BACP Press release
16 August 2005
Director of Workforce
Department of Health
London SW1A 2NS
Dear Andrew Foster
Re: Review of
non-medical professional regulation: Call for ideas
Further to our letter dated 8 August from BACP Chief Executive Laurie
Clarke seeking membership of the Advisory Group, we now have pleasure
in submitting our response to the 'call for ideas'.
We consider that a starting point for this review would be a return to
some basic questions on the subject of regulation. What is the purpose
of regulation? What does it set out to achieve? Who gains from
regulation and what do they gain?
1. The Professions
Regulation has served a number of
purposes for the professions in the past. It represented recognition
that a particular occupational group had gained jurisdiction over an
activity to the exclusion of other groups. It gave legitimacy, status,
respectability and greater bargaining power in the workplace and with
user groups. It was the mark that showed that an occupation had become
2. The State or Government
Today, so many diverse occupations are regulated (from physiotherapists
to radiographers to night club bouncers), that regulation no longer
confers the kind of status it once did. However, through the protection
of title, regulation does close an occupation to the unqualified and
thus provides some advantage to registrants, along with some public
Further, statutory regulation results in a profession yielding
significant control over its educational and continuing professional
development (CPD) standards, and therefore, over its future
Bearing all this in mind, it is difficult to see why any currently
unregulated profession would seek statutory regulation under the
existing models with their tendency to stifle innovation.
By regulation, the Government
demonstrates its commitment to public safety by protecting the public.
3. The Public
Regulation also reduces the power of autonomous professions. Statutory
regulation confers a degree of state control over professions through
the regulatory councils, whose lay members are appointed by the Privy
Council. It makes professionals accountable for their activities. It
grants a level of control over the future development of the
professions. It improves cost effectiveness as it enables government
funded commissioners of services to know what they are buying ie.
registered professionals who have met standards of education and
The public have a measure of security,
in that they can check the registration of an individual and have a
process for redress in case of complaint.
Traditionally there has been an implicit fiduciary relationship between
the professional, the public user and the state. Whereas the fiduciary
relationship was values based, the regulatory one is rules based.
Recent Inquiries such as Shipman and Kerr-Haslam, have demonstrated the
consequences of disregarding the fiduciary relationship by some members
of the medical profession. With this in mind, the development of
statutory regulatory councils could be seen as a governmental response
to accusations that professional bodies – who largely operate voluntary
self-regulatory systems – are biased in favour of their own members and
that the establishment of statutory councils prevents this. However,
the balance to be sought is one between public protection and
There remains the question: is it necessary to regulate every
profession and occupation? The five principles of good regulation set
out by the Better Regulation Task Force (BRTF) are that regulation
should be proportionate, accountable, consistent, transparent and
targeted. (Principles of Good Regulation, BRTF revised 1998, 2005).
This suggests that regulation should be targeted to activities that
represent serious risk eg. hypnotherapy (Kerr-Haslam Report 2005)
rather than a blanket approach. The BRTF publication 'Imaginative
Thinking for Better Regulation' (2003) makes the point that
self-regulation may be better value for money than classic regulation.
It seems then that if the purpose of regulation is to better protect
the public, statutory regulation of all non-medical professions and
support workers may not be the most cost effective or efficient way to
We would be interested to learn whether or not there is an underlying
assumption in this Review that statutory regulation ensures public
protection. Given that there appears to be little evidence to support
such an assumption, we would be interested to explore that premise
further, adding that the protection of a title, which is the main means
by which statutory regulation operates, is proven to be ineffective;
practitioners are able to re-title and re-brand themselves and continue
Although BACP supports the concept of statutory regulation, we remain
concerned that without a strong link to specialist professional bodies,
the process will not offer the public protection the government wishes
to ensure. A possible alternative strategy to statutory regulation
would be to educate the public to use only professionals who have a
quality kite mark.
