Two bites of the apple- limitation in professional negligence cases
As complaints to voluntary regulators rise, it’s time to toughen up the regime and seek better regulation for psychotherapists, psychoanalysts and counsellors, write Julie Norris and Sian Jones
When Tina Welch complained about her therapist John Clapham sexually assaulting her, the British Association for Counselling and Psychotherapy investigated and erased him from its register for professional misconduct. Despite this, Mr Clapham continues to advertise his services and operate, lawfully, as a psychoanalyst.
How can this be? Answer: psychotherapists, psychoanalysts and counsellors are not regulated by the government under a statutory scheme.
Anybody can apply these professional titles to themselves and the voluntary organisations that “regulate” them are powerless to do anything to stop them practicing, even after a finding of misconduct.
Had Mr Clapham been a psychiatrist or a psychologist, his removal – by the General Medical Council and the Health and Care Professions Council respectively – would have meant it was a criminal offence for him to continue to hold himself out as a member of that profession. This is because these professions are subject to statutory regulation.
The issue is not a small scale problem. There are a large number of psychotherapists and psychoanlaysts in practice today – the BACP, for example, has more than 40,000 therapists on its register – and there is an ever increasing demand for their services.
Referrals by GPs increased from 75,000 in 2008 to over 1m in 2012, according to the NHS’s improving access to psychological therapies initiative.
Interestingly, there has also been an increase in the number of complaints being made to voluntary professional bodies, suggesting it is high time something was done to address the regulatory anomaly once and for all.
The unsatisfactory current position is down to the coalition government having scrapped Labour’s earlier sensible plans to bring psychotherapists and psychoanalysts under the auspices of the statutory regulator, the HCPC.
he government argued that the current voluntary scheme was “a suitable alternative or proxy for statutory regulation”.
Last year, Labour MP Geraint Davies tried to put forward a private members’ bill designed to regulate psychotherapists, but he failed to win enough support. Surely the public deserves that more politicians engage with this issue, and for it to go back on the agenda for the general election?
Many psychotherapists, psychoanalysts and counsellors choose to sign up – although they do ot have to – with one or more of the voluntary regulatory organisations that exist in the UK, in order to benefit from the oversight and standards they engender.
These bodies do strive to promote best practice and fulfil some important regulatory functions. However, while statutory regulators have the resources, experience and expertise to run adjudication schemes fairly and apply effective sanctions in the event of an adverse finding, the voluntary bodies do not.
The other advantage of statutory regulation for the profession, of course, would be improved fairness if practitioners do find themselves subject to scrutiny.
Voluntary regulators often have fitness to practice type processes to be followed in the event of a complaint, but they can be poorly resourced and lack rigour in the application of the fundamental principles of natural justice.
In our experience, professionals may be subjected to investigations that are patchy and incomplete, and in some cases adjudications that are just plain unfair.
A registrant facing serious allegations before the British Psychoanalytic Council, for example, is not allowed to be legally represented or directly question witnesses called against them.
There is also no statutory right of appeal against a BPC or UK Council for Psychotherapists decision to the High Court, only via a limited – and in our experience, unsatisfactory – internal appeal mechanism.
So there would be benefits all round from statutory regulation of the psychotherapist, psychoanalyst and counsellor industry. Now is the time to resurrect the plans for this.
It is the only way to ensure professionals’ reputations and interests are protected when complaints are made about them. It is also the only way that the public can have confidence in those who treat them and those who claim to regulate them.
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