May 2016: Gerry McKinney, Reference no 580567, Londonderry BT48

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.

The focus of the complaint, as summarised by the Pre-Hearing- Assessment Panel is as follows:

The Complainant attended counselling with Mr McKinney from December 2012 to April 2014.  During this time, Mr McKinney also allegedly worked with two of the Complainant's children.

Mr McKinney allegedly did most of the talking in the sessions, discussing his own situation, and attempting to make links between his own issues and the Complainant's issues.  He allegedly spoke of the "special relationship" between himself and the Complainant saying that they were friends with similar life circumstances.  The Complainant alleged that she and now, her daughter, were manipulated by Mr McKinney into believing that separation from "those who care" is the only solution.

Allegedly Mr McKinney took sides against members of the Complainant's close family, which the Complainant stated was unnecessary.  Mr McKinney allegedly made derogatory comments about the Complainant's husband, which led to constant marital arguments and which the Complainant stated "nearly cost [her] marriage".

Mr McKinney's therapy room was allegedly in a room through which other service users accessed the bathroom or kitchen and therefore, the  Complainant's confidentiality was at risk.  In addition, Mr McKinney allegedly spoke to the Complainant of other clients including one whose partner had committed suicide, allegedly saying that the client was "well rid of him".

The Complainant alleged that Mr McKinney no longer had supervision of his practice.

The Panel, in accepting this complaint, was concerned with the allegations made within the complaint suggesting contravention of the Ethical Framework for Good Practice in Counselling and Psychotherapy, and those in particular as follows:

1.    Mr McKinney allegedly failed to provide a good quality of care that met the Complainant's needs, in that he used a supervisor who was not a qualified counsellor with whom to discuss his therapeutic sessions with the Complainant.  Therefore he was not adequately supported in or  accountable for the service he was providing to the Complainant.

2.    Mr McKinney allegedly failed to deliver a competent service and thereby did not provide a good quality of care that met the Complainant's needs, in that he spoke to her of their ‘special relationship' and spoke of them being friends with similar life circumstances.  This made the Complainant feel  uncomfortable and therefore undermined the therapeutic relationship the Complainant had with Mr McKinney.

3.    Mr McKinney allegedly failed to deliver a competent service and thereby did not provide a good quality of care that met the Complainant's needs in that he spoke of another client (The Complainant's husband) in a derogatory manner.  It is alleged that this resulted in the Complainant's relationship with her husband becoming fuelled with arguments.

4.    Mr McKinney allegedly failed to provide a good quality of care that met the Complainant's needs in that he discussed other clients with the Complainant in an attempt to empathise, but the Complainant alleges that this was disrespectful.  It is therefore alleged that Mr McKinney failed to deliver a competent service.

5.    Mr McKinney allegedly failed to consider the limitations of his experience in accepting, as therapeutic clients, members of the same family concurrently and consecutively.  It is alleged that that Mr McKinney started to see the Complainant as a client a few months after having seen her husband for a number of years, and subsequently saw both of her daughters at the same time as counselling the Complainant.  In so doing, Mr McKinney allegedly failed to seek professional support as to whether it was appropriate to see the members of the same family, outside the remit of family counselling.

6.    Mr McKinney allegedly failed to keep appropriate records of his work with clients without good reason, given that the circumstances involved Mr McKinney counselling members of the same family, over a significant period of time.

7.    Mr McKinney allegedly failed to honour the Complainant's trust in that he used a therapy room for counselling sessions, which was open for other people to walk through.  In so doing, it is alleged that Mr McKinney did not pay sufficient attention to the Complainant's confidentiality, privacy and dignity.

8.    Mr McKinney allegedly failed to honour the Complainant's trust in that he failed to obtain the Complainant's explicit consent before he started to counsel one of the Complainant's daughters (D1), for a period of four months, at the same time as counselling the Complainant. 