Specific comments on the six identified themes:
A. What measures are
needed to demonstrate practitioners' initial and continuing fitness to
· Initial fitness to practise and entry to the
first instance, we strongly recommend that full character and job
references be taken on all individuals, along with the usual medical,
CRB (Criminal Records Bureau) and police checks.
· Continuing on the register
Secondly, training and experience must be considered. The achievement of an approved qualification is used as the standard for entry to a professional register in some professions, but not all. Many also have a probationary period or conditional registration that covers the first year of professional practice, eg. social work, teaching, etc. It is our view that a probationary system is a much better indicator than entry at graduation, at which point the 'potential' registrant has no experience of autonomous practice. Insistence on, for example, a university qualification for entry to the register (as with the HPC) does not itself improve public safety; an academic Degree is no indicator of professional competence, but rather the capacity, to achieve such competence. In some cases, a Diploma will require the successful completion of a practicum period as part of the course and hence offer better public protection. We would advocate that a probationary period be a requirement in all non-medical professional regulation.
An approved qualification route
would require each profession to have a Standardised National Training
Course, preferably accredited by the relevant Professional Body to
ensure standards are developed as necessary and delivered by
appropriate educational establishments. In the short-term, there would
also need to be a qualifying period for professionals who are already
in practice, to acquire the appropriate qualifications for
registration. These individuals should also be subject to the same
stringent checks and scrutiny as new entrants.
investigation by PARN (Professional Associations Research Network) into
the prevalence and effectiveness of CPD, found that CPD was only really
of benefit in reflective professions (Andy Friedman, 2005: Critical
Issues in CPD PARN). Evidencing CPD is, in itself, unsatisfactory
as the aim is to enhance professional development, and this is
essentially a subjective matter. Certificates of attendance, accrual of
CPD points etc, do not provide true evidence of CPD. This whole issue
will of course need to be viewed alongside the KSF (Knowledge Skills
Framework) of Agenda for Change.
Re-registration however, should not rely
solely on CPD evidence. We would suggest a routine CRB check, a
demonstration that a registrant has been in continuous practice with no
significant breaks which may affect performance, and an audit of any
complaint and/or disciplinary action that may have been taken against
B. What changes are needed to the process of carrying out fitness to
practise investigations in order to maximise public safety, the quality
of health care, fairness to registrants and satisfaction of
practise procedures need to be dealt with speedily to maximise public
safety and ensure the quality of healthcare. The public needs to be
informed of how to complain and the system needs to be accessible and
user friendly. All hearings should be held in public with the provision
for private evidence being given only in particular and exceptional
C. How can we best ensure
that support workers provide safe and reliable services to patients?
Should they be subject to a formal and fully developed system of
database accessible by all employers in which disciplinary matters
could be recorded has potential, as long as it complies with the Data
Protection Act. Alternatively, references could be obtained from
previous employers and a national requirement should be placed on
employers to carry out CRB checks on all staff.
Key points would be:
adherence to policies and procedures
regular mandatory continuing professional development (CPD)
add, at this point, that the NHS Agenda for Change in its current
format is almost a regulatory system. It has the KSF and a structure
for CPD, and could, with minimum development, serve this staff cohort
Our direct reply to question two is yes,
support workers should be subject to a formal system of regulation.
D. How should new and
extended professional roles be regulated?
· Professions not
currently covered by statutory regulation
Taking the HPC as an example, it seems to us, that the developmental functions relating to the professions it regulates, ie. review of curricula, approval of placement agencies and definitions of CPD, can only have a detrimental effect on the development of best practice and innovation in those professions. Whilst the purpose may have been to address professional self interest, we believe the resulting exclusion of professional expertise can only result in stagnation in the longer term.
Extended professional scope of currently regulated staff
Therefore we think that a strengthened and publicly accountable system of voluntary self-regulation would be more appropriate than a statutory regulated model.
We would argue further for external audit by a body such as Council for Health Regulatory Excellence (CHRE).
