Briefing Document

The Inadvisability of Statutorily Regulating Psychotherapy and Counselling: 
Some Cautionary Notes

Richard House 
Independent Practitioners Network participant and full group-member
Senior Lecturer in Psychotherapy and Counselling, Roehampton University
r.house@roehampton.ac.uk

It is important to emphasise that those challenging the advisability of statutory regulation, including myself, do not impugn in any way the motives of those wishing to regulate the therapy field in the UK. Whilst there might be some self-interested training interests driving the process, it is accepted without question that both the Government and the individuals representing the institutions of psychotherapy and counselling genuinely wish to improve the quality of therapeutic help available in Britain. However, I and my IPN colleagues believe that there are compelling arguments which, at the very least, throw considerable doubt on whether statutory regulation as currently canvassed would indeed succeed in bringing about its stated and laudable aim. We maintain that any rational and coherent case in favour of statutory regulation must needs respond fully and convincingly to these challenges before regulation is implemented. It is of major concern to myself and my colleagues that, to date, little if any attempt seems to have been made seriously to examine these multiple concerns by those in the therapy world who advocate statutory regulation.

In the rest of this briefing document, I attempt succinctly to summarise those concerns. A considerable literature has built up over the past 10-15 years (to which I and my colleagues have substantially contributed), which gives far more detail on these questions – please refer to the selected reading list at the end of the main text. I am able, and would be happy, to provide copies of most of these cited publications on request.

Protecting the Public
It appears that the overriding reason for the Government’s intended introduction of statutory regulation is to provide a means of protecting the public from practitioners who are deemed unfit to practise and who could cause harm to those who seek their services. Given that this is indeed the central raison d’être underpinning regulation, the first and most obvious question is: What is the evidence that statutory regulation, compared with a ‘no regulation’ counterfactual comparison or scenario, would actually succeed in protecting the public by reducing the net level of abuse in the system? 

I take it, first, that those arguing for statutory regulation would need to demonstrate that there currently exists a level of abuse that is greater than the level that would plausibly obtain under a statutorily regulated therapy field. In turn, this requires detailed information about the level of abuse that currently exists within the therapy field. Now of course no one would seriously deny that abuse exists – after all, it exists everywhere in life; the crucial issue here concerns the scale of existing levels of abuse. Nowhere have I or my colleagues seen any empirical evidence about the current level of abuse within the British occupational field. Has any serious systematic research been carried out into this issue, and if so, why have its findings not been made public? 

Of course there are pressure groups representing ‘users’ and clients (some possibly with axes to grind) who are calling for regulation; but this of itself does not make anything approaching a sufficient case for the appropriateness of statutory regulation, without the accompanying research on the current scale of abuse and dissatisfaction having been carried out. In short, I maintain that in any rational world it is not justifiable that dramatic and wide-ranging changes be made to our occupational field (and potentiality harmful ones at that – see below) simply on the basis of a comparatively small number of high-profile, emotionally charged and anecdotal complaints or representations by user-groups, without comprehensive independent research first having been carried out.

In the literature referred to earlier, there is lengthy ‘chapter and verse’ on just why the ‘public protection’ argument does not hold water – or is at the very least highly questionable. As the American authority on psychotherapy regulation, Professor Daniel B. Hogan, has written, ‘...a similar array of horror stories could easily be assembled about highly credentialed psychiatrists and psychologists, all of them licensed’. In other words, client and patient abuse occurs in professions that are already licensed and have specific sanctions against abuse and malpractice; and there is no clear empirical evidence in the literature to suggest that its incidence differs between licensed and unlicensed settings.

Moreover, and as Richard Mowbray has pointed out, the various cases of abuse discussed by Jeffrey Masson in his well-known book Against Therapy were mainly perpetrated by involved practitioners who were already licensed professionals (i.e. medical doctors, clinical psychologists etc.), and their registered professional status within the community if anything made it harder to challenge their abusive behaviour. Mowbray again: ‘If protection of the public from harm has not been a proven consequence of [licensing] systems in general, there is little prospect that such a system would protect the public in a field as indefinite as this one.’ 

Another compelling challenge to the ‘public protection’ rationale is that, as we all know, potentially abusive practitioners who are determined to abuse will simply find another way of doing it – e.g. either by calling themselves something else that isn’t regulated, or else by finding another arena/forum in which they can perpetrate abuse relatively unhindered. So on this view, perhaps the most one can say is that the statutory regulation of psychotherapy and counselling might merely redistribute abuse within society as a whole rather than removing it – thus invalidating the ‘abuse reduction’ argument for statutorily regulating the occupational field.

