November 2023: Nima Espahbodi, Reference No 00818489
In the allegations below, ‘the Complainant’ refers to the witness (..). Red ink indicates amendments directed by the Panel (see below).
1.1 The Member inappropriately entered into a dual relationship with the Complainant by providing legal advice to the Complainant during the course of and to the detriment of the therapeutic relationship.
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:
33 (We will establish and maintain appropriate professional and personal boundaries in our relationships with clients by ensuring that:
a. these boundaries are consistent with the aims of working together and beneficial to the client
b. any dual or multiple relationships will be avoided where the risks of harm to the client outweigh any benefits to the client)
1.3 This allegation amounts to professional misconduct as defined in the Professional Conduct Procedure.
2.1 The Member inappropriately demanded money, harassed and intimidated the Complainant by leaving a number of threatening voicemails on the Complainant’s telephone.
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:
35 (We will not exploit or abuse our clients in any way: financially, emotionally, physically, sexually or spiritually) and
43 (We will maintain high standards of honesty and probity in all aspects of our work.)
2.3 This allegation amounts to professional misconduct as defined in the Professional Conduct Procedure.
3.1 The Member continued to provide therapeutic services to one or more clients when […]to do so.
3.2 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:
91. (We will take responsibility for our own wellbeing as essential to sustaining good practice with our clients by:
b. monitoring and maintaining our own psychological and physical health, particularly that we are sufficiently resilient and resourceful to undertake our work in ways that satisfy professional standards).
3.3 This allegation amounts to professional misconduct as defined in the Professional Conduct Procedure.
The Member admitted allegation 2.1 but denied the Complainant was a client at the time.
Evidence before Panel
In comings to its decision the Panel carefully considered the following:
• The BACP’s bundle of evidence and exhibits.
• The written and oral evidence of the original complainant (…) and the BACP.
• The written evidence and submissions from the Member, including their account provided during their consensual disposal application.
• The Panel heard evidence from witness […] […].
• The BACP Professional Conduct Procedure 2018.
• The Ethical Framework for the Counselling Professions 2018.
Summary of Evidence
The complaint, as summarised by the Investigation and Assessment Committee, stated:
1. The Complainant has complained about the Member whose membership has now lapsed.
2. The Complainant approached the Member for counselling in December Year 1 when he was experiencing some problems with his […]. The Complainant saw the Member between December Year 1 and April/May Year 2 and their agreement was for the Member to charge £[…] per hour. The Complainant states that he always paid the Member promptly, and in full, and that no money is owed to the Member.
3. The Complainant states that the issues with […] escalated to a legal dispute, at which point the Member told him that he is a lawyer and could help him with legal matters for £[…] per hour. The Member suggested a meeting over dinner in a restaurant to discuss this further. The Complainant states that at that meeting he realised that the Member was not a proper lawyer, that he had some […] himself and that he should avoid him.
4. The Complainant states that the Member was never asked to assist the Complainant in the legal matter beyond that meeting over dinner which lasted around an hour. He states that ever since the Member has been blackmailing him for money.
5. The Complainant has provided copies of text messages which he states are between the Complainant and the Member which show:
a. On Wed 19 June Year 2 the Complainant sent a text to the Member:
i. informing him that he did not wish to involve him in his legal matters after all;
ii. stating that he had received several recent voicemail messages from the Member and did not feel comfortable with the content and threatening tone;
iii. asking him to stop contacting him.
b. On Friday (presumably 21 June Year 2) the Complainant sent a text to the Member:
i. referring to the fact that the Member had continued to contact him;
ii. informing him that he had contacted BACP;
iii. asking him to cease contacting him.
