IPNOSIS - an Internet journal for the Independent Practitioners Network   http://ipnosis.postle.net

Extracted from MINDFIELD: Therapy on the Couch Camden Press 1999 by permission of the author.

The US has had statutory registration for years, so there has been plenty of time to see which model works best. The answer: to both protect and serve the public, you need to control the profession's output, not input

Daniel B. Hogan, author of The regulation of psychotherapists

Protection, not control

For more than a quarter-century the mental health professions have used a panoply of weapons in a fierce battle to control the held of psychotherapy. However, their efforts, made in the name of protecting the public from harm, have probably caused more harm than good. What we should have by now is plentiful services delivered to all populations at a reasonable cost and with minimal risk. Instead, what we have are fewer services at higher costs and many populations totally unserved. And it is not at all clear that the public has been protected. Sadly, this need not be the case.

Further, lost in the morass of competing claims for professional hegemony are a host of crucial issues for professionals in the field of counselling and psychotherapy. Ever clearer is the need to go back to the basics. For example, we need to determine the extent and type of harm of which practitioners are capable because this is, after all, the whole basis for licensing. Then we need to determine what kinds of regulation are most likely to prevent such harm. Of course, any such system will have its own costs and impacts and these need to be determined, including unintended negative side-effects. Part of that equation includes an analysis of what a particular set of regulations will do to the profession as a whole. In the case of psychotherapy and counselling these issues are particularly salient, because the profession is still emerging.

Finally, at a more fundamental level we need to reconceptualise the entire process of regulation. Instead of an almost exclusive emphasis on control and discipline which restricts practitioners from entering the field, we need to focus on how regulation can help the profession develop. This means moving away from restrictive licensing laws to a system of simple registration embracing the entire range of therapists, focusing on a sound disciplinary system and good education of the public. This will ultimately prove more effective. It will have fewer negative costs. And it will result in a more positive impact. In fact, such a system would probably serve a host of other professions equally well.

I made this argument in detail 20 years ago with the publication of a four-volume series*. Now, as the millennium approaches, my conclusions and recommendations have not changed, indeed the intervening time has only reinforced my opinion of their validity. And we have some examples suggesting that alternative approaches can actually work.

The US scene
Until recently psychotherapy in the US has been a lucrative field that many professions wanted to control. Today as many as six or seven professions, including psychiatry, psychology, social work and nursing, lay claim to the therapy field, making it a true minefield for the unlicensed. The primary weapon for professional control has been licensure, the ability of a government to limit the practice of a profession to those who are qualified. A critical piece of ammunition provided by licensure to the professions has been the use of governmental laws to establish entry requirements that must be met before a person can practice. In the US, this control is exercised at the state level. Licensing takes primarily two forms. 
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The most restrictive prohibits the practice of a profession without a license, which is only granted if one meets certain stringent requirements. Less restrictive, but still highly impactful, are title protection acts that forbid the use of certain titles unless one is licensed and meets certain qualifications.
The number of laws regulating counselling and psychotherapy has increased astronomically over the last 50 years. In the US, all states now license psychologists and (physicians while many states license social workers, marriage and family therapists and a host of other groups. Each of these groups has created a description of what it means to practice that particular profession. This definition either explicitly or implicitly includes "psychotherapy" and "counselling" within its purview.

The proliferation of laws parallels a similar trend in many other occupations. In the US, at least one quarter of all employed labor in some states have been compose of licensed professionals. As Knowledge and information replace capital as the key item of value in our society, the professional classes will continue their ascendance. Whenever professional associations have gone to state legislatures to argue the case for licensing, it has been in the name of protecting the public. It is plain, however, that self protection and the desire for economic well-being are also at work. Most licensing laws have been proposed and drawn up by the very professionals being regulated. In addition, they are usually exclusively administered by those same professionals. many licensing boards have no public members whatever. The professionals who run the board are generally granted wide discretionary powers, including the right to determine what academic institutions will have their credentials honored and what type of written examination will be required.

