BPC has recently been taking stock of where we are with statutory regulation in the light of recent developments. This is a summary of our position.
BPC has held a consistent stance on statutory regulation since the publication of the Foster Review in July 2006, followed by the White Paper in February 2007. The Government, after the long deliberations of the Foster Review, had made a clear decision not to substantially alter the regulatory architecture for the health professions and that new professions would be regulated by the Health Professions Council (HPC). In the White Paper, the Government stated that the HPC would be the statutory regulator subject to a ‘rigorous process of assessing their (the psychology, psychotherapy and counselling professions’) regulatory needs and ensuring that its system is capable of accommodating them’.
We took the decision to accept that the choice of HPC as the regulator for these professions was the Government’s settled position and that our focus would be to engage constructively with HPC in order to achieve the best possible form of regulation. To that end, BPC decided not to support the proposal for a Psychological Professions Council, whilst making it clear to the other principal professional bodies that we were keen to achieve the maximum unity of purpose across the professions. We actively supported the formation of the Psychological Professions Alliance Group (PPAG) as a means to achieve a more decisive focus than had been possible through the more parliamentary forum of the National Reference Group. The stance of constructive engagement with HPC, as opposed to calling for an alternative regulator, has been the common position of all the PPAG professional bodies from roughly the summer of 2007 until recently.
As such, the representatives of all the professional bodies have played a constructive and committed role in the work of HPC’s Professional Liaison Group. Whilst we recognise that the PLG has not resolved all the issues that need to be resolved, and certainly not to everyone’s satisfaction, the group demonstrated an impressive level of focused collegiality and produced a solid bedrock of work which can now be built on.
However, the positions of the PPAG professional bodies no longer appear to be as clear as they were. The position of UKCP, as we understand it, is now to adopt a ‘multi-track approach’ which involves ‘negotiating’ with HPC to get the ‘best deal’ whilst simultaneously calling for an alternative statutory regulator. At the core of this demand is presumably the idea that it would be a profession-specific (rather than generic) body, focusing either on the psychotherapy and counselling professions or on the broader psychological professions. We assume that UKCP continues to support the differentiation of the professions of psychotherapy and counselling whoever the regulator might be.
BACP has always had reservations about coming under a health-oriented regulator but has until recently broadly accepted the reality of HPC as the likely regulator. It now also has a concern about the differentiation between psychotherapy and counselling that the PLG has adopted.
We believe that BABCP is broadly taking the same position as BPC, i.e., accepting that HPC is the likely regulator, of constructively engaging with HPC, of not supporting calls for an alternative regulator and of supporting the differentiation of the professions of psychotherapy and counselling.
BPC’s Executive recently discussed what our position might be if there was a shift within PPAG in support of the call for an alternative regulator. The Executive took a strong and unanimous position that it had no interest in pursuing or encouraging demands for an alternative regulator for the reasons outlined below.
1) A regulatory body set up specifically to deal with the professions of psychotherapy and counselling would risk importing into its governance structures all of the disunity (and corresponding indecisiveness) that has characterised the professions for decades. We therefore welcome the generic common sense simplicity and straightforwardness that a regulator like HPC can offer.
2) Precisely because it regulates such a diverse range of professions, HPC has a very clear sense of the boundaries of the regulatory mission in relation to the specific nature of those professions. In other words, the job of regulation stops at ensuring a basic level of competence and fitness to practice standards from practitioners. It does not seek to penetrate too far into the specialised concerns of specific professions, which it is happy to leave properly to the professional bodies. A profession-specific regulator is more, rather than less, likely to encroach upon the terrain currently occupied by the professional bodies.
3) If an alternative statutory regulator set up by a Section 60 Order of the Health Act 1999 was to be considered by Government then:
• It would be on a similar legislative basis to existing regulators, including the HPC
• It would presumably operate according to all the parameters of modern regulatory practice, including those set out in the July 2006 Foster Review, for example:
o Lay members having parity or even majority representation within governing bodies
o Professional members being appointed rather than elected
• It would be constrained by relevant European and public body legislation.
