May 2023: Delia Limburg Reference No: 00527751 Registrant ID:8270
The complaint against the above individual member was heard at a Practice Review Hearing in line with the Professional Conduct Procedure.
A Professional Conduct Panel (the Panel), [ . . . ], met on 9 January 2023 remotely via Microsoft Teams to consider the complaint made by [ . . . ] (Complainant) against Delia Limburg (former Member), a British Association for Counselling and Psychotherapy (BACP) former individual member.
[ . . .].
The Member did not attend and was unrepresented. The Complainant attended unrepresented.
Summary
[ . . . ]
The Member provided a preliminary response:
[ . . . ].
Allegations
Having considered all the information provided by both parties, the Committee was concerned that the following allegations suggested a failure by the Member to comply with the Professional Standards:
Allegation 1
1.1 The Member breached the Complainant’s trust in that she inappropriately disclosed confidential information to X.
1.2 The Member thereby failed to meet professional standards, including in particular by acting in a way which was inconsistent with the following paragraph of ‘Good Practice’ in the Ethical Framework for the Counselling Professions 2018:
12 (We will do everything we can to develop and protect our clients’ trust) and/or
55 (We will protect the confidentiality and privacy of clients by:
a) actively protecting information about clients from unauthorised access or disclosure;
b) informing clients about how the use of personal data and information that they share with us will be used and who is within the circle of confidentiality, particularly with access to personally identifiable information;
f) ensuring that disclosure of personally identifiable information about clients is authorised by client consent or that there is a legally and ethically recognised justification).
Allegation 2
2.1 The Member gave inaccurate information to X in that she stated that the Complainant had alleged that he had [ . . . ] when that was not the case.
2.2 The Member thereby failed to meet professional standards, including in particular by acting in a way which was inconsistent with the following paragraph of ‘Good Practice’ in the Ethical Framework for the Counselling Professions 2018:
12 (We will do everything we can to develop and protect our clients’ trust) and/or
52 (We will ensure candour by being open and honest about anything going wrong and promptly inform our clients of anything in our work that places clients at risk of harm, or has caused them harm, whether or not the client(s) affected are aware of what has occurred by:
a) taking immediate action to prevent or limit any harm;
b) repairing any harm caused, so far as possible;
c) offering an apology when this is appropriate;
d) notifying and discussing with our supervisor and/or manager what has occurred;
e) investigating and take action to avoid whatever has gone wrong being repeated).
Documents and evidence before the Panel
The Panel was provided with the following written materials:
• The decision and papers of the Investigation and Assessment Committee.
• The formal response submitted by the Member Complained Against.
• Further information provided by the parties.
• The relevant Ethical Framework(s).
• The Professional Conduct Procedure 2018.
The Panel read all the above, then questioned and listened to the verbal evidence of the Complainant.
The Panel had to consider the following:
• The allegations made.
• The written and verbal evidence.
• What weight should be attached to the evidence.
• On balance, whether the complaints should be upheld.
Preliminary matters
Hearing in Member’s absence
The Panel had met on 3 November 2022 to decide whether the complaint should proceed to hearing despite a lack of engagement by the Member. For the reasons set out in its decision of that date the Panel decided that dismissal of the complaint would be inappropriate, an adjournment was unlikely to result in the Member’s attendance and that the hearing should proceed in the Member’s absence.
Amendment of allegations
After the Complainant’s opening comments, it was clear that she considered there were three aspects to the complaint: the breach of confidentiality; the inaccuracy of the breach; and the Member’s responses to the Complainant when she first complained.
The Panel identified that Allegation 2 alleged a breach of 52.a-e of the BACP Ethical Framework for the Counselling Professions 2018 but did not contain an allegation of behaviour by the Member relevant to that provision. It noted there was information in the original complaint in relation to the Member’s response to the Complainant’s initial complaint that could have been the basis of an allegation under paragraph 52.
