The complaint against the above individual member/registrant was taken to Adjudication in line with the Professional Conduct Procedure.
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/Ethical Framework for the Counselling Professions.
The focus of the complaint, as summarised by the Pre-Hearing Assessment Panel, was that Mr Holden was the Complainant’s online therapist between December Year 1 and August Year 4.
The Complainant stated that she sought help having been [ . . . ]. She found Mr Holden on the BACP “find a therapist” website. After an initial assessment they agreed to work together, via Skype, beginning with twice-weekly sessions. The first few sessions went well, including homework sheets set and completed between meetings. After several sessions Mr Holden stopped asking about the homework sheets and the Complainant stopped completing them. The Complainant stated that the online meetings continued, sometimes without a focus.
The Complainant stated that Mr Holden often asked her to change session times, sometimes with very little notice, giving a variety of reasons, such as [ . . . ]. On two occasions, she reported that Mr Holden failed to appear for the sessions with no advance notification. Because of the cancellations and/or no shows, sessions dwindled from twice weekly to once a week and then monthly.
When Mr Holden cancelled a session with 20 minutes notice, the Complainant reported that she contacted him to say that she wished to terminate the relationship immediately. On Mr Holden apologising and offering her two free sessions, she changed her mind and the next few sessions occurred as scheduled.
When scheduling issues reoccurred, including all sessions being cancelled over a two-month period, the Complainant terminated therapy on 9th November Year 4. This was the first session of a block of 6 that she had paid for in advance. She therefore requested a refund for the remaining sessions, which Mr Holden initially refused saying he would “bank” her sessions. The Complainant was not happy with this and asked for her money to be returned. Following some correspondence, Mr Holden refunded the money in March Year 5.
The Complainant stated that she has been left feeling extremely disappointed with her treatment as well as foolish and upset that she allowed the situation to go on so long. She stated she has sought help from a different counsellor. In going over what happened she has become aware that Mr Holden inappropriately self-disclosed within both texts and sessions, including asking her for a professional opinion regarding [ . . . ].
The Complainant has provided some texts between herself and Mr Holden dated 16th June Year 3 to 2nd February Year 5.
The Panel considered the complaint together with the additional information that it had requested from both the Complainant and the Member/Registrant Complained Against.
The Panel noted that the conduct complained of spanned two different Ethical Frameworks. Therefore, for ease of reference the Panel have separated the allegations in relation to the 2013 and 2016 Ethical Frameworks.
The Panel, in accepting this complaint, was concerned with the allegations and information set out within the complaint suggesting contravention of the Ethical Framework for Good Practice in Counselling and Psychotherapy and the Ethical Framework for the Counselling Professions, and those in particular as follows:
In relation to the 2013 Ethical Framework for Counselling and Psychotherapy:
1. Mr Holden allegedly failed to provide the Complainant with a good quality of care and competently delivered services which met her needs, in that Mr Holden frequently changed and/or cancelled appointments, answered the phone during a session and disclosed personal issues about his health and family circumstances.
2. Mr Holden allegedly failed to clarify and agree the rights and responsibilities of him as practitioner and the Complainant as the client at appropriate points in their working relationship, in that he did not make it clear in their contract that he did not offer refunds.
3. Mr Holden allegedly failed to be clear about his commitment to be available to the Complainant and honour these commitments in that he frequently cancelled and/or changed appointments.
4. Mr Holden allegedly failed to monitor and maintain his fitness to practise at a level which enabled him to provide an effective service to the Complainant, in that it was necessary for him to cancel a number of appointments due to his ill health/personal circumstances.
In relation to the 2016 Ethical Framework for the Counselling Professions:
5. In frequently cancelling or changing appointments, Mr Holden allegedly did not do everything he could to develop and protect the Complainant’s trust as his client.
6. In changing or cancelling numerous appointments due to health problems, Mr Holden allegedly did not maintain his physical and psychological wellbeing at a level which enabled him to provide an effective service to the Complainant as his client and take responsibility for his wellbeing by monitoring his own personal and psychological health.
