This story is published by IASH in response to a discussion at the 2006 IASH biennial conference, at which several members expressed concern about the limitations imposed by professional licensure.  Note:  The paper by Steve Andreas, which is copied below, contains references to attached documents, which are not copied.
 
The paper is reprinted with the kind permission of Steve Andreas. 

How NLP Was Saved From Regulation

Introduction by Merilee Dannemann-Kamerman

           In 1991, NLP in the state of Colorado was saved from being prohibited by law.

           The Colorado Mental Health Licensing Statute would have prohibited unlicensed psychotherapy of any kind.

           Steve Andreas and a number of colleagues stopped this law from being enacted.  They did it using sound logic, good research and NLP.

           The real goal of the legislation may have been to protect licensed psychotherapists from competition.  But the legislation was promoted as a protection for the public.  At that period, information was coming to public attention about inappropriate behaviors by therapists, especially those involving sex with clients.

           Based on unexamined assumptions, it appeared to legislators that licensed professions with state licensing boards and organizations for professional oversight would be effective in policing their own professions.

           Steve was able to show, from professional journals and similar credible sources, that professional licensure was not effective in preventing abuse; that the degree of abuse actually seemed to increase as professional requirements increased (psychiatrists were worse than psychologists, based on available statistics), and just as importantly, that these professions had no standards or measures for quality of treatment.

           As Steve recalled recently, the chairperson of the committee said, “We alI thought this bill was going to be a no brainer, and this would be a slam dunk, but the points that have been raised have really made me think.”

           Gathering the data was one part of the process.  It helped that the American Psychological Association had run an in-depth series of articles on the ethical challenges to that profession just a few years earlier.  It also helped that the Colorado regulatory agency had its own statistics corroborating the abuse problem.

           The other part of the process was rapport.  It was necessary to present the information to legislators in a forum comfortable for them, a legislative committee hearing, to behave appropriately for the setting and to pace their concerns.  It was important to show up in large numbers, to demonstrate to legislators that there was a real interest group of citizens who cared about this issue, and to have a coordinated presentation with agreed-upon spokespersons. This had required advance organizating of Colorado NLPers and other professionals whose work was affected by the proposed law.

            It was important to have a witness who could speak about the experience of being abused by a licensed professional.  In this case, there was a woman who had been sexually exploited by her psychologist and was willing to share her sense of outrage.  Finally, as the spokesperson, Steve wore a coat and tie (which is remarkable only for those who know Steve).

           Steve recalls a famous quotation from psychologist Carl Rogers, which was helpful in the presentation:

           “When I ask myself whether the training programs which I know, in guidance, in clinical psychology, in psychiatry, approach this goal, I come up with a strong negative.  It seems to me that most of our professional training programs make it more difficult for the individual to be himself, and more likely that he will play a professional role.  Often he becomes so burdened with theoretical and diagnostic baggage that be becomes less able to understand the inner world of another person as it seems to that person.  Also, as his professional training continues, it all too often occurs that his initial warm liking for other persons is submerged in a sea of diagnostic and psychological evaluation...”

           The end product was a law very different from the one that had initially been intended to put NLPers out of business in Colorado.

           Steve recently recalled the outcome of this legislative process.  He writes:

           Besides the explicit recognition of the unlicensed practice of psychotherapy, one result, in response to each licensed group's clear lack of zeal in  prosecuting  its own members, was the creation of a joint Grievance board  composed of two members from each of the 4 licensed groups: psychologists, social workers, Marriage and Family Therapists, and licensed Professional  counselors, . . . And 2 unlicensed people. And I was one of the unlicensed  people on the first year of the board's existence.

      The only requirement for being an unlicensed psychotherapist in Colorado  is to register with the Department of Regulatory Agencies, take a one-day course in Jurisprudence and  pass a test.

           Following is the full text of the presentation Steve Andreas gave to the legislative committee in 1991.

