maresfield report

It is often claimed that HPC regulation will not affect the current practice of therapists in any significant way. They will be able to carry on their work as they have always done, unhindered by any new requirements or guidelines. However, HPC regulation will in fact have a significant impact not only in terms of individual practices but on the whole culture in which therapy takes place. Once therapy is reduced to an outcome-based model, complaints can be made either by the patient or by third parties (HPC defines ‘service user’ to include anyone affected by a registrant’s practice: relatives, spouses etc) to the effect that the expected results have not been achieved.

Therapists will be less likely to take on difficult cases, and there is the risk that practice will become defensive: the therapist will be more concerned to avoid complaints than to foster growth and change in the individual. The patient will be seen more as a ‘client of therapeutic services’, and rigid rules of conduct will risk blocking creativity and surprise in the therapeutic encounter.

The most recent HPC Standards of Proficiency for Counselling and Psychotherapy testify to this misunderstanding of the therapeutic process. Therapists will have to:
- know how to operate equipment and minimise the risk of infection.
- know how to select appropriate hazard control and risk management, reduction or elimination techniques.
- have a knowledge of health, disease, disorder and dysfunction.
- be able to evaluate and implement intervention plans using recognised outcome measures.
- know how to use protective equipment.
- know how to formulate and deliver plans and strategies for meeting health and social care needs.
- understand the principles of quality control and quality assurance and conduct audits correspondingly.
- maintain an effective audit trail, participate in audit procedures and work towards continued improvement.
- be able to formulate specific and appropriate management plans including the setting of timescales.
- demonstrate a logical and systematic approach to problem solving and be able to initiate problem solving techniques.
- observe and record client’s responses.
- be able to demonstrate effective and appropriate skills in communicating information, advice and instruction.
- understand the need to engage service users and carers in planning and evaluating the diagnostics, treatment and interventions to meet their needs and goals.
- understand the importance of maintaining their own health.
- know how to meet the needs of the client.

These Standards may be suitable for some health professions, but will change radically the framework of current psychotherapy practice. Many therapists do not see their work as involving set outcomes, or data gathering, or problem solving, or drafting management plans for the health of their patients, or applying possibly unacceptable systems of classification of ‘disease’ or ‘dysfunction’. For some, likewise, communication may be oblique or allusive, rather than direct. The detailed commentary in Appendix 3 goes through the Standards of Proficiency one by one, pointing out their unsuitability to many forms of therapy.

Therapy, on the HPC model, risks becoming a stage on which the parties work together under the spotlight of a judge or examiner, perpetually concerned about ‘doing the right thing’ or satisfying guidelines and regulations. The very processes that the therapy may be aiming to free the patient from – a rigid and overbearing internalised examiner or judge – would thus become the framework of the therapy itself. These double standards can hardly be compatible with an authentic and ethical practice.

If HPC regulation were to take place, the practitioner will first of all need to provide a character reference from someone of ‘good standing’ who can vouch for their ‘honesty and integrity’. They will then need to provide a health reference from a doctor who has known them for three years and who is registered with the GMC (charges for this to be paid by the applicant). Their health and ‘character’ may be considered by a Health and Character Panel, appointed by the HPC. Renewals forms will have to be submitted biennially. If they are not received, the practitioner will be removed from the register and unable to practice. To be re-admitted to the register there would be a charge of £191. Anyone not practicing for two years or more will have to re-apply to the register. The
police will inform the HPC of any convictions the therapist may have prior to being on the register or while on the register.

The HPC complaints procedures are formal and adversarial. Most complaints in the field of the talking therapies, in contrast, are resolved by informal process and mediation. HPC gives no place to these processes, and thereby risks alienating potential complainants who do not wish to enter into such formal procedures, held in public with none of the confidentiality that a hearing may require. It also lacks the expertise to deal with the complexity of complaints in this field.
The web-based model of Practitioner Full Disclosure offers a more efficient, balanced and cost-effective way of hearing complaints,
as well as the necessary expertise.

HPC focus on two central issues regarding protection of the public: that any unscrupulous individual may set up a brass plate advertising their services as a therapist, and that, once struck off by a professional body, a therapist can simply continue to practise independently. Yet neither of these concerns is addressed by HPC regulation. HPC regulate professional titles not functions, so as long as the individual does not use a title
protected by HPC, they can set up shop through use of any unprotected title: life coach, mentor, lifestyle consultant etc. As the BACP pointed out to the Department of Health: “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 working”. The alternative model of Practitioner Full Disclosure, in contrast to HPC, does address these issues: anyone practising any form of therapy would have to disclose full details of their training and professional history. The public would thus be
in a position to make an informed choice and could tell immediately if someone were not on the register.

