I was unable to attend Signature’s statutory regulation meeting in January due to being unexpectedly hospitalised (I’m fine now). While waiting for my belly-button to resume normal service, I did a little bit of reading and uncovered a range of interesting and depressing responses to the statutory regulation struggle in the annals of several other professions. Many of these are the kind of practitioner-focused issues that have so far (to my knowledge) been absent from dialogue. This is a long post so let’s start with the main shakedown and then move on to the sources.
Key issues raised
- Statutory regulation encourages “medical model” approaches to practice which even healthcare professionals may find oppressive, let alone those in occupations which are patently not healthcare.
- Excessive regulation – increased inspection regimes, measurements and managerialism – can lead to increased “reactivity”, a term which describes practitioners feeling a pressure to select “easy wins”, reject more difficult work, abandon more difficult clients and “cover their backs” instead of acting from best professional judgement.
- Campaigns to promote statutory regulation above self-regulation have historically resulted in schisms and increased disunity within various professions. Almost all the campaigns resulted in failure and wasted resources, even for professions between thirty and two hundred times the size of BSL/English interpreting.
- A political will is required to take up the cause of state regulation, which brings with it political scrutiny, which entails unpredictable effects such as sudden reversals of support or unexpected spotlights on bad training/practice. Statutory regulation can stop being statutory at any time should political will or public support be withdrawn: the fight to keep your status may be even more effort than that expended to attain it. The current political will is opposed to statutory regulation even for highly specialist and expert clinical professions taught over and above postgraduate level, let alone social/linguist ones with a mixed bag of vocational qualifications that verify skills instead of teaching them.
- Meta-regulators such as the Professional Standards Authority (PSA) and its predecessor the Council for Healthcare Regulatory Excellence (CHRE) have long asserted that regulation must be based on empirical assessment of “actual harm” and not “possible risk”, i.e. regulation must be proportionate to the problem it is trying to solve. A regulator that creates sledgehammer/nut issues is incompetent.
- Given that absolutely none of above is even acknowledged, let alone addressed, by Signature’s meandering rationale for pursuing statutory regulation, it becomes necessary to ask whether the current governance of their “NRCPD service” is fit for purpose and their personnel are qualified to decide our profession’s future. Who watches the watchers?
- Finally, the concept of principled non-compliance may offer some solutions, or at least traction, to those with doubts and fears about the path ahead, while those who favour statutory regulation have a paradox to resolve.
Background & research questions
Signature, a recent rebranding of the Council for the Advancement of Communication with Deaf People (CACDP) which is best known for its historical grip on the British Sign Language teaching market, recently published a “Statement of Regulatory Intent” in which they lay out their aspiration for their “NRCPD” professional registration service to be elevated to (or perhaps be replaced by) a state instrument. In this rose-tinted vision, oversight of bimodal (and, oddly, only bimodal) interpreters and translators would become a legal responsibility of the state and some job titles would become “protected”. This would entail that anyone from the BSL community deemed to be practising under those titles without being registered, hearing or Deaf, would be open to prosecution like a common criminal. This is said to be necessary as despite (or because of) a thirty-odd year process of “professionalisation”, the public is allegedly not sufficiently protected from the dangers of bad BSL/English interpreting, even though the actual magnitude and severity of this problem remains almost entirely a matter of anecdote. The crudest outline of how this vision is to be practically realised has not yet materialised: Signature have been starry-eyed about reforming registration for years, but their wheels turn imperceptibly. There is, however, no open talk of joining forces or campaigning alongside spoken language interpreting bodies such as NRPSI.
Of course, whenever we decide to spend a thousand people’s annual subscription fees on an undertaking of indefinite length (but certainly many years or decades), we first do some piddling research into its viability. We might glance briefly at how other professions have approached statutory regulation, and ask how and why they may have succeeded or failed. What barriers needed to be overcome, and were they? Were there any differences between the goal as originally envisioned and its reality once achieved, any hint of a “be careful what you wish for” effect? How did the campaign for regulation itself, successful or not, affect the organisation, principles, practice, morale and wellbeing of the practitioners? Has any reliable evidence ever been gathered that any successful transition to statutory regulation actually did improve public protection, or has it all just been a matter of assumptions, blind faith and crossed fingers?
