March 2024: AW, Reference No: 00733813 Registrant ID: 113884
March 2024: Andrew Warren, Reference No: 00733813 Registrant ID:113884
The Professional Conduct Panel, consisting of […] met on […] remotely via MS Teams to consider the complaint brought by […] (Complainant) against Andrew Warren (the Member), a British Association for Counselling and Psychotherapy (BACP) individual member.
Also in attendance were […] (Clerk’s Assistant) and […] (Clerk to the Panel).
The Member was present and represented himself. The Complainant was not present, a decision to proceed in her absence having been made on 25 September Year 5.
Summary
An Investigation and Assessment Committee (IAC) previously considered the complaint and the information provided by the Complainant and the Member and decided that the following allegation met the Proceedings Test.
Allegations
[…]
Allegation 1
1.1 The Member did not keep notes of counselling sessions with the Complainant after 22 May Year 1 as either:
(a) expressly and/or impliedly contracted for in the Counselling and Psychotherapy Contract between himself and the Complainant where it states he would: ‘store [your information …] for the duration of our counselling sessions for the purposes of reflecting on and reviewing our work together.’ and/or
(b) created for the Complainant a reasonable expectation that he would keep such notes in the Counselling and Psychotherapy Contact between himself and the Complainant where it states he would: ‘store [your information …] for the duration of our counselling sessions for the purposes of reflecting on and reviewing our work together.’
1.2 The Member thereby failed to meet professional standards including in particular by acting in a way which was inconsistent with the following paragraphs of the Ethical Framework for Good Practice the Counselling Professions 2018:
12: We will do everything we can to develop and protect our clients’ trust.
15: We will keep accurate records that:
• are adequate, relevant and limited to what is necessary for the type of service being provided
Allegation 2
12.1 Failed to keep:
(a) any and/or
(b) any sufficient
records during the course of counselling sessions with the Complainant including, but not necessarily limited to, failing to make a record of the session in which the Complainant disclosed a […] that concerned her.
2.2 The Member thereby failed to meet professional standards including in particular by acting in a way which was inconsistent with the following paragraphs of the Ethical Framework for the Counselling Professions Good Practice 2018:
15: We will keep accurate records that:
• are adequate, relevant and limited to what is necessary for the type of service being provided.
Preliminary matter
The Panel noted during its preparation for the hearing that allegations 1.2 and 2.2 referred to ‘the Ethical Framework for Good Practice 2018’ but that the correct title of that ethical framework was ‘the Ethical Framework for the Counselling Professions 2018’. It also noted that the first paragraph of Allegation 2 was numbered ‘1.1’ when it should have read ‘2.1’.
The Panel took advice from the Clerk who referred them to Clause 4.12 of the BACP Professional Conduct Procedure 2018:
4.12 Amendment of allegations
At any stage before making its findings of fact and having considered any representations by the parties as to the appropriateness of doing so, the Panel may permit or direct the amendment of the allegations.
The Panel advised the Member it was considering amending the allegation to correct what it considered to be a typographical error and invited them to make submissions. The Member had no objections.
The Panel noted the Complainant was not able to make representations. However, it concluded that there was no prejudice to the Complainant in making the amendment in her absence and the public interest and interests of justice were best served by proceeding with the amended allegations rather than adjourning for the Complainant’s representations, if any.
The Panel directed that:
• references to ‘the Ethical Framework for Good Practice 2018’ in allegations 1.2 and 2.2 be corrected to ‘the Ethical Framework for the Counselling Professions 2018’;
• the first paragraph of Allegation 2 be renumbered ‘2.1’.
Documents and evidence before the Panel
The Panel was provided with the following written materials:
• The original complaint and all information submitted by the Complainant.
• The formal response submitted by the Member Complained Against.
• Further information provided by the parties.
• The relevant Ethical Framework(s) (EF).
• The Professional Conduct Procedure 2018.
The Panel read all the above, then received oral evidence from the Member who was questioned by the Panel.
The Panel had to consider the following:
• The allegations made.
• The written and oral evidence.
• What weight should be attached to the evidence.