6. The Complainant has provided voicemail recordings (transcribed by BACP) of various voicemail messages from the Member which show:
a. On a date between 4-15 June Year 2 - the Member stating "I'm doing some legal work with the police…I'm more on the side of litigation lately".
b. On 17 June Year 2 - the Member stating "I just wanted to say that if you’ve complained to the BMA, I going to need to the details of the complaint and also we might do a short notice application to … then we’ll really f[.]ck him up … to find out his net worth because if we’re going to sue him, then it’s something under the C … something under the CPR";
c. On a date between 13 and 18 June Year 2 - the Member asking him to send a letter and some money ASAP;
d. On a date between 14 and 18 June Year 2 - the Member saying that he had not heard from him and expected to received cash on account from him. He states that if he doesn’t send the money he will bill him for "three times […]";
e. On a date between 16 and 19 June Year 2 - the Member offering to do the legal work for the complainant for £[…] per hour;
f. On 28 June 2019 - the Member stating that he owed him £[…] based upon an hourly rate of £[…] and that he was going to issues proceedings if he didn’t pay;
g. On 5 July Year 2 - the Member stating that they would be serving the Complainant for " a debit in the order of […] hundred pounds";
h. On 6 July Year 2 - the Member stating he had done legal work for the Complainant which had not been paid for;
i. On a date between 8 – 19 July Year 2 - the Member stating "… coming to see you now, okay, community, like it’s going to save you. Coming to speak, no violence, coming to speak with you about the debt, if you sell the blue car, invoice … got the invoice [unclear 00:00:34]. Coming to see ya, you're breaching, you're breaching the invoice, coming to the doors with the two guys, two security guys, the two lads, one that you’ve seen before, now we got to invoice for the court order, got the court order coming to the, coming to the gated community, to speak, to serve ya, got to be done [unclear 00:01:05] as well by our client".
j. On a date between 9-10 July Year 2 - the Member referring to having "prepared for a […] sentence" and having been in touch with the Complainant's […] and being very interested in his accusations against the Complainant. It refers to the Complainant as a despicable human being.
k. On 15 July Year2 - the Member referring to sending a claim for "around […] thousand […] pounds and […] pence" and an "element for harassment";
l. On 15 July Year 2 - the Member referring to settling before litigation, the fact the claim would be higher if it went to court and the fact that he would have no option but to "inform the […] and the rest of them…if we don’t hear from you with an offer to settle within 48 hours";
m. On a date between 3-19 July Year - the Member stating "Scared boy innit,,,coming for you mother f[.]cker";
7. The Complainant states that the police have issued the Member with a warning and if he contacts the Complainant again then he will be arrested.
8. The Complainant has confirmed that the counselling relationship came to an end when they met at a restaurant, and he considered that the Member was possibly […]. The Member […] items from the restaurant and told waiters that the Complainant was his […].
Proceeding in the Member’s absence
The Panel noted that it had met on 9 September Year 5 to consider whether a hearing should proceed in the absence of the Member who had informed the BACP that they would not attend the hearing. The Panel had decided that in all the circumstances it would be fair, appropriate and reasonable to proceed with the future hearing in the absence of the Member.
Amendment of allegations
At the outset of the hearing, the Case Presenter (CP) applied on behalf of the BACP to amend allegation 3.1 by inserting ‘one or more’ in front of the word ‘clients’.
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 noted the Member was not able to make representations. It decided that the intended amendment caused no prejudice to the Member as it did not alter the clear meaning of the allegations.
The Panel decided and directed the following amendment of the allegations:
• Allegation 3.1 be amended to read: ‘3.1 The Member continued to provide therapeutic services to one or more clients when […] to do so.’
Admission of consensual disposal correspondence
The Panel noted that the consensual disposal application by the Member had not been included in the bundle. It was explained that this was because the process was treated as ‘without prejudice’. The Panel was concerned that the Member’s submissions in their papers referred to that application and requested the Clerk to review the correspondence and advise.
Having reviewed the Member’s consensual disposal application and associated correspondence, the Clerk advised the Panel that the Member had provided their account in relation to the allegations within their application, which was relevant to the matter before the Panel and was not contained elsewhere in the papers. While the Member made admissions, these were no broader than elsewhere in the papers that the Panel had already seen, but the Member also gave his explanations and submissions in his defence of the allegations.
The Panel took submissions from the CP who concurred that the Member’s other submissions indicated that they expected the consensual disposal correspondence to be before the Panel.
The Panel decided to admit the Member’s application for consensual disposal as it was in the interests of justice to ensure that the Member’s full account and defence was considered by the Panel.
