A significant restriction of liberty?

A response to recent 'President's Letters', concerning the Health and Care Professions Council and regulation of psychologists.

In his recent discussion of registration with the Health and Care Professions Council (HCPC) and the use of misleading professional titles, British Psychological Society President Peter Kinderman (President’s column, September and October issues) has broached a topic that is probably of concern to many members of the Society. Like him, we are opposed to deception but in our opinion there should be no objection to a member of the BPS using a title that accurately represents the service they offer. The title ‘psychologist’ is not a designated title according to the legislation (although 'registered psychologist' is), and so a member could reasonably call him or herself, say, a pet psychologist or fashion psychologist if the advertised service is accurately described. Moreover, the HCPC is not the only body that lends credibility to professional qualifications. Accreditation with many counselling and psychotherapy organisations helps to ensure public protection and some of them voluntarily agree to be regulated by the Professional Standards Authority. A recent court case has also made it clear that using a designated title is only a criminal offence when there is an intention to deceive. Consequently, advertising oneself as a Clinical Psychologist (not-registered with HCPC) is perfectly legal. The protection to the public afforded by designated titles is therefore minimal. It is only really relevant when a person does not possess the academic qualifications they claim.

Peter Kinderman appears to object to someone with a professional psychology qualification (e.g. clinical, educational, counselling) who decides to decline to be regulated by HCPC. In our view, his advice, if followed, amounts to a significant restriction of liberty. Kinderman believes that non-registration can be equated with avoidance of public accountability. It might be supposed that referring to a professional qualification automatically leads a client/customer/employer to infer that the skills implied by that title are being advertised. This is not unreasonable but as already noted, a professional simply has to make it clear that they are not registered with HCPC in order to avoid committing a criminal offence. Many people (e.g. retired barristers and plumbers), who are no longer registered professionals, are frequently sought out for their advice based on their experience. 

The regulation of practitioner psychologists and the investigation of complaints from the public are now in the hands of the HCPC. Peter Kinderman implies that the BPS continues to have a role in regulation, and we are told that meetings between the two organisations do take place. What is not clear to us is whether the codes of practice or the opinions of the BPS carry any weight in business conducted by HCPC. The BPS can no longer compel members to observe rules of professional conduct although it can of course expel them. The BPS on its website claims to offer members advice on ethical matters but it is doubtful that this advice would carry weight in any HCPC deliberations. Moreover, the BPS does not at present support or advise registrants, on ethical or any other matters, who have had allegations made against them. The HCPC adopts its own guidelines for ethical and competent professional practice and the input of the BPS or any other clinical body is unclear. HCPC guidelines allow a good deal of latitude in the way that they are interpreted when allegations are made and defended at fitness-to-practice tribunals. There seems to be no internal check on whether panels at tribunals actually follow their own guidelines in a consistent manner. Only one of the three members of a tribunal panel is a psychologist and this person need not have expertise that matches the defendant’s area of work. Panel members are paid for their services by HCPC and may hold other roles as 'partners'. The job description of a partner includes the statement ‘Ability to explain and justify decisions and promote HCPC interests to all stakeholders concerned’. This does not inspire confidence in panellists impartiality.

The HCPC can call upon expert witnesses to advise them at tribunals but these are experts of their own choosing and need not be an expert in the registrant's own field of practice. HCPC guidance for experts includes the statement ‘where there is a range of opinion on the matters dealt with in the report, summarise the range of opinion’. However, if a defendant calls their own expert witness, a tribunal panel seems to be at liberty to ignore their opinion if it so wishes. Any appeal by a defendant to 'common professional practice' can be ignored, and however authoritative the BPS's guidelines may appear to be, professional practice is now under the jurisdiction of another body.

We are not alone in being unhappy with the way that the HCPC fulfils its function of protecting the public. A recent article in Community Care entitled "Is the HCPC fit to practice" notes that the HCPC is being accused of acting outside its remit and breaching social workers' human rights. To quote: ‘Fitness- to-practice hearings are largely a kangaroo court. Each individual panel can make its own findings, its own decisions and its own punishment for social workers.’ Unlike earlier forms of regulation, HCPC judgments can only be appealed in the High Court, a prohibitively expensive route, which is more concerned with legal process than with the substantive professional issues raised by a complaint.

