Some of you will have received emails from the Alliance for Counselling and Psychotherapy about proposed regulation through the Health Professions Council (HPC). You may also have attended the Alliance’s conference, Against State Regulation, in London on 5 April 2009. It is worth noting that the HPC is not BACP’s regulator of choice – the Association worked closely with other professional bodies for psychological therapies to draw up a proposal for a new regulator – the Psychological Professions Council (PPC). However, the proposal for the PPC was firmly rejected by the Government and a strongly worded Department of Health (DH) critique in July 2007 stated that the proposal was flawed in its understanding of regulatory processes and based upon a misunderstanding of the requirements of statutory regulation. 

Five months prior to that, in February 2007, the DH published its White Paper, Trust, Assurance and Safety, stating the Government’s clear intention to regulate psychologists, counsellors, psychotherapists and other psychological therapists as a matter of priority. Since then, work has progressed and the psychologists now seem likely to enter the HPC in July 2009. The HPC itself is scrutinised by the Council for Healthcare Regulatory Excellence (CHRE) and is required to report on the effectiveness of its performance of the regulatory function.

The Alliance gives a number of statements on the reasons it opposes state regulation by the HPC. In this article BACP reflects and comments on those arguments; we invite you to read all of these arguments and make up your own mind about whether or not you support statutory regulation.

Protection of clients

The Alliance states: The argument for regulation by a state sponsored body has never been made, but is simply assumed. There is no solid research demonstrating widespread abuse by practitioners; nor is there either research or argument to show that such regulation lessens abuse (doctors, for example, have been so regulated for many years, but shocking cases still occur regularly). Yet ‘protection of clients’ is still cited as the main grounds for state regulation. Despite the emphasis on ‘evidence based practice’ which accompanies the demand for regulation, that demand is itself not evidence based.

BACP responds: The HPC is not a state sponsored body. It is funded by registrants’ fees. The Alliance argues that there is no evidence to support the claim that statutory regulation is for ‘protection of clients’ as there is no evidence of widespread abuse. There is evidence that a small number of members of any profession abuse their clients. No form of regulation, statutory or voluntary, seems to prevent this. The one advantage that statutory regulation has over voluntary regulation is that in order to work under the protected title the professional has to be on the register and can be removed from it and stopped from working using the protected title. This does not stop people from using other titles but it does stop them from being employed. This might therefore have less impact on people working only in private practice. 

On the issue of the level of risk that counsellors and psychotherapists present to the public, in the DH list of risk factors, working alone with someone is seen as one of the highest categories of risk. There is an inherent perceived risk for both parties when two people engage together in a room in the powerful work of therapy. We cannot have it both ways: if we wish the power of counselling and psychotherapy to be recognised and valued then we need to accept the inherent risk in the creation of the enhanced vulnerability and intimacy of the therapy room.

Not a medical profession

The Alliance states: Although many counsellors and psychotherapists work in medical settings, their work is not a branch of medicine nor an activity ancillary to medicine. Most forms of therapy do not focus exclusively on the relief of symptoms, but emphasise creating and exploring a relationship. If there is a goal, it is a general improvement in the quality of life (so that client satisfaction, rather than the improvement of an isolated symptom, is the appropriate measure of effectiveness). Regulation through the HPC implies medical values and criteria which are in many ways antithetical to psychotherapy and counselling.

BACP responds: It is true that approximately two thirds of counsellors and psychotherapists do not work in medical settings and do not use a medical model of symptom relief. Our philosophical approach is post modernist as opposed to the positivist philosophy of the natural sciences. The HPC has itself recognised that if it expands to take in a wider non-medical range of professions it will need to change at least the language it uses. Psychologists, who will be regulated in 2009, made this point very strongly in their negotiations with the HPC and the Professional Liaison Group (PLG) for Counselling and Psychotherapy is also emphasising this concern. Many counsellors and psychotherapists find this medical model antithetical to their philosophy – but it does not appear to be implemented in the HPC criteria in such a way as to undermine our emphasis on the centrality of the relationship and the whole person.