It might be countered that it is public perception that matters most, and that it is important for the Government to be seen to be responding to concerns about abuse, whether those concerns have wide-ranging substance or not.  In my view this would amount to expediency of the worst kind, where appearance (‘spin’) matters more than substance and authenticity. Many cultural critics (including myself) maintain that the increasingly routine triumph of appearance over substance constitutes one of the most harmful trends in modern cultural and political life, and one which it would be potentially disastrous for the therapy field uncritically and incongruously to embrace and collude with. It would also surely constitute dishonesty of the most damaging kind for either our occupational institutions, or for Government itself, wittingly to generate substantially exaggerated fears and anxieties about the dangers of abuse in our field in order to justify the need for legislation, when in reality the empirical evidence which would be needed to substantiate a rational case for regulation simply does not exist.

Abuse within versus Abuse by Therapy
In my book Therapy beyond Modernity, I make the argument that what I term ‘professionalised’ therapy can itself easily become abusive – and perhaps even more so than the kind of more overt, conventionally understood abuse against which the Government is proposing to legislate. On this view, the statutory regulation of therapy would very likely lead to an increase of the kind of professionalised abuse that I warn against; and to the extent that this argument is valid, this countervailing effect would need to be taken into account in calculating a ‘balance sheet’ of the effects of statutory regulation on net abuse levels across the field as a whole. 

At the very least, then, the whole question of abuse, and what it consists in, is a highly complex and subtle issue; and the kind of ‘nail and hammer’ approach to attempting to control it via statutory regulation simply fails to address its complexity and subtlety. Moreover, there are also compelling arguments and associated research evidence suggesting that newly qualified or lightly trained paraprofessionals in the field do therapy work which is at least as effective as highly trained practitioners (I have set out some plausible reasons to account for such an important counterintuitive finding – see House, 2003b). Again, if it is true that new and fresh practitioner ‘blood’ makes a major contribution to the overall quality of therapeutic help available in Britain, then it is very likely that the introduction of a statutorily regulated system which is skewed towards the ‘career’ professional by raising the bar for entry to the field might well have a significantly negative effect on the overall quality of available therapeutic help. 

This is yet one more example of the way in which any human system is extremely complex; and the belief or assumption that it is possible to manipulate such a system in a crassly simplistic way to yield a predictable, deducible outcome (in this case, a net reduction in abuse) is, at the very least, highly problematic. In the next section, I explain in more detail just why this is so.

The Law of Unintended Consequences
These are sometimes referred to within Neo-classical Economics as ‘general equilibrium effects’. Here I am referring to the way in which the changing of one ‘variable’ within a given system will have inevitable and often very far-reaching impacts on both the rest of the system as a whole and on its constituent parts – and often to the extent that the imposed change either causes more damage than the original malady it was seeking to cure; or at worst, any unintended countervailing effects lead to a net increase in (for example) abuse (albeit, perhaps, of different kinds) within the system as whole, compared with the situation prevailing before the change was introduced. 

At the very least, there surely needs to be extensive research on this issue by researchers (who do not possess a vested interest in the outcome), before such a risk is taken with our occupational field. Not least, I maintain that there needs to be careful research into the experience of other countries where regulation has been introduced. Daniel B. Hogan’s 4-volume study of regulation in the USA, The Regulation of Psychotherapists, is seminal reading – and highly sobering for anyone wedded to the alleged beneficence of statutory regulation in this field.

A close reading of Richard Mowbray’s masterful review of the arguments about statutory regulation yields a lengthy list of potential negative ‘unintended consequences’ of regulation, any one of which on its own could easily more than cancel out any abuse-reducing benefits that statutory regulation might produce: namely (and again following Professor Hogan): 

(1)	the unnecessary restriction of the supply of practitioners through the introduction of monopolistic or oligopolistic factors into the market; 
(2)	inflating the cost of services; 
(3)	stifling innovation in the education and training of practitioners and in the      organisation and utilisation of services; and
(4)	discriminating against minorities by raising entry requirements in terms of time, cost and academic prerequisites.

Little wonder, perhaps, that celebrated critical psychiatrist Peter Breggin can conclude that, ‘Overall, licensure laws enable groups of professionals to monopolize the psychotherapy market by locking out unlicensed competitors while guaranteeing a steady flow of clients and high fees for themselves.’ 