Decision and Reasons for Findings
On balance, having fully considered the above, the Panel made the following findings:
Allegation 1 - UPHELD IN FULL
Allegations 1.1 - PROVED
The Panel found it was not in dispute that the Member provided therapeutic services to the Complainant as a client between December Year 1 and May Year 2. It accepted the Member’s evidence that their last session was 10 May Year 2. However, it accepted the Complainant’s evidence that his sessions were not programmed regularly and he would contact the Member to ask for a session when the Complainant had availability. In May/June Year 2, the Complainant was busy and had not contacted the Member after 10 May Year 2, but there had been no session bringing the relationship to a close either. The Panel noted the Member accepted the therapeutic relationship ‘did not, in a formal sense, end on 10 May Year 2’.
The Panel also noted the communications between the parties between 15 and 19 June Year 2. The Member’s voicemail to the Complainant on 15 June Year 2 stated, ‘I don’t know if you're working at this time, but I wanted to say that it’s very important that we have at least a double session or two separate sessions before I go to […] on Tuesday’. The Complainant messaged on 19 June Year 2, ‘I’ve decided it is not a good idea to involve my counsellor in my legal matters… I wish you kindly to stop contacting me and honour the relationship we once had as a counsellor and client.’
The Panel concluded that the therapeutic relationship continued until 19 June Year 2 when the Complainant ended it due to the Member’s behaviour.
The Panel also found it was not in dispute that the parties met in a restaurant. Whilst neither the Complainant nor the Member had stated clearly in the evidence before the Panel the precise date of that meeting, the Panel considered from the content of the messages between the parties that it appeared to have taken place between 15 and 19 June Year 2. Certainly, in light of the content of the message sent by the Complainant on 19 June Year 2, it must have occurred before that date and the Member stated it was a few days before that message; the Panel therefore concluded the Complainant was a client of the Member at the time of the restaurant meeting and of the Member’s subsequent voicemails and messages up to 19 June Year 2.
Both parties gave evidence that they met at the restaurant to discuss a legal dispute the Complainant was involved in. The Member admitted that at the time of this meeting, he was […]; if he were not he said he wouldn’t have agreed to meet and discuss a legal dispute.
The Panel concluded on the Complainant’s account that, although limited in scope and of little practical use to the Complainant, the Member did provide some legal advice about the Complainant’s dispute and, from the records of communications, later tried to charge the Complainant for it. As this was accepted as being before 19 June Year 2, this advisory relationship started during the therapeutic relationship. The Panel found that the Member therefore started a dual relationship with the Complainant during the course of the therapeutic relationship.
The Panel accepted the Complainant’s evidence of the harm this caused him. It found that while giving professional and sound advice to clients may be helpful in some circumstances, the Member blurred boundaries first by meeting for dinner to discuss the matter and by purporting to offer legal advice in relation to it. The Member thereby lost independence in relation to the issues the Complainant was seeing him for […]. Further, by agreeing to meet to discuss the legal issues the Member exposed the Complainant to […] that was so detrimental to the therapeutic relationship that the Complainant ended it.
Allegation 1.2 - PROVED
The Panel then applied its above findings to paragraphs 33(a)-(b) of the BACP Ethical Framework for the Counselling Professions 2018.
The Panel found that the dual relationship was not consistent with the aims of working together and beneficial to the client, in particular the loss of independence in relation to the Complainant’s therapeutic needs. It also found there was no evidence that the Member gave any consideration to the risk of harm to the Complainant.
It therefore found the Member’s actions were in breach of paragraphs 33(a)-(b) of the BACP Ethical Framework for the Counselling Professions 2018.
Allegation 2 - UPHELD IN FULL
Allegations 2.1 - PROVED
The Panel found that the Member accepted he left the voicemails transcribed within the evidence. He expressed deep shame for them and accepted that ‘objectively they are threatening and abusive.’
The Panel reviewed the transcripts of the voicemails:
1. 18 June Year 2 at 06.45. Contains demand for money.
2. 18 June Year 2 at 19.56. Threatening in tone and contains demand for £[…] plus VAT.
3. 19 June Year 2. Threatening in tone, contains further demand for money, at a lower rate, emphasizes how much the Complainant is allegedly in […] and highlights that his […] is angry, and he will pursue him and another lawyer will charge the Complainant ‘extortionate fees’.