It is difficult to see how this could be
treated any differently from currently non-regulated professionals as
the HPC may be a suitable regulator for health service occupations when
the entry route is clear, ie an undergraduate degree, and when
employment of registrants is primarily in the NHS, it is far less
suitable for other non-medical professions.
Strengthened voluntary self-regulation, with the support of robust conduct procedures and public education are a better and cheaper way forward. If a regulatory system is developed along similar lines to the HPC model, we can only foresee more responses like that of the British Psychological Society (BPS), and that many other professional groups will not apply for entry. That these groups would benefit from regulation is not in question. The how and by whom, is. A one size fits all approach is unlikely to be the answer. Perhaps the professional bodies could retain their autonomy in return for collaborating in devising National Standards to which their members must adhere. This, in turn, could lead to a National Register of Professional Practitioners.
Agenda for Change encourages innovation, the development of existing
roles, and enables employees to enhance their training, whilst allowing
for variation within their existing role. However, some of this
currently exists and is known to have its drawbacks. An example of this
may be a nurse who extends/changes their role to take on a much more
defined role as a counsellor. The Royal College of Nursing (RCN) would
see this as an expansion of a nurses primary role but in effect it is a
role that is very different as it involves moving away from the
hands-on physical caring for people (medical model), to a relationship
based model of working with people. If the components of both the roles
were to be separated out they would fall under the auspices of
different professional bodies with differing Ethical Codes and Codes of
E. How does regulation fit into the wider context? How does it
relate to the new workforce systems (Agenda for Change, the Skills
Escalator, etc) and to the wider network of strategic healthcare
priorities and modernised systems, including the extension of IT?
The Agenda for Change, with its National
Job Profiles (NJPs), effectively regulates entry into employment with
the NHS, and the profiles were developed in consultation with Trade
Unions and Professional Bodies in many cases. The result is that
Professional Body standards are incorporated into job profiles and work
to establish standards for progression into higher Pay Bands.
addition, because of the progression system (and Skills Escalator), and
the principle of individuals being paid for the actual work done, it is
likely that individuals roles/work within the NHS will evolve beyond
their original job profile into other 'hybrid' occupations or more
extensive/generic occupations. An example of this may be a
'counsellor', after adding other skills and functions, evolving into a
'psychological therapist'. As such, the impact of regulation may make
it imperative to have generic standards and ethical frameworks.
wider network of strategic health priorities may be affected by the
adoption of standards by private healthcare providers who are
inevitably going to follow the lead of the NHS, and will also have to
adopt their standards and protocols. This is not a negative comment. If
registrants or potential registrants work outside the NHS then the
regulatory systems also need to extend beyond the NHS.
would suggest that separate systems of regulation for doctors may not
necessarily be helpful in a culture of growing numbers of para-medical
professionals and non-medical professionals who have an increasing, and
inevitable, overlap with medical professionals.
registration is an issue, as is the idea that a professional could hold
registration in one professional field and be regarded as registered in
another. The Kerr Haslam Report shows the dangers of such a view.
Similarly nurses registered with the National Midwifery Council (NMC)
might undertake a short training course in cognitive behaviour therapy
(CBT) and then be seen as being equivalent to a registered counselling
psychologist, counsellor or psychotherapist.
regards to the extension of IT, general sharing of information is of
continuing concern to all those involved in psychological therapies who
deal with especially sensitive personal information.
F. What changes are needed
in the structure, functions and number of healthcare regulators?
A way forward would be to combine most of the
existing regulatory councils into one council that deals with conduct
and fitness to practise for all professionals registered with a
relevant professional body that had entry standards and codes of
ethics. This would be more cost effective, it would ensure public
protection and it would protect the intellectual and professional
development of all the professions.
A final suggestion from us would be to raise a question about how
our European partners manage such things – can we learn from them
without re-inventing the wheel? We are aware of the free movement of
labour in the EU and its impact on such systems. Overall, there seems
to be little regard for the European and global context, yet we would
suggest that there is much to learn from them.
Deputy Chief Executive