These mental health professions have sought to dominate the field by requiring entrants to possess certain advance academic credentials, to pass rigorous exams, to possess significant supervised experience as well as other specified characteristics. And they do so by laying claim to a broad field that would seem to have no boundary. Witness, for example, what has been the state of Louisiana's definition of psychology: "Psychology" is hereby defined as the study and application of the principles of behavior." If the practice of psychology so defined is illegal without a license, one wonders what is left for the rest of us to do without violating the law.

The question, of course, is how well licensing has served the general public. Good reason exists to believe that most licensing laws are counterproductive. Several factors are contributive to this.
First, a boundary issue exists. It turns out to be difficult, if not impossible, to define the field clearly enough for licensing purposes. I have argued elsewhere that this rises to a constitutional issue based on the "void-for-vagueness" doctrine. The result is that government agencies attempting to reinforce licensing laws will constantly be meddling in the bailiwick of other professions, including education and religion.
Second. while licensing is meant to ensure that only competent
professionals are admitted to practice, little evidence exists that current entrance requirements have any bearing on necessary skills or any relationship to performance. Even if it were, it seems clear that the requirements are way above what is minimally necessary to be competent. Despite this lack of evidence, professional associations continue to maintain that practitioners must have doctoral degrees, and years of supervised experience and must complete passage of a difficult written exam to enter the field.

The use of meta-analytic research techniques have led to a conclusive finding that psychotherapy as a whole is effective. We also know that certain therapeutic techniques are more effective than others, at least for certain conditions. But we do not yet know whether one therapist is likely to be better than another therapist. We do not know whether people with credentials perform better than those without. In fact, what evidence exists suggests that certain human qualities in the therapist are probably more critical to positive outcomes than advanced degrees. Reviews of the impact of strict licensing laws on the quality of service delivered show they have been neutral at best, negative at worst.

Third, evidence on disciplinary enforcement-one of the cornerstones of the licensing process - reveals a woefully inadequate system. Licensing boards rarely take action against those who are licensed but practicing unethically or incompetently, no matter how egregious their offense. When action is taken, it is frequently to protect the name of the profession, not the public. The fact that disciplinary boards lack adequate funds and technical skills virtually ensures that this will not change, even if the above problems were resolved.

Another function of licensing laws is the prevention of unlicensed practice. This tends to be sporadically enforced, despite the fact it is in the economic interest of the professions to do so. When enforcement does occur, it is frequently aimed at curbing competition rather than dangerous practices, as when lawyers attempt to prevent real estate brokers from writing
contracts for the sale of land.

In addition to not protecting the public, licensing in the US tends to have negative side-effects. Irrelevant and higher than necessary entry requirements restrict the number of persons able to enter the professions. It also creates problems in the geographical distribution, since it is difficult for professionals licensed in one state to work in another. This results in a significant increase in the cost of professional services. Reliance on academic degrees results in serious discrimination against minorities, women, the aged, and the poor. And finally licensing inhibits important innovations in professional practice, training, education, and organisation of services.

In fact, according to some political scientists, the pervasiveness of licensing is an indication that the US is returning to a guild society reminiscent of the Middle Ages. Like the guilds, licensed professionals have established and enforced compulsory membership, creating a monopoly. Like the guilds, licensing standards have become higher and the cost of licensure has increased. Like the guilds, periods of apprenticeships have been lengthened, the number of apprentices has been restricted and the possibility of licensure through apprenticeship or work experience has generally been eliminated.
 
Thus, since psychotherapy is such an ill-defined field, since reliable and valid standards do not exist to determine whether practitioners are competent, since not enough is known about how to train practitioners effectively, and since methods of measuring competence and selecting practitioners have not been agreed upon, restrictive licensing laws are inadvisable.

The way to do it
What are some basic principles to which all proposals for regulation should conform? First, the purpose of regulation needs to be reconceptualised. The prevailing view defines law and regulation as a form of social control that comes into being through an exercise of authority. Regulatory laws are seen as a means of implementing restrictions that are enforced by sanctions. This focus on control is a logical outgrowth of the positivistic philosophy of law. The field of professional regulation has adopted this legal philosophy lock, stock and barrel. The result has been an emphasis on control, discipline, the elimination of quackery and charlatans and the protection of the public from incompetent and unethical practice.

