17 December 2010

A day in court

On Friday, I attended a hearing in the Administrative court to address the question of whether the case brought by six psychotherapy and psychoanalysis practitioner groups should proceed to a full judicial hearing. HPC argued that the claimants were ‘out of time’ in legal speak, in other words they had not lodged their complaint within the timeframe for a judicial review. The Judge decided that, although as he put it “there was a great deal of common ground between the parties”, there was not enough to conclude the case at this stage and therefore it should proceed to the next stage, namely a full hearing. We can expect a delay of about four to six months before this hearing will be listed in the High Court. In the meantime, the HPC is committed to the process of finding ‘the common ground’ as Justice Burton directed.

What struck me about the exchange in court was that the claimant’s real argument is with the government, and not the HPC. We can and probably will continue to argue on points of law, about who did what and when and according to which process or guidance or directive, but the decision over statutory regulation is not and never has been a decision for the HPC. It is a decision for government. The frustration is that we are now involved in an expensive process which will not, in the end, solve this.

Since this work on regulation began, there has been significant progress both in working relationships and in the practical development of standards. In September, the UKCP invited the HPC to an education event for its members, something which would not have been possible earlier this year. There have been many other initiatives which suggest to me that the level of disquiet about HPC is subsiding, and the level of mutual respect and shared aspiration is increasing.

Anna van der Gaag
Chair HPC

26 October 2010

A meeting of minds

On the 7th October, HPC held an information event for counsellors and psychotherapists in Glasgow. It was well attended. We began with a presentation on the purpose of regulation, and moved on to an update of the work of the Professional Liaison Group for psychotherapists and counsellors and a description of the HPC’s Fitness to Practise process. This was followed by an hour long Question and answer session with a panel. Brain McGee, Chief Executive of COSCA (Counselling in Scotland) and member of the HPC’s PLG, joined us on the panel.

The audience raised a wide range of issues about the proposals for statutory regulation. First, there were concerns about the potential financial impact of regulation on voluntary sector organisations and their volunteers. In Scotland there is a strong and well established infrastructure of volunteers who provide counselling services, perhaps more so than in other parts of the UK, and the issue of funding the fee could become a breaking point. There was discussion around whether the Scottish government could or would offer a subsidy, given the widespread use of volunteer counselling services in Scotland.
Some representatives from the voluntary sector organisations also asked about the timescale for the implementation of statutory regulation, and expressed frustration at the continuing delay. As well as the desire to fully address the complexity of some of the issues about regulating psychotherapists and counsellors the uncertainly around the current governments position in this regard was also noted by the audience.

There was discussion about some of the unresolved issues still being considered by the PLG, such as the criteria for selecting voluntary registers for transfer, differentiation between counselling and psychotherapy, and what individuals would call themselves post regulation. There was some feeling expressed that the result of the consultation exercise showing that 78% of individuals did not favour differentiation should be taken as a clear sign of the views of counsellors and psychotherapists. However, the HPC noted that these figures might not convey the full picture as a number of the current voluntary registers had asked individuals to respond directly to them and had collated views.

There was a discussion around the relationship between professional bodies and the regulator – with concerns expressed that regulation would diminish the role of the professional bodies. Clearly, HPC could not replace the services and support offered by these bodies. The panel responded by referring to previous experiences from other professions where the role of the professional body as the body focused on promotion of the standards and the reputation of the profession was enhanced once the disciplinary function was transferred.

Fitness to practise processes were also raised, in particular concerns about how the HPC supported those individuals for whom there was no case to answer. What was the duty of care to them? Kelly Johnson, Director of Fitness to Practise described the processes that had been put in place to support individuals and outlined the work being done exploring the role of mediation in a regulatory context. She acknowledged again the significant stress arising from any scrutiny of an individual’s practise.

I personally was heartened to hear that at least one individual who had attended one of our previous stakeholder events held in Manchester in 2009, said she felt this event showed that the HPC was listening to the views of practitioners and was more constructive in the dialogue. There has been the need for some culture shifts/changes in approach for us as an organisation in thinking about the regulation of psychotherapists and counsellors. I hope that such listening will continue on both sides.. The whole event did feel like a conversation that was illuminating for both listeners and speakers, and I was pleased to be part of it.