9.    Mr McKinney allegedly failed to honour the Complainant's trust in that he failed to obtain the Complainant's explicit consent before he started to counsel another of the Complainant's daughters (D2), from June 2013 to the present day.  Therefore, for a period of approximately 18 months, albeit in separate and distinct sessions, Mr McKinney was counselling the Complainant and her daughter, (D2).

10.  It is alleged that Mr McKinney failed to avoid a conflict of interest, in that he acted for 4 members of the same family, consecutively and/or concurrently, which it is alleged could have been reasonably foreseen and in failing to do so he failed to protect the Complainant's interest as his client and maintain her trust in him.

11.  It is alleged that Mr McKinney failed to avoid a conflict of interest, in that he entered into a therapeutic relationship with the Complainant shortly after having counselled her husband for a number of years.  It is alleged that the conflict could have been reasonably foreseen and in failing to do so he failed to protect her interest as his client and maintain her trust in him.

12.  Mr McKinney'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, 2, 5, 11, and 63 of the Ethical Framework for Good Practice in Counselling & Psychotherapy (2013), and the Ethical Principles of Being Trustworthy, Beneficence and Non-maleficence and further suggests a lack of the personal moral qualities of Empathy, Respect, Competence, Humility and Wisdom to which counsellors are strongly encouraged to aspire.

Findings

On balance, having fully considered the above, the Panel made the following findings: 

1. The Panel was satisfied, from both the written and oral evidence, that Mr McKinney was in receipt of supervision from a supervisor with whom he discussed his therapeutic sessions with the Complainant.  There was no evidence available to the Panel to demonstrate that this supervisor was not a qualified counsellor.  Furthermore, the Panel noted that there was nothing within the Ethical Framework which specified what qualifications a supervisor should possess.  The Panel was therefore satisfied that Mr McKinney was adequately supported and accountable for the service he was providing to the Complainant.  As such, the Panel did not find that Mr McKinney failed to provide the Complainant with a good quality of care that met her needs.  This allegation is therefore not upheld.  

2. There were conflicting accounts provided by the parties in relation to this allegation.  It therefore fell to the Panel to weigh up the evidence and decide, on the balance of probabilities, which version of events to accept.  The Complainant maintained that Mr McKinney had made the statements which she had attributed to him.  Mr McKinney in his evidence denied that he had made any such statements and explained that he used a process called facilitation at his centre, which involved sharing information from both his life and the lives of others who attended the centre as a means of identification to help the person being counselled.  Mr McKinney explained that consent had been sought from the clients for their history to be      shared.  Mr McKinney stated that he explained this to all clients at the initial session.  The Complainant was not able to recall whether or not this was discussed.  On balance, the Panel was not satisfied that there was sufficient evidence that Mr McKinney had spoken to the Complainant of their special relationship and of them being friends with similar circumstances.  The Panel therefore did not find that Mr McKinney had failed to deliver a competent service and good quality of care that met the Complainant's needs.  This allegation is therefore not upheld.

3. There were again conflicting accounts in relation to this allegation.  The Complainant maintained that Mr McKinney had spoken frequently of her husband's risk of suicide and spoke of her husband being controlling and aggressive.  Mr McKinney denied that he had spoken of the Complainant's husband in a derogatory manner or in the manner described by the Complainant.  Mr McKinney stated that he liked the Complainant's husband and had a good relationship with him, through the counselling which he had previously provided to him.  There was insufficient evidence available to the Panel to suggest that Mr McKinney had spoken of the Complainant's husband in a derogatory manner.  The Panel was unable to adjudicate on      whether this resulted in the Complainant's relationship with her husband being fuelled by arguments.  The Panel therefore did not find that Mr McKinney failed to deliver a competent service and a good quality of care which met the Complainant's needs, for the reasons stated within this finding.  This allegation is therefore not upheld.

