there is good cause to mistrust local structures or practise and training then let us have the evidence and tackle the problem directly. What exists at the moment is a culture of insinuation and a rising level of fear – these do tend to push people away from rational thought and towards a knee-jerk call for ‘more power from above’ creating a vicious circle. The more centralised the system becomes, the less real information it has about what goes on in reality, and the more it gets tempted to blindly ‘crack down’ with its power.

The HPC claim to be able to ‘regulate’ through the application of standards, an idea borrowed from factory and quality management. There is ambiguity surrounding the real value of standards however, with some people openly saying they don’t matter in practice, and very little evidence that they mean much of an consistent value in the fitness to practice hearings. That there is a split between the standards and the reality is probably true. Where does this leave them as an instrument of regulation? If we follow the push to change the generic standards of proficiency we can get a better idea of the real meaning of the standards.

The push to change the current generic standards gathered momentum after the consultation closed on regulating psychology. On 2 December 2008 the Education & Training Committee agreed to “undertake a review” of the generic standards. This date marks the end of the overt process of consultation to take on the practising Psychologists to the HPC register and at the beginning of the overt process to capture counsellors and psychotherapists (this opened in summer 2008 with the Call for Ideas, the first meeting of the PLG for P&C took place on 4 December 2008). The Generic Standards had come in for criticism by the Psychologists, and would come in for more by the Counsellors and Psychotherapists when their turn came to comment on HPC proposals to take over their field.

When the HPC requested the Department of Health to write the legislation necessary to transfer power to regulate Psychologists to HPC under Section 60 of the Health Act 1999, the DH was also rewriting the constitution of the Council of the HPC. Until then each of the fourteen professions regulated by HPC had one member on the Council (plus an equal number of lay people, and the Council Chair), but, with the expanding number of professions coming into the HPC it was felt to be unfeasible to sustain this one to one relation, and membership of Council was fixed at nineteen which broke the connection between the Council and each group of practitioners. All current post holders lost their power, new advertisements went out, and the Appointments Commission chose the new Council ready for the July Council meeting where a Review Group (RG) was convened to continue the work on the replacement generic standards of proficiency. This introduces a further potential break between the knowledge and practice which can be better understood by following the way this group formed its ideas, and noting how it will implement them.

This RG comprised seven members, two of whom were newly appointed to HPC, two were not registrant members of HPC (hence, lay), and three were experienced HPC Council members. They met twice (28 September 2009 and again on 27/8 January 2010) before reporting to Council in March 2010. Their report was endorsed and their proposal went forward for public consultation between 28 July and 20 October 2010.

In October 2009 the public consultation on the regulation of Counselling and Psychotherapy closed with a record 1,100 responses in which criticism was levelled at the HPC as an inappropriate regulator for this field with the standards of proficiency widely cited as inappropriate. Although HPC presented an unperturbed face, and gave the go ahead to the DH to prepare to transfer power, the politics of the day held that this wouldn’t work unless something at least was done about the Generic Standards of Proficiency.

On Monday 26 July 2010, two days before the consultation on generic standards opened, the HPC announced their pleasure at being invited by the newly formed coalition Government to take over the regulation of Social Workers from the General Social Care Council. This coup must have been due to some skilful lobbying behind the scenes, and could not have been a complete surprise to the HPC executive and Council, but neither could it have been openly guiding the rewriting of the proposed new generic standards. This new government policy requires the HPC to change its name. This must also have an impact on the central generic standards for the foreseeable future. However, the process continues unchanged.

The Council Report (March 2010) notes that the RG was advised by HPC lawyers “not to make changes specifically in response to the feedback received through the psychotherapists and counsellors consultation as these professions are not currently regulated by the HPC”. The advice conveys the idea that standards of proficiency are intimately related to the work of specialists and must take this as the reference point, not the work of another group who may never join the register. Yet, the proposed new standards, as we will see, draw heavily on those already in use amongst many counselling and psychotherapy organisations.

When the RG reported to Council, it specifically noted that the ‘generic standards of proficiency should be retained as they recognised important commonalities shared by the professions regulated by the HPC’. Furthermore, ‘one of our strengths as a multi-profession regulator is our ability to have common processes that are applicable across all our professions’ (my emphasis). But the HPO 2001 only requires the HPC to establish standards of proficiency for different parts of the register, that is each different part that relates to a different kind of practice. There is no legal requirement for HPC to create over-arching generic standards. The reasons for having ‘generic standards’ are left vague and un-argued. They appear to have more to do with the needs of a new group of Council members to create an object to manage (a ‘mission statement’) than they do to the practice of any of the professions.

An added complication arose in September 2009, when HPC wrote to twenty professional bodies of groups already regulated asking them for feedback on the current generic standards of proficiency. Details of this survey were not made public, but the Review Group noted that seven of these twenty organisations responded to the survey: four said they had nothing to say, one commented on the introductory remarks, not on the standards themselves, and two commented in detail about eight of the twenty five main standards. The RG interpreted this to mean that most of the professional bodies covered by the HPC were satisfied with the current state of the standards. This rather odd conclusion allowed them to park the feedback on one side, and continue working towards its own agenda.