Anna van der Gaag
Chair HPC

18 May 2010

Counsellors and psychotherapists working group meets again

Anna van der Gaag, Chair of HPC writes:

On the 12 May 2010, the sixth meeting of the HPC’s working group (called the professional liaison group) on counsellors and psychotherapists took place in London. The purpose of the meeting was to review progress and to discuss the plan of activities over the coming months.

There was a consensus round the table that progress had been made over the past year. Areas where further work was necessary were now more clearly in focus. The HPC’s initiatives on reviewing the generic standards of proficiency, and the Council’s recognition that the generic standards needed to become more over arching and less orientated towards the language of ‘health’ were seen as a key to accommodating counsellors and psychotherapists within the existing structures. There was also an acknowledgement that HPC’s ongoing engagement with the professional associations was important to making progress on all the outstanding issues – differentiation between counsellors and psychotherapists, child and adult work, as well as consensus building on the standards of proficiency and the standards on education and training. Third, members of the group spent time discussing the wider debates taking place about regulation, and the need for ongoing engagement with those who currently oppose regulation. There was an acknowledgement of the range of reasons behind opposition to HPC as a regulator. Several members felt it would be helpful to know more of the detail behind the proposals for the alternative form of regulation being proposed.

The planned activities over the coming months will centre around the PLG’s further engagement with a range of stakeholders as well as further deliberations by the group on the outstanding issues outlined above. There was agreement that the group wished to invite service users to present their perspectives on these issues, as their voice had been under represented. Careful consideration would need to be given to how best to hear more from users on their experiences of counselling and psychotherapy and views on regulation. Other suggestions included employers and those with expertise in working with children, some additional perspectives on regulation of the profession across the world, and possibly additional input from educationalists when giving further consideration to standards from education and training.

The work of the PLG in gathering more expertise and hearing from a wider range of stakeholders will run in parallel with four public meetings across the UK. These public meetings will provide opportunities for further dialogue with the profession. Each meeting will include presentations from HPC on its work, a question and answer session and workshops.

My own observation was that there were several threads running through today’s discussions – one was the ongoing need for the PLG members and the HPC to engage with the profession. The second was the centrality of the relational element in counselling and psychotherapy – which was common across all modalities - and should be clearly recognised and articulated in the current debate. The meeting was, as ever, populated by a wide ranging and constructive dialogue and a desire to make further progress towards statutory regulation.

Anna van der Gaag

30 April 2010

The proposed regulation of counsellors and psychotherapists: reflections from the Chair

Anna van der Gaag, Chair of HPC writes:

In recent months I have benefited greatly from conversations with members of the profession, who have discussed the government’s proposals for statutory regulation. Several have asked me to write a brief statement, which may help to explain some facts to those unfamiliar with the HPC and in particular, to describe our underlying principles as well as practices.

When was the HPC set up?
The HPC was established in 2001, as the UK wide statutory regulator for 12 professions working in NHS, education and social care settings as well as private practitioners. From the start, it was given a remit to advise the government on the statutory regulation of additional professions and by 2010, it had assumed responsibility for regulating three further professions, including psychologists.

How do professions become regulated by HPC?
There are two ways in which a profession can be recommended for regulation by the HPC.

Firstly, the HPC itself has the legal power to make recommendations to the Secretary of State for Health and to Scottish Ministers on the regulation of a profession. To help us in exercising this power we have a ‘new professions process’ through which professional bodies representing professions seeking regulation can apply and demonstrate that they meet 10 criteria for regulation. To date we have received unsolicited applications via this route from 11 professions, including dance movement therapists, and have made recommendations for their regulation to government.

Secondly, the government can make a decision to regulate a profession itself, normally via a White Paper. In 2007, this was the route chosen by the government for the regulation of several professions, including psychologists, counsellors and psychotherapists. Direct reference is made to the government’s desire to regulate these professions in the White Paper entitled ‘Trust Assurance and Safety – The Regulation of Health Professionals in the 21st Century’ .

