The complaint was heard under the BACP Professional Conduct Procedure and the Panel considered the alleged breaches of the BACP Ethical Framework for Good Practice in Counselling and Psychotherapy.

The focus of the complaint, as summarised by the Pre-Hearing Assessment Panel, is that the Complainant saw Mr Martin for cognitive behavioural therapy in 2005 and 2006.  The Complainant alleged that Mr Martin made inappropriate suggestions that she should ‘get on with things'.  He allegedly used his mobile phone in sessions and wore an ear-stick, and sessions were sometimes interrupted by a colleague opening the door. 

In late 2008, the Complainant stated that she reluctantly returned to Mr Martin.  On 13 March 2009, Mr Martin allegedly again told the Complainant to get on with things and became agitated when she pressed him for guidance.  She alleged that he consulted his computer, asked her to look at diagrams, became agitated again and shouted at her to pull herself together, eventually shouting at her to get out, frightening the Complainant.  He was allegedly agitated again when she asked the way to the toilet.  The Complainant stated that Mr Martin's behaviour made her feel suicidal and that she had flashbacks of Mr Martin shouting close up to her face.  The Complainant then saw a consultant psychologist who, having been told of Mr Martin's alleged behaviour, arranged a resolution meeting with Mr Martin, which took place on 26 November 2009.  Mr Martin allegedly admitted getting annoyed and frustrated, and said that raising his voice had been unprofessional.  He allegedly deeply regretted his behaviour and was genuinely sorry.  The Complainant perceived Mr Martin as genuinely remorseful, however, when she said that she had taken legal advice and requested compensation from Mr Martin, he allegedly again became agitated and anxious, and broke down. The Complainant suggested he needed some help and there was a break before the Complainant returned to continue the meeting, this time with a secretary present.  Mr Martin allegedly said that his poor behaviour in the previous March was minor, that the Complainant's accusations were false, and that there was no reason for compensation.  The Complainant then requested a copy of her confidential medical notes from Mr Martin, but allegedly this and further requests for the notes were ignored.

In accepting this complaint, the Pre-Hearing Assessment Panel was concerned with the following areas, and in particular these were:

1.    Mr Martin allegedly failed to provide the Complainant with a good quality of care and competently delivered services which met her needs in that:

a)    At various times the Complainant experienced the failure of Mr Martin to display the attitude of empathy to some of the issues she was bringing to her counselling sessions. 

b)    In an agitated state, Mr Martin pushed his face against the Complainant's and shouted at her making her feel suicidal as he had told her that nobody can help her.

c)    During the resolution meeting in November 2009, he allegedly admitted that he had made mistakes during the last counselling session then subsequently retracted this admission and sought to minimise his behaviour. He also took a call from a client during this resolution meeting.

2.    Mr Martin allegedly failed to keep the Complainant's trust and be attentive to the quality of respect offered and communicate with her in a clear and courteous way, in that he shouted in the Complainant's face at their last session and made derogatory comments about her.

3.    Mr Martin allegedly failed to deploy the skills and knowledge required and work within his competence, in that he told the Complainant that he felt out of his depth with her. 

4.    Mr Martin allegedly failed to monitor and maintain his fitness to practise when his effectiveness became impaired, in that he allegedly broke down at the resolution meeting in November 2009 and stated at the time of their last session that he was going through a difficult period in his life.

5.    Mr Martin allegedly failed to ensure that this work did not become detrimental to his health and that he sought appropriate support, in that he allegedly attempted to excuse his behaviour towards the Complainant in their last session by stating that he was going through a difficult period in his life and was whimpering during their resolution meeting.                          

6.    Mr Martin allegedly failed to remedy the harm that he had caused to the Complainant during their resolution meeting, by seeking to minimise his behaviour and failing to apologise.

7.    Mr Martin allegedly failed to respond promptly and appropriately to the Complainant's complaint in that at their resolution meeting he stated that the Complainant's accusations were false.

8.    Mr Martin allegedly failed to notify the Complainant of the existence of the Professional Conduct Procedure or of any disciplinary procedure when the Complainant raised concerns regarding their therapy.

9.    Mr Martin allegedly failed to respond to the Complainant's request for information in that he failed to respond to and subsequently provide the notes that she had requested.