Signature has not carried out any research on these lines to my knowledge, or if they have, they have not shared it. Instead they have presented a one-sided and, in my view, self-centred account of what they hope statutory regulation will bring. There do not seem to be very many interpreters looking at the issues beyond Signature’s framing – more discussion may be taking place behind professional membership association pay-walls, but I don’t have that privilege.
What follows is a cheerfully amateur attempt to address this absence, in the forlorn hope that it will inspire someone sitting on a giant pile of cash to fund a proper go at it. I don’t claim that the following is fully representative of all possible viewpoints: it is a sketch, intended to be a counterpoint to Signature’s rhetoric.
Counsellors and psychotherapists: be careful what you wish for
In the early new millennium, the twilight of the last Labour government, there was something of a surge of support for a substantial roster of healthcare professions to be regulated by law, leading to the publication in 2007 of a government white paper. However, the only group to finally succeed were clinical psychologists, achieving regulation in 2009 by the Health Professions Council (HPC) via a handful of protected psychologist titles and contributing to the HPC’s conversion to the Health and Care Professions Council (HCPC).
Counsellors and psychotherapists, with a service user population in the many hundreds of thousands, had arguably the second strongest case and base of support. An HPC Professional Liaison Group (PLG) of counselling and psychotherapy “stakeholders” was convened in 2009, which embarked on a top-down consultation and invited submissions of evidence. Some of the submissions were from individuals; others were institutional, such as those from the British Association of Counselling and Psychotherapy (BACP); some were academic, including evidence-based and collaborative works with substantial funding.
Among the latter was an ESRC-funded project carried out by senior researchers at King’s College London (McGivern et al. 2009). The bulk of its raw data consisted of interviews, firstly with a sample of medical doctors (one of the oldest state regulated professions but who had recently had the details of their regulation adjusted in response to public scandals) and then with a larger sample of psychotherapists and counsellors themselves. Doctors described the recent tightening of regulation as a shift to a culture of “performance management” and a reaction to a “blame society”; the increased frequency and depth of the investigations they were now subjected to were described as “hell” and “deeply upsetting”. The authors are at pains to highlight a resulting “reactivity”, a change in the professional relationship between practitioner and patient whereby the first and foremost consideration for any professional decision-making process became a desire to minimise the chance of a complaint, regardless of what may otherwise have been the most appropriate course of action. Some practitioners spoke of working under a new awareness that anything said or done could be “used against them”. In preference, professionals spoke positively about the value of group or mutual “formative spaces” (such as reflective practice groups and clinical supervision) in identifying and correcting practice issues and maintaining “professional boundaries”.
Counsellors and psychotherapists were then interviewed on their perceptions of what statutory regulation might mean for their practice. It is noteworthy that few positive reactions are described by the publication. Reservations about “measurement” were expressed, bearing some similarity to anxieties about “performativity” found in the teaching, nursing and social work professions: measurements were said to take on a “life of their own”, “bullying” therapists into changing their practice against their better professional judgement. “Reactivity” was again an element, with practitioners talking about a heightened awareness of needing to “cover themselves” and even the expectation of selecting “easy wins”, rejecting more problematic or difficult work in order to reduce the likelihood of potentially stressful inquiries. Interestingly, practitioners who had more recently qualified, i.e. had relatively less experience of working in the field, were said to be more positive about statutory regulation, while those with more experience were less enthusiastic.
Elsewhere, even some counselling organisations actively condoning statutory regulation had a catalogue of issues with the model of regulation eventually produced by the PLG. The BACP felt the need to state that it was not actually seeking regulation by the HPC at all, preferring a newly constituted body instead; that it lost support for statutory regulation from a good number of its members once the PLG had published its recommendations, who instead joined a new Alliance for Counselling & Psychotherapy Against State Regulation; that a proposed division between the titles of “counsellor” and “psychotherapist” which the regulation would have strengthened was “a retrograde step, harking back to an era when the mentally ill were segregated and stigmatised”; and finally also remarking on a range of negative reactions to perceptions of a “medical model” influence in several of the proposals (and this is within a profession much more comfortably aligned with the label of “healthcare” than community or conference interpreting). They quoted with regret members who felt the scheme was forcing them into a position of “principled non-compliance” (a stance now euphemised by others as “Alternative Professional Accountability”). Essentially, despite ploughing considerable resources and many years of effort into campaigning for statutory regulation, the primary voluntary regulator appears to have preferred no statutory regulation at all to the state instrument’s final proposals. Worse, the entire exercise served to highlight and strengthen long-standing divisions within the broader field. (Source: BACP).