Attachment B of their Recommendations to the Council summarised the additional information made available to them and considered at their second meeting and showed that most of it came from the consultation on the regulation of counselling and psychotherapy, and the rest related to concerns raised by the psychologists. Furthermore, the implications of the new standards are spelled out in a time-table of work considered at the Council meeting which pointed out that it will take years before the psychologists can re-write their specific standards to take account of any changes at generic level. Here another problem is revealed: HPC explain that the timetable to rewrite the psychology standards is based on the three-year ‘grand-parenting’ period which will have to be allowed to play out under the current, agreed, standards. The logic here is that the standards are so central that people need to be sure of the standards they are judged by, it would be wrong to change them mid-stream. This logic, however, is not directing other work at the HPC. Psychologists with complaints against them prior to 1 July 2009, are being tried by HPC lawyers using HPC standards – which must be applied retrospectively. Nothing adds up.
There are many other anomalies all of which tend to suggest that there is little real thinking about the practical implications of ideas. The system seems to be built on the idea that centralised thoughts can be imposed, and this can be backed up with systems of punishment for local transgressors. The statement currently on the website says “The consultation follows a lengthy analysis of the standards where feedback was considered from a variety of stakeholders, including a number of comments from individuals and organisations. During the process the HPC set up a group of its Council members to review the generic standards and recommend whether any changes need to be made.” This implies the existence of an orderly, routine, well thought out process, but there is no evidence of a routine procedure to collect information about problems raised by the generic standards, and survey evidence seems to suggest that practitioners are not really thinking about this. At no point do the Review Group quote from any amassed wisdom generated from years of operating the previous standards. It rather looks, at best ad hoc, at least politically motivated, at worst simply business colonisation (‘with an eye to future opportunities for large-scale expansion and income generation’).

Reading through the minutes of Council and the report of the review group on generic standards, it seems that any question about the practical effect of the standards has been parked. In place of any proper impact study, we have a public consultation which, if previous consultations are any indication, bring in such a wide and varied response that it overwhelms the capacity of those delegated with the task of reading. Instead of thinking intelligently about the meaning and detail of responses, administrators are reduced to counting things, collapsing things, and pushing things together under generic headings. The machinery of the HPC almost seems to be designed to destroy actual knowledge and expertise. It certainly does not easily lend itself to an interpretation of enlightenment.

The standards that are in question are a complicated set of numbered points that try to differentiate between overarching and detailed generic standards. The box below renders the numbered points more or less into prose for ease of reading.

The current generic standards (interpreted, edited, and presented as prose)

“A professional must be able to demonstrate autonomy and accountability by practising within the legal and ethical boundaries of their work, in a non-discriminatory way, respecting confidentiality, and with the consent of the patient. He or she must exercise a professional duty of care and use good judgment, be able to manage workload and resources sensibly. These things must be ongoing.

Registrants must be able to work with other people, whoever they are, and to contribute to multi-disciplinary teams where necessary. Good communication skills across the board is expected.

Practitioners must be capable of investigating situations, gathering and analysing the right information and using the right techniques to carry out their work. They must be able to formulate and deliver treatment plans, draw on appropriate knowledge and skills and make professional judgements, all in a timely manner. They must be able to conduct the right procedures, treatments, and therapies etc safely and skilfully and maintain useful records.
Registrants must be able to evaluate the impact of their work both on any specific job and throughout their career. If necessary, they must comply with management audits.

Finally, registrants must know and understand the key concepts relevant to their particular practice. They must know how principles are expressed and translated into action and how to mediate specialist knowledge according to the context of their work. Finally, registrants must establish and maintain a safe practice environment.”

This reads like a general mission statement for a set of employees. The consultation document states that they ‘describe what registrants should know, understand, and be able to do at the time they apply to join the HPC Register’.

It goes on to give an explanation about why changes are needed: “We are aiming to make the new structure simpler than the current structure with less overarching standards. Some skills (eg communication) previously had more than one generic standards and we are proposing that they be combined into one broad standard”. No one explains how or why the old version was established, nor how it functioned over the intervening nine years, nor what problems actually occurred. Instead, a number of arguments are put forward for changing which read like post hoc rationalisations. ‘Language use’, for example was a problem that needed to be solved: ‘[now] we use language that can take into account changes in the law, technology or working practices which might take place over time’. How, exactly? Another problem is noted as “Not all generic standards apply to all professions regulated” – a contradiction in terms. In the report made to Council in March 2010, the Review Group revealed that Arts Therapists have never considered themselves covered and they have been part of the HPC since before it began. What a revelation! What is the real function, then, of these standards of proficiency? They seem to have very little to do with practice and everything to do with creating an appearance. Where does this leave the meaning of the word ‘regulation’?

