NLS Agora 224 / feb 5/2008

In England moves towards the statutory regulation of what are now being called the ‘psychological therapies’ have been under way for some time. There are diverse, overlapping and sometimes contradictory motivations for these developments, which makes it difficult to define an effective strategy of opposition that would be able to preserve some space for the practice of Lacanian psychoanalysis in this country.

It would be rash to suggest that these developments are aimed at psychoanalysis in particular. In fact, as far as I am aware psychoanalysis has yet to be specifically mentioned in any of these proposals. While we might take this as another indication of the ongoing marginalisation of psychoanalysis, we should still remain wary of rushing to write ourselves into the process. At the same time it would be foolish to assume that psychoanalysis will be overlooked in a policy of regulation ‘without exception’.

In the preliminary stages the government has appeared to be working according to a policy of ‘co-option by consultation’. Thus it has been possible to proceed with the proposals for the regulation of the ‘psy’ professions under the Health Professionals Council (HPC) supported by the fiction of consensus from the ‘majority of stakeholders’, even though it has subsequently emerged that 55% of responses to consultation were in fact opposed to these proposals.

It is in this context that I wish to bring to your attention a recent policy document issued by the HPC, entitled a ‘Road Map’ to the statutory regulation of counsellors and psychotherapists. This relatively brief document provides a useful starting point for orienting ourselves in the logic of regulation as laid out by the HPC, and thus for seeking to expose some of the flaws and contradictions in this argument.

At the same time it constitutes a rather alarming development, in that this document seeks to situate the HPC itself as a ‘stakeholder’ in the regulation of the psychological therapies and contains proposals that the HPC begin to take a more ‘proactive’ role in bringing these professions to regulation.

Previously professions have applied to the HPC for regulation, presumably on the basis of the perceived benefits that statutory regulation might bring to the profession. The HPC has then laid down certain requirements, such as unified representation of the profession or common standards of training and practice, and then waited for the profession to demonstrate its ability to meet them. In this case it appears that the HPC is not prepared to wait for the various counselling and psychotherapy bodies to agree on unified standards for the field and proposes instead to draw up standards for them.

It also appears that in this instance the benefits of regulation have to be considered more on the side of the regulator than on that of the profession. It is estimated that there are in the region of 100 000 practitioners in the various ‘psy’ professions who would be subject to regulation. It has been pointed out that this is more than the total number of registrants from all the other 13 professions currently regulated by the HPC. Yet the HPC has so far shown itself reluctant to consider the modifications to its procedures that would be required to ensure, for instance, adequate representation for the ‘psy’ professions.

More important, it seems, in the current political climate where the structure and number of the regulators are themselves under review, is the fact that each regulatory organisation finds itself in the position of having to justify its own survival. We thus find ourselves faced with the novel situation where in a certain sense the regulator can no longer be considered independent of the professions it regulates, but in fact depends on those professions for its very existence.

One could argue that this situation immediately undermines the supposed rationale for setting up regulatory bodies whose primary advantage would be their independence from the profession. For it is the regulator itself that now has a vested interest in the professions it seeks to regulate. These considerations allow us to look in a new light at the proposals that the HPC take an active role in bringing the ‘psy’ professions to regulation. It is to this document that I now turn. *The ‘Road Map’ sets out by defining the objective of regulation in familiar terms: “The only justification for statutory regulating counsellors and psychotherapists is that public protection will be enhanced. The benefits of statutory regulation will have to outweigh any potential down sides of statutory regulation, in particular the cost of regulation which will have to be born by those regulated.”

It is precisely the catch-all discourse of public protection that has made it so difficult for the professional organisations to oppose the proposals for regulation without leaving themselves open to accusations of ‘professional protectionism’. This makes it even more important for us to be able to expose the contradictions in the argument for regulation in the very terms in which it is proposed. One way to do this is to attempt to demonstrate the points at which not only do the ends not justify the means, but can in fact be shown to lead in divergent directions.

The document lays out the broader argument for regulation. There is currently no statutory regulation of counsellors or psychotherapists. This means that anyone can use these titles without demonstrating competence. There is no process, backed by legislation, to prevent incompetent or unethical individuals practising. The public cannot easily differentiate those with appropriate standards from those without. Therefore the public is not protected.

Hence the proposals for a framework of regulation that would depend on agreement in three main areas: 1) the professional titles to be protected by law; 2) standards of proficiency or competence for the practice of the profession; 3) standards of education and training to ensure that practitioners are able to meet those competencies. It is in these three areas that the main struggle around regulation is being fought out, both among the different professional organisations themselves and at the level of defining the statutory instruments for its implementation.