7. In asking the Complainant about [ . . . ] plans and making self-disclosures about his health and personal life, Mr Holden allegedly did not maintain appropriate and professional boundaries in his relationship with the Complainant by ensuring that the boundaries were consistent with the aims of working together and beneficial to the Complainant as the client.
8. In not immediately providing the Complainant with a refund of the monies she had paid; Mr Holden allegedly did not ensure candour by taking prompt action to prevent or limit any harm.
Mr Holden’s alleged behaviour, as experienced by the Complainant and as identified in the numbered paragraphs referred to above, suggests:
• a contravention in particular of paragraphs 1, 3, 19 and 40 of the Ethical Framework for Good Practice in Counselling and Psychotherapy (2013) and the ethical principles of Being Trustworthy, of the Ethical Framework for Good Practice in Counselling & Psychotherapy (2013); and showed a lack of the personal moral qualities of Respect, Humility and Wisdom to which counsellors are strongly encouraged to aspire; and/or
• a contravention of paragraphs 12, 18, 33a, 47a and 75b of the Ethical Framework for the Counselling Professions (2016) and the principles of Being Trustworthy, Beneficence and Self Respect of the Ethical Framework for the Counselling Professions (2016); and showed a lack of the personal moral qualities of Care, Humility and Wisdom, to which all counsellors should aspire.
The Member had notified BACP in advance that he would not attend. Article 4.9 of the BACP Professional Conduct Procedure 2013 provides for circumstances where a Complainant or Member/Registrant Complained Against fails or refuses to attend a Professional Conduct Hearing. It empowers the Registrar to decide to either:
a) proceed with the Hearing in the absence of one or both 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.
On 11 April 2018, having given due consideration to all the circumstances of the case, the Registrar issued a written decision directing that the Hearing was to proceed in the absence of the Member.
The Panel took advice from the Legal Clerk regarding proceeding in the absence of Mr Holden. The Legal Clerk reminded the Panel that the fact Mr Holden was not present did not affect their task, which is set out in the Professional Conduct Procedure 2013 at paragraph 4.4:
‘The purpose of the Professional Conduct Hearing is for the Professional Conduct Panel to examine all the written and oral evidence presented by both parties and decide whether the complaint is proved or not. If proved, the Panel will decide whether or not any sanction should be imposed.’
It was not for the Panel to speculate as to why Mr Holden was not present; his absence did not indicate an admission and was not evidence against him, so must not affect their judgement. However, because Mr Holden was not present or represented, the only evidence the Panel would have from him to contradict the Complainant’s evidence would be his written submissions. Mr Holden would not have the opportunity to ask the Complainant questions and the Complainant and the Panel would not be able to question Mr Holden.
Throughout the hearing the Panel found the Complainant to be a credible witness. Her oral testimony was consistent, even when tested through the Panel’s questioning, and was also consistent with her written submissions. She also gave Mr Holden credit where it was due and openly admitted when she considered she was at fault.
On balance, having fully considered the above, the Panel made the following findings:
In relation to the Ethical Framework for Counselling and Psychotherapy 2013 (‘the 2013 EF’):
1. The Complainant explained that the copies of texts between Mr Holden and the Complainant were from a back-up application on her phone and had not been edited. The Panel decided this evidence clearly showed that Mr Holden cancelled or rearranged over 20 sessions, the majority of these being at less than 24 hours’ notice. It noted that Mr Holden said ‘I do take responsibility for breaking apps with [the Complainant] on occasions during or 4 years together, some were unavoidable but some were preference due to circumstances’. The Panel noted that the evidence showed frequent cancelling and changing of appointments by Mr Holden both before 1 July Year 4 and after. Accordingly, it found that this aspect of Mr Holden’s conduct was proved for periods falling under both the 2013 EF and the 2016 EF.