The PLG dissolved in 2011 following the new coalition government’s publication of “Enabling Excellence: Autonomy and Accountability for Health and Social Care Staff”, which effectively drew a line beneath any and all future attempts to achieve special protected status under this administration except in very special cases where a regulator might prove that (a) there are “exceptional circumstances” and a “compelling case” and (b) existing voluntary organisations are considered unfit to manage the risks (which is an interesting position of self-regard for a voluntary organisation to take). An under-Secretary of State for Health also wrote to the PLG effectively declining to entertain any further thoughts on the matter (source: HCPC). In fact, the HPC went even further and completely suspended their “new professions process”, their system for gathering evidence and then potentially recommending the statutory regulation of any particular profession to government.
In a recent reflection on frameworks of ethical practice, a former member of the BACP Professional Ethics Committee described the statutory regulation project as “collapsed”, a “signal and bitterly-felt failure” and “decisively erased as a credible policy option” (Jenkins 2015). Instead, BACP took up the government’s preferred avenue of “assured voluntary regulation”, becoming in 2013 one of the first organisations to be accredited by the new Public Standards Authority (PSA), essentially a “kite mark” for voluntary healthcare regulators (but not for their registrants).
At the time of writing, counsellors and psychotherapists remain self-regulated and form a surprising number of different membership organisations with what (to outsiders) might appear to be marginally differing principles. BACP has over 41,000 student and qualified members compared to NRCPD’s 1,200-odd registrants. Against the loftily-stated opinion of Signature/NRCPD’s trustees that professional membership and regulatory bodies should be separate, BACP have historically maintained both a membership list and a “register” at the same time: it was possible for a potential BACP therapist to opt for both membership and registration, either one, or neither. However, joining the “register” will become compulsory for BACP members in April 2016, although membership itself will of course remain voluntary.
The next largest organisation, the UK Council for Psychotherapy (UKCP) with 7,800 members, represents psychotherapists but not counsellors, unless of course they are “psychotherapeutic counsellors”. Like BACP, they also maintain a separate “register” parallel to their association membership. UKCP were also involved in the PLG/HCP statutory regulation work – too closely involved for some, with a UKCP board member controversially present on the PLG panel. Fine details of the professional rivalries are not especially relevant here, but perhaps it would be worth noting and questioning whether it is in fact “natural” for occupations to split into groups of differing practices and ideologies once they reach a certain critical mass.
A third important organisation is the National Counselling Society (NCS). Acting as a network of organisations as well as representing individual counsellors, they are at pains to position themselves as “act[ing] to protect counselling from inappropriate regulation if we feel it could harm our work and the diversity, creativity and range of training options that currently exist in our profession”, and also that they “were a central part of making sure that the previous Government’s inappropriate plans were dropped” (source: NCS). Here we have an example of a voluntary regulator much larger than Signature which not merely opposes inappropriate statutory regulation but has made such opposition a central tenet of its existence.
Healthcare assistants: the things that regulation can’t fix
Signature’s NRCPD Board members, including the current Chair, attempted in 2013 to persuade its interpreter registrants that the failures of care on the part of the Mid Staffordshire Foundation Trust, as examined by the Francis Inquiry, would directly result in a need for increased regulation across many professions, even those such as BSL/English interpreting which had absolutely no involvement in the scandal. Despite interpreting being in no way a “healthcare profession”, Signature felt that seeking accreditation by the Professional Standards Authority (PSA), an inspector of healthcare regulators’ office processes and policies but unconcerned with whether any particular element of practice is regarded more widely as quackery or not, was the best way forward to bolster the status of its NRCPD service, and that this process would also somehow act as a stepping stone from voluntary to statutory regulation.
Which is odd, because with regard to actual healthcare assistants (HCAs), the Director of Policy and External Relations at the Council for Healthcare Regulatory Excellence (CHRE), the organisation which later became the PSA, completely disagreed with that assessment: “Events at Mid Staffordshire Foundation Trust have shown us the limits of regulation: it did not stop poor care. What does protect patients is professionalism” (source: Nursing Times). She goes on to describe some of the practical elements of professionalism that actually help practitioners: codes of conduct and performance, delegating responsibility, effective supervision and being properly supported by management. Furthermore, she points out a large number of standards and mechanisms which should already be used to monitor agencies supplying HCAs, such as CQC inspections, ISO standards, health and safety accreditations, scrutiny from the Information Commissioner, etc.
