GETTING FIT FOR REGULATION

Anne Richardson, Deputy Head, Mental Health Services Branch, Department of Health

Public protection is high on the Government's agenda. However, legislative action is unlikely to be developed before 2003. The professional organisations that represent psychologists, counsellors and psychotherapists have much preparatory work to do. 

The profile of the 'talking therapies' (counselling, psychotherapy and psychology) has risen significantly in response to the increase in demand from the public for these services. Modernising Mental Health Services, the National Service Framework for Mental Health, and the NHS Plan emphasise the importance of such treatments. Although the Department of Health does not collect data centrally on the number of counsellors or psychotherapy practitioners, we know that there are substantial numbers in the UK. There is no question that these groups are not too small or too unimportant to regulate. Most people will now be familiar with the view expressed by the Government during the debate on the Bill introduced by Lord Alderdice concerning psychotherapists. The Government argued that counsellors and psychologists were just as important.  

But whilst much has been said about the need to register counsellors, psychotherapists and psychologists in law, this is only one approach to strengthening and improving service quality. The law can provide a `backstop’ but other systems and procedures are just as important. For example, the mental health National Service Framework sets clear standards for the delivery of effective services across the spectrum of mental ill health. The National Institute for Clinical Excellence publishes guidelines concerning the evidence for treatment. The framework of clinical governance; new education and training initiatives; approaches to strengthening lifelong learning and continuing professional development all have a place. Not least amongst them are initiatives led by the professional bodies and associations themselves. Initiatives designed to improve practitioners’ knowledge and competence, their ethical practice, and action to strengthen the systems available to protect the public and support them when things go wrong. 

The Government is committed to strengthening professional self-regulation using powers in the Health Act 1999 – not only for those with a medical qualification, but other staff as well. The Health Act enables Parliament to make changes to statutes that already exist, as well as develop new legislation. For example, proposals have been developed for an Order under Section 60 of the Health Act to replace the Professions Supplementary to Medicine Act 1960. If adopted, this will create a new multi-disciplinary Health Professions Council (HPC) with power to extend its remit to groups not currently registered. The HPC may offer one model for the registration of counsellors in due course, but no decision has been taken at this point. We have much work to do first. 

Issues the professional bodies and practitioners need to address

1.	All the professional organisations representing the 'talking therapists' need to address the issue of public protection. This is of crucial importance to the public and to the Government who feel that the balance between employer, professional and public interest has not always been fair. Although abuse of clients is a relatively rare event, nevertheless it does occur. With the help of groups like POPAN, some clients, with considerable bravery, have exposed their experiences with therapists. It has become clear that their complaints have not always been handled quickly or well. There are also concerns in relation to training. Research in this area has developed in recent years, and we now understand more about the circumstances of unethical practice. However, it is still relatively uncommon for professional trainers to address explicitly the issues that are raised, for example, by feelings of attraction by therapists towards their patients. Little attention is also given to the consequence of relationships between trainers and trainees. These are matters that require the attention of professional organisations. 

2.	The Government has taken an approach to registration that builds on professional self-regulation. It builds on the work undertaken by the professional bodies, and it is a joint endeavour. Success depends on a partnership between Government, the professional bodies, public interests, and practitioners themselves. Professional bodies need to ensure that there is a clear consensus for, and understanding of, statutory regulation amongst the professionals themselves who will be affected. At present, it is clear from a number of angry letters written by practitioners, that the changes being discussed are still not widely understood. Although there will always be those who are opposed on a point of principle to statutory registration – a position it is important to respect – there are many who simply have insufficient information. Registration will not be imposed upon a resistant majority, but if it is the right way to proceed, then we should ensure that all those with an interest have all the information they need. 

3.	Practitioners need to reach agreement on the criteria for delivering the main functions of a statutory register. These include selection for entry to the profession, training, continuing professional development, registration, fitness to practise, and discipline.  There are questions it may be appropriate to ask practitioners and professional organisations. For example, are there those who might be inappropriate for training? Are selection methods evidence-based and fair?  Are there agreed standards for the content and the process of training? How much supervised practice is sufficient? Should personal therapy be a requirement? Should competence in basic research and audit methods be included? Does training provide relevant coverage of theory as well as practise? Are competencies as well as knowledge assessed? 

4.	The details of the mechanisms for registration of counsellors and other groups such as psychotherapists and psychologists also need to be agreed. For example, for some professional groups registered by statute a category of `conditional registration’ is permitted. For those who train in specialised areas whilst practising their profession, this is an important feature of any legal framework, and is something for practitioners to consider. Conditional registration is not a feature of the proposed Order to develop the Health Professions Council and although it offers the best model at present, there is certainty that it will be the most appropriate vehicle for all groups. No decision has been taken on the best mechanism for regulating the 'talking therapists'. 

