August 2020: Brett Gunning, Reference No 00706392, Registrant ID 59581
The complaint against Brett Gunning was heard at a Disciplinary Proceedings Hearing in line with the Professional Conduct Procedure.
Allegations
1. Between July Year 1 and 30 June Year 3, in contravention of paragraph 17 of the Ethical Framework for Good Practice in Counselling & Psychotherapy 2013, Mr Gunning abused the Complainant’s trust in order to gain sexual and/or emotional advantage by having sexual relations with the Complainant when she was his client, in that he:
a. had sexual intercourse with the Complainant
b. engaged in [ . . . ] sex with the Complainant.
2. Between 1 July Year 3 and 16 July Year 5, in contravention of paragraphs 33.a., 34 and 36 of the Ethical Framework for the Counselling Professions 2016, Mr Gunning had a sexual relationship with the Complainant when she was his client and exploited and/or abused her financially, emotionally, physically, sexually and/or spiritually, in that he:
a. on one or more occasions had sexual intercourse with the Complainant
b. encouraged the Complainant to send him pictures of herself performing sexual acts
c. sent the Complainant one or more pictures of himself masturbating
d. sent a message to the Complainant saying he wanted her to teach [ . . . ]
e. when the Complainant was talking about abuse, [ . . . ], said he wanted to ask her one thing - ‘did it hurt?’
f. on 3 January 2018, sent the Complainant an email attaching ‘the list.docx’ that listed over 250 sexual activities and fantasies and asked the Complainant to rate her experience and willingness to participate in each.
3. The matters set out in allegations numbered 1 to 2 amount to professional misconduct.
Preliminary issues
On 21 November 2019, the Member’s representatives wrote to BACP advising that he did not intend to attend the hearing scheduled for 18 March 2020. The Member was not present or represented at the hearing. Accordingly, the Panel was required to decide how the case should proceed under paragraph 5.9 of the BACP Professional Conduct Procedure 2018:
‘5.9 Failure to attend the Hearing
a. Where a party fails or refuses to attend a Professional Conduct Hearing or Appeal Hearing, the Panel (or Appeal Panel where applicable) may decide to:
i. proceed with the Hearing in the absence of one or both parties; or
ii. adjourn the Hearing to a new date; or
iii. dismiss the allegations (or appeal).
b. The decision will be notified to both parties.’
On 7 February 2020, the Panel had considered submissions from both parties regarding the Member’s stated intention of not attending the hearing. These submissions were:
• Member. The Member’s representatives stated that he ‘declines to recognise the authority of the BACP or its Professional Conduct Procedure… and does not acknowledge or justify this malicious and vexatious complaint.’ They added:
o The Member made no admissions in relation to the allegations put to him.
o The allegations were the product of collusion between the Complainant and another individual who previously complained to BACP about the Member in 2018 that resulted in the Member’s membership being withdrawn.
o The BACP Professional Conduct Procedure is ‘entrenched is victim mind-set and that the outcome of this process is predetermined irrespective of any evidence presented’.
o The Member was not willing to engage in this process.
• BACP. BACP submitted that the hearing should go ahead on 18 March 2020 in the absence of the Member. The reasoning for proposing that the Hearing goes ahead to consider this case are:
o It is in the public interest for this case to be heard at an adjudication hearing due to the seriousness of the allegations and the IAC considering that these amounted to professional misconduct in that they indicate a failure to meet professional standards and are of sufficient seriousness, that the matter should be allocated to be heard in a Disciplinary Proceedings Hearing.
o It is in the public interest for this case to be heard at an adjudication hearing as this is an individual who has already had his BACP Membership withdrawn and the allegations being considered here are of a similar nature so this needs to be addressed in front of a panel. If any allegations are upheld it also demonstrates a possible pattern of behaviour.
o The Member may re‐apply for BACP membership in the future therefore it is important to have this complaint heard and the decision recorded to ensure this is taken into account alongside any future application.
o The Member has been given every opportunity to engage in the procedure and to provide his formal response but has declined to do so.
o The Complainant has confirmed she will be attending the hearing as a witness to provide evidence.
The Panel reminded itself of these representations and the aims of the BACP Professional Conduct Procedure 2018 as set out at paragraph 1.1:
‘1.1 Aims
a. The Professional Conduct Procedure provides Complainants with an open and transparent avenue of complaint where complaints are made against Members of the Association.
b. The Association aims to act in the public interest to uphold standards of professional conduct and practice so as to maintain public confidence.
c. The Association aims to protect members of the public, the name and reputation of the Association and the professions referred to within the Ethical Framework.
d. These procedures are intended to promote the handling of complaints in an efficient, effective and proportionate way.’