Nursing Times is worth browsing further around the 2011-2013 period for a substantial number (if limited range) of articles speaking both for and against statutory regulation for HCAs. However, despite these efforts, at this time they remain without even a voluntary register let alone statutory regulation under the Nursing and Midwifery Council (NMC), the statutory instrument who consistently viewed increased regulation for HCAs as “neither appropriate nor feasible” (e.g. Nursing Times 13/03/2012 p.6). HCAs are nonetheless represented alongside registered nurses by the Royal College of Nursing, an interesting hybrid of professional membership association and trade union some 435,000 members strong. In the government’s 2013 Cavendish Review, it is estimated that between 106,500 and 332,000 HCAs work in healthcare (depending on how you define the role), and an incredible 1.225 million in the social care domain (ditto).
Sports therapists: no-one is listening
The Society of Sports Therapists (SST), a membership-based professional organisation, challenged government directly as recently as December 2015 on their refusal to embark on statutory regulation after an online parliamentary petition gained the requisite number of signatures to trigger an official government response (which simply referred readers to the above-mentioned Enabling Excellence policy of “assured voluntary regulation”). If you’ll forgive a wry side-note to fellow interpreters, can you imagine Signature having the cojones to publish a blog entry titled “Government response not good enough”?
In a personal communication, SST informed me that they represent over 3,500 members, just under three times the number registered with NRCPD. I was unable to locate any published research which investigates the support among sports therapist practitioners for statutory regulation, nor on the extent and severity of any malpractice.
Further Education teachers: now you see it, now you don’t
Gather around the campfire, friends, and hear the grisly story of the Institute for Learning (IfL), a professional body and occasional state-sponsored regulator for Further Education teachers which went from voluntary organisation to statutory regulator and back to voluntary again, and then kicked the bucket once and for all, in the space of just twelve years, with the full regulation lasting just five years. Their history is a cautionary tale, demonstrating what can happen when your field is a political hot potato and a “regulator” loses the support of its political sponsors as well as those who merely do the work.
- 2002: IfL is created by members of the post-compulsory teaching profession, gaining just 266 members in its first year.
- 2007: The government approves regulations which make registration with the IfL compulsory for anyone working as an educator in government-funded FE: effectively, the IfL is now a kind of statutory regulator. The main condition of the new IfL “membership” is a compulsory 30 hours of CPD; they also create a new qualified teaching status tied to a qualification system, QTLS.
- 2008: Membership passes 100,000.
- 2009: Government suddenly announces that the IfL must become self-funding within 5 years. A government minister proudly hands out the first QTLS awards.
- 2010: Membership reaches 200,000. Debate rages about membership fees. Many teachers don’t have an issue with compulsory registration but they do have an issue with compulsory fees.
- 2010: Labour loses the General Election.
- 2011: The Lib-Con coalition government accepts IfL’s recommendation that QTLS status should also be sufficient to teach in compulsory education settings, ie. that it should have parity with QTS. Some school teachers are not exactly wild with joy about this.
- 2012: The Lingfield Review on professionalism in FE publishes its reports, which cite the view of Ofsted that “no sound, causal link” can be found between statutory regulation or monitored CPD and any actual improvement in the quality of teaching, that trying to regulate non-doctors and non-barristers in the manner of quite literally Victorian entities such as the GMC or the Bar Council had “little effect, indeed it led to controversy and difficulty”. Lingfield also recommends that teaching qualifications should not be compulsory to teach in FE (again). Rapidly, the government rulings of just five years previously are completely reversed. On this basis, the IfL decides to “return to its roots” and go back to being a voluntary organisation.
- 2013-2014: IfL makes the transition back to voluntary membership but also decides to raise its membership fees, due to the cessation of government funding. The University and College Union (UCU) boycotts the IfL. Membership falls from 181,000 to just over 33,500.
- Mid 2014: IfL announces its closure, due to being financially unsustainable. After a period of void and uncertainty, its “legacy” is transferred to a new organisation, the Society for Education and Training (SET), a professional membership association and not any kind of “regulator”.