The document then goes on to define a novel measure for ‘maximising’ the success of the regulatory process. “One measure of the success of the process to bring an aspirant group into statutory regulation is the percentage of individuals who either join the register when it opens or who are eligible to join the register once they have completed their programme of education and training.”

This allows the optimum goal of the process of regulation to be defined as 100% of eligible professionals on the register. The subtle equation between 100% registration and absolute public protection is brought to light by the corollary proposition: “However, as the percentage of eligible individuals is reduced below 100% of those using the relevant protected title the impact on public protection is reduced.”

The document thus proceeds to point out that although many, perhaps the majority, of the profession may welcome regulation, there is a danger that there will be “a small but vocal minority of individuals and organisations who may want to avoid statutory regulation for a variety of reasons.”

It goes on to list the reasons why this small but vocal minority of ‘avoiders’ might want to oppose regulation. These include: those who are “unable to meet competence standards”; those whose application would be rejected “due to inability to meet ethical standards”; those who might be reluctant to pay the registration fees; those who might be concerned about threats to the financial viability of their training programme under regulation; and those who might be opposed to the very “concept” of statutory regulation.

This list may be taken as an indication of just how receptive the HPC has been to the responses of the professional organisations to a consultation in which the majority had serious reservations about the viability of current proposals for the regulation of psychotherapeutic practice in this country.

This document is, however, more concerned to follow out the consequences for the position of the HPC. “If at the point a new register is opened a large number of individuals do not join the register but choose to practice using a professional title that is not protected then the public will be less well protected.” Here is the challenge for the HPC under the very terms that it has set itself: how to define maximum capture of candidates on the register in order to ensure maximum protection.

Yet in this case the domain of counselling and psychotherapy poses novel challenges for the regulator in contrast with the other professional groups it already regulates. These include different degrees of professional organisation, the variety in scope of practice that means that there are no universally agreed standards of proficiency, and the diversity of levels of training and qualification that means that there is no single approved route into the profession.

The viability of these proposals will thus once again depend on achieving consensus in the three major domains of 1) professional title to be regulated, 2) standards of proficiency and 3) standards of training. “At the point that statutory regulation starts agreement needs to have been reached on the levels of education and training required. Therefore the setting of the standards of proficiency and the standards of education and training will determine what percentage of students will be eligible to join the register once it opens.”

This leads us to the crucial difficulty for these proposals, the point at which individuals may be able to remain outside the scope of regulation by choosing to practice under a title that is not restricted. “If the standard can only be met by a minority of education and training providers then this may encourage prospective registrants who are ineligible to join the register to use titles that are not protected. From the perspective of the public this will lead to confusion and hence to a lowering of public protection.”

We could say that in a certain sense the challenge for the HPC is one of trying to spread the net wide enough to ensure maximum coverage but tight enough to ensure that the fishes don’t escape. This becomes clear in the ensuing discussion about which professional titles will be protected in law, whether it will be possible to protect generic titles that reflect a level of training and qualification common to all practitioners or whether it will be necessary to define titles that reflect ‘different levels of proficiency’ or additional training after qualification.

It is only when this question of the calibration between the generic and the specific is followed through into the other two domains of regulation, that of defining the appropriate standards of proficiency and levels of training associated with those titles, that the real difficulties start to emerge. For it is here that the HPC has to find a way to reconcile two slightly divergent equations, that according to which maximum coverage would ensure maximum protection and that according to which protection would be ensured by maintaining higher standards. And yet by the HPC’s own admission it is clear that its objective along one axis cannot be achieved without a necessary loss along the other.

This is a contradiction that cannot be resolved simply by recourse to the rhetoric of public protection. In fact we could suggest that it is right here that the alternative discourse of ‘continuous quality improvement’ has to be introduced in an attempt to mask the gap. However we choose to dress up the problem it is clear that the dynamics and consequences of this contradiction are of as much concern for the practitioners as for the regulator. It has already been pointed out that the cost of any faults in this system will be born by the regulatees. The hidden costs, yet to be assessed, of any confusion or uncertainty that arises in the attempt to square this circle will undoubtedly be born by those subjected to the processes of regulation.

It is thus up to the professional organisations to do everything they can to bring the logic of these contradictions to light. For it is at this point that we can see being put in place the framework for a system of regulation that would be self-fulfilling, self-perpetuating and self-justifying. These are questions of grave concern to anyone who is concerned about the future prospects not just of Lacanian psychoanalysis in this country but of any form of psychotherapeutic practice under these conditions.