In his written evidence, Mr Holden admitted answering the phone during a therapy session with the Complainant. The Panel noted that he gave a different description of the events around answering the call to that provided by the Complainant. Mr Holden said that he told the Complainant at the start of the session that he was expecting a call because of an incident at [ . . . ] and offered to rebook their session or asked if he could take the call. He says the Complainant agreed that he could take the call. The Complainant explained in her oral testimony that this conversation did not take place. She described Mr Holden’s phone ringing once and that he ignored it. It then rang again and he said, ‘it’s [ . . . ], I’d better take it’. The Complainant says this stopped her in full flow. She said that after the call Mr Holden did not discuss what the call was about. The Panel found the Complainant’s oral testimony was credible and consistent with her written evidence. It therefore found her account more persuasive and concluded that Mr Holden answered his phone during a session with the Complainant and that he had not warned the Complainant or obtained her agreement before taking the call.
The Complainant explained that she felt like Mr Holden was ‘off-loading’ on her. She said on more than one occasion he asked her about a [ . . . ] plan, knowing she worked in the [ . . . ] business, saying that he and his wife were considering purchasing one. She recalled telling Mr Holden to research the different policy providers to find what was right for him because they vary. On other occasions she said he disclosed personal information about his health and family. The Panel noted the Complainant’s descriptions of conversations in sessions were detailed, plausible and corroborated by the copy text messages. It found Mr Holden’s evidence about personal disclosures to be inconsistent: he said, ‘I never discussed my health with [the Complainant], or [ . . . ] plans, or Anything else about my family’; but also said ‘if I ever disclosed something about myself or a family member it was in response to helping the therapeutic relationship’. The Panel noted that the copy text messages showed Mr Holden gave information about his health on several occasions in relation to rescheduling sessions, e.g.: [ . . . ]. It also noted the text messages show he disclosed personal and family information, e.g.: [ . . . ]. The Panel noted that the evidence showed Mr Holden had disclosed issues about his health and family circumstances both before 1 July Year 4 and after. Accordingly, it found that this aspect of Mr Holden’s conduct was proved for periods falling under both the 2013 EF and the 2016 EF.
The Panel accepted Mr Holden’s evidence that he and the Complainant had a relaxed relationship and that the Complainant had cancelled or rearranged sessions at short notice too; the Complainant confirmed this in her testimony. But the Panel considered Mr Holden’s responsibility to the Complainant, as the professional in the relationship, was greater than her responsibility to him. It did not consider the disclosures were appropriate and necessary as part of the therapeutic relationship. It therefore found that Mr Holden’s conduct demonstrated a failure to provide a good quality of care by delivering services competently that met the Complainant’s needs in breach of paragraph 1 of the 2013 EF.
2. The Complainant said she did not receive a contract from Mr Holden but recalled that certain rights, responsibilities and terms had been discussed with him. However she was certain that he had not stated that he did not offer refunds in relation to pre-booked blocks of sessions. The Panel drew her attention to the Counselling Information and Contract that Mr Holden had provided and which he said, ‘would have been given to [the Complainant] on our first session and then talked through and agreed together.’ The Complainant told the Panel that she had no recollection of seeing this document before receiving it in the case papers for this Complaint. She referred the Panel to the two copy emails she had provided in evidence in which Mr Holden had promised to provide a contract. The Panel observed that the Counselling Information and Contract Mr Holden had provided was not signed or dated and referred to his current fee, not those from when he started seeing the Complainant. It therefore found this document was not evidence that he had provided a contract to the Complainant. The Panel also noted Mr Holden said that this document ‘would have been given’ to the Complainant. He did not say he actually remembers providing it to her. It concluded that this was evidence that it was Mr Holden’s general practice to use a document along these lines, but that there was no direct evidence that demonstrated he had provided a Counselling Information and Contract to the Complainant. In any event, the Panel noted that neither the Counselling Information and Contract nor Mr Holden’s website make any reference to payments for block bookings being non-refundable.
As a result, the Panel found that Mr Holden had not made it clear to the Complainant that he did not offer refunds and that this demonstrated a failure to clarify the rights and responsibilities of both the practitioner and the client at appropriate points in their working relationship in breach of paragraph 3 of the 2013 EF.
