eIpnosis has long seen the regulatory shenanigans in the psychological therapies as contests for territory. Initially for market share between competing ways of working with human condition and more recently between the state and the cohorts of counselors, psychotherapists and psychologists.

Recognising critical moments of history in these couch wars seems to be a vital role and eIpnosis was certainly witness to one when, in the House of Lords at around 8:20pm on Tuesday May 5th 2009, the Health Professions Council [HPC] succeeded in capturing the territory of the British Psychological Society. Or to wheel out a different framing, the terms of the Armistice under which the BPS bowed to the overwhelming force of government were confirmed.

After a series of speeches that barely amounted to a debate, a voice asked if everyone was content? None of the seven peers present answered 'not content'. The 'contents', in this case the government, had it, or rather now have the psychologists. Amendment to Section 60 of the HPC2001 order regulating psychologists became law.

Overcome but not completely captured; 2000 Chartered PhD-laden Psychologists who didn't fit the set of agreed titles were in limbo. The HPC's administrative deadline of July1 2009 for bar-coding the psychologists appeared to have over-ruled a comprehensive capture. A richly deserved anomaly perhaps?

The House of Lords occasion was saturated with history. The psychologists were about to become bricked into, some would say bricked up in, the fabric of the state. And the richly endowed persona of the state was omnipresent. High up above the proceedings two rows of huge warrior statues carrying swords, shields and clubs reminded us of the history of conquest and subjugation that is enshrined in these walls, as did the gilded throne emplacement, roped off and empty, servants in starched collars and tailcoats who butlered about delivering notes to those on the benches, and shepherding tourists. On the floor of this Lords chamber a computer with a Windows desktop waited attention from a man in an 18thC wig who also appeared to have failure mode assistance in the shape of a sand-filled hourglass. Cameras handily picked up images of the proceedings and displayed them for strangers on a large monitor that was long past its sellby date and which stretched the images of its participants into near obesity.

I give these details not so much out of objection to the House of Lords ambiance so much as to set the scene for yet another moment of history involving the HPC. HPC luminaries CEO Marc Seale, President Anna van der Gaag, Head of Policy csar, Michael Guthrie, and Fitness to Practise czarina, Kelly Johnson watched the proceedings from an upmarket gallery. The disloyal opposition were seated far away in the Strangers Gallery.

The House of Lords was meeting in the 'dinner break' to consider the Amendment to Section 60 the HPC2001 order regulating psychologists. That they were meeting at all was due to the volume of objections to the amendment that had been received by the Merits of Statutory Instruments Committee which normally rubber-stamps such secondary legislation. If objections are received then the whole House of Lords has to approve the legislation, thus as it turned out, allowing for a public hearing of objections. Thoughout the debate the relevance of the capture by the HPC of psychologists for other practitioners who are in line for credential capture via similar legislation surfaced repeatedly. What was said and how it was said adds to both the pile of pros and cons re regulation.

You can read the Hansard transcript here but for time-poor eIpnosis visitors, I'll pull together some of the key elements of the debate.

A junior Minister, Baroness Thornton opened for the government. With barely a glance at the other six peers present she read a speech with a quality of presence that would not have been out of place in a pupil in detention reading aloud as a punishment.

In her second paragraph she told us that:

I am aware that there has been a lot of interest in the build-up to this debate both in support of and against the provisions. There appears to be a good deal of confusion about the content of the order, what it provides for and what it does not.

In an attempt to clarify what might have been confusing, she provided the first instance of continuing assurance

...let me make clear now that the order makes no provision at all for the regulation of psychotherapists or counsellors.

She followed with a note on how the Dept of health see professional groups offering talking therapies. Only psychiatrists are presently regulated.

The next highest qualified providers of talking therapies are practitioner psychologists, who are now being regulated for the first time. They must all have postgraduate qualifications.

Consideration is also being given to the regulation of psychotherapists and counsellors who have descending levels of professional qualification.