COMMENTARY BY
STEVE ANDREAS
REGARDING THE COLORADO MENTAL HEALTH LICENSING STATUTE
BEFORE THE SUNSET REVIEW COMMITTEE
DENVER, CO
JULY 9 & 10, 1991

Personal Background

            I have a bachelor's degree in chemistry from the California Institute of Technology and a master's degree in psychology from Brandeis University (see attached curriculum vitae).

             I am the author of two books on psychotherapy. I am co-author—with my wife Connirae--of two other books about therapy and training. We have edited seven other books about personal change, including books by such well-known therapy innovators as Virginia Satir, who pioneered Conjoint Family Therapy; Carl Rogers, who developed client-centered therapy; Fritz Perls, who developed Gestalt Therapy; and Richard Bandler and John Grinder, developers of Neuro-Linguistic Programming (NLP).

             My wife and I have produced thirteen NLP training videotapes and seven videotapes of family therapy pioneer Virginia Satir. I have written a dozen articles for professional publications and have made presentations at national conferences such as the Family Therapy Network Symposium and the American Association of Marriage and Family Therapists.

            My wife and I are co-directors of NLP Comprehensive, an organization devoted to training excellence in Neuro-Linguistic Programming. I speak not only for myself, but also for the over 400 people we have trained and certified as Neuro-Linguistic Programmers in the state of Colorado, as well as many thousands of others we have trained in shorter workshops.  I am an unlicensed teacher of psychotherapeutic methods.

             First, I want to commend Brad Mallon, Susan Warren, and the DORA staff for doing an excellent job at the near-impossible task they have been given. I think they have been exceptionally fair and even-handed. At the same time there are still very serious problems with the DORA recommendations.  (Editor:  DORA was the Department of Regulatory Agencies, which had jurisdiction over professional licensure for various licensed professions and occupations.)

 Protecting the Public

            The Mental Health Licensing Statute was enacted to protect the public from two different categories of harm:

1. Unethical conduct:  the therapist's misuse of the therapeutic relationship to exploit the client through fraud, sexual abuse, substance abuse, etc.

2. Incompetence:  the therapist's inability to providethe psychotherapy services paid for.

             There is some overlap between these two issues. To charge a person for a service when one is unable to provide the service is clearly unethical, and to take advantage of a professional relationship for personal gain can also be described as incompetence.

             Nevertheless, I think it is useful to distinguish between incompetence and unethical conduct. It is possible for a therapist to provide the service contracted for, yet also exploit a client. Likewise, someone who is exquisitely ethical could be incompetent to provide the contracted service.

Unethical Conduct

            Unethical conduct is deplorable, but it can be dealt with by specifying prohibited activities in the statutes and reporting violations to the Attorney General's office for investigation and prosecution—with no need for a grievance board.

 Professional Incompetence

            Professional incompetence is a much more difficult matter to deal with, and this is what has made DORA's job so difficult. In the field of psychotherapy there are literally hundreds of different kinds of treatment methods and modalities even in the mainstream. There is strenuous—and often acrimonious -- disagreement among practitioners about which—if any of them—are effective. Because of this, the phrase "generally accepted standards of practice," which appears in the Colorado Mental Health statute, is almost completely meaningless.

             For instance, in the "Ethical Principles of Psychologists" (copy attached), published by the American Psychological Association (1989), principle 2 (of 10) is titled "competence":

             "The maintenance of high standards of competence is a responsibility shared by all psychologists in the interest of the public and the profession as a whole...."

             Although that sounds noble and wonderful, the word "competence" is not specified in a practical way so that an impartial observer could make any distinction between competent and incompetent practice.

             Ultimately, competence can only be determined by observing the behavioral ability to accomplish a specified task. Licensing in medicine, truck driving, and many other fields is based on testing specific behavioral tasks. These tests are determined by clearly-defined standards of practice.