3. The Panel established under its findings at paragraph 1 above that Mr Holden frequently cancelled and changed appointments. It reminded itself of Mr Holden’s evidence: ‘I do take responsibility for breaking apps with [the Complainant] on occasions during or 4 years together, some were unavoidable but some were preference due to circumstances’. The Complainant gave evidence that 6.30pm was the most convenient time for her, but it was less convenient for Mr Holden. So she agreed to contact him when she was available earlier than 6.30pm and they would start the session early if it suited Mr Holden. The Panel noted this was corroborated by the text evidence. It concluded that, predominantly, the arrangements for the Complainant’s sessions were based around Mr Holden’s needs more than hers. When asked what impact this had on her, the Complainant explained that it led to her not trusting his commitment to her therapy and she began to expect him to cancel. It felt like he ‘pulled the rug’ from under her.
The Panel therefore concluded that Mr Holden failed to be clear about his commitment to be available to the Complainant and honour those commitments in breach of paragraph 19 of the 2013 EF.
4. Mr Holden admitted in his evidence that he had cancelled several appointments for health reasons. He described himself as ‘a very healthy man’, but the Panel noted that the text message evidence showed that he cancelled sessions with the Complainant on numerous occasions for a variety of health reasons. It accepted that occasions will occur with the healthiest of people when they are not able to work through ill health. However, it noted Mr Holden did not provide any evidence that he took steps to minimise the impact of periods of ill health on his clients. It did not consider cancelling at short notice on a repeated basis to be adequate or appropriate.
The Panel therefore found Mr Holden failed to monitor and maintain his fitness to practise at a level which enabled him to provide an effective service to the Complainant.
In light of the above findings, including that Mr Holden had breached paragraphs 1, 3, 19 and 40 of the Ethical Framework for Good Practice in Counselling and Psychotherapy (2013), it found he had breached the ethical principle of Being Trustworthy of the Ethical Framework for Good Practice in Counselling & Psychotherapy (2013) and showed a lack of the personal moral qualities of Respect, Humility and Wisdom to which counsellors are strongly encouraged to aspire.
In relation to the Ethical Framework for the Counselling Professions 2016 (2016 EF):
5. The Panel had already found, at paragraph 1 of these findings, that Mr Holden had frequently cancelled and changed appointments with the Complainant at times when he was subject to the 2016 EF. It had also heard cogent and persuasive evidence from the Complainant that this had made her question his commitment to her therapy, although she was still able to work with him within the sessions that did take place.
Accordingly, the Panel concluded that this conduct demonstrated that Mr Holden had failed to do everything he could to develop and protect the Complainant’s trust as his client in breach of paragraph 12 of the 2016 EF.
6. The Panel had already found, at paragraphs 1 and 4 of these findings that Mr Holden had frequently cancelled and changed appointments with the Complainant for a variety of health reasons at times when he was subject to the 2016 EF. Noting the text message evidence, the Panel determined that the frequency of such cancellations was greater than it would expect of a reasonably healthy practitioner. It also noted Mr Holden described himself as ‘a very healthy man’. The Panel concluded that the number and frequency of the health-based cancellations was such that Mr Holden should have recognised that it could have a detrimental effect on the Complainant and taken steps to mitigate this. There was no evidence that he had done so. Indeed, he said it was never mentioned by his other clients or supervisor that he ‘needed a break’. As a result, the service he provided to the Complainant had become unreliable to the extent that, as she had stated in evidence, she expected him to cancel.
The Panel concluded Mr Holden had failed to maintain his physical and psychological wellbeing at a level which enabled him to provide an effective service to the Complainant as his client and take responsibility for his wellbeing by monitoring his own personal and psychological health in breach of paragraph 18 and 75b of the 2016 EF.