Assuming the role of an HPC-registered Health Professional will mean that the practitioner must meet their Standards of Conduct. The practitioner will be required to seek ‘informed consent’ from the ‘service user’, who will need to be told about the possible outcomes of the treatment. For most therapies this is clearly problematic, yet the obligation to determine outcome opens the gate to poorly founded complaints which may well be made by some unscrupulous individuals for financial gain. Law firms are currently developing the new area of ‘emotional harm’ caused by therapy, and insurance companies today are settling out of court to avoid excessive costs. If one well-paid expert witness can claim that the therapist didn’t employ ‘best-practice’, refer the patient to a ‘more-proven’
therapy or that they caused emotional harm, insurers may well decide to settle. HPC complaints investigations, with their lack of sensitivity to the variables central to therapy, risk establishing the platform on which dubious legal action will then be taken.

In the short-term, we suggest that the process of forcing counselling and psychotherapy into the existing structure of HPC be halted. Instead, efforts should be made to improve existing professional arrangements and to ensure that these are properly implemented. In the long-term, we suggest reviewing the excellent work done by the Government in the past (Foster Report 1971, Sieghart Report 1978) and most specifically Lord Alderdice’s Psychotherapy Bill (2000-1), all of which received significant support and approval from wide sections of the professions.

This may then create a culture in which every aspect of the therapist’s practice takes place within the shadow of potential litigation, a situation already reported by doctors and other professionals. Therapy becomes a risk-management procedure, with an everincreasing number of health and safety regulations introduced, making authentic and creative practice effectively impossible. Teachers have also reported this redefining of their work over the last decade, and the growing number who retire for reasons of workplace-induced ill-health or despair should be sobering for those therapists who do not believe that HPC would affect their practice.

How the practitioner works will be determined by the HPC’s Standards of Proficiency that reflect a particular and narrow notion of clinical practice (See Appendix 3). The current draft requirements state that relationships with service users are based on mutual respect and trust, an approach which makes no recognition of transference. Other requirements include the application of a theoretical model to the service user, the communication of empathy to the service user, keeping records using only acceptable terminology, to facilitate the service user’s exploration of ‘meaning’ and to implement specific treatment methods for the symptoms of ‘severe mental disorder’.

Many of these requirements impose a psychiatric framework on the work of therapy, as if a constituted medical knowledge were the point of reference for therapy. It is also clear that the formulation of these and other requirements imply that, in the event of a complaint, they will be used as benchmarks to assess a therapist’s practice. HPC’s requirement that therapists do not work outside their ‘scope of practice’ may seem reasonable, yet it risks imposing what HPC take to be received notions of what determines this scope. Classifications taken from psychiatry and which presuppose the concept of ‘mental illness’ would be likely to determine this, and the average case load of a therapist today would with great probability contain several instances where it was found that the therapist was operating outside their ‘scope of practice’.

Many therapists, of course, reject the vocabulary of ‘mental health’ and ‘illness’ and their own philosophy and ethics would render the HPC requirements nonsensical. The emphasis on the notions of ‘health’ and ‘illness’ means that there is a risk that patients all be fitted into diagnostic categories taken from psychiatry (DSM) and allocated the best ‘evidence-based’ treatment. If a therapist received a patient with, say, an anorexia, they will be obliged to tell them that the latest research shows that another form of therapy ‘works better’ and then to refer them on. If the patient decides to pursue the original therapy, the therapist risks litigation at a later date for not having referred the patient elsewhere. This may come from the patient themself or from their family. As pointed out above, insurance companies today are prone to settle out-of-court to avoid the costs of prolonged litigation, and the more that this becomes known, the more likely it is that some unscrupulous persons will engage in therapies just in order to pursue litigation for emotional harm at a later date.

Therapists would also be required to keep a ‘portfolio’ that demonstrates their CPD, how what they are doing in relation to professional development evidences how they meet all the standards set by the HPC, and how this benefits their patients. The therapist must demonstrate that they are taking up more than a ‘form of learning’, demonstrating that ‘learning outcomes’ have been of benefit to ‘service delivery’. This outcome-based framework will not fit most forms of therapy, and risks coercing the therapist into a culture of duplicity, creating false rationalisations to appear reputable to HPC.