Apparently unaware of how insulting this hierarchy might seem to practitioners with a decade or three of successful practise, Baroness Thornton assured us that:

We do not wish to regulate for the sake of regulation…

And went on to outline two curious anomalies in the regulation of psychologists, one that there are numerous Chartered Psychologists who don't fit the regulatory taxonomy and who appear to be being left to swing in the wind. And secondly that teachers of psychology and psychologists 'working in the area of pure academic research' will not be regulated. I wanted to ask if the almost daily stream of press reports arising from 'pure academic psychological research' was going to cease. But apparently people doing such research 'form no risk to the health and well-being of individuals'.

From the Noble Baroness's presentation, it would appear that anyone with an intimate knowledge of how to help with the vicissitudes of the human condition or the unfolding of the human psyche is either dangerously exploitatious, ethically incontinent, or sexually labile and probably all three. To prevent such practitioners being unleashed on an infantile public they must be subject to control by 'independent' regulatory councils guaranteed independent because they have been appointed by a value-free government appointments body.

Baroness Thornton outlined the parallel actions the government have taken to ensure that any last vestige of statutory professional influence be removed

Changes to the governance arrangements of the General Dental Council and the Health Professions Council include moving each of these bodies from a partially elected to a fully and independently appointed council to ensure that professional interests should not unduly influence council deliberations. In the past year five other health professions regulators have already made this move: the General Medical Council; the General Chiropractic Council; the General Osteopathic Council; the General Optical Council and the Nursing and Midwifery Council.

The government does seem to specialize in arbitrary alienation - as if the NICE demands for evidence-based practise were not intrinsically bound up with psychological research - which is the chicken and which the egg? As a further example of her devotion to centralized authority Baroness Thornton went on to tell us that the Order's

...miscellaneous amendments include: the standardisation of the statutory duties to ensure that regulators consider the interests of stakeholders in their deliberations;

What she doesn't say is that for stakeholders such consultations often seem a tick box requirement for the regulators. So that if questioned they have a paper trail that demonstrates consultation with stakeholders.

Later on there was mention of yet another protective shield:

...that will make it easier for regulators to strike off registrants who are barred from working with children or vulnerable adults when the new Independent Safeguarding Authority is established.

In contrast to the minister's unrepentant managerialism, Earl Howe, a conservative hereditary peer who spoke for the Opposition did seem to know what he was talking about. Regrettably, he would have liked...

...to be able to welcome it wholeheartedly […] but, unfortunately, I cannot quite bring myself to do that because I am aware, as, I am sure, is the Minister, that there is great disquiet among members of the profession about what this order will mean for them and their patients and clients, and the precedent that it is likely to set as regards the related disciplines of psychotherapy and counselling in particular. My mailbag has been full to bursting with letters from psychologists and psychotherapists expressing total anguish about what the order contains and about the consultation that preceded it, which they see as having been stage managed. It has not been particularly easy to tell those correspondents that by longstanding convention this House does not vote down secondary legislation. What we have in front of us, at least the part of it that relates to the regulation of psychologists, cannot, unfortunately, be described as a settled view or one that is universally welcomed.

Earl Howe had been the recipient of considerable comment on the Order and perhaps due to this correspondence, seemed very well informed about what was at issue.

Many of the fears expressed to me have related more to psychotherapists and counsellors than practitioner psychologists. The reason why those fears have been voiced so loudly is that the order is viewed as the forerunner to an inevitable sequel that will impose statutory regulation on those other disciplines. That is what people are fearful of. I will quote from one letter that I have received, which is representative of many:

"If registration of psychologists, counsellors and psychotherapists goes ahead, it will lead to the standardisation of knowledge and training and stifle the diversity of thought and practice among the talking therapies. This diversity is a source of strength and creativity, reflecting the diversity of human experience … Standardisation is also potentially discriminatory, as it would be based on the dominant forms of subjectivity, which marginalise many [minority groups] … In the long run it would reduce the choice of therapies available in the independent sector, as training courses not approved by the state would find it difficult to fill places".

I am troubled by those criticisms, because while one would not want to encourage wild and dangerous experimental practice, I can see that being able to branch out into new territory and not having a totally homogenised and inflexible set of standards is highly desirable. No professional discipline can be set in aspic. The basic charge is that regulation under the HPC will create a narrow and restrictive definition of the field within which psychologists operate and thereby deprive the public of a wide range of therapies; in other words, state-sponsored rigidity. What does the Minister have to say?