The Panel invited the Complainant to apply to amend the allegations but explained that such a significant amendment would result in an adjournment as it would be unfair to the Member to proceed in her absence without her being aware of the new allegation.
The Clerk told the Complainant that, on the face of the Investigation and Assessment Committee’s decision, it had not considered and dismissed this aspect of her complaint as not meeting the Proceedings Test. It may, therefore, be possible for her to submit a new complaint limited to that aspect of the Member’s conduct, but that was not guaranteed as it may be clerked by a different Clerk, who may take a different view of the law and regulations.
The Complainant wished to proceed with the complaint as drafted to conclude it today and would consider her position in relation to the other aspect subsequently.
Findings
The Complainant gave evidence that the majority of the Member’s account and session note were accurate reflections of the session. However, she said that the phrasing the Member used in places left her note open to misinterpretation. For example, [ . . . ].
The Panel found the Complainant’s oral testimony was consistent with her written submissions and the evidence of the Member about the Complainant’s initial phone call about the disclosure. It found that she admitted where she was unable to recall details and did not attempt to embellish her account beyond that in her written complaint. It found her, generally, a credible witness who had remained consistent when her evidence was tested by questioning.
The Panel found that the Member had broadly recorded the session accurately but had loosely paraphrased in her own words to a degree that it was not reliable as an exact account of what had been said.
The Panel therefore preferred the Complainant’s account of the session over the Member’s where they differed.
Allegation 1 – UPHELD IN PART
Allegation 1.1 – PROVED
The Member admitted that she spoke to X, on/around 21 May Year 1 when she told X the Complainant had ‘described [ . .. ]. However, she stated that the Complainant had given her permission to tell X everything the Complainant had told the Member in their session and had told her she’d already put this information in an email to X eight years earlier. The last entry in the Member’s session note stated, ‘Talked about what she wants X to know. Said I could tell X anything she had told me.’
The Complainant told the Panel that at the end of the session, she told the member that she wasn’t ready to have a joint session with X, she wanted more individual therapy sessions first, and she needed to establish boundaries for contact because X had been messaging her a lot. She said she was content for X to send occasional texts, such as for her birthday. The Complainant was clear that this was all that she agreed for the member to share with X. The Complainant explained that she had only just reconnected with X after eight years estrangement; she was not ready to see X and did not want her most private and personal thoughts and feelings, which she had shared with the Member, sharing with X.
In relation to the email eight years earlier, the Complainant confirmed she sent one telling X she didn’t want any further contact with X. But she was adamant that she did not tell X that he [ . . .] in that email and denied saying this to the Member.
The Panel concluded that it was implausible that the Complainant would have been willing to disclose everything she had said to the Member during an extensive 90-minute session to X at such an early stage of re-stablishing contact with X. Such disclosure would also have been contradictory to both parties’ evidence that the Complainant was not ready for a connection or relationship with X and wanted to limit contact to occasional text messages. The Panel therefore accepted the Complainant’s evidence and found that she did not give the Member permission to disclose anything beyond establishing boundaries, text messages and the Complainant [ . . . ] before progressing to further contact.
On this basis, the Panel then concluded that the Member’s admitted disclosures to X went beyond those matters authorised by the Complainant and were inappropriate disclosures of confidential information. The Panel found that this disclosure was unlikely to have been a knowing breach, but that it was more likely than not the Member misunderstood the extent of the authority the Complainant gave her and had failed to adequately clarify and record it.
Allegation 1.2 – PROVED IN PART
The Panel then applied its findings of fact to paragraphs 12, 55.a, 55.b and 55.f of the BACP Ethical Framework for the Counselling Professions 2018.
The Panel noted the Complainant’s evidence of the impact of the disclosures on her and concluded that the Member’s actions were a failure to do everything to develop and protect the Complainant’s trust and were in contravention of paragraph 12 of the BACP Ethical Framework for the Counselling Professions 2018.
