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