The conclusion to section 3 boldly states that the generic standards of proficiency should be retained ‘as they recognise important commonalities shared by the professions regulated by HPC … [and] one of our strengths as a multi-profession regulator is our ability to have common processes applicable across all our professions’. If this were true, then the absence of generic standards would lead to the collapse of the HPC, it would imply the HPC remains nothing more than an empty idea held together by a law.

The penultimate bullet point of the conclusion states that ‘significant changes to both the structure and wording of the standards of proficiency are required to address the concerns that have been raised’, but no reference is made to the specific problems raised.

Section 4 contains the proposed standards themselves and Appendix C contains a table which organises the current standard alongside proposed changes together with the ‘reasoning’. This table is largely constructed out of a small number of ready-made statements which are inserted into boxes in a repetitive way, like bricks. In the column marked ‘reasoning’, where one might reasonably expect to find reasons, we find the repetition of a statement of belief. The final part of the table which contains the two new standards: the first is the old standard 1a.8 elevated to prime position: ‘We are proposing that it become an overarching generic standard as we feel that it is an important standard that is applicable across the whole register’ (emphasis added). And the second – “be aware of the impact of culture, equality and diversity on practice” - is ‘justified’ as follows: ‘We are proposing that this standard be added to reflect the importance of culture, equality, and diversity considerations for professionals and their practice. We believe that there is more to culture, equality and diversity consideration that just practicing in a non-discriminatory manner and that the additional standard is important’ (sic).

The Proposed Generic Standards of Proficiency
The Review Group met twice, ignored the legal advice, the survey responses, and all reference to technical practical work. They decided that generic standards were necessary, constructed a list of fifteen points headed generic standards of proficiency. Below these fifteen points are written out as plain text:

The proposed generic standards (interpreted, edited, and presented as prose)
“Registrants must be able to practice safely and effectively within their field of expertise, and especially within the legal and ethical boundaries of their work – and this is an ongoing requirement. They must be able to act alone and take responsibility for their judgement without becoming hostile to anyone. Personal and cultural prejudices, religious doctrines and sexual desires have no place in the work. A registrant must be sensitive to confidential matters, yet be able to communicate with others and maintain proper records. Practitioners should subject themselves to reflection and review of practice in order to assure the quality of their work. They must be able to draw on the right knowledge and skills in their work and understand the key concepts in their field. They are responsible for maintaining a safe and effective environment in which to practice their work.”

Conclusion
Little is what it is supposed to be, the dynamics of change seem much more clearly linked to political will and business opportunity than to practical or theoretical matters. There is much effort expended in presenting face, there are many patches of fog and confusion, and there is no evidence of any real, carefully thought through link between the centralised operations and the local application of practice. The suspicion that practitioners are fundamentally untrustworthiness lurks around in the fog, and occasionally comes out into the glaring light (even as a serious advertising campaign!), and this cannot bode well for the future of real work and real practice. What we have here is a smokescreen of conflicting and contradictory statements behind which business interests may quietly pursue policies of expansion and colonisation. Couple this together with the power of the law and what have you got? Apparently, the HPC.

Safe regulation of practice, on the other hand, comes from rational real knowledge and experience, and a willingness to be close to the action. It also requires local courage and clarity to speak up and act when something goes awry. Finally, successful regulation requires a realistic response to difficulties and a willingness to relinquish the petty pleasures that power inevitably brings.

Post Script.
In a series of letters pursing questions about a fitness to practise hearing, I asked Mr Seale, CEO, if he would use my formal title in correspondence. He replied that he thought it incorrect to address me as Dr, and referred me to Debretts to justify the snub. This came on a letter-head printed with the name of the HPC President: Dr Anna van der Gaag. Dr van der Gaag is a speech and language therapist and received her honorary doctorate from De Montfort University earlier this year. Coincidentally, the HPC recently agreed, after much resistance, to recognise PhD as one of the qualifications required for entry onto part of its register, and will therefore be responsible for validating courses leading to the title of Dr.

Judicial Review 10 December 2010, Royal Courts of Justice, The Strand, London

On Friday 10th December, the hearing will take place for the Judicial Review of the HPC. We won't know the start time of the hearing until it is announced on Thursday 9th December. As soon as its know, I'll post a note here. It will probably be 10.30am, and is expected to last 3 hours.

It will be held at the Royal Courts of Justice, in the Strand, which are open to the public. Please do come along and listen to the proceedings if you can. This is a hugely important meeting, and significant to the future of all psy work.

The hearing will examine two questions prior to the Court's decision on the Judicial Review. Firstly, there is the question of why the Judicial Review was not begun sooner given the last government's wish that the HPC assess the regulatory needs of the therapy field. Secondly, whether the Secretary of State for Health is an interested party or not. More information can be found at http://www.psyreg.co.uk/

It will be great to have a good turnout - I look forward to seeing you at the Royal Courts of Justice, Strand, London WC2A 2LL.