What do we do?
The four key functions of a statutory professional regulator are to
• Set and monitor standards for the professions regulated by them, including standards on continuing professional development
• Keep a register of those who meet the standards
• Monitor and approve education programmes
• Run a fitness to practise process

Underlying principles
There are several key principles underpinning our work. First, many of our standards are ‘generic’, that is they are designed to apply to all the professions that we regulate. This recognises the similarities between many professions, and allows for greater consistency and clarity from the public’s perspective. Second, our legislation is compliant with Human Rights principles and law, and is designed to protect the public and not to ‘punish’ practitioners. This compliance underpins all our processes – from the way in which standards are agreed and set, to the organisation, language and delivery of fitness to practise processes. For example, there is no reference in the fitness to practise process to ‘punishment’ or ‘guilt’ ‘ ‘defendant’ or ‘charges.’ The emphasis is on establishing whether the person’s ‘fitness to practise’ is ‘impaired’ and whether public protection is ‘required’ in relation to that individual.

How does the Fitness to Practise process work?
Anyone can make an allegation against any practitioner on our register. We decide whether the allegation meets our standard of acceptance for an allegation and if it does, we start a process to assess whether or not the practitioner does, or does not meet our standards. We do recognise that any examination of a professional’s work is going to be stressful and will have an impact on all those involved.

The process involves a number of stages, and we make sure that we communicate with the individuals concerned so that they know what is happening at each stage. It may involve a full public hearing at which all sides have an opportunity to have their views heard by a panel. There are certain circumstances in which hearings are heard or part heard in private, for example, when panels are required to consider details of a professional’s physical or mental health, or where the identity of witnesses need to be protected. However we adhere to the ‘open justice principle’ used throughout the United Kingdom, which means that in general our hearings are held in public.

The panels are made up of professional and lay people. They will always include a person who is from the same profession as the practitioner, and where appropriate there will be experts from the field who are invited to give their views at the hearing. The HPC has well over 400 Partners, many drawn from the professions themselves, who undertake the work of inspecting education programmes, assessing applications to join the register, as well as sitting as panel members at fitness to practise hearings. There are also many ‘lay’ Partners, who come from a wide variety of public service and independent sector backgrounds, and are all given training in HPC’s principles and processes. If we were to regulate counsellors and psychotherapists, we would recruit new Partners from the various counselling and psychotherapy modalities and disciplines to undertake this work.

Onora O’Neill, in her book ‘A Question of Trust’, talks about the importance of having ‘individuals with knowledge’ responsible for making judgements. HPC is wholly committed to ensuring that this is the case in all its day to day decisions – whether about education standards or ethical standards or standards of competence or – ‘proficiency’ as it is called in law – for a particular profession.

Where panels identify that a registrant’s fitness to practise is impaired, they must determine what degree of public protection (if any) is required. Panels should approach this in a proportionate manner and as so far as possible, registrants should be allowed to remain in practice subject to any necessary restrictions if that is consistent with public protection.

HPC’s approach to justice, para 9.0, 2010.

When determining what action to take, the panel have a range of sanctions which it can apply to practitioners, including placing conditions on practise, or requiring a period of supervised practise, or suspending the person from work until such time as they are ready to return to work.

The approach to justice at HPC is, in this sense, restorative, not retributive in nature (see illustration below showing the justice continuum). The panels of the HPC are not there to punish individuals, although a small minority of individuals (currently 0.03%) are taken of the register and are not able to continue practising. These individuals have in most instances been identified as posing a serious risk to the public by an independent panel with representation from the profession itself.

We know from independent sources (Borys and Pope, 1989, Pope, 1991, Sarkar, 2004) that there is evidence that a minority of practitioners do present a risk to the public but it is only a tiny minority.

Recognising what is different about counsellors and psychotherapists
Many psychotherapists and counsellors have discussed with me the complex nature of their work with individuals. Depending on their ideology and discipline, they explain this in different language, but one of the common themes that comes across is that therapy can be a risky business – and we know that some argue that any kind of ‘talking’ therapy is inherently risky. People who come for therapy can be ‘damaged’ by events and circumstances, vulnerable, abused, and angry as well as searching for greater levels of insight and understanding. The risk therefore of misinterpretation, retaliation, or disappointment is often high, and the therapist enters into therapy with a degree of awareness that the client may, or may not derive benefit, and may or may not find the experience of therapy to be a positive one. Indeed, many will undergo therapy which becomes difficult, painful, confusing and challenging, though in the majority of cases the outcome will leave the person feeling that therapy has been a rewarding and strengthening experience.

