Richard Mowbray
The Open Centre
3rd Floor
188-192 Old St.
London
EC1V 9FR
UK
Re. Department of Health consultation document:
The Regulation of non-medical healthcare professions (14th July, 2006)
The need for evidence-based regulation
Chapter 6, of the Regulation of non-medical healthcare professions (Department of Health, 14th July, 2006) concerning "Regulating new professional roles" states that:
"For the future, there will need to be a set of criteria about the tests a new role must pass for statutory regulation to be considered necessary." (page 37)
It then goes on to list the Health Professions Council’s set of tests for aspirant professions as:
• Discrete area of activity
• Defined body of knowledge
• Evidence based practice
• One professional body representing most practitioners
• Voluntary register
• Defined entry routes to training
• Independently assessed qualifications
• Code of conduct applied to voluntary registrants
• Disciplinary processes applied to voluntary registrants
• Commitment to Continuing Professional Development.
(page 37)
Thus "aspirant professions" must pass various tests to become embraced by the Health Professions Council, including a requirement of "evidence-based practice" (page 37).
However, what is not included here (but hopefully will be in the forthcoming "set of criteria about the tests a new role must pass for statutory regulation to be considered necessary") is a criterion that claimed public benefits of statutory regulation under the Health Professions Council should be subjected to the same evidence-based strictures as will the practices of aspirant professions that it would regulate. That is, statutory regulation itself should also be 'evidence-based'.
Hogan's 'pre-conditions for licensing' of an occupation could form a ready made basis for these "tests a new role must pass for statutory regulation to be considered necessary":
(a) The profession or occupation being regulated must be mature and well established.
(b) The profession being regulated must have a clearly defined field of practice adequately differentiated from other professions.
(c) The profession must have a significant degree of public impact.
(d) The benefits of licensing must outweigh the negative side effects.
(e) Simpler and less restrictive methods that would accomplish the same purposes must be unavailable.
(f) The potential for significant harm from incompetent or unethical practitioners must exist and must be extremely well documented.
(g) Practitioner incompetence must be shown to be the source of harm.
(h) The purpose of licensing laws must be the prevention of harm.
(i) Adequate enforcement mechanisms for disciplining those who violate the law must exist.
(j) Adequate financial resources must be committed to ensure proper administration and enforcement of the licensing laws.
(Hogan, Vol. 1 1979:366-8; Mowbray, 1995:89-91)
Note in particular condition (d) The benefits of licensing must outweigh the negative side effects.
Appendix 3 of The Regulation of non-medical healthcare professions, entitled "Initial Regulatory Impact Assessment" does not give cause for optimism that evidence-based regulation will prevail. Bold statements about the costs and benefits of various options are made without giving any evidence base at all. For example, the only benefits assumed to be inherent in doing nothing are financial ones. The only costs inherent in the new regulatory options proposed are assumed to be financial ones.
Regarding the "regulation of new professional roles", Annex D of this "Initial Regulatory Impact Assessment" cites the cost of doing nothing as including "Unacceptable risk to patients." This may be so for some roles (including ones specifically mentioned in this document) but not necessarily for others mooted for inclusion under the umbrella of the Health Professions Council. Either way, this should be a matter for empirical assessment. What is the level of 'unacceptable risk'? (value/cost assessment). What is the actual risk? (empirical assessment). Such data would give actual substance to the adoption of a "risk-based approach" (page 14).
The potential costs of establishing statutory regulation where it is not appropriate go well beyond its financing. In an effort to protect the public from one sort of harm, the overall public impact may actually be detrimental. Studies of the legislated regulation of occupations point to significant negative side-effects unless certain criteria are met (Hogan, 1979, 1999; Mowbray, 1995, 1999). Net benefit should be demonstrated rather than assumed, as is the case with this Appendix to the report in question. A detailed empirical study of the incidence of risk in the absence of statutory registration and of the overall balance of benefits versus side effects of a legislated response is a sounder basis for decision than knee jerk reactions to what may be high profile but atypical cases of harm. There are also forms of response to a demonstrated unacceptable incidence of risk from the practice of an occupation which have fewer drawbacks than statutory regulation (Mowbray, 1995).
The primary driver for all this has to be protection of the public (interest). For this to be the actual outcome, there must be an empirical assessment of the public risk from the practice of an occupation before legislation is extended to cover it. The need for and effectiveness of the arrangements intended to protect the public cannot be determined without it. Any meaningful assessment of the impact of the legislation and whether or not it has had a beneficial or detrimental effect on public safety, or on the particular field and its provision to the public, would require empirical study of the status quo ante. There must be data on the situation 'before' to assess the 'after'. Is this data regarding "aspirant professions" being gathered?
The above arguments are applicable to all occupations which may be considered for inclusion under the Health Professions Council.
Good Doctors, Safer patients (Department of Health, 2006), which is relatively well referenced compared to the document under discussion, refers to the concept of "risk-based regulation":
"Regulatory attention should be focused on those areas where the chances of something going wrong are high and the consequences of such an event are grave." (page 165).
That publication also claims that this concept is 'coming to the fore'. I hope so, but there is not much sign of its impact on the "Initial Regulatory Impact Assessment" in the Regulation of non-medical healthcare professions.
That report also comes worryingly close to officially endorsing departures from reality and evidence as a basis for policy:
"Perceptions (as well as the reality) are important in generating and maintaining public and professional confidence." (page 57).
I hope there is someone in the Department of Health capable of seeing the folly of basing policy in this area on beliefs and MORI polls rather than hard evidence.
Yours faithfully,
Richard Mowbray
References:
Hogan, Daniel B. (1979) The Regulation of Psychotherapists. 4 Vols. Cambridge, Massachusetts: Ballinger.
Hogan, Daniel B. (1999) ‘Protection, not control’. In S Greenberg (ed.) Therapy on the Couch. London: Camden Press.
Mowbray, Richard (1995) The Case Against Psychotherapy Registration :A Conservation Issue for the Human Potential Movement. London: Trans Marginal Press. Tel/Fax (020) 8341-7226.
Mowbray, Richard (1999) ‘Professionalization of therapy by registration is unnecessary, ill advised and damaging’. In Controversies in Psychotherapy & Counselling Feltham (ed.), London: Sage.
The Regulation of non-medical healthcare professions (Department of Health, 14th July, 2006).
Good Doctors, Safer patients (Department of Health, 2006).