New Book: Ruth E Jones - Foreshoring the Unconscious: Living Psychoanalytic Practice

Ruth E Jones - Foreshoring the Unconscious: Living Psychoanalytic Practice
http://www.psychoanalyticpractice.co.uk/

This short, readable, intelligent book, is one of a growing number of essays now being written in response to the threat posed by current regulatory thinking. As this kind of practice is threatened with extinction, Ruth Jones writes about what she does and why she does it. She is a psychoanalytic therapist who reminds us that working psychoanalytically is not without humour, not without a relation to science, and not the business of an elite. Drawing on her experience in quantum physics and the Medway foreshore Ruth makes use of images and metaphors to expose the essence of an encounter between two people, one of whom wants to know what is going wrong in their life, the other who is 'sitting back', 'holding open' and who is vitally alive to living. This short book answers the question 'what exactly is it that you do?' not only for someone thinking of finding a therapist, but also for anyone who is curious about the distinctiveness of contemporary psychoanalysis. It simply shows how the current fetish for centralised control either of data or of practitioners is essentially misguided, highly destructive, and extravagantly inefficient. Click here to buy it (£10 including P&P), then sit down and read it - it is an important part of the struggle. .

The UKCP meet the HPC day on September 24th 2010, or An education in misconduct. Guest post by Bruce Scott

Dr. Bruce Scott
Philadelphia Association, London.


The title in no way implies wrong doing on the part of the conference organisers, the United Kingdom Council for Psychotherapy (UKCP). It was a very well organised day where the two representatives from the Health Professionals Council (HPC) made very polished presentations and were very willing to talk about the HPC’s initiatives for regulating psychotherapists and counsellors and their training courses. The issue I have is that I feel that if I were to agree to the proposals offered so far by the HPC (and on the day in question) and sign up so to speak, I would, paradoxically be complicit in breaking the HPC’s standards of conduct, performance and ethics. Indeed, if any counsellor or psychotherapist did sign up to be regulated by the HPC (and also let their courses be regulated by the HPC), as the framework for the proposed regulation of counsellors and psychotherapists stands at the moment, then every one of the new registrants would be falling foul by breaching the HPC codes of conduct, performance and ethics. Let me explain why. Firstly, let me quote from the HPC’s website:

“We are a regulator, and we were set up to protect the public. To do this, we keep a register of health professionals who meet our standards for their training, professional skills, behaviour and health.”

Sounds fair enough at a glance; but all is not what it seems and worryingly a vast pro-HPC majority seem either unaware of their blind spots or have another agenda for signing up to the HPC. The fact as it stands is that the HPC have no evidence to back up their claim that they will and can protect the public. The HPC are not protecting the public, but are harming the public by trying to convince us (psychotherapists, counsellors, and the public) that they are.

At the conference during the afternoon session, delegates split up into different groups. I decided to go into a group which had as one of its members Michael Guthrie, the Director of Policy and Standards at the HPC, who would be responsible for setting educational standards of psychotherapy training courses if regulation went ahead. He is the person responsible for setting the educational standards which psychotherapy and counselling trainings will have to abide by if regulation goes ahead. Mr. Guthrie gave a polished presentation in the morning session, but I felt unconvinced as he had not produced any facts how the HPC’s policies would improve the psychotherapy world as it stands.
During the small group meeting I asked him if the HPC standards of education that will be imposed on psychotherapy trainings result in a better and improved education for trainees, and thus better psychotherapists, and therefore a world where the protection of the public is improved; better than what already exists and if there was any evidence to back up these actions and proposed plans.
To cut a long story short, he could not give me any evidence, scientific or anecdotal, and neither could any of the other delegates in the room, whom I felt were all pro-HPC. This was because, as I found out through the conversation we were having, there has been no research conducted to find out if the proposed regulation of psychotherapists and counsellors and their respective training courses will have any effect on improving training, psychotherapists and their conduct, fitness to practice, and would result in better protection for the public.

What was most disturbing was that there seemed to be some kind of unwillingness in my group amongst the delegates and Michael Guthrie to focus upon this important and troubling point (as the HPC’s primary remit is the protection of the public) that there was no evidence. On my asking of the question, Mr. Guthrie was silent, while another delegate broke the uncomfortable silence and protested that the world would be a better place with HPC regulation as her modality of practice would gain recognition within the NHS and thus achieve a more respectability in the world of psychotherapy and all what being in the NHS entails: more opportunities for earning income. Another delegate from the same modality agreed and gushed that she wished it (HPC regulation) would happen tomorrow, followed by another female delegate who lamented that the wait for regulation to happen is unsettling and she also wished it would just go ahead. A gentleman delegate explained how regulation would be good as it would give psychotherapists and counsellors a “seat” at the HPC table alongside the psychologists and would enable to stem the CBT /IAPT bias that is flooding the market and taking away jobs from psychotherapists and counselors form other modalities. He also stated that the psychotherapy and counselling’s image would be enhanced in the public eye if it was regulated by the HPC.