             However, since there are no generally accepted standards of practice in the field of psychotherapy, it is impossible to agree on behavioral tests that would demonstrate competence.

 The State of Psychotherapy

             The Sunset Review report acknowledges the existing state of psychotherapy as follows:

             "There is also disagreement about whether or not psychotherapy in general is truly helpful to most people, or whether or not they would have improved on their own over time anyway. Between those who agree that it is helpful, there is disagreement about what methodology is the most effective.

             "The field is truly dynamic.  While the professions of psychology and social work have been around awhile and exhibit the traits of more well-developed professions, psychotherapy is a newly emerging profession. Its members include practitioners of the four licensed groups but also a wide variety of other individuals and groups of practitioners with differing backgrounds in their levels of education and community and client orientation. New practices and methodologies come and go within the profession. There is no one commonly accepted professional code of ethics for this group, nor a consistent belief among all group members that licensure of the profession is necessary to protect the public." (p.12)

 The Professional Literature

            If the Sunset Review's own conclusions in this regard are not convincing, more detail can be found in the enclosed article "Animals at the Crossroads: A Perspective on Credentialing in the Mental Health Field"  (Counseling Psychologist, Vol. 12 #4, 1984.)

             A few pertinent quotations from pp. 177-178 of this article (copy enclosed) follow:

             "Since research abounds in the professional literature upon which claims of efficacy can be based, it is helpful to look to the conclusions of these studies to provide empirical justification needed to adequately determine who should and who should not practice behavioral change methodologies, or when and where they should be allowed to practice. Below is a summary of research findings in key areas related to the practice and process of counseling, psychotherapy and behavior changes."

             "Given the difficulty with interpretation of data, on the average, psychotherapy is better than no therapy, above average therapy often yields excellent results, and below average therapy may be harmful."

             "Given methodological shortcomings and ambiguities in the data, ample evidence exists that psychotherapy can and does cause harm to a portion of people it is intended to help."

             "Valid measurement of the changes in therapy is rare, and psychometric advances are needed to provide answers to basic questions that are otherwise unanswerable."

             "The study of the interaction of patient and therapist variables in relation to specific outcome criteria is a rarity; considering there are over 100 forms of therapy, this becomes increasingly difficult to clarify."

             "Existence of serious research problems in studies that have attempted to relate patient change to selected therapist characteristics or qualities; specified therapist variables were confounded with other uncontrolled therapist characteristics, with unspecified client characteristics and with therapists' idiosyncratic treatment approach."

             "Evidence that the level of therapist experience is a determinant of outcome is surprisingly weak and not adequately tested."

             "Conclusions drawn from well over 600 studies examining the process and outcome of therapy and behavior change speak dramatically to methodological weaknesses in research. Corroborative evidence regarding the difficulty with available research and literature in the area of effectiveness of psychotherapy (Office of Technology Assessment, 1980) has led to the conclusion that the many factors identified as important to the outcome of therapy have not been assessed in a definitive way. Sufficient numbers of unanswered questions exist as to what constitutes effective practice—therapist offered conditions to client gain, the interaction of therapist, client, and situational variables, the level at which one becomes proficient to act independently--to be drawing firm conclusions about who should be given a license to practice, and how this should be accomplished."

             A book review "The Current Status of Psychotherapy" (copy enclosed) provides parallel conclusions and references. Among them are the following:

             "The battle for acceptance of the scientific method that has been won in the physical sciences and in many areas of medicine has not yet been won in psychotherapy."

             "Experts do not necessarily perform better than novices in unstructured problem areas such as psychology and psychiatry."

             "Some clinicians carry out their practice with little or no effort to take advantage of new data concerning what seems to be effective with different kinds of problems with different kinds of clients."

             "Many people who entered a mental hospital in the fifties and spent the rest of their lives there should not have been hospitalized in the first place."

             Another glimpse into the field of psychotherapy is provided by the lead editorial in the May/June 1991 Family Therapy Networker (copy attached) which begins with the following statement:

            "It is no secret that therapists are rarely swayed by research findings."