Given these constraints, we would question the extent to which such a body would operate in any way ‘better’ than what could be achieved through appropriate discussions with HPC. We also suspect that this is not ultimately what many of the people supporting the position of the Alliance for Counselling and Psychotherapy against State Regulation want or think they are arguing for. There is a phoney unity at play here. For example, the Alliance’s website says: ‘The argument for regulation by a state-sponsored body has never been made, but is simply assumed’. We are also told that ‘state regulation is not the same as statutory regulation’. Presumably, therefore, statutory regulation is seen as something other than regulation by a state-sponsored body, e.g., some form of statutorily-backed self-regulation. Therefore, we assume that the idea of an alternative regulator set up by a Section 60 Order is no more likely to be acceptable to the Alliance than HPC. Obviously, a profession-specific regulator would be different from a generic regulator such as the HPC. However, the former would be no less a state-sponsored body than HPC.
4) The BPC would prefer to maintain a close proximity to the health and social care sector, believing that the contribution that psychoanalytic psychotherapy can make to the needs of the population at large can most effectively (though not exclusively) be made through the NHS and allied services. Of course, we recognise that the professional bodies will have respectively different perspectives on the extent to which they wish to be aligned with the health sector. And we recognise that counselling, in particular, is positioned very differently.
In any case, we believe that the title of Health Professions Council belies the fact that increasingly it is regulating a wide range of professions, a number of which already extend beyond the health sector. In our view, HPC has no particular attachment to what might be called a ‘medical model’. The language and narrative of, for example, the generic standards of proficiency tend to be framed in this way as this has made sense for the professions it has historically regulated. But HPC clearly accepts that this is no longer the case and that the generic standards need to be radically revised. There may be different views as to how much this is in part a result of ‘pressure’ but we have found HPC to be generally well-attuned to the needs of the professions it regulates - it listens carefully and responds to what the professions are saying. We have thought of the discussions we have had as just that - discussions, rather than ‘negotiations’ - but do not believe they have been any less effective as a result.
5) In our broad judgement, HPC is a good regulator. As a non-departmental public body (NDPB), it is one of the best we have had experience of. It has an excellent organisational culture and values. It is clear it values a partnership approach with the professions it regulates. It listens and is responsive to what it hears. It is open and transparent in its procedures. The professional staff we have dealt with are of an exceptional calibre and, in all the discussions we have had with them, have demonstrated an impressive intelligence and alertness to our concerns. The equation that seems to inform much of the discussion we have been party to (professions good; Government/HPC bad) is not borne out by any reality we have encountered.
Whatever differences there may be amongst the professional bodies over the calls for an alternative statutory regulator, there are a number of areas around which we can and should cooperate and then further engage with HPC. Some of these (there may be others) are:
• How we can input into the discussions around revising the generic standards of proficiency
• How we might improve HPC’s complaints procedure:
o In respect of introducing the option of mediation and conciliation as an alternative to a formal complaint (whilst avoiding the accusation that this can be used as a form of pressure on complainants to desist from making a legitimate complaint)
o Around the fact that professional conduct hearings are normally open to the public (which it is claimed is not necessarily conducive for vulnerable complainants)
o Around the fact that information about complaints where it has been decided that there is a case to answer is published before a judgement has been made (apart from the ‘innocent until proven guilty’ consideration, the issue is sometimes raised about the ‘protection’ of the practitioner’s other patients or clients).
The last two points are difficult ones, as consideration of these issues often gets tangled up with interests of professional self-protectionism. The BPC would wish to examine these within the firm parameters of furthering public protection and patient safety, whilst safeguarding the legitimate concerns of those professionals practicing safely.
• Clarifying that a number of Standards of conduct, performance and ethics will be applied sensitively and in a way that is appropriate to our professions – we have been assured by HPC on our concerns, but it may be helpful to have this more explicitly articulated.
We also accept that more work needs to be done to improve the profession-specific standards of proficiency. However, this inevitably confronts the difficult issue of the differentiation between psychotherapy and counselling. Whilst BPC wishes to affirm the validity and truthfulness of this distinction, we nevertheless recognise there are considerable points of convergence between these twin professions. We would wish to work for a system which recognised this and developed a maximum level of permeability between them, e.g., conversion protocols.
We believe that a necessary condition for a modern profession is to have a ‘moral contract’ with the public and relevant public institutions. The parading of the professions’ anti-regulatory sentiments however much disguised as ‘Regulation, yes; HPC, no’ is doing us no favours in terms of defining ourselves as a modern profession in the eyes of the public or even to ourselves.
BPC Executive
February 2010
Discuss it here (public forum)
A previous position statement on statutory regulation and related issues can be found here