After these comments by my fellow delegates I felt as though my question was being swept under the carpet and I again intervened. I said that I understand what some people in the room were saying in relation to HPC regulation being good for jobs, or even that the image of psychotherapy and counselling might be improved, but that this was not what I had asked. I reiterated to the group that I had asked if there was any evidence for the HPC’s educational policies would result in a more risk free psychotherapy world as per their remit?

At this point I put on my academic psychologist’s hat (my previous life before I trained as a psychoanalytical psychotherapist was involved with studying the cognitive model of depression and the effects of antidepressants) and I said that as a psychological scientist I have to be convinced by evidence if I am to agree with a policy of action, but the HPC has provided no evidence. I then referred to what Peter Fonagy said at one previous PLG meeting during the lunch break ; he said that therapists have to be regulated as one study showed that 5% of therapists do either harm or no good. I then said to my fellow delegates this statistic may fit with remit of the HPC about protecting the public, but even if Fonagy’s statistic is true (I have never seen the paper) it is a deceptive statistic for several reasons. I explained to the group why. Firstly, in any distribution of therapists’ effectiveness, at either end of the distribution you will always have therapists who do not “cure” the patient, and at the other end therapists who do “harm”. I pointed out that it all depends of course what is meant by harm and doing no good or not “curing” a patient and thus we could get into a long discussion about what is harm and doing no good. Nevertheless, I said that regulation would never make this 5% of bad or harmful therapists disappear; you will always have patients who do not get “cured” and patients who feel they have been harmed. Regulation will not stop this statistic occurring so Fonagy’s argument does not hold any weight. Another example of how this is nonsense is when one thinks of antidepressant treatment. Most medical practitioners worth their salt know for a fact that some people will not get better taking antidepressants and some people will get a lot worse and be harmed. The same can be said for clinical psychologists giving CBT to people; some people will never get better and CBT might make them worse; CBT therapists know this fact well. As it stands, both these treatments are regulated as are the practitioners who apply them.

So I said to my delegates in my group that the HPC’s boastful idea that it is protecting the public by regulating psychotherapists is a delusion; a dangerous and futile grasping for a utopian world that can never be realised. The gentleman delegate agreed with my explanation, but reiterated that regulation was not about protection of the public and it never could be; it was about gaining the public’s confidence in psychotherapy. In other words the public will see HPC regulated psychotherapists and counsellors in a better light. Michael Guthrie spoke at this point and said it would be very difficult to do research and thus find evidence to see if the HPC’s regulatory policies for therapists and their training courses do protect the public. I retorted that this was debatable, but that it would be possible to ask the British public what they would think about psychotherapists and counsellors being unregulated by the HPC and regulated by the HPC. However, one would have to include the proviso and let the public be aware, that their safety would not be improved if therapists were regulated by the HPC as the HPC did not have any evidence that it would improve safety or improve protection of the public. What would the public think about this possibility?
What was quite amazing regarding this exchange was that nobody in the room, including Michael Guthrie defended or argued for the HPC’s remit that it was there to protect the public despite the HPC propaganda that this is what it is for. It seemed to not be an issue for anybody in the room that the whole HPC drive for regulation and the willingness of psychotherapists and counsellors wanting to sign up to the HPC may have nothing to do with safety of the public. I could not quite believe what I was hearing. On the one hand, being an anti-HPC regulation kind of guy, such an admission by the HPC representative and its supporters in that room was too good to be true, but on the other hand it is quite worrying that such deception and ambivalence on such an issue is alive and well in the HPC and its supporters. The minute taker who was writing down the questions and aspects of the discussion asked our group if their questions had been answered (by Michael Guthrie and other members) and she stated that she did not think that my question had been answered. I replied (just to double check that I had not been hallucinating) that it had. I said that it seems that the HPC have no evidence that its regulation policy for psychotherapists, counsellors, and training courses will improve public safety, and in fact the HPC and its proposal to regulate psychotherapists, counsellors, and their training courses has nothing to do with public safety. There was no noise of disagreement from the group or Michael Guthrie.

All I can conclude for this is that protection of the public may be a smokescreen for a “jobs for the boys” or a “seat at the table” attitude that fuels the pro-HPC psychotherapists and counsellors motives.

Two other important things that Michael Guthrie explained to the group were related to fitness to practice hearings and a proposed name change for the HPC that was discussed recently at a HPC meeting. I said to Mr. Guthrie and to the group that I was very concerned with the fitness to practice hearings that the HPC run. I told the group that I had been to one and I thought it was horrendous, barbaric, and de-humanizing process and that being there and witnessing the hearing was very upsetting. I asked if the HPC had any plans to have alternative ways of handling complaints made against registrants. Mr. Guthrie replied they there was indeed discussions about alternatives (e.g., mediation) going on within the HPC and that the Fitness to Practice Committee will meet on the 21st October at the HPC’s office in London and that I was welcome to go along to this meeting. I also asked about the possible name change of the HPC to the Care Professions Council and if this was still an option. Note that this would be one way to appease some people who did not like being called or identified as a health professional. Mr. Guthrie was quite sure that such name change plans had been shelved and he was sure that they would not be re-visited.