We would be better off with a broader conception of the process, however. Lon Fuller of the Harvard Law School has argued that the basic purpose of laws is to provide a framework and method for facilitating human interaction. Thus, regulations should be framed not only to protect the public, but to meet the needs of that public. When the purpose of professional regulation is looked at in this fashion, issues arise that are normally ignored. The overarching purpose becomes not only protecting the public from harm but also ensuring that the quality, quantity, and cost of mental health services are improved.

Licensing laws should therefore be viewed as a way of helping the interaction of the professions and the public, as well as a way of controlling professional activity. This view helps to focus on whether licensing is having bad side effects, and whether the hidden costs of laws are worth their supposed benefits. It also brings to the fore the potential value of licensing as a vehicle for educating the public about the professions and demystifying them. Regulations should promote client autonomy and responsibility.

Perhaps most important, this approach helps make clear the ways that traditional laws can have an extremely calcifying effect. This is especially so if rigid, arbitrary, and unproven criteria are used to judge whether practitioners should be granted a license and training programs accredited for licensing purposes. It helps put the emphasis on how best to encourage the constructive development of the psychotherapy profession.

Licensing laws are not meant to ensure a high level of professional competence, only that a practitioner is not likely to harm the public. This means that licensing laws should adopt minimum requirements for entrance into a profession, and these requirements should be clearly related to minimally competent practice. In this regard, licensing laws should emphasise the regulation of output, not input. Hence, they should be concerned with a person's actual skills, not how those skills were obtained. Since so little is known about the effective training and selection of professionals, a further purpose of licensing should be to promote a pluralistic system for the delivery of professional services. The recommendations listed below (see book version) would do much to move us down this path.

Is there any hope that we might see the dawning of a new regulatory environment in which such recommendations might flourish? I’m not sure. Over the past 20n years, professional associations have made stronger and stronger attempts to control the marketplace. State societies have lobbied for restrictive practice acts to replace simple title protection laws. They have removed exemptions and called for very limited grandparent clauses. They have made broad definitions of practice to extend the scope of their influence.

At the same time several states in the US have enacted registration laws and have attempted to implement a variety of the recommendations I list here. These include Maine, Vermont and Colorado. As far as I can determine they have been a success.
The future of counselling and psychotherapy in the United Kingdom would appear to be at a critical juncture today. If restrictive licensing is adopted, I fear that the field will be crippled for years to come. If, however, professional associations are able to put aside their ill-founded beliefs in why they should be the only ones to rule the roost, and if they can adopt an inquiring and research-oriented stance, then perhaps a path can be laid to allow a system of registration that would allow the profession to flourish and develop in a sound, positive fashion.

Two US examples

A number of states in the U.S., including Maine, Vermont, Washington and Colorado, have adopted some form of registration law.  Usually, these are in addition to more restrictive laws regulating psychology, social work and marriage and family counseling.  Below is a description of how two of these appear to be working.

The state of Vermont has adopted a registration law in the form of a “Roster of Psychotherapists Who Are Non-Certified and Non-Licensed” whose purpose is:

•	“To ensure that consumers of psychotherapy services are provided with the information relating to the training and qualification of nonlicensed and noncertified providers of psychotherapy necessary to enable them to make informed decisions concerning their choice of providers.

•	That psychotherapists who are nonlicensed and noncertified are entered on a roster and practice according to established standards of professional conduct and be subject to disciplinary procedures if they fail to adhere to those standards.

•	That the term psychotherapy as used in this chapter be narrowly interpreted to ensure that only those persons who provide services that clearly fall within the definition of psychotherapy are subject to the provisions of this chapter.” 