If one introduced a system of statutory regulation into this therapeutic environment, then the concern is that there will be therapists who are ‘blamed’ by their clients for disappointment or disorder in their lives which may have nothing to do with the therapist’s behaviour or competence. It is the relational element in counselling and psychotherapy, common across all modalities and central to the therapeutic process itself, that gives rise to great complexity and therefore greater potential for misrepresentation.

HPC is aware that theses are some of the concerns amongst practitioners. However, I believe that the system of regulation delivered by HPC is able to accommodate this, whilst still offering the level of public re-assurance and protection. I believe this for a number of reasons:

Firstly, our fitness to practise process is about deciding whether a professional remains fit to practise. Sometimes a client might be unhappy about their therapy or their therapist, for example, they are unhappy because they didn’t find their therapy helped them. We have to consider the complaints we receive individually but we only need to take action where a practitioner’s fitness to practise might be impaired and where we might need to take action to protect other members of the public.

The HPC cannot address all complaints, and nor does it wish to. It is concerned only with investigating impairment in practise which has consequences for public protection. For example, the fitness to practise of a therapist who borrows money from their client or who engages in sexual activity with a client during therapy sessions is very likely to be impaired.
In these examples most members of the public and indeed fellow therapists would reasonably conclude that this was unacceptable behaviour. These are the kinds of issues of impairment that have consequences for public protection.

Secondly, we have experience in regulating arts psychotherapists, a group of therapists with whom there is certainly some commonality with counsellors and psychotherapists. From this experience we know that the number of allegations against these professions has been very small. For example, between 2005 and 2007, there were four allegations against arts therapists. The assertion that the HPC is receiving many dozens of complaints against talking therapists is unfounded.

Lastly, the standards we use are ‘enabling’ standards, not prescriptive standards. We do not and would not prescribe what should happen during each therapy session, for example, and we recognise that professionals on our register might meet our standards in a variety of different ways, depending upon, for example, their professional background, their personal preference, and the needs of individual clients.

In a recent article published in the spring edition of ‘New Associations’, Val Huet, group psychotherapist and Chief Executive of the British Association of Art Therapists, told New Associations, the new publication from the British Psychoanalytic Council ,

‘Nobody from HPC is going to stand at your elbow and say you must do this or that. Their concern is public protection.”

Furthermore we are in the process of reviewing our standards to make them more overarching and to remove the language of health and disease which has caused concern.

HPC’s plans for Mediation research
There are some disputes between therapist and client that may be more amenable to different means of resolution, such as mediation. Such alternatives will be more appropriate in some circumstances than others, and will depend upon factors such as the nature and severity of the allegation and whether or not both parties agree to such an approach. They can reduce the impact of the experience of bringing an allegation for both parties and provide a way of resolving conflict. We are looking at how and when such approaches are applied in other fields of work, and will then make a decision as to whether or how they might be piloted by HPC. We will be working closely with the professions on this, and there will be further updates on the progress of this work later in the year.


Department of Health (2007)
Trust Assurance and Safety – The Regulation of Health Professionals in the 21st Century’ .

HPC Fitness to Practise Annual Report 2009

HPC’s Approach to Justice and Impairment
Council papers, March 25 2010, Enclosure 9.

New Associations – News analysis and opinion from the psychoanalytic community. ‘Forging as modern profession’, Spring Issue 2010, p6-7.

O’neill, O. (2002) A Question of Trust. Reith Lectures 2002

01 March 2010

Safety must come first in Chinese Herbal Medicine

This week has seen renewed calls for the regulation of Chinese herbal medicine in the UK. Press interest arose from a court case involving Ying Wu, a Chinese herbal medicine practitioner, who was alleged to have given noxious substances to her patient, Patricia Booth, causing her to suffer kidney failure and cancer.