The Panel also concluded that the Member’s actions were a failure to actively protect the Complainant’s confidentiality in that, when asked by X what the Complainant had said, she made an inappropriate disclosure. Her actions were also failed to ensure that disclosure of personally identifiable information about the Complainant was authorised by her consent and was without a legally and ethically recognised justification. The Member had, therefore, acted in contravention of paragraphs 55.a and 55.f of the BACP Ethical Framework for the Counselling Professions 2018.
The Panel concluded that the Member had not acted in breach of paragraph 55.b of the BACP Ethical Framework for the Counselling Professions 2018 in that there was no evidence of a failure to explain about how confidentiality would be managed.
Allegation 2 – UPHELD IN PART
Allegation 2.1 – PROVED
The Member’s session note recorded that ‘She had told [X] [ . . . ]’. The Member’s account in her response to the complaint stated that she told X, ‘according to [the Complainant] [ . . . ]. In her response to the Committee’s decision, the Member denied giving X inaccurate information. The Member said this was what the Complainant had told her.
The Complainant explained to the Panel that the Member had conflated her description of what had happened [ . . . ]. She therefore denied that she told the Member that [ . . . ], because she cannot remember those details.
The Panel again gave more weight to the Complainant’s account over the Member’s for the reasons set out above. In addition, the Panel concluded it was more likely than not that the Complainant would remember, and therefore have described, details of an incident in her teens and not details of events aged 4-5 years, and not the converse. It therefore decided that the Member’s disclosure to X that the Complainant [ . . . ].
Allegation 2.2 – PROVED IN PART
The Panel then applied its findings of fact to paragraphs 12 and 52.a-e of the BACP Ethical Framework for the Counselling Professions 2018.
The Panel concluded that the Member’s actions were a failure to do everything to develop and protect the Complainant’s trust and were in contravention of paragraph 12 of the BACP Ethical Framework for the Counselling Professions 2018.
The Panel observed that there was no factual allegation in relation to the Member’s conduct when the Complainant made her aware she was unhappy with the disclosures to X. It concluded that its factual findings under paragraph 2.1 were not capable of amounting to a breach of paragraph 52 of the BACP Ethical Framework for the Counselling Professions 2018.
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 paragraphs 12, 55.a and 55.f of the BACP Ethical Framework for the Counselling Professions 2018.
Sanction
The Panel reconvened on 7 March 2023 to consider sanction. The Panel reminded itself of its findings (above), the sanctions available under the BACP Professional Conduct Procedure 2018 and the guidance within the BACP Sanction Protocol (PR14).
The BACP case manager advised that the Member’s membership had ended on 23 January 2023.
The Panel considered the Member’s email dated 24 January 2023, which she had provided in response to the Panel’s findings. The Panel noted the Member did not accept the Panel’s decision and reiterated that she ‘was given permission by the client to inform X of everything that was said during the session’. She stated she had not renewed her membership and had retired from practice.
The Panel considered, if the Member had still been a member of the BACP, what sanction would have been appropriate. Having considered the guidance within PR14 and applied it to the breaches found proved, the Panel agreed that it would be disproportionate to suspend or withdraw the Member’s membership.
The Panel decided that, if the Member had still been a member of the BACP, it would have required her to provide the BACP with:
1. Within 2 months of the date of this letter, evidence of satisfactory completion of at least six hours of accredited training on data protection, information sharing and confidentiality, and confirmation she had discussed this training with her supervisor.
2. Within 3 months of the date of this letter:
a. A written statement demonstrating changes and improvements to her practice arising from the above training that will prevent repetition of this incident; the statement should reflect on the complaint, her learning and the Ethical Framework, in particular paragraphs 12 and 52 of Good Practice.
b. A genuine and sincere letter of apology addressed to the Complainant.
Appeal
The Complainant has a right of appeal as set out at Section 6 of the BACP Professional Conduct Procedure 2018.
No appeal was received.
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