An equally difficult issue that some have raised with me is that practitioner psychologists see their work as more of an art than a science. What that means is that effective outcomes rest largely on the personal qualities of the practitioner, such as empathy and intuition, qualities that are not quantifiable and thus not amenable to regulation. Equally, because each client is unique, what counts as successful professional activity cannot be captured by a set of defined competencies. Individual well-being cannot be captured as a standard because each individual is different, with a different view of what well-being means for him or her.

Earl Howe then went on to say something of the exclusion of 2000 Chartered psychologists

Not only will this order leave the public unprotected from this large number of independent practitioners; but it will also disbar those individuals from professional practice using a protected title. This amounts to a distortion of the market and a restraint of trade.

A number of correspondents have asked a very simple question, which is, "What makes the Government think that the HPC is capable of protecting the public reliably and effectively in this particular field?" That question brings us back to the debate we held in this Chamber just over two years ago when the noble Lord, Lord Alderdice, and I argued strongly for the setting up of an independent statutory regulator for psychologists, psychotherapists and counsellors. The Government have instead chosen to go down the HPC route, apparently because they have set their face against creating yet another independent regulator. But the worries remain, because up to now the focus of the HPC has been very much directed towards professions related to healthcare. Psychology is seen as being quite distinct from healthcare. Large numbers of psychologists work completely outside a healthcare environment and cannot sensibly be subject to the same sorts of standards of assessment. It is the same concern as that which I mentioned earlier. People are afraid that, because the HPC does not understand psychology, it will serve only to homogenise professional regulation in ways that take no account of the individuality and diversity that creative practical psychology should encourage. In other words, it will force psychologists into a regulatory mould in which they do not fit.

Lord Alderdice, a Lib Dem peer who is a psychiatrist and a former Speaker of the Northern Ireland Assembly spoke next. He began by noting that it was interesting that the dentists hadn't objected…

…to the changes that are proposed in the order, effectively to remove the possibility of professionals electing from among their own professional colleagues a number who would exert professional oversight.

He went on to point out that:

The appointment of all members would mean that there is no real independent professional voice, for all effectively will be government appointees. The Government are an interested party in this matter, since in many of these professions they are an almost monopoly employer through the NHS. In the case of dentists, one of the problems is that a degree of disenchantment has meant that a very large number have left the NHS.

Evidently still miffed by the number of times his attempts to orchestrate the regulation of the psychological therapies had been rebuffed, Lord Alderdice pointed to inconsistencies in the government's arguments. When they rejected his Psychotherapy Bill…

...The Government insisted that they would not support such a proposal, because they were absolutely not going to have any further separate professional bodies; everything would be subsumed within the Health Professions Council. Then they promptly decided to create the General Pharmaceutical Council, referring to a much smaller number of professionals than would have been the case in psychotherapy, never mind within psychological therapies as a whole.

Lord Alderdice continued in genial style, disinterring a project that might have been presumed clinically dead, a 'psychological professions council'.

I am puzzled as to why the Government have not proceeded with the psychological professions council. It is only a few minutes since the noble Lord, Lord Hunt of Kings Heath, was on the Front Bench making kind remarks about me. He was the Minister responsible in 2000 and 2001, when he indicated that there was a case for a separate council. In private, he endearingly called it a "talking heads council", but perhaps the term "psychological professions council" would be more congenial. I think that he did not entirely let go of his belief, even some time later.

I would like the Minister to put on record why it has not been possible to create the new council. It cannot be a financial or an organisational question, because a much smaller number of practitioners is involved than with the General Pharmaceutical Council, yet it has been possible to establish that. Indeed-here I cast a sidelong glance at the noble Earl-it may not be long before a new Government are in place; they certainly will be before there are proposals for the regulation of psychotherapists and counsellors. I wonder whether that might be the time - for tonight does not appear to be the time - when we might rectify this misguided approach and establish a psychological professions council that would be the suitable home for psychologists, psychotherapists, counsellors, arts therapists and others, as such a council would understand more fully the complexities of the work and the difference between that work and what is appropriate for the Health Professions Council to regulate.