If a CPD portfolio is falsified, the therapist’s Fitness to Practice will be investigated which can lead to being struck off the register. If the therapist is struck off the register, they cannot work as a practitioner for five years, and may then re-apply. Clinicians cannot call themselves psychotherapists unless they are on the register and they cannot be on the register if they are not practising. This is also highly problematic, as many therapies conceive training as involving first and foremost psychical change; that is why the main component of all training in psychotherapy is the therapist’s own personal therapy. It then makes little sense to suppose that not practising puts the public at risk. The profound psychical change that personal therapy involves does not fit a knowledge
and skills model where it would have to be updated to remain workable, as it would, for example, in medicine.

Regarding the issue of complaints, the HPC will inform the therapist’s patients as to how to complain and what to complain about by way of a public advertising campaign. If a complaint is made, the therapist will be named and details will be made publicly available on the HPC website, prior to any investigation or hearing of that complaint. Hearing of complaints take place in public. If the therapist is found to be innocent of the charge, their reputation and livelihood may by now be gravely damaged. Allegations in proceedings to date hardly ever come from patients but mostly from NHS employers or colleagues. HPC
may suspend or strike off practitioners for failures of ‘personal conduct’ which a court of law would not necessarily judge in the same way.

All of the above effects of HPC regulation risk creating a culture in which the therapist no longer acts authentically and creatively with the patient but rather feels they have to follow a manualised model in which the person one is working with is primarily a potential complainant and therapy a stage scrutinised by a third party. Defensive practice risks becoming the norm, with the therapist careful not to say anything that will displease the patient. Therapists may become like the employees of their patients in a business framework. To the extent that a patient may leave therapy at any time, they already are in a certain sense, but the new emphasis on a market-based model will transform this into a pattern where the therapist may feel forced to provide a product rather than engage
in the risky and unpredictable relationship-based work that they have done historically. The culture of complaints, likewise, will foster more and more third party complaints, in which someone else feels damaged by a therapy, encouraged by no win/no fee law firms currently developing the new area of ‘emotional harm’ caused by therapy.