This law has been in effect since 1994 and appears to have worked effectively, according to Board member Lauren Berrizbeitia. She states that the number and type of complaints received are similar to other professional groups, such as psychologists, based on a pro rata basis. The original law had been passed with some trepidation. When it came up for “sunset review,” the state legislature did not even bother with the review process since it concluded that the law was obviously effective and valuable.

The State of Colorado passed a statute establishing a Grievance Board for all psychotherapists who are not licensed by another profession, such as psychology or social work. This requires registration of all such practitioners and provides a vehicle for disciplining those who are errant or wayward. 

The legislature conducted a multi-year study of the effectiveness of restrictive licensing and concluded that no demonstrable protection of the public could be found. According to William Goodrich, in a recent year psychiatrists were subject to a larger number of and more serious offenses than the registered group of therapists, despite the fact that the registered group outnumbered the psychiatrists by 4:1. This suggests that whatever the dangers posed by psychotherapeutic practice, protection is not being provided by traditional forms of licensing with its reliance on academic credentials. An active disciplinary board with a broad-based register seems a far better solution.

Recommendations on regulation

Regulation of output, not input 
Regulation through licensure constitutes control of input, since it establishes standards and criteria governing entrance into a profession. Because current requirements have not been shown to be related to effective performance, alternatives should be considered such as competency-based measures which attempt to correlate particular skills with effective performance. Regulations that are based on output measure or correlated with them are strongly to be preferred. Registration laws represent an output-based system, since they allow all practitioners in, and then regulate their practice through the disciplinary arm of the registration board.

Registration, not licensing or certification
Regulation through registration, in which practitioners are required to register with a government agency but are not required to meet any academic or other prerequisites, is the most desirable form of regulation. Where licensing laws have entrance requirements, only the unlicensed use of specific titles should be restricted, not the right to practice. Registration allows all people to practice so long as they provide certain information to the state. Practitioners can, however, be removed from the roles if they engage in incompetent, harmful or unethical activity. Registration has the advantage of bringing all people into the fold, ending the turf wars that currently exist.

Minimal use of restrictive licensing laws
Licensing laws that restrict practice to those who possess academic credentials should be avoided. Even if licensing laws do not restrict the right to practice, but prohibit only the unlicensed use of certain titles, they are inadvisable. Restrictive licensing should not be employed unless the following conditions are met:
•	The profession being regulated is mature and well-established.
•	The profession has a clearly defined field of practice.
•	The profession has a significant public impact
•	The net benefits of licensing outweigh any negative side effects by a substantial amount.
•	Less restrictive alternatives are unavailable.
•	The potential for harm from incompetent or unethical practitioners is significant, pervasive, and well documented.
•	Reliable and valid measures exist to determine whether practitioners are qualified to practice.
•	Adequate financial and human resources will be provided for the operation of the regulatory board or agency.

Full disclosure requirements
All licensing laws should require practitioners to disclose relevant information to clients and the public including the name, address and methods of contacting the government disciplinary agency, fee structure, and status of confidentiality. Clients should be given a copy of the rules and regulations of the board and what constitutes unethical or incompetent practice. Practitioner education, experience, supervision status, methods used, and techniques in which certification by an outside organisation has been achieved, are among the types of disclosure that would be valuable.

Increased education of the public
Although little used until now as a method of professional regulation, education has the potential as a powerful tool in protecting the public from harm. To be effective, however, considerable effort, money, time and commitment must be devoted to developing a sound program for public education and information dissemination. State agencies should undertake programmes to help educate potential clients as to what to look for in a therapist, what questions to ask, and what to do if dissatisfied with the service. State agencies should act as a conduit for information supplied by various professional groups to inform the public about the state of the art.