At present, herbalists and traditional Chinese medical practitioners are not regulated. Anyone can set themselves up in this field of practice, with no qualifications or training, no accountability and no quality assurance monitoring of their work with the public. Many high streets across the UK have shops advertising alternative and complementary therapies, of which Chinese herbal medicine is just one. And yet, the Medicines and Healthcare products Regulatory Agency (MHRA) has been warning for many years that substances offered by such practitioners can be toxic to patients, resulting in severe adverse reaction and even death. There have been numerous reports from those who have considerable expertise within the field supporting the move towards regulation, including those from the profession itself.

It strikes me as particularly poignant that this story emerged in the same week that Professor Mike Pittilo, Chair of the Department of Health Steering Group on Statutory regulation of complementary practitioners, died as a result of a long illness. Mike had for many years been arguing for statutory regulation, and was deeply concerned about the delay in reaching a decision on this. For him, as for all of us at HPC, the decision is clear. Public safety must come first. Without statutory regulation, the public are not protected, and are at risk of being harmed by a minority of practitioners who, knowingly or unknowingly, administer a toxic mix of medicines.

HPC was recommended as the regulator of choice for Chinese herbal medicine, herbal medicine practitioners and acupuncturists by the Department of Health Steering Group in May 2008. Since then, we have been working with these professional groups, discussing how regulation works and what the implications might be for them. For the vast majority of competent practitioners, there is nothing to fear from a system of statutory regulation which will ensure UK wide, consistent standards of training and practice, as well as a swift mechanism for dealing with practitioners who fall below those standards and put the public at risk.

For the sake of clients and patients, we must take decisive action to introduce greater protection for the public, before there is another patient like Patricia Booth, who suffered long term harm or worse still, a loss of life.

Anna van der Gaag

02 February 2010

Could we be any safer?

In last Saturday’s Guardian, (30.1.2010) an article by Elizabeth Weil entitled ‘Could we be any happier?’ explored the benefits of couples therapy for a marriage that was, in Weil’s words ‘doing ok.’ It was, as you might expect, a very personal, honest account of a relationship, and a very clear analysis of some aspects of one couple’s’ journey towards greater understanding and insight into their marriage. It barely mentioned the therapist, who, over six weeks, listened and offered feedback. However the therapy appeared to trigger a particularly powerful conflict within the marriage, which in turn led to new insights into the way the relationship worked. At one point the author describes marital therapy as ‘helpful but toxic’ but goes on to say that the subsequent combination of self help books and further therapy helped the couple to arrive at the ‘good enough marriage’, one in which ‘each allows the other to keep growing’ and to afford the other some of the strength and bravery required to face the world.

There are a number of reasons why, for me, this article illustrates important points relevant to the current debate on statutory regulation of the so called ‘talking therapies.’ It provides a particularly personal account from a client’s perspective about a highly personal and very common experience. Twenty years ago, an article like this would not have appeared in a newspaper. More and more clients and patients are telling their stories, sharing their experiences in very public places. Articles and books are increasingly being written by people on the receiving end of therapy, not just those providing it, and they all increase our collective understanding in some way – both of therapy and often of ourselves. This reflects a wider change within society – empowerment is not a word we like to use anymore but it is, some would say, a social movement towards greater transparency, greater involvement and power sharing, and greater public analysis of private, intimate moments in human experience. The expert or professional voice is no longer centre stage in the public narrative on well being. Most of us, most of the time, would see this as a positive development for us as a society.

Those who are arguing that psychotherapy and counselling should not be subject to the same levels of public accountability as doctors, psychologists, osteopaths or social workers seem to me to be ignoring these changes within wider society – the social movement towards greater public accountability and transparency across all industries paid to serve the public. With the rise in those who seek to share their experience, there comes a greater demand for shared responsibility for growth and personal development. This is happening for a huge variety of individuals, from those like Weil who shared her thoughts on her marriage, to others who talk about their experience of living with Parkinsons disease, or arthritis, aspergers syndrome or cancer.

This is one of the reasons why psychotherapy can no longer claim to be different, at least, not in relation to the public demand for accountability. The world has changed. Those opposed to public accountability have nothing to fear from the regulatory model being proposed by the Health Professions Council. We are not going to be prescriptive, we do not have a list of 450 rules, we are not going to require any therapist to conform to a medical model.

