eIpnosis has long recognized the importance of what I call positional power, often the power of the majority but more especially the power of the proprietor, the regulator, the licensed authority, the agent of monopoly, not to mention the corporation. Very asymmetrical power and influence is obviously commonplace, what I mean by ‘positional’ is the use of this statutory, financial, or corporate power to ignore or dismiss dissent, to move on as if objections had never arisen. The financial industry’s recent emergence from near collapse provides a current example.

Positional power looks to be a notion to keep in mind as the Health Professions Council [HPC] misrepresents, ignores and side steps a recent High Court ruling against them. In case you are uninformed about it, a group of training organizations asked for, and were given permission to pursue a judicial review by the HPC in claiming to the DoH that they were fit to regulate counselling and psychotherapy (I’ll come back later to whether counselling and psychotherapy are fit to be regulated).

The first phase of a judicial review is a ‘permission’ decision – is there ‘a case to answer’ - whether in the work of a statutory body, due process has been followed. On December 10 2010, in the UK’s High Court, Judge Burton found in favour of the complainants and very exceptionally, awarded a third of costs against the HPC. Read the Barrister’s account here. HPCWatchdog’s excellent report on the proceeding is here and the transcript of the High Court hearing is here.(not yet) The Alliance press release is here

This contradiction of the HPC’s institutional validity has been followed by a notable silence. Around a month passed before there was any public recognition of the Judicial Review event by the HPC and that took the form of an entry on HPC chair Anna van der Gaags blog that didn’t mention the High Court outcome. In complete denial of the court’s decision she even ends by claiming:

There have been many other initiatives which suggest to me that the level of disquiet about HPC is subsiding, and the level of mutual respect and shared aspiration is increasing.

Attempts by the complainants to have the article removed were met by claims by HPC lawyers that it was ‘only her personal opinion’, even though it appears on the HPC web-site.

In a Guardian article about therapy regulation in the January 5th 2011 issue Dr Van der Gaag also fails to mention the Judicial Review decision, recycling yet again the HPC’s unresearched, evidence-free requirement that practitioners only need to have faith in the HPC’s ability:

to put in place a legal framework to protect the public from the minority of therapists who fail to treat their clients as equals, who abuse their position of power.

Yes, but didn’t the Judicial Review ‘case to answer’ decision validate the complainant’s position? That the HPC, in claiming they were fit to regulate the psychological therapies when without enquiry or consultation they had merely decided to do it, had itself enacted a primary abuse of power?

Passing this by Dr Van Der Gaag concludes:

At a meeting last month, members of the psychotherapy profession brought a revised set of standards for their profession which were welcomed as a major step in the journey towards independent regulation. These standards were developed by the profession for the profession, in collaboration with the HPC.

Ah yes, ‘Psychotherapy standards’ and welcomed by whom? No hint here of ‘counselling’, or the massive, unresolved and possibly terminal dispute over whether counselling and psychotherapy differ or are the same. No mention of the research findings which show the quality of ‘rapport’/‘being’ of the practitioner to be more important than techniques, or theoretical orientation.

Elsewhere there has been more of the same slipperiness. A newletter from Metanoia, the biggest of the UKCP training organizations, mentioned the Judicial Review event but failed to give the decision. A brief statement on the BCP web site also avoided informing its membership of the outcome and directed its membership to the HPC chair’s blog. BACP publications are on pause in midwinter, so as yet its members remain uninformed; however it is noteworthy that a new BACP register has been launched, presumably for those practitioners who want to be state regulated. Of the other major players, UKCP has posted an adequate account of the Judicial Review decision and the BABCP (CBT) Board too reports on it in a cogent demonstration of positional power:

We understand that the Judicial Review is now going to stage two, which is a full hearing, and that this is likely to happen sometime in 2011. There has been speculation that statutory regulation is now on hold and that the whole process may have been undermined.
We understand that, as far as HPC is concerned, they are going ahead with their given task of the regulation of psychotherapists and counsellors. This was the last government’s directive to HPC; to date the current government have not changed this. HPC has informed us that the current government has not made a decision one way or the other, but a full report will go to them as planned and no doubt a decision will come from that.
Following the final PLG meeting on 2 February 2011 a report will go to the HPC in May 2011 as was the original plan.

This is what I mean by positional power. A large enough and collusive enough concatenation of vested interests can survive dissent by turning its back on it. Through being absorbed and digested, dissent is made to disappear.

In this instance we can also take positional power to mean that the HPC rely on this being a long term, very asymmetrical contest, people in salaried jobs vs. part-time voluntary efforts; the HPC has direct access to lawyers and government, and very large resources of registrant’s money sufficient to meet any level of High Court challenges, financial clout which complainants would be likely to have a hard time matching.