Encourage a proliferation of professional associations and accrediting organizations
Professional associations and accrediting organisations will and should continue to play a strong role in the regulation of psychotherapists. Because of the lack of consensus on standards of practice, methods of training, and methods of selection, however, it will be crucial to create a situation in which many such organisations coexist, each advocating different methods and theories for the training and certification of therapists. The goal should be a pluralistic system in which the public can choose any of a variety of therapists. By carefully monitoring the effectiveness of therapists certified by different associations, long-term research might begin to establish which methods of training and selection produced the most competent or least dangerous therapists. In the US a national certifying agency has been put into place to certify accreditation organisations in the health field

Exploration of the value of client evaluations
Because at least some aspects of a professional’s practice are subject to direct evaluation by a client, such as client satisfaction and what the therapist actually said and did, the use of such evaluations should be explored by licensing bodies. The idea would be to have these evaluations available to the board and perhaps to the public.

Special laws for specific problems and the use of existing criminal law
Where special dangers are identified in the psychotherapeutic process, and where traditional avenues of dealing with them are ineffective, special laws should be enacted. Existing fraud and sexual harassment laws should be strengthened and used to prevent some of the abuses that currently occur in professional practice. This alone would obviate much of the need for licensing.

Balanced representation of interests, not professional control
The basic policies of the regulatory board or agency should not be set by a board composed solely of professionals, but should have a balanced representation of appropriate constituencies, including the public, clients, and government officials. Licensing boards or agencies should be administered by personnel skilled at their task. Thus, discipline should be carried out by trained investigatory staff. The board or agency should have adequate financing and should not rely on registration fees for its continued operation.

Narrow definitions of practice
Definitions of practice should be carefully and narrowly drawn. The more a regulation restricts practice to a limited few, the more rigidly this guideline needs to be applied.

Competency-based standards and criteria
Licensing requirements should be competency-based and related to actual performance. Academic credentials should only be used if they have a demonstrable relationship to performance.

Focus on definitions of minimal competence
Licensing requirements should be aimed at a minimal level of competence, not high quality.

Legitimacy of alternative paths 
Whether academic credentials are used or not, licensing laws should allow persons to be licensed on the basis of proficiency examinations, educational equivalency measures, apprenticeships or certification by an appropriate professional association.

Maximum delegation of functions to paraprofessionals
Restrictive licensing laws should allow licensed persons to delegate any and all functions to para-professionals, unless demonstrated danger would result. Delegation provisions should only require direct, over-the-shoulder supervision where absolutely necessary.

Accreditation
Where academic credentials are a requirement of licensing laws, the further requirement that the degree must be from an accredited institution or program should only exist if accreditation is determined by truly competency-based measures. Otherwise, the encouragement of multiple accrediting agencies should take place, with accompanying research on their impact and effectiveness.

Avoidance of standardised national examinations
The use of standardised national examinations by licensing boards should be avoided unless evidence exists that these examinations have a demonstrable relationship to competent practice. In other words, they must have predictive as well as content validity. Further, even with demonstrable validity, it still may be worthwhile to avoid standardisation to allow the possibility of even better measures or alternative examinations that are equally predictive.

Use of a Wide Variety of Selection Methods
Since little agreement exists about what selection methods are best for determining professional competence, licensing boards should experiment with the use of supervisor evaluation, evaluations of role-playing and taped samples of actual performance, acceptance of certification by appropriate professional associations, and other selection procedures.

Performance-based relicensure and continuing competence
Although demonstration of continuing competence should be an essential feature of all licensing laws, no evidence exists that continuing education requirements are a good measure of this. Instead, licensing boards should require a demonstration based on a proficiency examination or direct evidence of competent performance. A quick perusal of the offerings of continuing education programs shows how absurd most such requirements are. Most courses have a marginal relationship to protecting the public and one will find few courses that focus on ethics or the dangers of the therapeutic process.

Generous use of exemptions
All licensing laws should contain specific exemptions for professionals certified by recognised professional associations in the psychotherapy and counselling field. The criteria for determining whether a professional association is recognised should be based on whether the association has a membership of reasonable size, standards and criteria for admission that are based on competent practice, a method for disciplining incompetent or unethical members, and methods for periodically reviewing members’ continuing competence.

Generous grandparent clauses
When a new licensing law is enacted, adequate provision must be made to protect the rights of those who do not meet the education (or other) requirements of the law, but who have been practicing prior to the law’s enactment.