             This is in stark contrast to the psychologist's code of ethics:

             "They maintain knowledge of current scientific and professional information related to the services they render." (p.2, first paragraph)

 Training in Psychotherapy

            The irrelevance of most training in psychotherapy is highlighted by the "Examination for Professional Practice in Psychology" (EPPP), a test developed by the American Psychological Association. This test is used in all states for licensing of psychologists. Although the test is intended to evaluate professional competence, "research indicates that this type of test does not discriminate between trained and untrained individuals."

             In addition, a consumer affairs group noted that "55% of the items on this test dealt with research procedures and methodology; only 6% on treatment interventions, planning and implementation, and evaluation."  Although research is an important function for an academician, it is of little value to troubled clients.

             One may question the value of a written test to evaluate a therapist's competence in the first place. However, the fact that only 6% of test items are devoted to treatment is a stunning testimony to the test's irrelevance for the practice of psychotherapy. Nevertheless, the Sunset Review report states (p.11):

             "Although there may not be numerous empirical studies demonstrating the link between education, training and competent practice, common sense dictates that a person without background knowledge...may have difficulty assessing the patient's specific problems."

             For many decades "common sense" dictated that diabetics could safely eat moderate amounts of carbohydrates such as bread. Recently a controlled experiment showed no difference between the consumption of bread and sugar in raising blood sugar levels.

             Dr. Carl R. Rogers, who developed "client-centered therapy," is featured in every textbook on psychotherapy. Almost thirty years ago, Dr. Rogers discussed his views on the elements of a positive therapeutic relationship, and then commented:

             "When I ask myself whether the training programs which I know, in guidance, in clinical psychology, in psychiatry, approach this goal, I come up with a strong negative. It seems to me that most of our professional training programs make it more difficult for the individual to be himself, and more likely that he will play a professional role. Often he becomes so burdened with theoretical and diagnostic baggage that he becomes Jess able to understand the inner world of another person as it seems to that person. Also, as his professional training continues, it all too often occurs that his initial warm liking for other persons is submerged in a sea of diagnostic and psychological evaluation. Thus to take the findings of these studies seriously would mean some sharp changes in the very nature of professional training, as well as in its curriculum." ["The Interpersonal Relationship: the Core of Guidance," Harvard Educational Review (Vol. 32, No. 4, Fall 1962)]

             Thus the training required for professional licensure as a therapist may be worse than irrelevant; it may actually hinder a well-meaning therapist's ability to be useful to troubled clients. There is evidence from DORA's own data that .tends to confirm this.

Complaints Against Therapists

            The DORA Sunset Review reports that a total of 391 complaints were received by the Mental Health Grievance Board over a 30-month period (p.8). Of these, 38% (149) were against unlicensed practitioners while 61% (239) were against licensed practitioners (p.13). DORA estimates the number of licensed therapists as "approximately 3,000" and unlicensed therapists "at 4,000 to 6,000" (p.10). Using these figures, the number of complaints per thousand therapists is: licensed, 80; unlicensed, 25-37.

             According to these figures, a licensed therapist is two or three times as likely to receive a complaint as an unlicensed therapist.

 DORA Sexual Abuse Survey

            A 1986 confidential survey conducted by DORA contacted 600 professional psychotherapists, asking them about their knowledge of sexual abuse; 347 therapists responded. The following table summarizes the numbers and percentages of each group who reported that they were aware of sexual abuse of clients by therapists in Colorado:

 
            The professional categories in the table are listed approximately in order of their length of training, with psychiatrists (having the longest training) at the top. It becomes apparent that length of training is positively correlated with knowledge of sexual abuse of clients. Those with the longest training reported the greatest knowledge of sexual abuse. The fact that the correlation is almost perfectly linear indicates that there is a strong statistical relationship. As far as I know, this questionnaire did not ask for information about which category of therapist actually committed the abuse. However, we can assume that members of each group have more contact with their own colleagues than with others. Without additional qualifying information, the data strongly suggest that the additional years of professional training required for licensure correlates positively with increased incidence of sexual abuse of clients. Perhaps DORA's survey is flawed, but taken at face value it clearly suggests that a client is more likely to be sexually abused by a psychiatrist or psychologist than by a therapist with less training. This is consistent with a statement in the Sunset Review report (p.26, paragraph 3):

            "Surveys have revealed that psychiatrists have a high incidence of sexual involvement with clients, when compared with other psychotherapy practitioners."

Influence of the Therapist

            There is no question that a therapist can harm clients by poor judgement and inappropriate counseling. Under the title "A. The Need for Continued Regulation" (p.8) the Sunset Review Report points out the vulnerability of the client in a therapeutic relationship: "This constitutes a situation where a client may be especially vulnerable to abuse by a trusted advisor."  A client is thus much more likely to accept harmful advice from someone who appears to have the status and expertise that many people associate with professional titles and licensure.

             At the October 1990 annual meeting of the American Association of Marriage and Family Therapists, Jay Haley was interviewed publicly as one of the founders of the field of Family Therapy. The following is a verbatim transcript of a tape recording of Haley's response to a questioner from the audience.

 Questioner: "I'm interested in hearing what you have to say about the move to certify or license family therapists, and if you approve of that, how you think it would be best done."

 Jay Haley: "Certify them by the state you mean, and that sort of thing? (Questioner: "Yes.")  Some years ago in California the Association of Marriage Counseling—or whatever it was in those days—was trying to get a license passed to be certified, and I gave a nice talk that they shouldn't.

 "Because the certification implies to the public that the person is competent because they're licensed. And the licensing never requires a measure of competency. It requires a measure of how long you went to school. And therefore I think it's a deception, really.

 "You always take the risk that without certification there are incompetent people out there calling themselves marriage therapists or whatever. But you have to be pretty sure that the licensing is based on competence or you're sending out incompetent people anyhow. I don't think licensing protects people; let's put it that way. It's a union, really."

             Jay Haley is widely-recognized as a founder, teacher, and continuing innovator in the field of Family Therapy, particularly the area of Strategic and Systems-oriented Family Therapy. He is currently co-director of the Family Therapy Institute of Washington D.C.

             Haley is the author of a large number of articles and books including the following books:

Strategies of Psychotherapy
Family Therapy and Research
Advanced Techniques of Hypnosis and Therapy;
        Selected Papers of Milton H. Erickson, M.D.
Techniques of Family Therapy
Changing Families
Uncommon Therapy:  The Psychiatric Techniques of
        Milton H.Erickson, M.D.
Leaving Home
Ordeal Therapy
Reflections on Therapy and other essays

             It would be hard to find a more respected, experienced and thoughtful spokesperson for the field of Family Therapy.

 Licensing Creates a Special-Interest Group

            I think Jay Haley's closing comment "It's a union, really" needs to be underscored. It is common for groups of people with similar interests to form associations for their own benefit and to influence legislation, etc. Often these activities also benefit the public as a whole. However, we should recognize that when the group's self-interest is in conflict with the public's it is extremely rare that the group promotes the public's interest at the expense of its own.

             The Sunset Review Report points out (p.8, paragraph 3,4; p.9, paragraph 1):

             "The previous independent boards (Psychology and Social Work) were determined by the legislature to be less than agressive in pursuing disciplinary actions against their peers."

             At the present time, an overwhelming majority of the members of the grievance board are also licensed psychotherapists. All four licensed groups have gone on record recommending the prohibition of the unlicensed practice of psychotherapy.