Fitness-to-practice proceedings are set up as an adversarial process, unlike the inquisitorial method used by regulators in other European countries. The HCPC itself is on one side of this adversarial process, pursuing its own allegations against the registrant with well-funded legal teams, and is bound to want to win as many cases as possible. We note from published minutes of HCPC committee meetings that the main aim of the HCPC is to chalk up ‘success’ in ‘found proven’ cases when pursuing its allegations, and that case managers are trained to write up allegations in such as way as to make it easier for there to be a ‘proven’ finding at Tribunal. We also infer from the large number of allegations levelled at each defendant that the purpose is to get at least one of them 'proved'. This does not seem to us to be the best way to promote good practice or to learn from mistakes. It is evident that individual professional bodies are losing the power to determine, encourage and support good professional practice from a base of clinical knowledge, training and experience. Until such time as we have confidence that the HCPC is carrying out its remit effectively, we are disinclined to follow Peter Kinderman’s advice and would recommend that BPS members who do not need to be registered should avoid doing so.

Paul Devonshire, Associate Fellow of the British Psychological Society

Richard Hallam, Fellow

Kate Hellin, Associate Fellow

Editor's note: The HCPC were given the opportunity to respond, but declined. 

Society President, Professor Peter Kinderman, replies: Paul and colleagues raise three concerns related to my recent Presidential columns. First, they suggest that they have little confidence that the HCPC is discharging its remit effectively. Second, Paul and colleagues comment that I; ‘object to someone with a professional psychology qualification (e.g. clinical, educational, counselling) who decides to decline to be regulated by HCPC’. And they conclude that; ‘BPS Members who do not need to be registered [with HCPC] should avoid doing so’.

I broadly agree with the first point. The BPS has regular meetings with HCPC and we have a range of issues over which there are considerable concerns. As I pointed out in my columns of September and October, a key area of concern (where, arguably, the HCPC could be seen to be failing in its duty) is the area of implied registration; where (briefly to repeat the concern) there is an issue where psychologists offering services to the public use titles that clearly give the impression of professional statutory regulation but fail to register with HCPC. In my opinion, the public deserve much greater protection. I also share, for what it’s worth, many of Paul and colleagues’ concerns over HCPC procedures, rules of evidence and precedent-setting. These, and other, issues are brought to our regular meetings with HCPC and we prosecute our concerns on behalf of our Members with appropriate diligence.

The second point is, I’m afraid, a detailed one. I do not believe that it is the possession of a professional psychological qualification (e.g. clinical, education, counselling) that means a person should (in law) be registered with HCPC, it is the question of whether a person is offering services to the public. This is also the position in statute law.

So, to address the final point, I obviously do not believe that BPS Members who do not need to be registered with HCPC should nevertheless register with them. But I do believe they should register with HCPC if they offer services to the public. A reasonable interpretation of the law would suggest we have a statutory duty to register in those circumstances. As I tried to make clear, I think this is a vital step towards protecting the public.

I tend to dislike disagreements with colleagues, especially in public. But I should make myself clear. I support an independent statutory regulator – HCPC in our case. Psychologists are, I believe, under a duty to support that necessary safeguard for the public. Obviously that doesn’t mean blind ignorance of HCPC’s failings. Obviously it doesn’t mean recommending that people who don't need to register with HCPC should put themselves to unnecessary expense and trouble (although, to be honest, that would be an added level of statutory safeguard for people who can clearly be harmed by charlatans and abusers). But I cannot change my mind on asserting that – as it says in the law itself – people who offer services to the public as professional psychologists should register with our statutory body. Indeed, I would personally interpret ‘services to the public’ as including education, consultancy, legal and even media advice. Yes, to be clear, I would advocate a wider remit.

My advice stands. I will argue for reform of the many failings of HCPC. But I will also argue that all psychologists who offer services to the public should meet their legal and ethical obligation to register with HCPC.

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