10. Mr Martin's alleged behaviour, as experienced by the Complainant, suggests a contravention in particular of paragraphs 1, 11, 17, 32, 33, 34, 38 and 56 and the ethical principles of Fidelity, Beneficence, Non-Maleficence and Self-Respect of the Ethical Framework for Good Practice in Counselling & Psychotherapy (2009), and showed a lack of the personal moral qualities of Empathy, Integrity, Resilience, Respect, Humility and Competence to which counsellors are strongly encouraged to aspire.

The Member Complained Against chose not to attend the hearing.  The matter was referred for consideration under paragraph 4.9 of the Professional Conduct Procedure which states:

Where a Complainant or Member Complained Against fails or refuses to attend a Professional Conduct Hearing, the Registrar has the power to decide to either:

a)    Proceed with the Hearing in the absence of one or both of the parties; or

b)   Adjourn the Hearing to a date not less than 28 days in advance; or

c)   Terminate the proceedings; or

d)   Refer the matter for consideration under Article 12.6 of the Memorandum & Articles of Association.

The options were carefully considered and a decision was made by the Registrar to proceed with the hearing in the absence of Mr Martin.  The parties were therefore notified that the hearing would take place in the absence of the Member Complained Against. 

Application for new evidence

An application was made by the Complainant to submit late evidence under the protocol on New Evidence.  In considering the reasons given by the Complainant, the Professional Conduct Panel declined to accept these as good and sufficient and therefore agreed that the reasons did not meet the requirements of the Protocol on New Evidence.  The application was therefore not accepted.

Preliminary issue

In addressing the folio of papers before it, the Panel noted that this complaint appeared to have been brought after the three year deadline, from the ending of the professional relationship.  This was also addressed by Mr Martin's legal representatives, in his response to the complaint, in which it is stated that the last complaint allegedly occurred in November 2009 and therefore it is in contravention of the Professional Conduct Procedure and the complaint is out of time.

Whilst the Pre-Hearing Assessment Panel (herein after referred to as the PHAP) considered there was a prima facie case to put forward to a hearing, the decision is silent as to whether it considered the timescale issue as a preliminary matter.  In the circumstances, the Professional Conduct Panel cannot assume that this was considered by the PHAP and therefore in the interest of fairness and procedural propriety, the Professional Conduct Panel has addressed the point with regard to paragraph 1.5 of the Professional Conduct Procedure in particular part (a) which states that "A complaint must be submitted within three years of the ending of the professional relationship"

The Panel was aware that there is an expectation for clients to attempt to resolve complaints with the relevant counsellor prior to submitting a complaint to BACP.  In considering the Professional Conduct Procedure, paragraph 1.5(b), the Panel was of the view that whilst the professional counselling relationship ended on March 2009, the Complainant attempted to resolve her complaint regarding the counselling, at a resolution meeting on 26 November 2009.  As this did not satisfy her expectations and issues remained unresolved, the Panel considered that this is the time when the Complainant became aware of the alleged professional misconduct.

The Panel accepted that the Complainant had submitted her concerns about Mr Martin to BACP on 7 November 2012.  The Panel ascertained from the Complainant's original complaint that there had been a number of correspondences between her and BACP in the interim before the complaint was accepted for consideration before the PHAP on 24 September 2013.  The Panel is therefore satisfied that the Complainant had submitted her complaint to BACP within the 3 year time limit, which it considers would have run from the date of the resolution meeting on 26 November 2009, and that paragraph 1.5 of the Professional Conduct Procedure had been complied with.

In conclusion, the Professional Conduct Panel decided that the hearing could proceed on the day as the complaint had been brought within the time limits applicable for submitting a complaint.

Findings

On balance, having fully considered the above, the Panel made the following findings:

1.   In considering the allegation that Mr Martin failed to provide the Complainant with a good quality of care and competently delivered service which met her needs, in addition to
the written evidence provided by both parties, the Panel also heard oral evidence from the Complainant and made the following findings:

(a)  the Complainant stated in her oral evidence that she was able to direct the counselling sessions and talk about areas that she felt comfortable with. She also stated that Mr Martin was sympathetic, in that she would sit and moan and groan and he sympathized.  The Panel was therefore, not convinced, on the balance of probabilities and from the
evidence given by the Complainant at the hearing, that Mr Martin failed to display the attitude of empathy to the issues the Complainant was bringing to the counseling sessions. 

This part of the allegation was therefore not upheld.

