Welcome to UKCP Bulletin 9

This is the last bulletin of an eventful and exciting year. After a difficult beginning, we think progress is being made. Not everyone is ecstatic, but the overall feedback is positive. We are particularly proud of the work UKCP has done on developing the shape of the organisation, enfranchisement of individual members, improving communications, psychotherapy in the workplace, psychological therapies in the NHS, research into alternatives to NICE, expanding thinking about psychotherapy with children and young people, or diversity, equality and social responsibility.

Now that things have settled down, the Board of Trustees is developing its strategic thinking. The meeting of chairs, delegates and members on 6 November heard that the Board wants to improve everything to do with access to psychotherapy - who gets it, how they get it, who can train to give it. We want to foster and facilitate engagement with UKCP in all imaginable ways, reflect on the problems of survival post regulation, and seek to establish UKCP's core values.

However, we make no apologies that this Bulletin is once again on the topic of regulation. On 6 November, it was clear that regulation is the theme that has attracted the energy and the anxiety.

Andrew's material is organised into a Q&A format while David will focus on important legal matters.

We hope that you all have a wonderful winter break - whether restful, exciting or both - and enjoy the New Year celebrations.

Andrew Samuels, UKCP Chair and David Pink, UKCP Chief Executive

From Andrew

Regulation Q&A

Is HPC regulation happening or not?

We will know much more when the Health Bill is published (due before the end of the year).

When will it happen?

An outline of the regulation process was published on p28 of the last issue of The Psychotherapist (issue 46 - see www.psychotherapy.org.uk/the_psychotherapist.html). Boiled down, we think that, if it is HPC, it will be done by around the end of 2012 or early 2013.

Do we get to vote on whether we go in or not?

Not as such. Statutory regulation is the Government's decision. But individual members will have a big personal decision to make. Do you intend to register with HPC or not? That is the question everyone reading this should focus on.

How do I decide?

The Board is committed to providing an evaluation of HPC regulation when the time is right. Every individual member will then be asked in confidence if they wish UKCP to transfer their details to HPC. We expect that there will be a range of attitudes. Some members are active supporters of HPC. Others - for employment reasons, perhaps - will register somewhat unwillingly. Still others will decide not to register.

Employment reasons?

We think there will be local variations and anomalies, but it is expected that, over time, HPC registration will be required for new jobs in the NHS (and possibly in universities and colleges). The situation regarding existing employment is less clear and it is not too soon to ask your employer about this.

How can there be such a range of attitudes to regulation held in one organisation?

UKCP has known for a long time that people are divided on HPC regulation. We think the majority of our members will register. But there will be a significant minority who, on principled grounds, will not wish to do so. The Board's regulation policy makes it possible to accommodate such a range of choices within UKCP. The Board considers that it is in the interests of the organisation as a whole that the majority make a space to accommodate the wishes of the minority.

OK, so I want to register with HPC. What do I do?

When we send you a communication asking if you want us to transfer your details to HPC, tick the 'yes' box. After the transfer, you are technically registered with HPC. HPC will then contact you directly to re-register you and you pay them at that point (currently £76 per year).

Can I change my mind? What if I want to register with HPC at a future date, or want to withdraw from HPC?

If you want to register with HPC after the initial register has opened, you will have to apply to be grandparented in. This will cost a few hundred pounds and you can only do this during the first two years after the HPC register opens. You would have an excellent chance of succeeding in your application if you are a member of UKCP. As to withdrawing from HPC, yes, you can withdraw but would have to cease working under a legally protected title (psychotherapist or counsellor).

I don't want to register. Will you still send them my name?

No. We will only send your details if you assent.

If I don't register with HPC, can I stay in UKCP?

Yes. If you confirm to UKCP that you will not use a legally protected title, you would be eligible to stay regulated by UKCP. You would be regulated under a system of alternative professional accountability (APA). The title you use will have to be congruent with your work and approved by your College and, ultimately, by the Colleges and Faculties Committee. We will work with the Colleges to discover the range of titles people entering APA are thinking of using.

Eligible? What does that mean? What more would I have to do?

A few things. You should issue a disclaimer that you are not an HPC-registered psychotherapist. You would also have to comply with a system of ethics and discipline ('complaints') acceptable to UKCP. You see, if you do go into APA, you will be agreeing to be voluntarily regulated by UKCP - much as you are now.

What is a system of ethics and discipline 'acceptable to UKCP'?

We have not reached a final conclusion about this. Ideally, someone in APA would place themselves under our Central Complaints Process (CCP) which we think is an excellent, contemporary system with provision for mediation and conciliation. But other possibilities might exist. (By the way, if someone in APA does place themselves under the CCP, there will obviously be a charge.)

What if UKCP does not find the system of ethics and discipline I am under acceptable? Can I still remain a member?

No. But remember this is also true at the present moment. UKCP is a voluntary regulator and has to approve the ethics and discipline system all members are under.

APA sounds quite difficult

Surely it shouldn't be a soft option? But if you have principled objections to HPC regulation of the kind that have been expressed publicly by many in the past two or three years, then this is the option for you. And would it be so difficult to remain in your organisational member, be regulated by UKCP much as you are now, choose an unprotected title, issue a disclaimer that you are not HPC registered, and be under a good quality system of ethics and discipline?

Is APA legal?

Yes - see David's section below.

What about CHRE? I have heard they might be the regulator rather than HPC?

The Council for Healthcare Regulatory Excellence (CHRE) already exists as a regulator of regulators and may be given the task of regulating voluntary regulators in the forthcoming Health Bill. We do not know if it will be HPC, CHRE, or both.

