The UK Department of Health recently sent out a consultation document called Promoting professionalism, reforming regulation (DoH, 2017), and invited interested parties to complete a questionnaire to comment on proposed changes to regulatory procedures for all the health professions. It has yet to publish its recommendations. This blog explores what statutory regulation can achieve, if anything, and discusses responses to the document from psychology, psychotherapy, and counselling organisations. Like many policy initiatives, its first aim is to save money. Present practices are said to be “slow, expensive, complicated, reactive, overly adversarial and confusing for patients.” One proposal is to reduce the present large number of regulators to three or four. It is stated that: “efficiencies begin to accrue when a regulatory body has a registrant base of between 100,000 and 200,000.” Most counsellors and psychotherapists are not regulated by statute but there are moves afoot to include them.
One significant proposal (with dangerous consequences if abused) is to give regulators greater autonomy by allowing them to set more of their own operating procedures. The powers of a regulator are severe. For instance, a strike-off could result in the loss of a person’s livelihood. The document fails to mention the near certainty that a small number of complaints will be malicious allegations. It seems to be assumed that regulators could not possibly make mistakes. The expense of an appeal against a sanction is so high as to render it unavailable. In an adversarial system in which the regulator has deep pockets, the chances of reversing a judgement are small.
The primary purpose of statutory regulation is to protect the public from harm and to give a client/patient the opportunity to complain when they feel badly served. There are three aspects to this; one aim could be to prevent harm before it occurs, the second is to determine whether harm has in fact occurred, and the third is to sanction those who cause it. A register ensures that a person with a designated professional title is properly qualified. For practitioner psychologists, their regulator, the Health and Care Professions Council (HCPC), also monitors the updating of skills. It is a criminal offence to advertise services using certain designated titles without being registered. If a complaint is made, the registrant’s ethical behaviour and fitness to practise are investigated. If there is a case to answer, a list of allegations is made public, leading eventually to a prosecution by HCPC and a tribunal in which rival legal teams battle over the evidence, each attempting to win over a panel of three individuals who are paid partners of the HCPC and advised by their lawyer. The panel then issues a sanction, strike-off, or no-case-to-answer, as it sees fit.
The claim that this kind of regulation protects the public is surely illusory. It has never been difficult to establish whether or not a professional is properly accredited. In any case, it is only the use of a designated title that is controlled by law. A professional (or unqualified person) can represent him or herself with a non-designated title and they commonly do. When Mark Russell, a qualified podiatrist who felt that his skills were being offered by others under different titles, raised this matter with the HCPC, they failed to address it. He de-registered himself in protest (Russell, n.d). Despite attempts to remove advertising referring to his designated title, he was successfully prosecuted by the HCPC. After a protracted legal process, he learned from a prosecution barrister that the term “with intent to deceive, either expressly or by implication” was an integral and essential part of the charge against him. It was pointed out that he could have used, “Formerly registered podiatrist or Previously known as a podiatrist” without infringing the legislation. Consequently, it is possible for a so-called “guilty” practitioner to make it clear they are not registered and carry on as before. (Of course, whether guilty or innocent, a reputation might be fatally damaged, destroying the possibility of further employment).
It is surely incumbent upon service providers and clients to adopt the principle of ‘buyer beware’, just as it is when employing a builder, by checking qualifications and reputation. A system of registration is no guarantee of competence unless the latter is also assessed. A regulator with over 100,000 registrants would not have the resources to be able to give this assurance. Rather oddly, the document argues that the introduction of a licensing regime should be investigated. “Language change should be adopted to align with a licensing process, similar to the Driver and Vehicle Licensing Authority.” Presumably, a practitioner would have to flash their licence whenever they saw a new client.
Moreover, the monitoring of a registrant’s continuing professional development (CPD) is no assurance of fitness to practice. It is only necessary to sleep through a workshop and collect the certificate at the end. There is no way to ensure that an incompetent practitioner has learned anything from their CPD. The HCPC states that: “It is important that you meet our standards and are able to practise lawfully, safely and effectively. However, we do not dictate how you should meet our standards.” Many of the standards, such as understanding the power imbalance between therapist and client or knowing the limits of one’s own practice, cannot be met except by peer supervision, which is not monitored.