(b)  The Panel gave careful consideration to the written evidence of the Complainant, in particular the detail of how Mr Martin came to be so close to the Complainant when he allegedly shouted at her.  The Panel noted that Mr Martin denied the allegation stating that he did not shout or position himself in a way that his face was within close proximity of the Complainant's and that he remained seated at his desk opposite the Complainant.  He also denied saying the words ‘nobody could help her'.  On questioning by the Panel, the Complainant accepted that it was her perception that Mr Martin was shouting as he was so close to her when he spoke.  Having considered the written evidence before it and the Complainant's verbal evidence, the Panel was convinced by the Complainant's very clear and detailed evidence, that it was more likely than not, that her recollection of events was what had occurred.  The Panel was particularly convinced by the Complainant's compelling and detailed description of how this active incident occurred and the detailed description given by her about the way in which Mr Martin placed himself in close proximity to her and raised his voice at her, albeit perceived as shouting by the Complainant.  The Panel therefore found the Complainant's evidence of this particular incident persuasive.  The Panel, however, was not convinced on the evidence before it, which was based on one person's word against the other, that Mr Martin stated that ‘nobody could help her', and it therefore followed that the Panel could not make a finding that Mr Martin's remark made the Complainant feel suicidal. This part of the allegation is therefore partially upheld.

c)    The Panel considered the written and oral evidence presented to it noting that the resolution meeting that took place in November 2009, was some months after the last therapy session between the parties.  In her written evidence, the Complainant stated that she reminded Mr Martin that she wanted an explanation for his outburst at their last counselling session, and she stated that Mr Martin provided a fictional account of his recollection of the last session.  She stated that he admitted raising his voice to her out of frustration.  The Complainant also stated that Mr Martin said he was sorry for his behaviour and asked for forgiveness.  The Panel carefully questioned the Complainant and in her oral evidence she stated that all she demanded in the resolution meeting was that he admitted his failings to his supervisor.  The Complainant stated that she had prepared for the meeting, that Mr Martin could not give her answers, and that she wiped the floor with him.  She stated that he was sobbing and asking for forgiveness.  This evidence was in direct conflict with that of Mr Martin's written evidence in which he denied that he had admitted to the Complainant that he had made mistakes and stated that he told her that her account was completely false on a number of occasions during the resolution meeting.  He stated that the Complainant became very angry and repeated that all she wanted was an apology.  In the absence of evidence to corroborate either party's version of events, the Panel did not uphold this part of the allegation, and it followed, that the allegation relating to Mr Martin retracting his admission and seeking to minimise it could not be upheld.  In so far as the allegation that Mr Martin took a phone call during the resolution meeting, the Panel noted that Mr Martin
denied that he took a call.  As this issue also rested on a direct conflict of evidence, the Panel did not uphold this part of the allegation. 

Allegation 1 is therefore upheld in part

2.    The Panel referred to the finding in paragraph 1(b) above and found that Mr Martin had failed to communicate with the Complainant in a clear and courteous way, in that he addressed her in close proximity to her face, which was disrespectful.  With respect to the part of the allegation that Mr Martin made derogatory comments about the Complainant in the sessions which took place in March 2009, the Panel noted that there was a conflict of evidence in that Mr Martin denied that he made derogatory comments about the Complainant.  This part of the allegation is therefore not upheld.

Allegation 2 is therefore upheld in part.

3.    The Panel noted that in her written evidence the Complainant stated that Mr Martin had said ‘he was out of his depth with her'.  Mr Martin, in his written evidence, strongly denied that he made such a statement.  When questioned by the Panel, the Complainant stated that he may not have  actually used those words, although that was what it appeared he meant.  In view of the denial by Mr Martin and the Complainant's oral evidence, the Panel considered that there was insufficient evidence that Mr Martin had said he was out of his depth with the Complainant, and therefore found that there was insufficient evidence to uphold the allegation that Mr Martin failed to deploy the skills and knowledge and work within his competence.  This allegation is therefore, not upheld.

4.    In considering whether Mr Martin's fitness to practise became impaired when he allegedly broke down in the resolution meeting and stated that at the time of their last session earlier in the year he was going through a difficult period in his life, there was a conflict of evidence with regard to this incident.  The Complainant stated, in both her oral and written evidence, that Mr Martin did break down and that he did state he had been through a difficult period in his life, however Mr Martin, in his written evidence, categorically denied that he broke down in the resolution meeting, or that he mentioned he was going through a difficult period in his life at the time of their last session.  The Panel noted that Mr Martin had been undertaking regular supervision, CPD and receiving feedback from patients and colleagues and therefore was monitoring and maintaining his fitness to practise.  The Panel was not satisfied, on the balance of probabilities, that Mr Martin had failed to monitor and maintain his fitness to practise, and therefore this allegation is not upheld.