• On balance, whether the complaints should be upheld.
Findings
The Panel confirmed the Member’s acceptance of the following facts and made findings accordingly:
• The Member contracted with the Complainant at the outset of their therapeutic relationship in March Year 1.
• Pages 5-6 of the hearing folio were the Member’s counselling and psychotherapy contract with the complainant.
• The therapeutic relationship continued over a period of around three years; this period included breaks in therapy and changes in the frequency of the therapy sessions.
• Page 10 of the hearing folio were the only session notes the Member took during the therapeutic relationship, although he did also make some entries in his diary to jog his memory (summarised at pages 16-17 of the hearing folio).
• The statement about the 12 November Year 2 session that the Member produced and provided (signed) to the Complainant is at page 14 of the hearing folio and was produced by the Member in May Year 4.
Allegation 1 –NOT UPHELD
Allegation 1.1(a) – NOT PROVED
The Panel accepted the Member’s evidence about the notes he made during therapy with the Complainant. It found that, while only few, the Member did make jogger notes in his diary regarding the Complainant after 22 May Year 1.
It then went on to consider whether these jogger notes were as expressly and/or impliedly contracted for in the Counselling and Psychotherapy Contract between himself and the Complainant. The Panel reviewed the Member’s contract with the Complainant. It noted the wording referred to in Allegation 1.1(a) and that this was taken from the section entitled ‘Privacy Statement in line with General Data Protection Regulations 2018’. The Panel concluded that the purpose of this section of the contract was to inform clients that the Member may collect confidential information during the course of therapy, when he may disclose that information and to whom and how he would store the information while he retained it. The Panel found that the intention of such provisions is not to place a counsellor under any obligation to maintain a certain level of session notes.
The Panel therefore found Allegation 1.1(a) not proved.
Allegation 1.1(b) – NOT PROVED
It then went on to consider Allegation 1.1(b). The Clerk advised this required them to decide whether:
1. the jogger notes met the Complainant’s expectations;
2. the Complainant’s expectations were reasonable;
3. the Complainant’s expectations were, at least in part, created by the wording of the contract set out in the allegation.
The Panel found that it was clear from the Complainant’s complaint and her actions in contacting the Member for a copy of his notes of their sessions that she had an expectation that he had made notes of some form. The Panel found that this was a reasonable expectation on the Complainant’s part, particularly given the period over which she had been seeing the member for therapy. However, the Panel could not identify any evidence that showed that the Complainant’s expectation was created, even in part, by the wording of the contract.
The Panel therefore found Allegation 1.1(b) not proved.
As the Panel had found the facts alleged at 1.1 not proved it was not required to consider allegation 1.2
Allegation 2 – UPHELD IN PART
Allegation 2.1(a) – NOT PROVED
The Panel relied on the documentary evidence that showed the Member made a note of his sessions with the Complainant on 20 March Year 1 and 22 May Year 1 and accepted his evidence that he made occasional memory jogger notes in his diary, such as one on 12 November Year 2 indicating that the Complainant had […].
Accordingly, it found Allegation 2.1(a) not proved.
Allegation 2.1(b) –PROVED
The Panel then went on to consider whether the notes that the Member made were ‘sufficient’. The Panel accepted the Member’s evidence that he was providing private psychotherapy services to the Complainant and noted that this continued at varying frequencies, and with some breaks, over a three-year period. The Panel assessed the Member as an intellectually capable individual. However, it also noted during his oral evidence he stated that he could not recall his reasons for making a record of the 22 May Year 1 session as it was over four years ago, which it considered reasonable. The Panel concluded that the number of issues and amount of information that would have arisen over such long term therapy, coupled with the need to review the work periodically with the client and in supervision, would necessitate some degree of note-keeping considerably beyond that adopted by the Member.
In relation to the Complainant’s disclosure of a […] that concerned her, the Panel accepted the Member’s evidence that he considered it serious and told the Complainant she could report it to the police. At that point she chose not to. The Member made a note in his diary of the date she had disclosed the incident and was able to recall the date of the incident as it was on […].