The consultation document declares that: “Regulators need to be independent of government, the professionals themselves, employers, educators and all the other interest groups involved in healthcare.” While this statement is manifestly inconsistent with reality, it also makes no sense when considered in conjunction with a proposal in the document to widen the role of regulators in the interests of employers and professional bodies. Regulators also have their own vested interests, which is to ensure that they sanction enough registrants to justify their own existence.
Independence is sought because: “The UK’s model of professional regulation has its roots in a system of self-regulation in which professionals themselves were largely responsible for policing their own conduct, performance and behaviour. This system lacked independence and transparency.” While there may be risks of this nature, no professional body is likely to want to have amongst its members a person who is incompetent, unethical, or likely to do something to tarnish its reputation. Furthermore, actual practice is the best teacher of what is right or can go wrong, what temptations exist, and how to avoid common hazards. These are widely written about in the professional literature. It is usually required that a practitioner should be supervised by someone with equal or greater experience. Without traditional methods of professional oversight, it is difficult to see what the lay members of a regulatory body and their judicial panels could contribute. As it is, they rely on professional experts at tribunals (and in other capacities with respect to qualifications and competence). Unfortunately, expert witnesses at tribunals receive a digested version of the ‘facts’, and they have no contact with someone, such as a defendant’s supervisor, who might be able to provide insight into the alleged problematic conduct. The invited expert might not share a relevant specialisation and may lack the knowledge to comment sensibly (e.g. a psychoanalyst offering an opinion on CBT methods of working). A panel may, in any case, ignore the expert and form its own clinical opinion. It is not obvious that this process is ‘transparent’ or ‘independent’.
With respect to practitioner psychologists, the HCPC could not (and should not) function without the close collaboration of the British Psychological Society (BPS). A lay body cannot know what qualifications are required or what changes need to be made in the light of innovation and change in a profession’s knowledge and practice. It monitors CPD but how can it judge what is relevant? Any proposal to produce a better system of protection for the public would require a considerable increase in resources. It is entirely inconsistent with the idea of comparing registration with a ‘driving license’, where, presumably, decisions could be made by consulting the equivalent of the Highway Code.
The adversarial approach to fitness-to-practise is focused on only a small minority of registrants who have “a case to answer” while leaving the majority unsupported. For this reason, the document argues that regulators should support the professional practice of their registrants before problems occur. A regulator that supports registrants, identifies problems early on, and intervenes to prevent harm, can no longer be considered independent. These are the function of a professional body, manager, or supervisor. Unfortunately, professional organisations and managers seem to have been only too willing to offload their responsibilities onto a regulator, knowing that professional support is costly and time-consuming.
The consultation document states that: “In future we expect the professional regulators to work in partnership with employers and higher education providers to ensure that the recruitment, education and training systems they assure and operate are delivering the right people, that they are teaching the right things (through both the formal and informal curricula) and that behavioural problems identified early in a professional’s career are properly addressed.” It is entirely beyond my understanding how a group of lay people, lawyers, with some paid-for professional advisors of their own choosing could undertake such a huge task. In any case, their chief business has been to investigate complaints and sanction registrants. A regulator’s efficiency is measured in terms of operating cost per registrant. The consultation document states that for the HCPC, 59% is consumed by the expense of fitness-to-practise procedures and 9% is devoted to education and training.
The response of professional organisations to the document, as far as this can be determined from evidence gathered through a web search, has been mixed, with doubts expressed about giving regulators more powers without proper oversight. The response of Action Against Medical Accidents (AvMA ) illustrates the difference between a failure to adhere to fundamental standards of care (which have objective criteria of proof) and psychological practice in which it is more a question of resolving differences between parties (complaints) about whether the approach taken was justified or not. There is rarely a hard and fast interpretation of a violation of a psychologist’s code of practice. It is not surprising that different tribunal panels come up with different interpretations of what are merely generalisations about good practice, not codified rules.