	The Maresfield Report

	How HPC Regulation will Affect Therapists

	It is often claimed that HPC regulation will not affect the current practice of therapists in any significant way. They will be able to carry on their work as they have always done, unhindered by any new requirements or guidelines. However, HPC regulation will in fact have a significant impact not only in terms of individual practices but on the whole culture in which therapy takes place. Once therapy is reduced to an outcome-based model, complaints can be made either by the patient or by third parties (HPC defines ‘service user’ to include anyone affected by a registrant’s practice: relatives, spouses etc) to the effect that the expected results have not been achieved. Therapists will be less likely to take on difficult cases, and there is the risk that practice will become defensive: the therapist will be more concerned to avoid complaints than to foster growth and change in the individual. The patient will be seen more as a ‘client of therapeutic services’, and rigid rules of conduct will risk blocking creativity and surprise in the therapeutic encounter. The most recent HPC Standards of Proficiency for Counselling and Psychotherapy testify to this misunderstanding of the therapeutic process. Therapists will have to: - know how to operate equipment and minimise the risk of infection. - know how to select appropriate hazard control and risk management, reduction or elimination techniques. - have a knowledge of health, disease, disorder and dysfunction. - be able to evaluate and implement intervention plans using recognised outcome measures. - know how to use protective equipment. - know how to formulate and deliver plans and strategies for meeting health and social care needs. - understand the principles of quality control and quality assurance and conduct audits correspondingly. - maintain an effective audit trail, participate in audit procedures and work towards continued improvement. - be able to formulate specific and appropriate management plans including the setting of timescales. - demonstrate a logical and systematic approach to problem solving and be able to initiate problem solving techniques. - observe and record client’s responses. - be able to demonstrate effective and appropriate skills in communicating information, advice and instruction. - understand the need to engage service users and carers in planning and evaluating the diagnostics, treatment and interventions to meet their needs and goals. - understand the importance of maintaining their own health. - know how to meet the needs of the client. These Standards may be suitable for some health professions, but will change radically the framework of current psychotherapy practice. Many therapists do not see their work as involving set outcomes, or data gathering, or problem solving, or drafting management plans for the health of their patients, or applying possibly unacceptable systems of classification of ‘disease’ or ‘dysfunction’. For some, likewise, communication may be oblique or allusive, rather than direct. The detailed commentary in Appendix 3 goes through the Standards of Proficiency one by one, pointing out their unsuitability to many forms of therapy. Therapy, on the HPC model, risks becoming a stage on which the parties work together under the spotlight of a judge or examiner, perpetually concerned about ‘doing the right thing’ or satisfying guidelines and regulations. The very processes that the therapy may be aiming to free the patient from – a rigid and overbearing internalised examiner or judge – would thus become the framework of the therapy itself. These double standards can hardly be compatible with an authentic and ethical practice. If HPC regulation were to take place, the practitioner will first of all need to provide a character reference from someone of ‘good standing’ who can vouch for their ‘honesty and integrity’. They will then need to provide a health reference from a doctor who has known them for three years and who is registered with the GMC (charges for this to be paid by the applicant). Their health and ‘character’ may be considered by a Health and Character Panel, appointed by the HPC. Renewals forms will have to be submitted biennially. If they are not received, the practitioner will be removed from the register and unable to practice. To be re-admitted to the register there would be a charge of £191. Anyone not practicing for two years or more will have to re-apply to the register. The police will inform the HPC of any convictions the therapist may have prior to being on the register or while on the register. The HPC complaints procedures are formal and adversarial. Most complaints in the field of the talking therapies, in contrast, are resolved by informal process and mediation. HPC gives no place to these processes, and thereby risks alienating potential complainants who do not wish to enter into such formal procedures, held in public with none of the confidentiality that a hearing may require. It also lacks the expertise to deal with the complexity of complaints in this field. The web-based model of Practitioner Full Disclosure offers a more efficient, balanced and cost-effective way of hearing complaints, as well as the necessary expertise. HPC focus on two central issues regarding protection of the public: that any unscrupulous individual may set up a brass plate advertising their services as a therapist, and that, once struck off by a professional body, a therapist can simply continue to practise independently. Yet neither of these concerns is addressed by HPC regulation. HPC regulate professional titles not functions, so as long as the individual does not use a title protected by HPC, they can set up shop through use of any unprotected title: life coach, mentor, lifestyle consultant etc. As the BACP pointed out to the Department of Health: “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 working”. The alternative model of Practitioner Full Disclosure, in contrast to HPC, does address these issues: anyone practising any form of therapy would have to disclose full details of their training and professional history. The public would thus be in a position to make an informed choice and could tell immediately if someone were not on the register. Assuming the role of an HPC-registered Health Professional will mean that the practitioner must meet their Standards of Conduct. The practitioner will be required to seek ‘informed consent’ from the ‘service user’, who will need to be told about the possible outcomes of the treatment. For most therapies this is clearly problematic, yet the obligation to determine outcome opens the gate to poorly founded complaints which may well be made by some unscrupulous individuals for financial gain. Law firms are currently developing the new area of ‘emotional harm’ caused by therapy, and insurance companies today are settling out of court to avoid excessive costs. If one well-paid expert witness can claim that the therapist didn’t employ ‘best-practice’, refer the patient to a ‘more-proven’ therapy or that they caused emotional harm, insurers may well decide to settle. HPC complaints investigations, with their lack of sensitivity to the variables central to