Herbalists: politicians come and go but unicorns are forever
A politician, a doctor and a herbalist walk into a bar … The history of herbalism goes back to the Stone Age but I could only take a quick look at the last decade or so. The first lesson to be learned from their story is that statutory regulation has absolutely no chance unless there is a supportive political will within the establishment, but unfortunately, that will is as inconstant as the tides. The second lesson is that political will brings with it political scrutiny and politicians are likely to have different priorities to both practitioners and their clients, being more concerned with the interplay between popularity and power than with anything which is merely right. Where herbs, roots and a black market of powdered animal parts are concerned, the political questions are essentially “Is it drug dealing or not?” and “Is it making or saving us any money?”
After many years of back-and-forth debate both within the herbal trades and without, the government’s Health Secretary of the time announced in February 2011 that herbalists would be regulated by the HPC – ironically as part of Enabling Excellence, the report that shut down all considerations of statutory regulation for everyone else, while arguably fudging what regulation guarantees in the first place. Nonetheless, herbal practitioners all over the country celebrated their victory and then settled down to wait for their new status to arrive. They waited, and waited, and then in 2015 (with the former Health Secretary long since jumped or pushed, taking their will with them) the government changed its mind all over again, abandoning all plans to regulate both Western and Chinese medicine herbalists.
The issues therein are summed up far more ably than I ever can by David Colquhoun, but the essentially relevant point here is that the government suddenly remembered that taking over the regulation of a profession legitimises it, which is going to be a problem for politicians if the practice and education of those professionals turns out to be riddled with quackery and nonsense. The solution for government was PSA accreditation, which clearly does no harm in the cases of the more obviously nonsensical endeavours such as homeopathy and other “alternative medicines” whose practice is based on prescribing water pills or the manipulation of fantasy energy fields, rather than actually ingesting contraband tiger penises or problematic quantities of rare fungi which can kill you dead where you stand. “Assured voluntary regulation” via the PSA has nothing to do with professional practice at all: it’s a rubber stamp for the administrative practices of the regulator. It merely enables government to look like it has done something about rogue healthcare workers without actually having to associate itself with them directly: the PSA calls this philosophy “right touch regulation”, but it may as well also be called “arm’s length”. Statutory regulation, on the other hand, establishes that the government believes the profession to exceed a level of potential risk: the term “risk management” is not synonymous with regulation but is frequently uttered in the same breath, which is why it so frequently associates with managerialism.
Professor Colquhoun also notes above that increased scrutiny of the herbal professions led, unsurprisingly, to scrutiny of the manner and content not only of their training (“Degrees that teach nonsense are not good training: they are miseducation”) but also of the efficacy of their practice, and the lack of empirical evidence for that efficacy was ultimately what put them out of the running. The government-appointed medical expert leading the final review, Dr David Walker, noted in his nail-in-coffin report that some herbalists “accept that their practice is based on tradition and personal experience rather than empirical science”. That may feel familiar to some readers. Are we ready for this kind of scrutiny?
Further research needed
I tried but failed to locate any published research about the very few occupations (really just clinical psychologists) who have succeeded in attaining and holding on to statutory regulation in the last several decades, in particular, whether they had gathered any evidence to show that their new protected title status had actually done anything at all to enhance public protection or raise standards of professionalism. Despite still having full university journal access, I failed. If clinical psychologists are talking about this, I could not find any published conversations. Another prime candidate would be social workers.
On a personal note, while I found the above histories of failed campaigns interesting, none of them were especially surprising or indeed of much practical use except as cautionary tales, with one stark exception: the concept of principled non-compliance (PNC). Invoked by counsellors and psychotherapists during debates around what some saw as the threat of regulation by new and unwanted masters, and more recently noted by other professionals like teachers and social workers as a framework for resisting managerialism and measurement regimes imposed by lay officials, PNC describes a constructive, ethical and involved approach to resisting creeping and disproportionate regulation.
Practically, PNC may provide the approach to answering a hypothetical question interpreters don’t appear to have asked themselves yet: beyond the issues around fully abandoning basic definitions of professionalism such as autonomy and self-regulation, is it not also a violation of the basic ethics many professionals across many times and places have all signed up for – “doing no harm”, respecting personal choice, and so forth – to threaten conscientious colleagues with the force of law? Will the proponents of statutory regulation kill the very thing they love?
(Thanks to Robert G. Lee for providing inspiring reading material which contributed to this post, and to colleagues in my peer supervision group for being interesting.)