Our interest is simple: we want to put in place a legal framework to protect the public from the tiny minority of therapists who fail to treat their clients as equals, who abuse their position of power, and do not recognise the changes within society which demand that all professions who serve the public must be accountable to those outside their own ranks. If Elizabeth Weil had so chosen, she could have opted to complain about her therapist. She had no reason to, but if she had, the UK would have had no legal framework for allowing her to do so. In an age of greater transparency, this cannot be right and it cannot be good for psychotherapists any more than it is bad for the public.

Anna van der Gaag
Chair HPC

26 January 2010

Confer Conference State Regulation: The Issues

23 January 2010, Conway Hall, London

This conference provided an opportunity for members of the counselling and psychotherapy professions to ‘clarify the facts about statutory regulation, explore concerns and to put questions to a panel’. It was well organised and well attended by some 250 delegates from a wide range of modalities and backgrounds. The panel consisted of Lynn Gabriel, Chair BACP, Andrew Samuels, Chair UKCP, Marc, Seale, Chief Executive, HPC, Julian Lusada, Chair BCP, Darian Leader, Alliance for Counselling and Psychotherapy Against State Regulation, Michael Fischer, psychotherapist and researcher from Kings College and Di Waller, HPC Council Member and Chair of the HPC PLG.

During the morning the panel offered their views on some pre-set questions followed by a general question and answer session, and in the afternoon participants took part on café style conversations followed by feedback.

Michael Fischer described his observations of a small sample of doctors and their fear of the growing ‘blame culture’ in society. Julian Lusada spoke about the need for regulatory processes which were ‘sensitive and thoughtful’, but offered protection to both patients and therapists. Lynn Gabriel reiterated the need for counsellors and psychotherapists to be of equal value in whatever system emerged, and the need to address the mis-perceptions which existed about the HPC. Andrew Samuels proposed that there would be ‘independent statutory regulation’ in some form in the future.

My observation was that there was more agreement than disagreement on the need for some form of regulation beyond the status quo. Various options were presented and discussed – HPC regulation, regulation by a new independent regulator, ‘alternative professional accountability’ as well as reference to profession led forms of regulation elsewhere in the world. There was also agreement than whatever form regulation in the future might take, it must, in the words of Darian Leader, ‘respect the diversity which exists within the field’.

It came as no surprise that the panel expressed very different views on almost all topics. However, I was struck by the amount of misunderstanding there was amongst some members of the panel on, for example, the continuing misperception of the universal use of the medical model by HPC regulated professionals, the suggested lack of a contribution from the counselling and psychotherapy professions to the drafting of the current version of the Standards of Proficiency, the mistaken assertion that ‘user groups’ were denied access to the PLG, and the somewhat confused and therefore confusing discussions about the application of the criteria used by the HPC for assessing readiness or otherwise of a profession for regulation.

Despite this, several clear and constructive themes emerged from the panel and from the delegates. First, there was a call for more dialogue, more discussion between the HPC and members of the profession in order to achieve a regulatory process that was ‘fit for purpose’. Second, there was a call for re-assurance that HPC were listening and would address ongoing concerns from the professions. During the feedback sessions in the afternoon, the word ‘trust’ recurred more often than any other. Trust was acknowledged as fundamental to progress. Third, there were calls for the professional bodies to work together and agree more on a way forward.

I found the café conversations particularly helpful. There were discussions about the impact of statutory regulation on the ‘relational space’ in therapy, and the importance of preserving its unique contribution to society. There were also concerns about clients who might have become obsessed with litigation during or before therapy, others who might use litigation as a means to play out other more unconscious and unresolved conflict in their lives. Regulation needed to address these complex areas. On the other side there was acknowledgement that the professions had not to date made much progress themselves with regulation and that perhaps an independent body might actually provide the impetus for positive change. Overwhelmingly however I felt the discussions highlighted to me the mis-understanding and lack of accurate information about HPC regulation and the desire for further discussion and dissemination of facts. If we are to achieve this, we must pursue the facts and work harder to build trust on all sides.

I would like to thank the organisers of the conference for offering this opportunity for dialogue and debate. We look forward to continuing the dialogue at other meetings in the future.

Anna van der Gaag
Chair HPC