Now back to my education in misconduct. I feel it might pertinent to visit the HPC’s generic Standard of conduct, performance and ethics which all registrants have to abide by. If a registrant does not meet these standards, to quote the HPC from their website:

“The HPC will take action against health professionals who do not meet these standards…”

Actions taken by the HPC could include being struck off and not being allowed to practice, suspended, or conditions of practice being applied to the registrant. But let us look more closely at the individual standards in light of what I have talked about in this article. I will first outline the standards which I feel the HPC has not met itself and a budding registrant who if he or she signed up today would not meet the standards by the act of signing up, and then I will go on to explain why. I will do this sequentially for each standard I quote. This is not a comprehensive analysis; it just a snap shot and much more could be written about this. From the HPC’s booklet, Standard of conduct, performance and ethics that all registrants own and must live up to:

1. You must act in the best interest of service users.

It goes on to describe:

You are personally responsible for making sure that you promote and protect the best interests of your service users…..You must treat service users with respect and dignity…..You must not do anything, or allow someone else to do anything that you have good reason to believe will put the health or safety of service user in danger. This includes both your actions and those of other people.

From what I learned at this conference, the public are not being treated with respect and dignity. The HPC are deceiving the public with a false message of protecting the public. The HPC therefore are allowing themselves and potential psychotherapists and counsellor registrants (and currently with practitioner psychologists I might add) to put the mental health of members of the public in danger due to this deception. The HPC are also deceiving psychotherapists and counsellors with this deception of standing for the protection of the public. Further, if psychotherapists and counsellors willingly sign up to HPC regulation (as the HPC plans stand) if it goes ahead, then by being part of the HPC organisation, they will be in effect breaking standards by being a member; they will be complicit with the deception if they know that the HPC’s so-called remit for protection of the public is false. If they (prospective registrants) do not know that the public’s best interests are being protected, then it is a duty of the prospective to find out; in other words question the HPC and their false propaganda about protecting the public. Both allowing the HPC to operate in this way (not really being about public safety and having no evidence that their regulatory policies work), and the HPC allowing prospective psychotherapist and counsellor registrants to act in this way (sign up to a hollow and deceiving organisation) is not meeting this standard. For the HPC and prospective psychotherapist and counsellor registrants, fitness to practice is therefore impaired.

3. You must keep high standards of personal conduct.

This standard is described as:

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

Surly deception is poor professional conduct. The HPC’s professional conduct is tarnished due to the fact that they have no evidence that their regulatory policies they want to put onto psychotherapist and counsellors will work or protect the public. Surly it is duty of registrants and prospective registrants to be aware (and/or to find out by questioning the false propaganda of the HPC) that such conduct is un-professional and this knowledge would affect the confidence of the public in the HPC and its registrants. The HPC have not met this standard themselves, and if one signed up to the HPC one would be conducting oneself in a very unprofessional manner. Again fitness to practice impaired for both the HPC and prospective registrants.

4) You must provide (to us and any other relevant regulators) any important information about your conduct and competence.

This entails:

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

With such a standard the HPC must let the public and Centre for Healthcare Regulatory Excellence (the HPC’s regulator) that it is not fit for purpose. Its conduct is unprofessional due to the deception that continues regarding the lack of evidence that it has of its efficacy and also that it is deceiving the public that its function it to protect the public. This information must be made known for this standard to be met. Thus to sign up to the HPC is in effect a sign of a lack of competence and misconduct.

6) You must act within the limits of your knowledge, skills, and experience and, if necessary, refer the matter to another practitioner.

The HPC do not know if what they are doing or what they want to do (regulate psychotherapists and counsellors) will be or is presently effective (i.e., with practitioner psychologists). They do know, as discussed earlier that there is no evidence that what they do or want to do is not backed up with evidence. The HPC are not acting within their limits of knowledge, they are going beyond it. The HPC have not met this standard; their fitness to practice is impaired. Many prospective and willing psychotherapists and counsellors who sign up to HPC regulation must, if they are to meet this standard, refer the matter of their regulation to somebody else seek help and question their act of signing up to the HPC. This is because a prospective registrant does not know if they are signing up to a “safe” organisation. The HPC have not provided the prospective registrant with information and evidence as to what they do is reliable and the prospective registrant does not have the evidence that being regulated by the HPC will make them more effective and safer practitioners. The prospective registrant by signing up is going beyond the limits of their knowledge and thus would not meet this standard and therefore their fitness to practice would be impaired.

7) You must communicate properly and effectively with service users and other practitioners.