7. The Panel had already found, at paragraph 1 of these findings, that Mr Holden asked the Complainant about [ . . . ] plans and made self-disclosures about his health and personal life at times when he was subject to the 2016 EF. The Complainant had given credible evidence that only about 30% of the time she spent in therapy with Mr Holden was focused on her and that this made her feel he was ‘off-loading’ on her and that she was counselling him, which was not therapeutically beneficial for her. The Panel noted this was consistent with Mr Holden’s evidence that he spent large parts of sessions talking about extraneous matters as the Complainant was unwilling to address her core issue, but that he considered this to have been therapeutic. The Panel did not consider this to be a professional and therapeutic approach.
As a result, the Panel decided that Mr Holden did not maintain appropriate and professional boundaries in his relationship with the Complainant by ensuring that the boundaries were consistent with the aims of working together and beneficial to the Complainant as the client in breach of paragraph 33a of the 2016 EF.
8. Mr Holden admitted that he had not immediately provided the Complainant with a refund when she ended therapy and requested a refund equivalent to the unused sessions in respect of which she had pre-paid. However in his written evidence he stated that he had made the Complainant aware that he did not give refunds for pre-paid block bookings if they were not all used. The Panel reflected on the evidence and its conclusions at paragraph 2 of these findings. It did not need to make a finding about whether Mr Holden’s no refund policy was acceptable because it was not persuaded that he had told the Complainant that she would not be refunded any unused block-booked sessions. The Panel was satisfied that Mr Holden had initially resisted giving a refund by offering to ‘bank’ the Complainant’s unused sessions. In addition, as Mr Holden accepted he received the Complainant’s text messages before 12 November Year 4 and after 1 February Year 5, the Panel considered it likely he received the messages sent to him in the period between those two dates also. It concluded that Mr Holden continued to resist refunding the Complainant until she informed him of her intention to issue court proceedings.
The Panel decided that Mr Holden’s conduct demonstrated a failure to ensure candour with the Complainant in that he did not take immediate action to prevent or limit any harm in breach of paragraph 47a of the 2016 EF..
In light of the above findings, as well as finding that Mr Holden had breached paragraphs 12, 18, 33a, 47a and 75b of the Ethical Framework for the Counselling Professions (2016), it found he had breached the ethical principles of Being Trustworthy, Beneficence and Self Respect of the Ethical Framework for the Counselling Professions (2016) and showed a lack of the personal moral qualities of Care, Humility and Wisdom, to which all counsellors should aspire.
Accordingly, the Panel was unanimous in its decision that the Complaint was upheld and determined that these findings amounted to Professional Malpractice.
The Panel recognised that Mr Holden had made some admissions in respect of cancelling and changing appointments and accepted responsibility for those. It also noted the positive evidence from the Complainant in relation to some benefits she had gained from the sessions held with Mr Holden.
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.
Having done this, the Panel imposed the following sanction:
Mr David Holden is to:
1. Within 1 month of the expiry of the deadline for appeal of this decision, provide a report containing his immediate reflections on the Professional Conduct process and the failings identified by the Panel in this decision.
2. Between 3 and 6 months after the deadline for appeal of this decision, provide a reflective report from learning gained through research or training that addresses:
a. Managing professional boundaries;
b. Developing and maintaining trust;
c. Risks inherent in not maintaining and monitoring psychological and physical health;
d. Understanding of the impact on clients of poor practice and failing to address problems arising in his work with clients.
3. Within 6 months after the deadline for appeal of this decision, provide an updated contract that meets the requirements of the Ethical Framework for the Counselling Professions (2016), including but not limited to:
a. A clear description of the nature and scope of the services offered;
b. A clear description of the therapeutic objective;
c. A clear and comprehensive description of financial arrangements.
Together with a description of how he has incorporated the updated contract into his practice.
4. Within 6 months after the deadline for appeal of this decision, discuss the updated contract and reports described above in supervision and provide a report bearing his supervisor’s signature which confirms this discussion.
These written submissions must be sent to the Registrar, by the given deadlines, and will be independently considered by a Sanction Panel.
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