Revisiting UKCP's position on statutory regulation

Introduction

The question as to whether psychotherapists and psychotherapeutic counsellors should be subject to statutory regulation is once again in the headlines. Press articles have recently appeared in the Guardian, the I-paper and the Economist, and there is an active campaign led by Ella Janneh, supported by Leigh Day solicitors, to introduce statutory regulation. Ella Janneh's campaign follows her successful civil action in June 2024 against her therapist, Mike Lousada, for rape and sexual assault.

The issue of introducing statutory regulation for those practising psychotherapy has a long history. The last attempt to introduce statutory regulation was in 2007-9. UKCP members were deeply divided on the issue at the time and, following a change in government, the proposals were dropped. Instead, the government introduced voluntary accredited registers under the Professional Standards Authority (PSA). The PSA's voluntary accredited registers scheme was introduced in January 2013 with UKCP becoming one of the first accredited registers later that year. There are now 30 voluntary accredited registers under this scheme across a range of health and care services.

In recent years, UKCP has maintained a neutral stance on the topic of statutory regulation for the profession but in light of the recent campaigning for, and press coverage of, statutory regulation, UKCP is considering whether this position is right. What is statutory regulation, and how does it differ to voluntary regulation under the PSA scheme? What criteria are likely to inform any government consideration of statutory regulation? And what are the matters that UKCP needs to focus on to arrive at a current position on the matter of statutory regulation that will be persuasive with government?

Voluntary accredited registers in counselling and psychotherapy

The key difference between voluntary registers accredited by the PSA and statutory regulation is that there is no legal requirement for anyone to register with the former. Any person can legally carry out the professional activities and use the professional titles that the voluntary accredited registers cover without being registered. Statutory regulation, on the other hand, normally involves a legal requirement for registration in order to be able to use certain professional titles and/or to undertake certain activities (see below).

There are now a number of voluntary accredited registers related to counselling and psychotherapy apart from UKCP. These are:

• Association of Child Psychotherapists (ACP)
• Association of Christians in Counselling and Linked Professions (ACC)
• British Association of Counselling and Psychotherapy (BACP)
• British Association of Play Therapists (BAPT)
• British Psychoanalytic Council (BPC)
• CBT Register UK
• Counselling and Psychotherapy in Scotland (COSCA)
• Human Givens Institute (HGI)
• Play Therapy UK
• National Counselling and Psychotherapy Society (NCPS)
• UK Association for Humanistic Psychology Practitioners (UKAHPP).

The PSA also has oversight of statutory regulators in the health and care sectors. The standards set by the PSA in accrediting voluntary registers are very similar to those that they apply to statutory regulators, such as the General Medical Council (GMC) and the Health and Care Professions Council (HCPC). This means that organisations with accredited registers (such as UKCP) have to carry out the same kinds of functions that the statutory regulators in health and care professions do, including accrediting training, keeping a register of practitioners deemed fit to practise, reaccrediting (sometimes called revalidating) those on the register to check that they remain fit to practise, publishing a code of conduct and supporting guidance, and running a complaints process where action can be taken against someone's registration should their fitness to practise be impaired.

Although those running accredited registers are typically private companies and charities like UKCP rather than public bodies, PSA accreditation brings their registration activities into the realm of public regulation. Therefore, they are subject to many of the same legal requirements that apply to statutory regulators, with regulatory decisions being subject to the same kinds of challenge in the courts, such as judicial review. The PSA are currently conducting a consultation, that is open until May 2025, and one of the proposals is to bring the statutory regulator standards and the accredited registers standards into closer alignment.

Defining statutory regulation

It is important to appreciate that there are different models of statutory regulation. While the model which was proposed in 2007 for psychotherapists and counsellors, with regulation falling under HCPC, is a common one for health and care professionals, it is not the only model. It is therefore important to disentangle objections to a particular model of statutory regulation, from objections to statutory regulation per se.

For the purposes of this paper, we will define statutory regulation as follows:

A system for regulating a profession, for the benefit of the public, whereby it is a criminal offence for a person or business to either use certain professional titles and/or undertake professional activities unless authorised to do so. Authorisation may come from being on a statutory register. However, it may simply involve not being legally barred from doing so.

Let's unpack this definition.

Firstly, statutory regulation is for the benefit of the public. It exists to provide assurance to the public where there is a risk of harm from poor practice. It does not exist to benefit practitioners. Although statutory regulation may bring reputational benefits for a profession and place the profession in higher esteem in the minds of the public, that is not its purpose.