The ‘Win-Win’ Scenario of Non-Credentialled Registration
My colleague Denis Postle has worked out a carefully specified approach to regulation – so-called ‘non-credentialed registration’ (or NCR) – that avoids many of the worst features of statutory regulation.   A copy of the book chapter in which Postle
describes one possible configuration of such a system is attached for your information. A regulatory scheme along NCR lines has also been adopted in the State of Colorado – the rationale being that Colorado’s legislators apparently do not wish to harm the field as a whole by introducing a form of regulation which is simply unnecessary when an alternative system can yield a similar protective and accountability effect. (This is an example of Ockam’s Razor, the famous philosophical argument that it is in principle best to pursue the minimum level of change necessary that is consistent with bringing about the desired effect.) 

Moreover, such a ‘win-win’ scenario would not only substantially obviate the dangers of statutory regulation as outlined above, but it would be far cheaper to implement, and it would have the effect of empowering (rather than infantilising) both practitioners and clients/users. A Government that is genuinely interested in the forces of ‘modernisation’ might find such a cultural innovation exciting and conducive, if the case for it were put comprehensively and convincingly.

In conclusion…
In sum, not only would non-credentialed regulation in all probability be significantly less harmful to the field than would statutory regulation as currently contemplated - not least through reducing to a minimum the damaging unintended consequences that statutory regulation would likely bring in its wake - but it would be far easier to implement and far less costly to Government. This surely constitutes a ‘win win’ scenario if ever there was one. I urge all those with any influence on the regulatory process to consider the arguments set out in this document very carefully. The very least that might be expected would be for this document to be submitted to the various institutions favouring statutory regulation, inviting them to respond to and, if possible, refute the arguments and concerns outlined herein. Once any such replies and attempted refutations had been received, an unbiased judge or judges could then pronounce upon which side of the argument is more convincing – and I am personally more than willing to expose the arguments contained in this paper to such a process. It is a sad reflection on the lack of dialogical debate about regulation that has occurred to date that the latter proposal would be the nearest thing to an open debate that has occurred in our occupational field since the question of regulation was first mooted several decades ago.

Above all, I and my colleagues in the Independent Practitioners Network would urge you to do all within your power and influence to make sure that any regulatory framework that is introduced is carefully and systematically researched, and that everything possible is done to ensure that the kinds of unintended negative consequences outlined in this briefing document do not indeed occur. 

Further Reading
Bates, Y. and House, R. (eds) (2003) Ethically Challenged Professions: Enabling Innovation and Diversity in Psychotherapy and Counselling, PCCS Books, Ross-on-Wye
Friedson, E. (1984) ‘Are professions necessary?’, in T.L. Haskell (ed.), The Authority of Experts, Indiana University Press, Bloomington, pp. 3-27
Hogan, D.B. (1979) The Regulation of Psychotherapists, 4 volumes, Ballinger, Cambridge, Mass.
House, R. (2003a) Therapy Beyond Modernity: Deconstructing and Transcending Profession-Centred Therapy, Karnac Books, London
House, R. (2003b) ‘The statutory regulation of psychotherapy and counselling: still time to think again’, in Ethically Challenged Professions: Enabling Innovation and Diversity in Psychotherapy and Counselling, PCCS Books, Ross-on-Wye, pp. 142-7; reprinted from The Psychotherapist, 17, 2002, pp. 12-17
House, R. and Totton, N. (eds) (1997) Implausible Professions: Arguments for Pluralism and Autonomy in Psychotherapy and Counselling, PCCS Books, Ross-on-Wye
Illich, I. & others (1977) Disabling Professions, Marion Boyars, London
Mowbray, R. (1995) The Case Against Psychotherapy Registration: A Conservation Issue for the Human Potential Movement, Trans Marginal Press, London
Postle, D. (2003) ‘Psychopractice accountability: A practitioner “full-disclosure” list’, in Y. Bates and R. House (eds), Ethically Challenged Professions: Enabling Innovation and Diversity in Psychotherapy and Counselling, PCCS Books, Ross-on-Wye, pp. 172-8

Dr Richard House, Senior Lecturer in Psychotherapy and Counselling, Roehampton University; email: r.house@roehampton.ac.uk or richardahouse@hotmail.com

Richard is an Independent Practitioners Network participant, a member of the ‘Leonard Piper’ IPN practitioner group (founded in 1995), and a founder-member of the organisation.
December 2005