5.    The Panel referred to its decision in paragraph 4 above and on the basis there was no finding that Mr Martin had failed to monitor and maintain his fitness to practise, the Panel concluded that Mr Martin had not allowed his work to become detrimental to his health, nor had he failed to seek appropriate support.  Therefore, this allegation is not upheld.

6.    The Panel referred to its decision in paragraph 1(c) above and concluded in view of the finding made, that there was a conflict of evidence with regard to the allegation that Mr Martin sought to minimise his behaviour.  The Panel noted that Mr Martin had stated in his written evidence that he did apologise to the Complainant if she was unhappy with the last session and further in the Complainant's oral evidence she agreed that Mr Martin did give an apology.  The Panel therefore found that Mr Martin had not failed to remedy the harm he had caused to the Complainant.

7.    In considering whether Mr Martin failed to respond promptly and appropriately to the Complainant's complaint, The Panel noted from the evidence of both parties that a resolution meeting was arranged at the behest of the Complainant and therefore considered that Mr Martin did respond promptly and appropriately by enabling The Complainant to express her complaints. However, the Panel also considered that Mr Martin was entitled to defend his position and had the right to deny the complaints which the Complainant was making.  The Panel therefore found that this allegation was not upheld.

8.    The Panel considered that as Mr Martin was unaware of the Complainant's dissatisfaction at the conclusion of the therapeutic sessions in around March 2009, he would not have needed to notify her of the existence of the Professional Conduct Procedure or of any disciplinary procedure.  The Panel noted that it was not until the conclusion of the resolution meeting in November 2009, when the Complainant remained dissatisfied with the attempts to resolve her complaints that this issue would have arisen.  The Panel however, noted from the Complainant's evidence, that she was aware of how to bring a complaint and therefore would not require information about the Professional Conduct Procedure from Mr Martin.  The Panel therefore found that this allegation was not upheld.

9.    The Panel noted from the written and oral evidence, that the Complainant had requested her notes from Mr Martin, which it is alleged he failed to provide.  The Panel noted that the written request made by the Complainant, was made as a Data request under the relevant statute.  The Panel noted that the Complainant had not availed herself of the proper legal course of action as there had been no finding in respect of Mr Martin's failure to supply the required information by the Information Commissioner.  Notwithstanding this, the Panel noted in the written evidence, that it appeared that Mr Martin had responded to the Complainant's request, although the notes had not been received by her.  In making a second request some 4 years later, the notes were re-sent to the Complainant.  In the absence of a finding of a breach of the Data Protection Act 1998 and the evidence presented to it, the Panel could not conclude that this allegation was proved and therefore did not uphold the allegation.

10. Mr Martin's alleged behaviour, as experienced by the Complainant, suggests a contravention in particular of paragraphs 1 and 11 of the Ethical Framework for Good Practice in Counselling & Psychotherapy (2009), and showed a lack of the personal moral quality of Respect to which counsellors are strongly encouraged to aspire.

The Panel did not find a contravention of Paragraphs 17, 32, 33, 34, 38 or 56 of the Ethical Framework for Good Practice in Counselling & Psychotherapy (2009), nor did it find that there was a breach of the ethical principles of Fidelity, Beneficence, Non-Maleficence and Self-Respect. Neither did the Panel find a lack of the personal moral qualities of Empathy, Integrity, Resilience, Respect, Humility or Competence to which counsellors are strongly encouraged to aspire.

Decision

Accordingly, the Panel was unanimous in its decision that the findings amounted to professional misconduct in that they demonstrated that the practitioner had contravened the ethical and behavioural standards that should reasonably be expected of a member/registrant of this profession.

Mitigation

There was no written evidence of mitigation presented and as Mr Martin was not in attendance at the hearing, neither was there any oral mitigation presented.

Sanction

One of the aims of the Professional Conduct Procedure is to protect members of the public.  The Panel, in considering what sanction may be appropriate in the circumstances of this case, has taken into account the interests of public protection.  

The Panel noted that Mr Martin has not been a member of BACP since September 2013, however, he was still regarded as a member for the purposes of the Professional Conduct Procedure.  Therefore, should Mr Martin in future re-apply for membership, he will be required to do so through the Article 12.3 procedure.  In making any future application, the Article 12.3 Panel will expect Mr Martin to provide a summary of his learning and understanding from the issues upheld in this complaint, with particular emphasis on his communications skills if faced with a similar situation in the future.