The Panel also noted the requirements of natural justice to ensure fairness on all parties and the public interest in professional conduct matters being concluded in a timely manner.
Having reminded itself of its authority under paragraph 5.9 of the BACP Professional Conduct Procedure the Panel concluded:
• It was inappropriate to dismiss the allegations because, if proven:
o they indicated the Member presented an ongoing risk to the public and it was necessary for them to be fully investigated and adjudicated upon in order to ensure public protection
o they are so serious and of a nature that serious harm to the reputation of and trust in the BACP and counselling professions is likely to result if the matters were not fully investigated and adjudicated.
• It was inappropriate to consider adjourning the hearing because the Member:
o had clearly indicated, through legal representation, that he did not acknowledge BACP’s authority in this matter and did not intend to engage in the process
o is unlikely to attend the hearing if it were adjourned to another date.
The Panel therefore decided that it would proceed with the hearing under paragraph 5.9(a)(i) of the BACP Professional Conduct Procedure.
Admissions
The Member denied each of Allegations 1 – 3 and made no admissions.
Evidence before Panel
In coming to its decision, the Panel carefully considered the Evidence: [ . . . ]
Summary of Evidence
[ . . . . ]
Decision and Reasons for Findings
The Panel carefully considered the documentary evidence and had regard to the submissions made by the representative on behalf of the BACP.
The Panel received and accepted advice from its Clerk who advised the Panel to consider the facts alleged in each allegation in deciding whether each was proven to the civil standard – that is on the balance of probabilities.
The BACP representative invited the Panel, at the conclusion of his opening remarks, to consider paragraph 4.3 of the BACP Professional Conduct Procedure.
‘4.13 Adjournments
The Panel may, on the application of either party or of its own initiative, and having regard to protocol PR12, adjourn a Hearing if it considers that to do so is in the interests of justice.’
The Panel noted that the Member had raised the issue of credibility of the Complainant when he submitted that this complaint was part of a conspiracy against him by the Complainant and another former client who had complained to BACP about him. However, the Panel noted there was no evidence before it to show a connection between these two individuals. There was documentary evidence to support the Complainant’s evidence that the Member sent her ‘the list.docx’. The Member had not put forward an explanation for this and the advice of the BACP member on the Panel was that there could be no therapeutic explanation for sending a document of this nature to a client. There was also evidence to support the Complainant’s allegations of sexual conduct. The Complainant’s subsequent counsellor, following the Member, provided a letter stating that the Complainant described ‘a sexual relationship for 3 years [with the Member] while she was his client.’
Accordingly, the Panel concluded that the Complainant’s evidence was plausible and credible, and it did not require her to be present to clarify her evidence. The Member had chosen not to engage in the proceedings, so would not be denied the opportunity to cross examine the Complainant. As such, the Panel was content that there was no requirement to adjourn the hearing.
On balance, having fully considered the above, the Panel made the following findings:
Allegation 1.a – Proved
The Complainant’s statement included a clear and unequivocal statement that she and the Member had sexual intercourse during one of their [ . . . ] sessions around March/April Year 2 (paragraph 13 of her statement). The Complainant’s subsequent counsellor, following the Member, had provided a letter stating that the Complainant described ‘a sexual relationship for 3 years [with the Member] while she was his client.’
The Member’s representatives expressly stated in his formal response that he ‘makes no admissions in relation to any of the allegations’ and ‘prided himself on making sure that he followed’ the ethical principles set out in the Ethical Framework for Good Practice in Counselling & Psychotherapy 2013 and the Ethical Framework for the Counselling Professions 2016. However, he did not explicitly deny that the events described in the allegations took place.
The Panel concluded that the Complainant’s evidence of sexual intercourse was credible and plausible and had not been expressly challenged by the Member. As such it found the facts alleged at paragraph 1.a as proved.
Allegation 1.b – Proved
The Complainant gave clear and unequivocal evidence that the Member [ . . . ] during one of their [ . . . ] sessions around February/March Year 2 (paragraph 12 of her statement). As described under allegation 1.a, this was supported by the evidence of the Complainant’s subsequent counsellor.
The Member’s representatives expressly stated in his formal response that he ‘makes no admissions in relation to any of the allegations’ and ‘prided himself on making sure that he followed’ the ethical principles set out in the Ethical Framework for Good Practice in Counselling & Psychotherapy 2013 and the Ethical Framework for the Counselling Professions 2016. However, he did not explicitly deny that the events described in the allegations took place.