If it is CHRE, could I still register with HPC?

If the Government opts for regulation solely via CHRE, then there would be no possibility of registering as a psychotherapist with HPC because they would not be registering psychotherapists.

What are the next steps?

We are thinking of undertaking an information seeking exercise - a sort of dry run for the time when you have to tell us for real what your personal wishes are regarding registration. We would provide an up-to-date summary of information, with an evaluation. This would be approved by the relevant committees and the Board to avoid bias. There'd be a chance in the dry run to say 'Don't know yet'.

Andrew

From David

Legal aspects of statutory regulation

I have been asked to comment on legal aspects of statutory regulation - specifically on whether it could be legal for someone who objects to the proposed HPC regulation to continue to practice if the Government goes ahead with the HPC proposal.

There is a commonly held vague fear that the Government intends that psychotherapy and counselling should only be available from Government-registered practitioners. Some pro-HPC people have gone much further, suggesting that responsible people who openly declare that they are not going to register with HPC will be breaking the law, and that UKCP itself is legally not allowed to discuss or advocate any non-HPC future for individuals.

The (previous) Government proposed that regulation of title should be used for psychotherapy and counselling. That means, quite literally, that the regulation would be about the use of the two titles - psychotherapist and counsellor. There will be people who include psychotherapeutic work within their professional practice, but they will not have to register with HPC (Government IAPT workers, for example). The proposed law is only about use of the two HPC-protected titles, or implied claims to those titles.

Who can you trust?

UKCP members might not know who they can trust on this issue if they hear other voices contradicting what UKCP says. As Company Secretary, it is my job to keep UKCP legal, but I understand the anxiety. I am happy to be able to provide a number of ways whereby concerned members can make their own assessment.

First, they should listen to their responsible professional body: UKCP.

Second, they could consider looking at the HPC website (www.hpc-uk.org/aboutregistration/protectedtitles). HPC is very clear about the way they do regulation and I have never heard an HPC official give any credibility to the idea that they would prosecute practitioners who made it clear that they were not HPC psychotherapists.

Third, I have checked matters with UKCP's legal advisors. I reprint below the advice they have supplied:

From UKCP's legal advisors
Summary statement of advice on regulation of psychotherapists and counsellors

This advice is provided to the UKCP for their sole use. No duty arises to any other persons. It has been prepared in November 2010 before the proposed legislation has been released and is therefore based on the assumption that the legislation will follow the model which the Health Professions Council ('HPC') uses for most other statutory 'protection of title' ie the titles 'psychotherapist' and/or 'counsellor' will be protected and not the 'practice of psychotherapy'.

• The model which HPC currently uses is the statutory 'protection of title'. This will involve producing a list of protected titles which is expected to include 'psychotherapist' and/or 'counsellor'. This form of regulation creates a criminal offence in circumstances where a person, with intent to deceive, expressly or by implication, uses a protected title, or falsely represents himself to be registered when not registered with the HPC. (The standard of proof, in relation to a purported criminal offence, is beyond all reasonable doubt.)

• An unregistered practitioner may commit an offence by implication which is why reference to membership of psychotherapy organisations has to be considered extremely carefully. If a statement might be interpreted as suggesting a person is registered with HPC, and the individual intends to deceive in this way, they may be committing an offence. Our advice is that it will not be an offence for a practitioner to hold membership with an organisation which has the word 'psychotherapist' or 'psychotherapy' in its title, therefore a person not registered with HPC may be a member of such organisations.

• Similarly, a person may display genuine credentials and qualifications gained that refer to psychotherapy as long as they have no intention to represent themselves as being registered and do not use the protected titles.

• By issuing a disclaimer, practitioners would be making an express statement about not having HPC registration and therefore would have a defence to any offence as they would not have any intention to deceive. It would be advisable to include it consistently in all forms of public communication. The practitioner could also state that they are registered with a voluntary professional body whose standards they comply with if such a body has provisions in place for a form of alternative professional accountability.

• No legislative or administrative requirement currently exists for the compulsory transfer to the Health Professions Council of approved voluntary registers in their entirety

Field Fisher Waterhouse
19 November 2010

A personal addendum

Lastly, I want to add my personal addendum to the authoritative sources of advice cited above.

I would say that individual members of UKCP should listen to the advice, but should also exercise their own professional judgement - our view does not have to be dictated to us either by lawyers or by civil servants. UKCP has proposed that there should be a carefully-regulated space for those members who will not register with HPC. As a professional member organisation, we should feel able to reach our own view as to whether this is acceptable, tolerable, desirable or whatever. UKCP has not promoted HPC regulation over alternative professional accountability or vice versa. After the negotiations are finished, the Board will communicate its assessment of the statutory regulation from HPC and the Government. It is at that point that all UKCP members will be asked to tell us what their intentions are. UKCP stands for responsible professional practice, and we will support you and represent you in this regard.

David

UKCP events

SAVE THE DATE!

There will be a forum on regulation open to all members, including chairs and delegates of organisational members and Colleges on Saturday, 9 July 2011. This is a follow-up to the events on 6 November for chairs, delegates and members. The meeting will be of huge importance to all members in terms of their intentions concerning registration with the Health Professions Council.

Other forthcoming events

• 4 December 2010 - Scotland forum (Edinburgh)

• 7 December 2010 - Support group for lesbian, gay, bisexual and transgender identified UKCP members (London)
• 5-6 March 2011 - The cost of not caring - responding to the psychological needs of children (London)

For further details of these and other UKCP events please refer to www.ukcp.org.uk/events or contact