A private practice

The Alliance states: A majority of practitioners work full or part-time in private practice. Their clients make decisions as responsible adults to come to them and to continue in therapy or to leave, and are able to seek advice or redress from a number of self-regulating professional bodies or from the legal system; they are in effect the practitioner’s employer. State regulation is clearly inappropriate for an activity contracted voluntarily between adults. We support extending the private client’s autonomy and freedom of choice to NHS and voluntary sector clients, rather than the reverse.

BACP responds: The Alliance states that ‘a majority of practitioners work full or part-time in private practice’. Based on previous surveys of members of professional bodies we think that the majority of practitioners are in fact employed. Many people portfolio work with a mixture of employers and private practice. People in private practice are self-employed; they are not employed by their clients. The client does not need to give the counsellor or psychotherapist a contract of employment.

A complex field

The Alliance states: Many practitioners see their work as more of an art than a science: a series of skilled improvisations in a relational context, where each client, and indeed each session, offers unique issues and demands unique responses. Such an activity cannot be captured by a list of ‘competences’, however elaborate; at best, such a list can offer only a parody of therapeutic practice. Yet regulation by civil servants, who themselves know nothing of the field they are regulating, demands an ‘objective’ version of our practice, even if this falsifies its nature. The inconvenient reality is that the field consists of many groups and individuals doing some of the same things in some of the same ways, but with many small and significant differences and with constant invention and variation – which has always driven advances in practice.

The therapeutic field is a rich and complex ecology, built up of many different approaches. This diversity is intrinsically valuable – since clients and their issues are equally varied – and is part of what we want to protect; however, from a regulatory point of view it is awkward and inconvenient, and needs to be ironed out. Good training helps the practitioner to develop their own unique style of work, rather than making them conform to a supposed ‘best practice’. The proposed regulation bids fair to flatten this rich ecology into a monoculture, with devastating consequences for the profession and for its clients.

BACP responds: The HPC does not regulate any profession on the basis of competences. It has three sets of standards that apply to individual registrants – the Standards of Proficiency, the Standards of Conduct, Performance and Ethics and the Standards for Education and Training. Whilst the Standards of Proficiency contain some profession-specific standards, the other two standards are generic and common to all professions regulated by the HPC. As can be seen from the documentation, regulation is not at the level of detail that would limit any theoretical approach to counselling and psychotherapy. There is no evidence to support the claim that the HPC will create a ‘monoculture’.

Standards and competences

The Alliance states: Any attempt to impose a quasi-objective framework of standards and competences not only stifles creativity in the field, it also damages the therapeutic work with the client. In trying to apply a predetermined set of external principles to a particular individual, the practitioner must override the client’s individuality and sacrifice the therapeutic process to the demands of a fixed technique. This is ethically unacceptable for the practitioner as well as therapeutically ineffective for the client.

BACP responds: There is no evidence to support the statement that the ‘practitioner must override the client’s individuality and sacrifice the therapeutic process to the demands of a fixed technique’. The statement implies an intimate relationship between the individual registrant and the regulator. In fact there is a great distance between the regulator and registrant: regulation is by title not by activity. Seventy per cent of the Standards of Proficiency are generic to all the professions and the 30 per cent that are profession-specific are framed at a very general level. Members can read the Standards of Proficiency for Arts Therapists online at www.hpc-uk.org/assets/cuments/100004FBStandards_of_Proficiency_Arts_Therapists.pdf

What happens now between counsellor and psychotherapist and client will continue. BACP can find no evidence to suggest that the uniqueness of each therapeutic interaction will be constrained or that any fixed techniques or set of techniques will be imposed by the HPC. It appears unlikely that regulation will be by modality or theoretical approach. The HPC regulates 13 professions, soon to be 14, totalling 185,637 registrants. It is difficult to see how the kind of detailed, intrusive regulatory approach that the Alliance fears could ever happen and there is nothing to suggest that the HPC regulates existing professions in this way.

Managing risk

The Alliance states: The initiative to regulate psychotherapy and counselling is itself a symptom of our tick-box society: of an obsession with ‘safety’, a compulsion to monitor every activity, an illusory belief that everything can be brought under control. In many ways, psychotherapy and counselling inherently expose this illusion: they support us in tolerating uncertainty, difference, risk, and the unknown.