On the whole, the views of therapy organisations that are not currently subject to statutory regulation seem to be more open-ended and thoughtful. The UK Council for Psychotherapy referred to a sensible grouping of regulatory bodies and preferred informal resolution of a complaint, avoiding where possible adversarial and costly hearings, and removal from a register. Similarly, the British Association for Counselling and Psychotherapy stressed the monitoring of supervision arrangements, a recognition of levels of experience, and remediation of low-level, low risk misconduct through advice. Like the British Psychoanalytic Council (BPC), it favoured a conciliatory approach involving peer review with an emphasis on training and improving professional skills. This is, presumably, the kind of ‘self-policing’ that politicians have objected to. The British Association of Behavioural and Cognitive Psychotherapy firmly believed that statutory regulation of psychotherapy “could have a huge impact on public safety” without arguing its reasons for saying so.
BABCP drew a clear separation between the role of regulators and specific professional bodies, noting that some therapists do not have a professional affiliation. The lack of any clear professional role description must apply to a large number of health and social care workers, making any system of protected titles impossible to implement. The BPS was worried that there is a loophole in allowing psychologists with non-designated titles to practice without statutory regulation, especially when they work autonomously without supervision. This assumes that acquiring a designated title is a guarantee of anything, for which no evidence was produced.
Perhaps the most remarkable feature of all the responses to the DoH document is the fact that they make no reference whatsoever to empirical evidence. What proportion of registrants are unethical or incompetent, and what kind of offences do they commit? What is the evidence that registration ensures public safety? What can we learn by reviewing the circumstances surrounding bad practice so that we can devise ways of minimising it? This evidence is easily accessible from the transcripts kept by the HCPC of all their tribunal proceedings, but it does not seem to have been mined. The flag of public protection through statutory regulation is waved without bothering to make an empirical case to support it. Therapy researchers have reported that up to ten per cent of clients, and sometimes more, score lower on tests of psychological wellbeing at the termination of therapy than they did at the beginning. Is this explicable? Does it indicate lack of training, incompetence, or unknown and unpreventable factors?
From the HCPC annual report for 2016-17, we learn that 0.64% of registrants from all professions had a case investigation. A total of 143 cases concerning practitioner psychologists were investigated, representing 6.2% of all HCPC cases. (This compares with social workers who made up 54.3% of all cases investigated). Ninety six cases came from the public, 19 from employers, 17 were self-referred, and there were 11 others. Of only 20 taken to tribunal, nine were found to be not well founded. Five registrants had conditions imposed on their practice, three were suspended, and one was struck off (two were removed by consent). There are 22,604 psychology registrants and so the strike off rate is infinitesimally small, as is the percentage for other sanctions. The proportion of unfounded complaints is also unacceptably high, given that it may have taken several years to obtain this acquittal.
Many HCPC cases involved disciplinary and procedural matters rather than direct harm to clients. These can include illegible writing, failure to keep or sign records, mislaying records, and so forth. As an illustration, two separate allegations against a psychologist were framed as seeing a client outside normal clinic hours and seeing a client at home. If this practice is deemed to be harmful, innumerable independent practitioners working from home in the evening would have to confine themselves to daytime appointments (when most clients are working themselves). In fact, many allegations constitute a form of innuendo. In another example, a social worker working for a drug and alcohol charity was cautioned for three years for texting a service user at the weekend when the charity was closed (Community Care, 2017). She also disclosed personal information, although the content of the message was not “inappropriate.”
I conclude that the aim of protecting the public from harm through statutory regulation has not yet shown itself to be worth the money expended on it. Support for it is based on slogans and rhetoric. Of course, we would all like to raise ethical standards and the competence of professionals but this requires serious thought about alternative methods.
Community Care (2017).
Available from: http://www.communitycare.co.uk/2017/09/25/social-worker-sanctioned-texting-service-user-outside-work-hours/
HCPC (2018) Annual report 2016-17.
Available from: https://www.hcpc-uk.org/assets/documents/100055BAFitnesstopractiseannualreport2017.pdf
Russell (n.d) Health and Care Professions Council (HCPC) – A grand deception.
Available from: http://mark-russell.net/Blog/index.php/2014/04/18/health-and-care-professions-council-a-grand-deception/