             "Licensed groups have advocated complete licensure as the best way to ensure competent practice and prevent consumer harm." (Sunset Review Report, p.10, first paragraph)

             It seems likely that the grievance board is biased against unlicensed psychotherapists. This bias is evident in the Sunset Review report recommendation (p.14, last paragraph):

             "4. Over the next five years, the department should gather statistics about the number, types and outcomes of complaints about both licensed and unlicensed practitioners so that a determination can be made from that data concerning the need for a higher level of protection for the public, i.e. total licensure."

             Several points need to be made about this recommendation:

             1.         It demonstrates an assumption that licensure of therapists protects the public.  As discussed above, there is no support for this assumption, while there is considerable evidence to the contrary.

             2.         It demonstrates a bias against unlicensed practitioners.  In all fairness, the report should also recommend that licensure be abandoned if the statistics show more and/or more serious complaints against licensed psychotherapists.

             3.         Since half of the members of the grievance board (and one of the “public” members, Robert Smith) are licensed, there is considerable danger that compilation of this data may become biased. To be unbiased, scientific, and conclusive, this research should be conducted as a double-blind study by an outside agency or consultant with no vested interest in the outcome.

 The Questionable Value of Licensing

            Although recommending data collection in support of licensing, the Sunset Review Report also questions the value of licensing. The report states (p.11):

             "A review of the pertinent professional literature would ordinarily assist in determining the effectiveness of licensure as a preventive measure—a protection against incompetent practice. The literature in the field of psychotherapy, however, is so broad and diverse, few concrete conclusions can be drawn from it.

             "For every report that concludes that experience and credentials are related to competence (measured by successful therapy outcomes), there is a conclusion in another that they are not. There is substantial disagreement about how to measure competence—through outcome reviews (was the therapy successful / did the patient improve) or skill and ability reviews (what types of skills should assure prevention of harm). Traditional licensing theory assumes that competent practice is derived from the educational base, the skills development and the supervised experience that licensees must demonstrate prior to licensure. There is not, however, a lot of empirical data that supports this assumption as accurate."

 The Ethics of Licensure

            DORA is charged with the responsibility of devising ways to protect the public from harm caused by the unethical and incompetent practice of psychotherapy.

             Psychotherapy is expensive, yet many hundreds of studies have failed to show that it is significantly more effective than no treatment at all.

             Is it ethical to charge large amounts of money for treatment that may or may not work? More to the point, is it ethical for the state of Colorado to establish and require elaborate and expensive licensing procedures that give the appearance of legitimacy and efficacy to this questionable treatment?

 Here is what the Sunset Review Report states in regard to this (p.12):

             “In the four licensed disciplines, there is some agreement about professional standards, practices and acceptable methodologies. The same cannot be said about the unlicensed therapists practicing non-traditional methodologies. In an atmosphere such as this, with a public harm already defined, the legislature is hard put to define, limit and categorize what the disciplines themselves cannot agree on. Supreme Court Justice Burger summarized this situation well in Blocker v. United States, 288 F.2d 853,860 (1961):

             "No rule of law can possibly be sound or workable which is dependent upon the terms of another discipline whose members are in profound disagreement about what those terms mean.... This is not simply a matter of experts disagreeing on opinions or on diagnosis, which often occurs, but disagreement at the threshold on what their own critical terms mean."

SUMMARY

1. In the field of psychotherapy there are no "generally-accepted standards of practice."
2. Without generally-accepted standards of practice it is impossible to determine competence.
3. Without a way to determine competence, licensure not only does not protect the public,  it is a farce and a fraud that misleads the public, and only benefits the licensee.
4. There is evidence that suggests that a licensed therapist is twice as likely to receive a complaint and more likely to sexually abuse a client.
5. Since the evidence available indicates that licensed psychotherapists are a greater danger to the public than unlicensed psychotherapists, the legislature should immediately repeal all laws relating to licensure of psychotherapists.
6. To truly protect the public, the legislature should specify prohibited acts by psychotherapists, and enact these into statutes to be enforced by the appropriate authorities.