BACP responds: We do seem to live in an anxious culture where risk management and risk avoidance have a high priority. Statutory regulation is one of the mechanisms by which society seeks to manage this anxiety.

Defensive practice

The Alliance states: Like many important activities, psychotherapy and counselling, though usually helpful, are inherently ‘risky’; they cannot be made to conform to safety-first culture. HPC regulation will only strengthen the existing trend towards defensive practice – that is, practice which is more concerned to protect the practitioner from complaint than to help the client’s growth and self-understanding.

BACP responds: There is no evidence that regulation will lead to defensive practice.  The voluntary self-regulatory system of BACP and the other professional associations have not led to defensive practice. BACP’s ethical code demands a higher standard of accountability and practice than the equivalent HPC codes, as it is written especially for counsellors and psychotherapists. BACP will retain its Ethical Framework for members after regulation.

The impact on voluntary services

The Alliance states: The proposals for HPC regulation cannot be separated from the creation of National Occupational Standards (NOS) for the field; the recent Skills for Health (SfH) initiative to determine ‘competences’; NICE clinical guidelines privileging a single form of ‘evidence based’ therapy over all other modalities; and the so-called Improving Access to Psychological Therapies (IAPT) scheme. Between them, all of these developments promise to reduce access to long-term, relationally oriented therapy and counselling; to reduce client choice; to medicalise the field; and to rigidify training and inflate its cost, and hence the cost of therapy, making access even more difficult for the economically disadvantaged. HPC regulation is also likely to exclude from practice many part-timers and volunteers, as well as making it harder for counselling services using volunteers to survive.

BACP responds: Statutory regulation in the HPC has no connection with the development by SfH of National Occupational Standards for the psychological therapies. The NOS will not be used in the development of the Standards of Proficiency for counsellors and psychotherapists.

The NICE guideline on the treatment of depression does present a threat to patient choice and BACP together with the other professional associations and the New Savoy Partnership are campaigning to have the guideline reviewed. The theoretical interventions offered by IAPT are being widened to offer greater patient choice. It is however true that in some areas of England the IAPT programme has resulted in a reduction in patient choice where primary care therapy services have been decommissioned. BACP has fought this.

Whatever we may think of the initial theoretical focus of IAPT, the fact remains that this government has invested £173 million into providing free therapeutic help for people in England and in so doing has reduced the stigma around seeking such help. This expansion of free therapy may reduce the demand for private practice, especially when the programme broadens to offer other theoretical approaches.

The Alliance states that regulation is likely to exclude from practice many of those working part-time and volunteers, as well as making it harder for counselling services using volunteers. Regulation covers all people working under the protected titles, full and part-time, waged and unwaged. The impact on small voluntary organisations is of concern to BACP. We will be working to find ways to ensure that as many members as possible are able to freely transfer from our voluntary register to the statutory register, if they choose to do so.

Alternative options

The Alliance states: HPC regulation could only be justified if the benefits could be shown to outweigh the drawbacks. For the reasons cited above, we believe that the damage caused to psychotherapy and counselling will be profound, and the benefits dubious and minor. There are clear alternatives available – some of them in concrete existence in the USA and Australia - which avoid the noxious elements of current proposals; but no effort has been made to examine them.

BACP responds: The Alliance refers to alternative forms of regulation and mentions two from countries organised 
on a federal basis where regulatory requirements can vary from state to state. The model of regulation used at present in the UK separates the profession and its associations from the regulator. The justification is that professions should not be required to investigate and discipline their members, as they may be too lenient or too harsh. Additionally, professional associations are not able to act as both prosecutor and defence and members often feel unsupported if they are complained against. Members of the public may feel distrustful of a body that claims to investigate and, if necessary, discipline its own members. The UK model is therefore to separate the two. The regulatory council takes over the functions of registration and fitness to practise and is independent of the professions it regulates. This frees the professional associations, such as BACP, to support any of their members complained against, and to develop the profession instead of policing it.  

For further information on the Alliance for Counselling and Psychotherapy see www.allianceforcandp.org