When is the right time to question a medical decision?
The British Association for Counselling and Psychotherapy (BCAP) is undertaking its first significant review of its Professional Conduct Procedure since 2002. Here, I look at what these proposals mean for registrants and highlight some gaping holes that the review has failed to address.
The BACP publically declare that the review is driven by their desire “to strengthen BACP's commitment to both public protection and the protection of the reputation of the profession. The proposals are designed to improve the function and efficiency of the procedure, which should also enhance the experience for practitioners and public alike.”
No mention is made of the successful challenges that have been brought to the (similar) regime operated by the British Psychoanalytic Council (BPC); challenges that resulted in a consultation on a new set of procedural rules.
No one that has read the current Professional Conduct Procedure will question the need for an urgent overhaul of the disciplinary scheme; how the present scheme has survived legal challenge and the scrutiny of the Professional Standards Authority (PSA) (the BACP has been accredited with the PSA since March 2013) is lamentable.
What are the proposals?
Under the proposed revised process, case managers would be given authority to request further information from either the complainant or the member/registrant. This appears to be a positive change. Case managers should take a proactive approach to reviewing complaints received against registrants. They should be looking critically at whether the evidence is capable of proving a complaint rather than merely being a passive conduit between the complainant and the assessment Panel.
For Registrants, this may lead to an increase in requests from the BACP for documents including patient notes. Just because a complainant has complained to the BACP, they may not necessarily consent to a wholesale disclosure of all records in a Registrant’s possession. Members are therefore advised to ensure that they satisfy themselves that the patient has given consent and the ambit of disclosure sought is clear before providing any documents. A signed form of consent ought to be obtained by the BACP in advance and provided to the Registrant when the request is made.
It is proposed that the Pre-hearing Assessment Panel be replaced by an Investigation and Assessment Committee (IAC) which would have greater powers of investigation, including the power to request a preliminary response to the complaint. Currently the PHAP has no (written) power to request responses from a member/registrant when deciding to accept or reject a complaint and so there is no timeline for it to provide representations for the PHAP to consider before they make their decision.
Again this appears to be a positive change, providing that a reasonable deadline for providing a response is set in order that a Registrant can properly consider whether to submit a response and take legal advice as necessary. It also suggests that the BACP is willing to consider both parties’ version of events when determining whether the case meets the test for referral to a hearing.
The current test for determining if there is a case to answer is not set out in the Procedure but is recorded elsewhere as follows, “if the complaint was unchallenged, is there sufficient evidence available for the complaint to be upheld at a hearing if it were referred?” The new proposed test for referring a case on to a hearing would be replaced with the “reasonable prospect of success test”. This is more akin to the realistic prospect test deployed by many other regulators. It is hoped that this proposal will result in fewer unmeritorious complaints being referred for a hearing. Much will depend on how panels are taught to apply the test and what legal input they have in doing so.
It is proposed that certain complaints that meet the case to answer test by the IAC could be disposed of by consent or voluntary erasure, instead of being referred for a hearing. At present, all complaints post case to answer determination, must go forward to a full conduct hearing. Registrants that admit an alleged shortcoming may well prefer to consent to an order or even removal, rather than suffer the considerable stress and anxiety that accompanies a fully contested hearing. Many other regulators have a similar power to divert suitable cases towards alternative disposals; this proposed amendment is welcomed and will make the BACP’s approach more aligned with the UKCP.
Currently the BACP has no power to suspend membership/registration pending the outcome of a hearing. The proposal here is to allow the IAC to impose an interim suspension order pending the outcome of the substantive hearing if required for public protection. The BACP’s proposal is interesting as it only makes provision for suspension order with no power to impose a less restrictive interim orders such as an order of practising conditions. This could lead to disproportionate orders being put in place where an order of conditions would have sufficed.
Crucially, the BACP appears not to have thought through the justification for imposing an interim suspension order. The titles ‘Psychotherapist’ and ‘Counsellor’ are not protected in law (anyone can call themselves a counsellor without the need for registration with the BACP) and therefore a suspension is unlikely to prevent the practitioner from actually practising; the argument that the order is necessary to reduce the risk to the public is hard to make out in these circumstances. Whilst certain employed roles will require practitioners to be a member of the BACP or UKCP, the fact that the title is not a protected one, will leave it to an employer’s discretion as to whether or not to suspend the practitioner from practising.
Under this proposal the Registrar will have the power to instigate a review and rehearing process which is currently only available to the Registrant or complainant. The proposal does not specify the circumstances in which it is envisaged that this power could be used, for example, where the sanction is unduly lenient. Unless specific grounds of appeal are articulated in the process, there is a risk that Registrant’s will be at the behest of the Registrar’s wish to have a second bite at the cherry.
Many statutory regulators have the power to treat information received by them as an allegation against a Registrant, without the need to receive a formal complaint from an individual, e.g. information from a newspaper report. The BACP has no such power at present. Whilst the proposal seems a fair and sensible one, it must be administered with care.
It is remarkable and hugely regrettable for registrants and patients alike that the BACP has not taken the opportunity to remedy some of the major defects in the current process (unlike the BPC that is looking at addressing these fundamental aspects of a fair procedure). Whilst their current process is silent as to how their regime actually operates in practice, the details are set out in other document published on their website. It is still proposed that the complainant presents the complaint at a hearing, that the default length of a hearing is one day, the right to cross examine witnesses is still denied to registrants unless leave of the Panel Chair is obtained, and opening and closing submissions are curtailed to 10 minutes. How is this possible?
We hope that the BACP’s consultation will lead to more extensive revisions to its current process that those presently outlined. Based on the current proposals alone, those looking for a fair process that instils confidence will be left sadly wanting.
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