Secondly, statutory regulation creates criminal offences. Through acts of parliament, certain titles and/or functions become 'protected' such that it is a criminal offence to use the titles and/or carry out the functions unless authorised to do so in the ways set out by statute. Misuse of title is usually prosecuted through the courts, with the relevant regulatory body pursuing the prosecution.

Thirdly, statutory regulation can involve both protection of title and/or protection of function. Acts of parliament define what specific titles and functions are protected. Examples of titles currently protected by statute include solicitor, barrister, architect, physiotherapist, arts therapist, dentist, optician, chiropractor and osteopath. Examples of functions protected by statute include the prescribing and dispensing of medicines, the testing of sight, the sale and supply of optical appliances, appearing before and addressing a court, and the provision of probate services. For some professions, certain titles and functions are protected (opticians, for example), and for others only the professional title is protected (such as architects).

Fourthly, authorisation to use professional titles and/or undertake certain functions can take different forms. In health and care professions, the most common form of authorisation involves being on a statutory professional register. Entry onto a register involves having certain qualifications and/or practical experience, with the regulator having the powers to prescribe what qualifications and/or practical experience are necessary. The regulator is also given powers to review (reaccredit or revalidate) a person's registration and put in place processes for removing persons from the register. Examples of this form of statutory regulation include HCPC, GMC, the General Optical Council (GOC) and the Architects Registration Board (ARB).

However, this is not the only way to regulate professional titles and/or functions. Another approach is to bar certain people from carrying out defined activities or use professional titles because they have committed certain offences or have been found to be otherwise unsuitable to practise. This is called a statutory barring system. There is no register of those who are able to use the title and/or carry out the relevant functions, simply a list of those who are barred from doing so. The Companies House list of disqualified directors is an example of a statutory barring scheme. It is also currently being considered by the government for the regulation of NHS managers.

Why would the government decide to introduce statutory regulation?

The reason certain professions are subject to statutory regulation is largely down to historical accident. There have not been any clearly defined criteria that governments have used over the years to decide which professions should be statutorily regulated. However, in recent times, the concept of 'risk of harm' has come to the fore in theoretical studies about regulation. This has carried over into public policy.

The closest any UK government got towards setting criteria was a consultation undertaken by the Johnson administration in 2022. Unfortunately, the government never published a response to this consultation. However, it is a good guide as to what factors the government is likely to take into account should the matter of regulating the profession be considered.

The first factor is an assessment of the risk of harm to clients from poor practice. Citing the PSA's Right Touch Regulation methodology, the consultation documents say this should involve two elements:

• risk quantification which looks at both the likelihood of harm occurring and its severity (for example, the level of impact the harm would have on an individual)
• risk qualification which considers the nature of the harm (for example, physical, emotional, psychological) and understanding how and why it occurs.

Once you have a good, evidence-based understanding of the nature of the risk of harm, the following matters are then considered:

• proportionality – is statutory regulation the only way to ensure that the public is adequately protected? If there are other options to achieve the same outcomes, these should be used rather than statutory regulation.
• targeted regulation – what problem is being addressed, and will regulation create unintended side-effects or new problems that undermine a profession's ability to provide a service to the public?
• consistency – can effective regulation be achieved in a way that complements the existing regulatory framework, ensuring that the regulatory landscape can be easily understood by the public?

It is worth noting that a profession's desire for statutory regulation, or otherwise, is not a factor in these criteria. Therefore, any campaign by UKCP for or against statutory regulation would need to focus on the above factors, and in particular be underpinned by a good, evidence-based assessment of risk of harm to clients.

What does this mean for UKCP?

While the above suggests a highly rational basis for deciding whether a profession should be statutorily regulated, the political reality may well be otherwise. It is more likely that an emotional response to a highly publicised scandal will cause ministers to consider this matter. The above criteria could then be used as a post-hoc justification for a decision already taken in the minds of ministers. UKCP needs to prepare for this, as it may take a very strong argument and evidence-base to change their minds and/or influence the form that regulation should take.

What is the likelihood of a client being affected by poor practice from an unregistered therapist? What impact might this have on the client? Do the greatest risks relate to a lack of competence (that is unregistered therapists not being qualified to work safely and effectively), or are they conduct-related (boundaries not being maintained, confidentiality breached, for example)? Can these risks be mitigated in ways other than statutory regulation (such as better public awareness of the PSA voluntary register scheme)?

These are the questions UKCP must focus on to establish a case for or against statutory regulation. Without answers to these questions, UKCP's policy position will be weak, and the matter will almost certainly be taken out of our hands.

Share your views

We invite you to share your thoughts on these questions and your reflections on this paper to help us shape UKCP's position. Send your thoughts to strategy@ukcp.org.uk.