My points above are self-explanatory. The public (service users) are being deceived, and prospective registrants are being deceived by the HPC. Both prospective registrants and the HPC do not meet this standard; fitness to practice is impaired.

14) You must make sure that any advertising you do is accurate.

It explains further:

Any advertising you do in relation to your professional activities must be accurate. Advertisements must not be misleading, false, unfair, or exaggerated. In particular, you should not claim your personal skills, equipment, or facilities are better than anyone else’s, unless you can prove this is true…..Any potential financial reward should not play a part in the advice or recommendations or products and services you give.

This is a biggie! The HPC advertise that (from the HPC website and quoted at the start of this article):

“We are a regulator, and we were set up to protect the public. To do this, we keep a register of health professionals who meet our standards for their training, professional skills, behaviour and health.”

As discussed in this paper, the HPC have no evidence that what they do does protect the public. Is this not gross misleading advertisement from their website? This deception makes the HPC fail this standard; their fitness to practice is impaired. The budding registrant would be complicit in this deception if they signed up to the HPC knowing full well the HPC’s false propaganda about protecting the public. The willing registrants at the UKCP meet the HPC day that were in my group all talked about how it would be good for getting jobs/work/income etc and were well aware that the public safety remit of the HPC was not true (they did not disagree with me). Does this not amount to a potential registrant saying “I have the HPC stamp of approval and I can provide you with “better and safer services”, whilst they know full well that they would be part of an organisation that is deceiving the public regarding the remit of protecting the public as they have no evidence? Such behaviour (i.e., signing up to the HPC), if one knows the facts about the HPC (i.e., false public protection claim), is not accurate professional conduct; fitness to practice would therefore be impaired.

Then at the end of the booklet it defines fitness to practice.


When we say someone is “fit to practice”, we mean that they have the skills, knowledge, character and health to practice their profession safely and effectively.

The HPC are not fit to practice. They do not have the skills or knowledge; they have no evidence that what they do and intend to do with the talking therapies will be effective in protecting the public or make better therapists; thus they do not have adequate knowledge to practice safely in their regulatory function. Likewise, a budding registrant does not have the knowledge that HPC regulation will help them practice their profession safely and effectively. Indeed, by signing up without such knowledge, it may put the profession in grave danger, considering what I already talked about.
What I witnessed and listened to on the 24th of September 2010 at the UKCP meet the HPC day was an education for me; an education in how to fall into the traps of misconduct. How could I sign up to such an organization knowing what I know now? If I signed up as the HPC stands today and what I learned on that fateful Friday in September, I would have to go straight into a fitness to practice hearing. What a thought!


1 Cognitive behavioural therapy

2 Government initiative entitled “Improved Access to Psychological Therapies”. This initiative is mostly based on providing CBT and short term psychotherapy for as low a cost as possible. This initiative takes away work and income from trained counsellors and psychotherapists who do longer-term work and work which is not informed from a logical-positivist and evidence based practice standpoint. One result is that IAPT workers with very little training are employed simply to dish out CBT like a medicine to fix peoples’ negative cognitions (i.e., unemployed people in job centres). The political, social, and moral implications of such an initiative are obvious but beyond the remit of this article. See http://www.iapt-cbt.info/ for articles and critiques of IAPT and CBT/evidence based practice in the psychotherapies.

3 An article I wrote entitled: The professional liaison group meeting for the proposed regulation of psychotherapists and counsellors on the 12th May 2010: An example of how not to dwell in un-knowing. This can be accessed at: http://hpcwatchdog.blogspot.com/2010/06/guest-post-by-bruce-scott-on-plg.html

4 An article I wrote entitled: A case of dialectical disease: A tale of a Health Professions Council fitness to practice hearing of a psychologist. This can be accessed here: http://hpcwatchdog.blogspot.com/2010/03/guest-post-by-bruce-scott-on-ftp.html

Sponsored Run - raising funds for the Judicial Review of HPC

The sponsored trot from Highgate to Hampstead was successfully undertaken on Saturday, and a huddle of shrinks and their friends shuffled away from the Waterlow Cafe at about 3.20pm as the grey clouds parted and let in the light from a beautiful big low autumn sun. The Heath was sparkling with october colours and many hearts were singing, if not from the exertion, then at the sight of London from the top of the hill. Whew. The ponds looked very inviting, tho no-one was swimming just then. Hot tea and amazing brazilian sweets made by the amazing Brazilian Suzana greeted us at Freud's House, where Auden's poem bubbled up out of the blue - In Memory Of Sigmund Freud. It was a delightul afternoon.

Thank you to all those who sponsored me and the others. There's still time - if you would like to recognise this action, please follow the link and donate to one of the trotters whose names still appear on the web (some are already removed, but some will be there for another few weeks).

On being snubbed by the HPC, and the creative responses to it

One of the really unpleasant things about HPC-ification is the insult that is implied in the DNA of the organisation (witness those amazing adverts that implied that health professionals were liars cheats and idiots - written about here in November 2008).