The Panel concluded that the voicemails included demands for money that were inappropriate (as the Member had not provided substantive legal services) and were objectively threatening, harassing and intimidating, particularly given that the member left three in 24 hours. The Panel also accepted the Complainant’s evidence that he found them harassing.
Allegation 2.2 - PROVED
The Panel then applied its above findings to paragraphs 35 and 43 of the BACP Ethical Framework for the Counselling Professions 2018.
The Panel relied on its earlier findings that the Complainant was a client of the Member at the time the Member left the voicemails. It found that the three voicemails were, on their own, emotionally and financially exploitative and abusive of the Complainant. When taken in the context of the post-[…] June Year 2 communications, they were the start of a pattern of intimidating, exploitative and abusive behaviour by the Member that escalated to physical threats and blackmail after the Complainant ended the therapeutic relationship.
It therefore found the Member’s actions in leaving the voicemails was in breach of paragraph 35 of the BACP Ethical Framework for the Counselling Professions 2018. It further found that the voicemails, as part of the ongoing and escalating pattern of behaviour amounted to a breach of paragraph 43 of the BACP Ethical Framework for the Counselling Professions 2018.
Allegation 3 - UPHELD IN FULL
Allegations 3.1 - PROVED
On the basis of the evidence of his behaviour and the Member’s admissions, the Panel found that the Member was […] while he was still in a therapeutic relationship with the Complainant. There was clear evidence of unprofessional and bizarre behaviour by the Member as early as 15 June Year 2 when he was still offering the Complainant therapy sessions. The Panel therefore found the Member was offering to provide therapeutic services and still had the Complainant as a client at a time when the Member was not […] to do so.
Allegation 3.2 - PROVED
The Panel then applied its above findings to paragraph 91(b) of the BACP Ethical Framework for the Counselling Professions 2018.
The Panel noted the Member’s evidence of being […] in August Year 1 but he provided no evidence of monitoring he put in place as a result. The Member stated that he was experiencing […] in May/June Year 2 but there was no evidence that he had insight into his […] so as to recognise the impact this was having on his […]. The Member described the […] ‘unforeseen’ and ‘unexpected’, which also indicated that he was not monitoring […], and […] to undertake his work in ways that satisfied professional standards.
It therefore found the Member’s actions were in breach of paragraph 91(b) of the BACP Ethical Framework for the Counselling Professions 2018.
Allegations 1.3, 2.3 and 3.3 – PROVED
The Panel then considered whether the Member’s conduct and ethical breaches it had found proved amounted to Professional Misconduct as defined in the BACP Professional Conduct procedure 2018. They agreed that the Member’s […] and pattern of behaviour presented a significant risk to clients and, as such, the allegations were serious enough that a period of suspension of membership or withdrawal of membership of the Association may be warranted. Accordingly, the Panel found that these allegations amounted to Professional Misconduct.
The Panel was unanimous in its decision that there had been Professional Misconduct a failure to comply with the Professional Standards, specifically that the Member had acted contrary to paragraphs 33, 35, 43 and 91(b) of the BACP Ethical Framework for the Counselling Professions 2018.
The Member was notified in writing of the above findings and reasons and invited to make any written representations regarding sanction and publication within 14 days. The Member provided submissions in which he expressed shame and guilt for his conduct and showed some, limited, insight, including a recognition of harm he had caused. The majority of his submissions related to publication, which the Panel considered below.
The Panel then considered, if the Member had still been a member of the BACP, what sanction would have been appropriate. 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).
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. Equally, it decided that the breaches found proved were too serious to require no sanction, particularly as the Member’s submissions demonstrated only limited insight and did not demonstrate measures taken to prevent a repetition should he have a relapse of what was clearly a life-long condition.
The Panel decided that, if the Member had still been a member of the BACP, it would have required the Member to provide the BACP with:
1. a written statement demonstrating changes and improvements he has made to his practice including:
a. his insight into the circumstances of the complaint and understanding of the risk to clients of practising when unfit to do so.
b. adequate measures to:
i. ensure the maintenance of his […] health;
ii. monitor his […] health and identify any triggers and/or deterioration;
iii. obtain timely professional support for any deterioration;
iv. safeguard clients from any deterioration in his […] health and ensure they receive alternative, ongoing support.
(Where ellipses [ . . . ] are displayed, they indicate an omission of text)