5.	Last but not least, it is important to ask questions about what should happen after registration and what standards should be set for professional practise and continuing professional development. It may be appropriate to develop a system for professional re-validation along the lines being developed for the medical profession. There are also important questions about the consequences for a practitioner of failing to make the grade, either at the point of entry to the profession, or later, as a consequence of poor or unprofessional practice. Although it is important to protect the public, and although some practitioners have the potential to do harm, there are examples of poor practice that owe more to failures of training than to ill will. This means that failure to meet criteria for re-validation should not necessarily result in permanent exclusion from practice or cessation of a professional career. There are occasions when, following a full assessment of the circumstances, further training and supervision, or a period of treatment, may be the appropriate course of action. A mature professional organisation will have systems in place to address these issues in full.

The next steps

The vision for how to proceed will build on the work already undertaken

The Government’s approach to statutory registration is built on modernised professional self-regulation. For example, in each profession, government ministers and civil servants recognise that those professionals with qualifications and experience and in the field are best equipped to judge the qualifications of others. This is the approach used to develop the structures within the Health Professions Council. It will be helpful for practitioners to examine the HPC in detail as a working model of an Order to register a number of different professional groups. 

Registration for psychotherapists, counsellors and psychologists cannot, realistically, be developed before 2003 and, in the interim, the professional bodies have much to do in providing a forum for professional consultation, ensuring that their members both understand and support the way forward. 

There are significant resource issues for the Government in relation to the modernising regulation agenda. This is one reason that developments for the `talking therapists’ will take time. However, there is another reason as well. Within the psychotherapy and counselling field, there are a number of different professional bodies and organisations. They represent the different interests of their members. Although most are concerned with the development and strengthening of education and training, and the promotion of best practise, they do not always have a shared vision of how this should be achieved. The Department of Health is keen to foster a spirit of collaboration, and is glad to receive representations from any interested party. However, we also believe there would be great value in the professional associations undertaking more work together to agree the common ground. 

Consultation will include practitioners in all sectors

Whatever mechanism is developed in due course to register practitioners of the talking therapies, there are a number of different interests to take into account. The public interest is paramount.  To be effective, professional regulation needs to be open, responsive and accountable, focussed on protecting patients and the public rather than solely on professional staff.  It also needs to be flexible to take account of changes to the way in which staff work and care is delivered in the future. The needs of the NHS are important as the largest employer of counsellors and psychotherapists in the UK. But those working in the private sector, or charitable and voluntary sector, and those working in settings other than healthcare (in the workplace, for example) are also important. They would not be excluded by any new legislation. 

Practitioners, the public, professional bodies and other stakeholders should understand that the process of consultation will be thorough.

There are a number of safeguards built into the Order-making power of the Health Act 1999. For example, Orders must be published at least three months before they are laid before Parliament, debates must be held in both Houses, and full public consultation must have taken place with all the professional bodies and organisations in advance. The Department of Health is keen to work in partnership with the professional associations to develop a vision of how to proceed towards statutory registration, but this is not always an easy or straightforward process. Rosalind Mead, Head of non-medical regulation within the Department and I, recently began an open-ended process of consultation with all the relevant groups. This will help us to decide on the best way forward. It will help us decide the content of any formal public consultation prior to the publication of any Order. 

What would success look like?

In time, there is the hope that statutory registration for counsellors, psychotherapists and psychologists will bring significant benefits. If adopted, there will be powers available to deal effectively with individuals who present unacceptable risks to patients. There will be directly elected practitioners and a strong lay input to carry responsibility for setting and monitoring standards of professional training, performance and conduct. There will be protection of professional title, linked to continuing professional development, giving clearer professional identities for those who are qualified.  This will mean a clearer distinction than exists now for those who use counselling skills in their work as part of good customer, client or patient care, and those who are qualified to register as professional counsellors. There are still many questions about the type of council to regulate the talking therapies, and the Department of Health will examine all the options very carefully. Above all, it is clear that counselling will not be excluded from the modernisation agenda.

Further information

The NHS Plan, Department of Health, 2000
www.nhs.uk/nhsplan

Meeting the Challenge: a Strategy for the Allied Health Professionals, Department of Health, November 2000
www.doh.gov.uk/meetingthechallenge

Supporting Doctors, Protecting Patients, Department of Health 2000
www.doh.gov.uk/cmoconsult1.htm

Health Professions Council Order
www.doh.gov.uk/hpcorder

Treatment Choice in Psychological Therapies and Counselling, Evidence Based Clinical Practice Guideline
www.doh.gov.uk/mentalhealth/treatmentguideline

Modernising Regulation in the Health Professions
www.doh.gov.uk/modernisingregulation