We might also suppose that positional power means that the HPC will probably have already dropped the DH a letter saying ‘yes this was a mistake, we apologise for misleading you’. In the expectation that they will continue to ‘move forward’ as they are fond of saying, as though nothing untoward had happened.

Except that the item on which the government and the rest of us were misled remains in place, whether HPC are a fit body to regulate the psychological therapies, and how. There was a notable moment in the first of the Professional Liaison Group meetings when the COSCA representative asked whether in developing recommendations to the DoH about how to regulate counselling and psychotherapy it was open to them to recommend against. The somewhat flustered ‘no’s from the chair and Michael Guthrie and any discussion of it was buried under a very abrupt decision to call the lunch break. The Judicial Review decision flushes out these ‘no’s as a clear abuse of power.

There is however another probably more intractable obstacle to the HPC’s forward motion towards regulation of counselling and psychotherapy. Thirty thousand counselors are very unlikely to accept what is on offer, inferior status to a much smaller number of psychotherapists. As eIpnosis has repeatedly asked, how can any taxonomy be devised that will fully honour the spectrum of shape-shifting and role interfusion that psychological work with real flesh and blood persons actually entails? Here the positional power of the counselling community looks set to be in collision with the ethically vacuous belief that such a technocratic taxonomy, whether based on ‘standards’ or length of noses, is desirable or even possible.

Following the next and last PLG meeting in February 2011, the HPC is tasked with conveying a recommendation to the DH on how the counselling and psychotherapy should be regulated by them. Will the UKCP, BACP, BCP, BABCP and BACAB find a way of doing a deal that says counselling and psychotherapy are the same/different?

To put it more bluntly, if counselling/counselors only equal level 5 on the NHS salary scale while psychotherapy/psychotherapists will pull level 7 or higher i.e. at least a £10-20k a year difference, isn’t HPC regulation of them as separate titles destined to continue to stall, as it has up to now?

Meanwhile the Council for Healthcare Regulatory Excellence, erstwhile regulator of regulators, stands in the wings. Will its mandated pupation from regulation to corporation be rewarded? The CHRE's 'business plan' Discussion paper: early thinking on CHRE's potential role in operating a voluntary register scheme outlines the options. When last eIpnosis had contact CHRE didn’t look to be up to the task any time soon; but see the eIpnosis Care Professions Council [CPC] proposals. They are facetious but nonetheless carefully thought through. Replace ‘CPC’ with CHRE for a ready made programme of practitioner civic accountability.

For the universities and training institutions that support the HPC-style State Regulation, the CHRE would be a setback, while for practitioners it might turn out to be the least worst form of regulation. Trouble is, from an historical perspective it would return control of ‘professional’ access and accountability to the hands of the previous training trade associations, aka the mainstream accrediting bodies. Yes, to some extent it would honour diversity but at the price of a further deepening and strengthening the new ‘normal’ - unbridled professionalization. And most important of all, the client experience would continue to be low down the list of priorities.

Alongside all this the IAPT happiness delivery service continues to roll out. A more specific example of the political capture of therapy process would be hard to find. Will it continue to be lavishly funded? Not perhaps for long. Those of us familiar with the beginnings of the NLP brand suspect IAPT can’t be far from the inflection point where, as it fails to deliver happiness, it deflates from ‘magic’ to mundane.

Related but as eIpnosis counsellor colleagues have already found to their cost, perhaps much more important, the NHS move to ‘commissioning’, the privatizing of the NHS by stealth, will continue to take psychological therapy employment from the NHS and give it to corporate ‘service providers’ with shareholders to feed. Add to this a little appreciated facet of therapy as an industry, that year after year, courses and trainings deliver more and more therapy trainees into social settings that are increasingly needy, increasingly impoverished and less and less able to support therapy as paid work.

The government’s Health Bill is due any day now. Considering the diversity of voices and disputes in the psychological therapy field, who would want to be in the political driving seat at this time? When the Alliance met with her, we found Health Minister Anne Milton, MP very well informed about the psycho-politics of the field and the limitations of the HPC. However, no matter what her approach to the psychological therapy regulation dispute, we can be confident that her decision will be shaped by how it is likely to play in the tabloid press, i.e. that failure to regulate is not an option; but that perhaps the CHRE would best honour the coalition’s policy of favouring local enterprise and knowledge over further centralization. We’ll see.

All I have is a voice to undo the folded lie
W.H. Auden
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eIpnosis is edited, maintained and © Denis Postle 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010 , 2011

Game, Set... and Match?

eIpnosis editorial

The Realities and Inequities of Positional Power

The Health Professions Council face a Judicial Review of their failure to observe due

process in their approach to regulating counselling and psychotherapy