The Panel concluded that the Complainant’s evidence of the Member [ . . . ] on her was credible and plausible and had not been expressly challenged by the Member. As such it found the facts alleged at paragraph 1.b as proved.
Allegation 2.a – Proved
The Complainant gave clear and unequivocal evidence that she and the Member had sexual intercourse during one or more of their [ . . . ] sessions around September Year 3 onwards (paragraph 19 of her statement). As described under allegation 1.a, this was supported by the evidence of the Complainant’s subsequent counsellor.
The Member’s representatives expressly stated in his formal response that he ‘makes no admissions in relation to any of the allegations’ and ‘prided himself on making sure that he followed’ the ethical principles set out in the Ethical Framework for Good Practice in Counselling & Psychotherapy 2013 and the Ethical Framework for the Counselling Professions 2016. However, he did not explicitly deny that the events described in the allegations took place.
The Panel concluded that the Complainant’s evidence of sexual intercourse was credible and plausible and had not been expressly challenged by the Member. As such it found the facts alleged at paragraph 2.a as proved.
Allegation 2.b-e – Not Proved
The BACP representative conceded, on behalf of BACP, that the evidence, in relation to the time when the events described at paragraphs 2.b and 2.c of the allegation happened, was inadequate to prove BACP’s allegation that these events took place between 1 July Year 3 and 16 July Year 5 and were subject to the Ethical Framework for the Counselling Professions 2016. He explained that this was because of where the allegations fell in the order of the Complainant’s evidence. The Panel accepted the Bacp representative’s submission and found allegations 2.b and 2.c not proved.
The BACP representative submitted that the evidential situation was different for the events described at paragraphs 2.d and 2.e of the allegations, because their position in the Complainant’s chronology demonstrated that they took place in the timeframe alleged.
The Panel did not accept that the order in which the Complainant described events was, on its own, sufficient to prove the time when an event occurred. It required a description of when it took place or wording that related it to another allegation that did have temporal evidence. It considered whether it should adjourn to allow the Complainant to attend and provide clarification but noted that the absence of these allegations did not substantially impact the severity of the complaint. The Panel therefore decided that the temporal evidence in respect of allegations 2.d and 2.e was inadequate to prove that they occurred between 1 July Year 3 and 16 July Year 5 and were subject to the Ethical Framework for the Counselling Professions 2016.
Allegation 2.f – Proved
The Complainant gave clear and unequivocal evidence that the Member sent her ‘something called the list’ on 3 January Year 5 (paragraph 23 of her statement). Page 8 of the evidence bundle was a copy of an email from the Member dated 3 January Year 5 with an attachment named ‘the list.docx’. Pages 9-16 of the bundle showed a copy of a document that listed over 250 sexual activities and fantasies and asked the Complainant to rate her experience and willingness to participate in each.
The Member’s representatives expressly stated in his formal response that he ‘makes no admissions in relation to any of the allegations’ and ‘prided himself on making sure that he followed’ the ethical principles set out in the Ethical Framework for Good Practice in Counselling & Psychotherapy 2013 and the Ethical Framework for the Counselling Professions 2016. However, he did not explicitly deny that the events described in the allegations took place.
The Panel concluded that the Complainant’s evidence of being sent ‘the list.docx’ was credible and plausible, was supported by documentary evidence and had not been expressly challenged by the Member. As such it found the facts alleged at paragraph 2.f as proved.
Decision
The Panel found the allegations of fact proved described at paragraphs 1a, 1.b, 2.a and 2.f proved. The allegations of fact at paragraphs 2.b-e were found not proved.
Sanction
In considering sanction, the Panel was mindful of the importance of public protection and raising and maintaining standards of practice.
The Panel noted that the Member is no longer a member of BACP and, as such, it is unable to enforce a sanction. Nevertheless, the Panel agreed that, had the Member still been a member of BACP, it considered the following sanction would have been fair and proportionate, given the allegations upheld in this case:
• Withdrawal of membership.
The Panel’s reasons for its decision were:
• The Member had acted in abuse of his position of trust.
• The allegations were sexual in nature.
• The victim of his misconduct was a vulnerable individual and there was evidence she had suffered harm.
• His misconduct had taken place on numerous occasions over an extended period of time.
• The Member did not deny a number of the factual allegations but did not accept that they amounted to misconduct.
• The Member had not engaged in any meaningful way with the BACP professional conduct process and, in doing so, had forced the Complainant to undergo the process as a witness.
• There was no evidence of insight or remediation or steps taken by the Member to address his behaviour.
• The Member had not provided any submissions in mitigation.
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