When Freud arrived in London in 1938, he praised the generosity and open-mindedness of a culture that had offered him – and psychoanalysis – a home. Yet now, some 70 years later, analysts and therapists have been forced to take legal action in order to preserve the ethos of the discipline he founded.
The high court will tomorrow hear the judicial review claim made by six organisations against the Health Professions Council. They are concerned that, under HPC proposals for the regulation of talking therapies, it may no longer be possible to go into therapy, practise therapy or train therapists as before.
Therapy occupies a unique space in the modern world. In a culture obsessed with surface and statistics, it allows the detail and narrative of a human life to be explored. Where society tells us what to be, therapy allows us to reflect critically on the imperatives that shape us. Challenging received notions of wellbeing and happiness, we can try to find out what is really important to us, often with life-changing consequences. It offers a system of values freed from the moral judgments of social authorities.
Until now, prospective patients have been able to choose the therapist they wish to work with. Under HPC, this will no longer be the case. Only approved psychotherapists will be able to practise, and approval means fitting into a framework that is at odds with the basic values of psychotherapy.
The HPC is designed to regulate healthcare, and is based on a market-led vision of human life. Its chief executive, Marc Seale, explained in a meeting at his offices that, in the 21st century, it just won't do to offer services that the consumer can't complain about. Hence the emphasis on clear outcomes. If we know what we're paying for, we can complain if we don't get it.
On this model, an expert supplies a product to a consumer, who can complain if the product is faulty. But most therapies offer precisely what can't be predetermined. You can never know what you're going to get, and that's why it is an inherently risky process. Indeed, therapy often fosters a recognition that life isn't predictable, neat or safe.
But surely, one might object, this opens the floodgates to dangerous practitioners who may abuse their patients. HPC's main playing card, indeed, has been the bogeyman of the "rogue therapist". Its regulatory system allows it to strike people off, thus preventing just anyone putting up a brass plate with the title "psychotherapist". But practitioners, under HPC, could simply set up shop with another title, such as "life coach", or plain "therapist". Public protection is ill-served by this model, as a major report from King's College and Royal Holloway recently showed.
As for the cases of real abuse, we know that registration with an approved body cannot eradicate risk. The most serious offenders have been well-trained and registered practitioners. Think of GMC-registered Harold Shipman.
Being opposed to HPC regulation does not mean being opposed to regulation, however. All therapy organisations must have complaints procedures, and give complainants access to an independent body that can be appealed to if necessary. In the most extreme cases, courts should have the powers to bar the clinician from practising again.
But these bodies must be sensitive to the particularity of therapy. Central to this process is the phenomenon of transference, which involves the re-enactment of previous experiences. Difficult aspects of one's history are relived with the therapist, who accepts the place of the target of the patient's projections. If you had an abusive parent, for example, the therapist would most likely be experienced as abusive at some point during the therapy. And working this through would be a large part of the therapeutic process. Market-based regulatory systems fail to grasp this. Many therapists are especially worried about HPC's fitness-to-practise procedures. These are governed by a McCarthyesque moralism: allegations have included making sexual jokes at a private dinner; contesting a diagnostic category; questioning a colleague's emotional involvement in a case; making a joke about healthcare outcomes; and looking at internet porn. To claim that these would impair someone's ability to work with patients is doubtful, to say the least.
This framework is especially ill-suited to deal with psychotherapists, many of whom see human suffering as caused by rigid adherence to external ideals. Trying to be a particular kind of person who will please others, for example, may exert an unbearable pressure on that person. Being able to express oneself, emotionally and sexually, is seen by many as a goal of therapy, rather than a punishable offence. That's why a therapist may be ready to, at moments in their work, frustrate or offend the patient. They may be trying to challenge the image of the therapist that the patient brings with them. This can generate surprise, shock and real change.
Therapy here is similar to those currents of Buddhism that see progress as a questioning of ideals. The student travels for weeks through the mountains to see his master, who, when he arrives, is not there. Imagine this scenario considered at an HPC hearing: the student would lodge a formal complaint that they had not received the promised instruction. The master would be declared unfit to practise.
This is the gulf that separates those traditions of therapy that are based on humanistic or spiritual values and those based on a belief in medical-style intervention. It makes little sense to shoehorn both into the same regulatory package. Other models of statutory regulation would do the job better, such as those used in Australia and many US states. Serious offences are referred to the legal system, and an independent body that is sensitive to the kind of issues unique to therapy can be appealed to for complaints. Prospective patients can check to see if the therapist is registered with such a body.
This is very different from HPC's vision of the future. At the aforementioned meeting, Seale outlined the HPC advertisements that would appear around the country advising the public not to use those therapists who didn't subscribe to its framework. When it was pointed out that therapists would protest, Seale replied: "We can afford a better advertising agency than them."
Yet there are many signs that the HPC's project is losing steam. Politicians are now realising that other forms of statutory regulation may be both cheaper than the HPC and more effective. The Department of Health is looking at alternative models, and the Council for Healthcare Regulatory Excellence is exploring a regulatory framework for therapists and counsellors that many in the field feel hopeful about.
There are calls for a convention on the regulation of therapy and counselling that would bring together all stakeholder groups and debate the different models used internationally. If such a serious dialogue is possible, costly litigation will be unnecessary. As it stands, the money the HPC has to protect the public is being used to protect bad decisions from public scrutiny.
Challenging this means the country that once gave Freud sanctuary from the Nazis won't be in the embarrassing position of becoming a place that made Freudian psychoanalysis – as well as a host of other forms of therapy – impossible to practise.