However, this institutional problem can be masqued somewhat by the ordinary common decency of the various charming people connected to it. However, I have to say that the tension is always very close to the surface, and it doesn't take much to break it. When decency does suddenly give way to personal prejudice (as it can do in any organisational setting), the institutional prejudice that provides the backdrop combines with the personal rubbish and is very unpleasant indeed.

I have included reference to some of this here during the course of my observations. For example, the women from IPN who went to visit the CEO in January 2009, were so disturbed by what they experienced that they wrote him a letter, which they kindly agreed to let me publish here on 10 Feb 2009. Also, the delegation from the College of Psychoanalysts UK (Andrew Hodgkiss and Darian Leader) reported their dismay after meeting with HPC (27th Feb 2009) where Mr Seale (CEO) boasted that his advertising budget was bigger than theirs and could blast any opposition out of the water. A report of the meeting can be found on their website by clicking here.

Knowing all this (and I too have had my share of unpleasant encounters at the HPC, and I'm only a visiting member of the public) I was still shocked to see this little video. Nonetheless, having watched it a few times and spoken about it to people who are totally unconnected to the topic, I find that I am deeply impressed. To speak openly about the insult is shocking and feels subversive - after all this is an institution backed by the British constitution, it is at the heart of our society, and has been entrusted with legal powers emanating from parliament. But because it is shocking it is absolutely essential to speak, sing, act, create art, about it. I don't know who made the video, but I'm very glad they did. You can watch it by following this link.

Full speech: The new Care Professions Council shows the way to return to reality

Just imagine ... The new Care Professions Council, a return to trust and reality.

Taken from the new website, the section reproduced below refers directly to the possible prospects for counselling and psychotherapy:

2. CPC and the psychological therapies - a new ethos: connection, relationship and authenticity.

The task of persuading the public that the HPC offers effective protection from trained registered practitioners whom they might suppose could be trusted remains incomplete. Finding ways to reassure potential registrants of the benefits of state regulation of the psychological therapies, and to move forward with current regulatory intentions, has been difficult.

There has been steady support for the HPC's efforts from the business interests in the field; however responses to its Call for Ideas and last year’s Consultation included sustained opposition. The new CPC ethos outlined here is an acknowledgment of the validity of some of this opposition.

In its relations with the psychological therapies the CPC recognises that:

• While it is confident that the HPC has been a reasonable organisation to relate to, it accepts that its approach to the subtleties and sophistication of the psychological therapies has been alienated and technocratic;
  
  
• This alienating approach, and its basis in regulatory duress that the HPC has hitherto deployed, repeats many of the difficulties that clients bring to therapy and will be eliminated from the processes of the new CPC;
  
  
• It is intolerable that at present abusive practice is primarily detected and confronted by clients, leading to subsequent investigation and sanctions. The CPC will work strenuously, beginning with the psychological therapies community itself, to move to a pro-active practitioner accountability culture in which, through improved education and training, and peer scrutiny, abuse of clients approaches zero;
  
  
• Clients expect to be able to trust their practitioners. The CPC appreciates that many psychological practitioners do not have a level of trust in its processes that matches the trust they are expected to deliver for clients. Redressing this deficit is an urgent CPC priority.
  
  
• We now concede that ‘regulation’ as it has been proposed, or even ‘self-regulation’, is fundamentally mistaken. The CPC appreciates that previously claimed 'client protection' is undeliverable for psychological therapy clients. Gradated forms of ‘accountability’ that reflect domains of practice, practice populations, full- or part-time employment and levels of practitioner capability are more appropriate and realisable;
  
  
• The existing stringent, externally generated HPC regulatory framework, based on a ‘skills’ or ‘standards’ perspective, promotes false compliance in practitioners who disagree with them, or who find them problematic;
  
  
• Legally binding commitment to such externally generated practitioner protocols that are subject to legalistic fitness to practise protocols invites litigation and defensive practice and this will be ended; they will be replaced via ongoing experiential research that will identify qualities that are more relevant to clients, such as ‘practitioner presence’ and ‘practitioner capability’;
  
  
• Through existing processes of accreditation, supervision and re-accreditation, almost all psychological therapy practitioners are embedded in forms of accountability;
  
  
• Since a considerable proportion of psychological therapy practitioners have been long-term clients, they are highly aware and respectful of how clients experience practitioners;
  
  
• For at least a ‘good enough’ client experience, practitioners need to be embedded in local cultures of accountability that provide proactive, values-congruent scrutiny of practitioner capability and its potential deficits, and that are able to reflect the diversity of the psy field.
  
  
• With appropriate support, an educated person can be enabled to self-assess the quality and extent of their own and their colleagues’ capabilities and presence, and how this plays out in their work with clients. Trainings that do not support an ability to deliver this capability will be deprecated.

Now that's more like it. How might we bring this about?