therapy, risk establishing the platform on which dubious legal action will then be taken. In the short-term, we suggest that the process of forcing counselling and psychotherapy into the existing structure of HPC be halted. Instead, efforts should be made to improve existing professional arrangements and to ensure that these are properly implemented. In the long-term, we suggest reviewing the excellent work done by the Government in the past (Foster Report 1971, Sieghart Report 1978) and most specifically Lord Alderdice’s Psychotherapy Bill (2000-1), all of which received significant support and approval from wide sections of the professions. This may then create a culture in which every aspect of the therapist’s practice takes place within the shadow of potential litigation, a situation already reported by doctors and other professionals. Therapy becomes a risk-management procedure, with an everincreasing number of health and safety regulations introduced, making authentic and creative practice effectively impossible. Teachers have also reported this redefining of their work over the last decade, and the growing number who retire for reasons of workplace-induced ill-health or despair should be sobering for those therapists who do not believe that HPC would affect their practice. How the practitioner works will be determined by the HPC’s Standards of Proficiency that reflect a particular and narrow notion of clinical practice (See Appendix 3). The current draft requirements state that relationships with service users are based on mutual respect and trust, an approach which makes no recognition of transference. Other requirements include the application of a theoretical model to the service user, the communication of empathy to the service user, keeping records using only acceptable terminology, to facilitate the service user’s exploration of ‘meaning’ and to implement specific treatment methods for the symptoms of ‘severe mental disorder’. Many of these requirements impose a psychiatric framework on the work of therapy, as if a constituted medical knowledge were the point of reference for therapy. It is also clear that the formulation of these and other requirements imply that, in the event of a complaint, they will be used as benchmarks to assess a therapist’s practice. HPC’s requirement that therapists do not work outside their ‘scope of practice’ may seem reasonable, yet it risks imposing what HPC take to be received notions of what determines this scope. Classifications taken from psychiatry and which presuppose the concept of ‘mental illness’ would be likely to determine this, and the average case load of a therapist today would with great probability contain several instances where it was found that the therapist was operating outside their ‘scope of practice’. Many therapists, of course, reject the vocabulary of ‘mental health’ and ‘illness’ and their own philosophy and ethics would render the HPC requirements nonsensical. The emphasis on the notions of ‘health’ and ‘illness’ means that there is a risk that patients all be fitted into diagnostic categories taken from psychiatry (DSM) and allocated the best ‘evidence-based’ treatment. If a therapist received a patient with, say, an anorexia, they will be obliged to tell them that the latest research shows that another form of therapy ‘works better’ and then to refer them on. If the patient decides to pursue the original therapy, the therapist risks litigation at a later date for not having referred the patient elsewhere. This may come from the patient themself or from their family. As pointed out above, insurance companies today are prone to settle out-of-court to avoid the costs of prolonged litigation, and the more that this becomes known, the more likely it is that some unscrupulous persons will engage in therapies just in order to pursue litigation for emotional harm at a later date. Therapists would also be required to keep a ‘portfolio’ that demonstrates their CPD, how what they are doing in relation to professional development evidences how they meet all the standards set by the HPC, and how this benefits their patients. The therapist must demonstrate that they are taking up more than a ‘form of learning’, demonstrating that ‘learning outcomes’ have been of benefit to ‘service delivery’. This outcome-based framework will not fit most forms of therapy, and risks coercing the therapist into a culture of duplicity, creating false rationalisations to appear reputable to HPC. If a CPD portfolio is falsified, the therapist’s Fitness to Practice will be investigated which can lead to being struck off the register. If the therapist is struck off the register, they cannot work as a practitioner for five years, and may then re-apply. Clinicians cannot call themselves psychotherapists unless they are on the register and they cannot be on the register if they are not practising. This is also highly problematic, as many therapies conceive training as involving first and foremost psychical change; that is why the main component of all training in psychotherapy is the therapist’s own personal therapy. It then makes little sense to suppose that not practising puts the public at risk. The profound psychical change that personal therapy involves does not fit a knowledge and skills model where it would have to be updated to remain workable, as it would, for example, in medicine. Regarding the issue of complaints, the HPC will inform the therapist’s patients as to how to complain and what to complain about by way of a public advertising campaign. If a complaint is made, the therapist will be named and details will be made publicly available on the HPC website, prior to any investigation or hearing of that complaint. Hearing of complaints take place in public. If the therapist is found to be innocent of the charge, their reputation and livelihood may by now be gravely damaged. Allegations in proceedings to date hardly ever come from patients but mostly from NHS employers or colleagues. HPC may suspend or strike off practitioners for failures of ‘personal conduct’ which a court of law would not necessarily judge in the same way. All of the above effects of HPC regulation risk creating a culture in which the therapist no longer acts authentically and creatively with the patient but rather feels they have to follow a manualised model in which the person one is working with is primarily a potential complainant and therapy a stage scrutinised by a third party. Defensive practice risks becoming the norm, with the therapist careful not to say anything that will displease the patient. Therapists may become like the employees of their patients in a business framework. To the extent that a patient may leave therapy at any time, they already are in a certain sense, but the new emphasis on a market-based model will transform this into a pattern where the therapist may feel forced to provide a product rather than engage in the risky and unpredictable relationship-based work that they have done historically. The culture of complaints, likewise, will foster more and more third party complaints, in which someone else feels damaged by a therapy, encouraged by no win/no fee law firms currently developing the new area of ‘emotional harm’ caused by therapy.