The Panel accepted the Member’s evidence that he had been advised to keep minimal notes by his supervisor and other counsellors in order to minimize what he may be required to disclose to the police or courts. The Panel found that this motivation could be, but was not per se, in the clients’ best interests and that it did not override the Member’s obligations under paragraph 15 of the BACP Ethical Framework for the Counselling Professions 2018.
The Member also referred the Panel to and relied on the contents of an article on the BACP website . The Panel noted that the webpage was caveated with the following:
‘Views expressed in this blog are the views or opinion of the author and not necessarily the views of BACP. Publication does not imply endorsement of the writer’s views.’
It also noted that in addition to the extracts relied on by the Member, the Panel noted the following:
‘While therapists aren’t required to keep notes by law, there’s a growing expectation to do so and it would be the responsibility of a BACP member to provide reasons for not making notes, if a complaint is submitted...
… Best practice suggests that a therapist should make it clear before the start of therapy whether they make notes, how long they keep them and what happens to them’
The Panel therefore found that the article was not a policy statement by the BACP, but a discussion piece. Nevertheless, as well as acknowledging that practitioners will vary in the notes they make, it indicated that they should be clear with clients at the outset about their way of working. The Panel noted that, in his evidence as to his note taking during his therapeutic relationship with the Complainant there was no suggestion by the Member that he had done this.
The Panel also accepted the Member’s evidence that his primary duty was to act in the best interests of the Complainant. The Panel concluded that the Member ought reasonably to have recognized that the Complainant was likely making her first disclosure of the incident, giving her first account, and that keeping a detailed record of that account, should she wish to take matters further later, was in her best interests. His later offer to make a statement recording, some months after the event, what he recollected she had told him at the time could not have the same value to her in supporting her proposed complaint to […]. Simply recording at the time that she made a disclosure, and the date of the incident was inadequate and insufficient given the service that he was providing to her.
The Panel therefore found Allegation 2.1(b) proved.
Allegation 2.2 –PROVED
The Panel then applied its findings in relation to Allegation 2.1(b) to paragraph 15 of the BACP Ethical Framework for the Counselling Professions 2018.
For the same reasons as it found the notes kept by the Member insufficient in general and specifically in relation to the Complainant’s disclosure on 12 November Year 2, the Panel concluded that the notes were inadequate for the type of service being provided.
It therefore found Allegation 2.2 proved.
Decision
Accordingly, the Panel was unanimous in its decision that the Complainant had proved, on the balance of probabilities, that the Member had failed to comply with Professional Standards, in particular paragraph 15 of the BACP Ethical Framework for the Counselling Professions 2018.
Sanction
The Panel reconvened on 24 January Year 6. Due to one of the Panel’s Members […] being unavailable, the BACP Registrar appointed a replacement Panel Member […] under paragraph 4.1 of the BACP Professional Conduct Procedure 2018.
The Panel met to consider what, if any, sanction is appropriate having taken into consideration the Member’s letter entitled ‘Response to the post-hearing report of the Panel’, email dated 1 December Year 5 and further letter entitled ‘Further submission to the BACP re hearing: PCP[…]’. The Panel noted the Member’s submissions that the guidance from the BACP on what level of record keeping is adequate in what situations is generalized. However, it agreed that there is a spectrum of what records would be adequate, depending on the specifics of a situation, and that it was appropriate, therefore, for the responsibility for assessing adequacy in a particular case to be placed on the practitioner involved.
The Panel reminded itself of its findings above. It also considered the guidance within BACP Protocol on Sanctions (PR14) and reminded itself of its powers of sanction under Article 5.12 of the BACP Professional Conduct Procedure 2018.
The Panel decided that it was necessary, appropriate and proportionate to require the Member to provide the BACP with the following within four weeks of the date of this letter.
1. A personal statement:
a. demonstrating insight into the importance and helpfulness of making accurate and comprehensive notes when clients reveal potentially serious life incidents;
b. detailing specific changes/improvements in the Member’s practice to ensure he maintains adequate records in future.
(Where ellipses [ . . . ] are displayed, they indicate an omission of text)