4. Mr McKinney accepted in his evidence that he had discussed other clients with the Complainant in an attempt to empathise with her.  Both parties accepted that Mr McKinney never revealed the names of his clients and Mr McKinney stated that he had sought permission from those clients whose information he had shared.  The Complainant in her evidence stated that the information Mr McKinney shared about the other clients made her feel uncomfortable and she viewed it as disrespectful as it did not meet the professional expectations that she had about counselling.  There was no evidence that Mr McKinney had checked with the Complainant, on an ongoing basis, that she was happy with him sharing information about other clients or that he was aware that this made her feel uncomfortable.  The Panel agreed that Mr McKinney, in failing to be alert to or check how this disclosure of information affected the Complainant, failed to deliver a competent service to the Complainant.  For the reasons stated within this finding, the Panel found that Mr McKinney failed to provide a good quality of care and competently delivered service which met the Complainant's needs.  This allegation is therefore upheld.

5. Mr McKinney accepted that he had been working with members of the same family concurrently and consecutively, initially working with the Complainant's husband, the Complainant herself, and at her request, her daughters.  Mr McKinney in his evidence stated that he discussed the matter in supervision prior to commencing work with the family members, and it was agreed that he would counsel the individual  members, but cease if things became difficult.  Mr McKinney in his oral evidence accepted that in hindsight, in working individually with the members of the same family he was working beyond his competence.  The Panel accepted that Mr McKinney sought professional support as to whether it was appropriate to see      members of the same family outside of the remit of family counselling.  This part of the allegation is therefore not upheld.  However, the Panel found that that Mr McKinney failed to consider the limitations of his experience in accepting as therapeutic clients, members of the same family concurrently and consecutively.  This part of the allegation is therefore upheld.

For the reasons stated above, this allegation is partially upheld.

6. Mr McKinney accepted that he did not keep records of his work with clients and explained that this was because he had dyslexia.  Mr McKinney stated that he kept the best notes that he could in his diary, but they were legible only to him.  Mr McKinney stated that he also kept a care plan, but this would only be kept if the client participated in the educational element of the therapy, which the Complainant did not. Mr McKinney said that he told all of his clients that he did not keep notes, but the Complainant was unable to recall whether or not she was told this.  Mr McKinney stated that he was now looking into changing his practice so that his assistant would now type the notes.  Given that Mr McKinney was now changing his practice so that it would now be possible for notes to be taken, and had accepted in evidence that he did keep some notes in his diary and a care plan, if a client undertook the educational sessions, the Panel was not satisfied that Mr McKinney had good reason not to keep appropriate records of his work.  The Panel found that this was particularly so given that Mr McKinney was counselling members of the same family over a significant period of time. This allegation is therefore upheld.

7. Mr McKinney accepted in his evidence that the room which he used for therapy was accessible for others to walk through to gain access to the kitchen and the toilet.  In practice, he stated that it was only his assistant that accessed the room, as she [ . . . ].  Further, Mr McKinney explained that this room was only temporary accommodation.  The Complainant, however, in her evidence stated that she recalled two clients walking through the room to use the toilet during her therapy.  The Complainant further stated that there was another room in the premises which was used as a waiting room, through which you could not gain access to the toilet.  Mr McKinney could not explain to the satisfaction of the Panel why this second room could not be used in place of the room that was actually used. The Panel therefore, found that in using a room for counselling sessions which was open for other people to walk through, Mr McKinney failed to honour the Complainant's trust and pay sufficient attention to her confidentiality, privacy and dignity. This allegation is therefore upheld.

8. The Panel heard evidence that the Complainant herself asked Mr McKinney to counsel her daughters.  The Panel noted that both of the Complainant's daughters were adults and there was nothing to suggest that there was any requirement upon Mr McKinney to seek consent from the Complainant, prior to him counselling her daughter, (D1).  As such, the Panel did not find that Mr McKinney failed to honour the Complainant's trust in failing to obtain her explicit consent.   This allegation is therefore not upheld.  