Lord Alderdice was followed by Baroness Pitkeathley a Labour life peer, who is Chair of the regulator of the HPC, the Council for Healthcare Regulatory Excellence [CHRE], a body that recently had its capacity for excellence 'improved' through having its Board reduced from 19 persons to 7. Perhaps in a reflection of this government dictated down-sizing, her 180 words reduced the level of the debate to little more than repetition of the fallacy that regulation will protect the public.

The CHRE chair was followed by Viscount Eccles, like Earl Howe another hereditary conservative peer. He also proved extremely well-formed about the matter in hand and as it quickly emerged, was very poorly disposed to the regulatory regimes up for endorsement in the chamber.

The great problem with all systems of statutory regulation that I have been involved with is that it is very difficult to believe that you have the independence that you were promised. I have debated the independence of public bodies a number of times in this House and usually I have been disappointed.

He was well aware that the government's incursion into matters of the mind was very important and as a member of the House Merits of Statutory Instruments Committee, had evidently been the recipient of much of the dissenting traffic that had moved the Order from February to May and brought it out into the light of this Lords dinner break debate.

The statutory regulation of psychologists takes us on to new ground. It is a most significant proposal. Why is it before us? Relying on material put before the Merits Committee, and I hope not being too unkind, I think that the purpose is allegedly to modernise. This is the first new Labour mantra prayed in aid. There are two more: patient safety and public confidence. The problem is that no evidence is produced and no argument made, in the explanation of this order, that the modernisation will improve patient safety or public confidence. It is taken as a given. Nor is any argument made that either patient safety or public confidence is a problem when it comes to psychological practice. The regulatory impact assessment simply states that government intervention is necessary. "Necessary" is a strong word. We are not told why, but I think that we know why: it is an a priori judgment by the Government. As we know, new Labour has a strong preference for Secretary of State-controlled statutory regulation.

At last here was someone with an accurate sense of regulatory power relations. Viscount Eccles also had a helpful gloss on the unintended consequences of regulatory capture.

Psychologists will take the HPC on to new ground: matters of the mind. The attempt to codify and define will open the door to a rapid rise in imaginative allegations. One needs only to look at the prescriptive detail that the HPC thinks is appropriate for psychological qualification. Does the Minister really believe that a rising tide of allegations is, or ever will be, a good indicator of patient safety or public confidence?

Viscount Eccles was also sharply aware of the extent to which dissent from the government's regulatory agenda has been unwelcome

There is also the dilemma of the consultation already referred to by my noble friend on the Front Bench. Why is it that many deeply held convictions of professionals were not expressed in the Government's record of the consultation, when the Merits Committee, unusually, received many well argued representations that statutory regulation will not benefit the public? Nothing in the Explanatory Memorandum or the regulatory impact assessment implies any controversy, yet there is plenty about.

Why the gap in perception? First, it is the centralised, all-powerful NHS effect-the fear of being on the wrong side of a controlling Government who hold many of the purse strings. The loss of employment can turn people into collaborators. Secondly, the consultation questions make it clear that statutory regulation will happen. They ask nothing about patient safety or about public confidence, present or prospective. The heart of the matter is left as an unarguable tautology: modernisation is by its very nature good.

Viscount Eccles concluded that…

We are probably stuck with the order, or at least the psychological part of it, but it should be the last with "psy" in the title.

According to NICE and other lead bodies psychological practise must be evidence-based but the politics of regulation seems too often reassurance-based. And the Minister responded to these challenges with a catalogue of reassurance:

Legislation is not inevitable…
(Yes she did say that)
-although we currently agree with noble Lords that it is desirable…

…the Health Professions Council. It has a good track record…

…We have consulted widely…

The Minister concluded with further reassurance that centralized appointments were more in the public interest than professional representation on regulatory bodies:

The noble Lord also raised the question of why we were doing away with elections for professional members. We have discussed that issue in your Lordships' House on many occasions. The council must be one that can provide effective leadership to the regulators' work, and one which can fully engage with the profession and the public interest, as well as the NHS and the private sector and employer interest. By creating a system of independent appointments, the public and professions can be assured that people are being appointed because of their abilities, their track record, their achievements and their commitment to patient safety.

The motion to approve the Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009 was agreed.

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