9. Whilst it was accepted by both parties that Mr McKinney was counselling both the Complainant and one of her daughter's at the same time, there was no evidence available to the Panel to demonstrate that there was any requirement upon Mr McKinney to have sought consent from the Complainant prior to him counselling her daughter.  The Panel therefore, did not find that Mr McKinney failed to honour the Complainant's trust in failing to get her explicit consent before counselling her daughter (D2).  This allegation is therefore not upheld.

10. Mr McKinney accepted that he acted for the Complainant and members of her family consecutively and or/concurrently and stated that in the future, he would not work with members of the same family.  Mr McKinney explained that he counselled the members of the family because he was asked by the family members themselves to do so.  He however accepted on questioning that it was his responsibility to decide whether or not it would be appropriate to act for members of the same family.  On reflection, Mr McKinney accepted that he made a mistake and that he was working outside the limits of his training and experience in this regard.  The Panel heard evidence from the Complainant that Mr McKinney never discussed with her the implications in acting for all members of the family.  The Panel therefore, found that Mr McKinney failed to avoid a conflict of interest, which could have been reasonably foreseeable and that in doing so, he failed to protect the Complainant's interest as his client and maintain her trust in him.  This allegation is therefore upheld.

11. Mr McKinney in his evidence accepted that he did not consider the implications of him entering into a therapeutic relationship with the Complainant, the wife of a client he had counselled for a number of years and whose counselling had ended some weeks before.  Mr McKinney stated that as the therapy with the husband had gone well he did not think that there would be a conflict.  Mr McKinney accepted that he had made a mistake in that he had failed to consider the appropriateness of forming a counselling relationship with the Complainant when he had counselled her husband for two years and that this would be likely to compromise and affect the formation of their counselling relationship.  The Panel therefore, found that Mr McKinney failed to avoid a conflict of interest which could have been reasonably foreseen, and in failing to do so failed to protect the Complainant's interest as his client and maintain her trust in him.  This allegation is therefore upheld.

12. In light of the above findings, the Panel was satisfied that paragraphs 1, 2, 5, 11 and 63 of the Ethical Framework for Good Practice in Counselling and Psychotherapy (2013 edition) and the ethical principles of Being Trustworthy, Beneficence and Non-Maleficence had been breached.  It also found that Mr McKinney demonstrated a lack of the personal moral qualities of Empathy, Respect, Competence, Humility and Wisdom to which all practitioners are strongly urged to aspire. 

Decision

Accordingly, the Panel was unanimous in its decision that these findings amounted to Professional Malpractice on the grounds of incompetence and the provision of inadequate professional services, in that the service for which Mr McKinney was responsible, fell below the standards that would reasonably be expected of a practitioner exercising reasonable care and skill.

Mitigation

No mitigation was offered by Mr McKinney.

Sanction

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.

Within one calendar month from the date of the imposition of this sanction, which will run from the expiration of the Appeal deadline, Mr McKinney is required to provide a written submission, which evidences his immediate reflection on, learning from and understanding of, the elements of the complaint upheld by the Professional Conduct Panel.

In addition, in not less than 3 months and no more than 12 months from the date of approval of the 1st sanction, Mr McKinney is required to attend further Continuous Professional Development training of a minimum of 6 hours duration, which deals with ethical issues and conflicts of interest in counselling.  Mr McKinney is required to provide evidence of his attendance on this training(s).

Following his attendance on this training, and in the same timeframe, Mr McKinney is required to submit a more in depth written report, which deals with the following:

1.   His learning from his attendance on the above training event(s)

2.   The problems, appropriateness and ethical issues that can arise when counselling people who are known to each other.

3.   The importance of appropriate record-keeping in a counselling service.

4.   The changes that he has made or is making to his practice as a result of this complaint and the findings made, and provide evidence of these changes.

The report is required to be signed off by Mr McKinney's supervisor, who should confirm that the matters contained within the report have been discussed in supervision.

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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