Professional Conduct notice / J O-M

October 2023: Janine O’Rorke-Mitchell , Reference No: 00780241 Registrant ID: 247005

Allegations

Allegation 1

1.1 The Member inappropriately accepted a role as tutor to the Complainant, having previously provided counselling services to her.

1.2 This dual relationship led to situations which were difficult and/or distressing for the Complainant such as:

a. The Member interviewing the Complainant for entry on to the counselling course; and/or

b. The Member conducting a mock counselling session with the Complainant in the presence of other students; and/or

c. The Member advising the Complainant to mislead fellow students regarding administrative issues concerning the counselling course.

1.3 The Member thereby failed to meet professional standards, including in particular by acting in a way which was inconsistent with the following paragraphs 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;

d) the impact of any dual or multiple relationships will be periodically reviewed in supervision and discussed with clients when appropriate. They may also be discussed with any colleagues or managers in order to enhance the integrity of the work being undertaken)

and/or

79 (Trainers and educators will model high levels of good practice in their work, particularly with regard to expected levels of competence and professionalism, relationship building, the management of personal boundaries, any dual relationships, conflicts of interest and avoiding exploitation.)

Allegations 1.1, and/or 1.2 (a) and/or (b) and/or (c) amount to professional misconduct as defined in the Professional Conduct Procedure.

Preliminary issues

Late evidence

Prior to the hearing being opened, […] applied to have late evidence admitted. The evidence consisted of a witness statement relevant to allegation 1.2(b) and an updated statement by the Member setting out her professional qualifications and experience.

The application was not objected to by […] who reserved the right to make submissions in relation to the weight to be applied to the witness statement as it was unsigned, and the witness was not being called to give oral evidence.

The Panel took advice from the Clerk. Having done so and taking into account clause 4.9c of the BACP Professional Conduct Procedure 2018 (PCP) and the Protocol on Late/New Evidence (Protocol 4), the Panel noted the following:

• The evidence being tendered was relevant to matters upon which it needed to decide and was likely to assist the Panel in coming to a fair and just decision.

• The new evidence was not the sole evidence on any matter in issue.

• The delay appeared to be no fault of the Member who had notified her insurance broker promptly.

• The BACP did not object.

The Panel decided that it was in the interests of justice to allow the application and admit the tendered evidence.

Support person for the BACP witness

[…] also made submissions in relation to the appropriateness of […] acting as a support person for the BACP’s witness […], who was the original complainant in this matter. She explained that the Member’s solicitors were informed during the afternoon of 23 May Year 6 that […] had arranged for […] to be present with her when she gave evidence. […] had no objection to […] having a support person, although highlighted that this is not provided for in the BACP rules or protocols for a disciplinary proceedings hearing, only for a practice review hearing. She did, however, submit that […] was inappropriate because she has previously been the Member’s tutor and subsequently her colleague, and is currently the clinical supervisor for students the Member is teaching. As such, […] moves in the same circles as the Member and there is a substantial risk that the protection afforded to the Member’s privacy by a private hearing would be undermined, whether deliberately or unintentionally.

[…] made no observations about […] appropriateness. She did, however, explain […] reasons for choosing […], which were that […] was […] supervisor at the time of the events in question and had contributed a witness statement to her complaint. […] is the person in whom […] had confided about these matters.

After taking advice from the Clerk, the Panel decided that […] should be excluded from the hearing, but that […] should be offered an alternative support person. It concluded that […] presence, even if limited to the period […] is giving evidence, would breach the confidentiality of the private hearing and this would be unfair to the member. Whereas, excluding […] but offering an alternative support person would be of little, if any, detriment to […].

The BACP arranged for a professional supporter to be made available. However, […] declined the offer and agreed to give her evidence without a support person.

[…]

Admissions

[…] explained that the Member admitted the facts alleged in paragraph 1.1 and 1.2(a)-(b) and accepted that this behaviour was contrary to the BACP Ethical Framework for the Counselling Professions 2018. However, the member denied the facts alleged at paragraph 1.2(c). […] also submitted that the admitted failures to meet professional standards did not amount to professional misconduct as defined by the BACP Professional Conduct Procedure 2018.

Evidence before Panel

In coming to its decision, the Panel carefully considered the following:

• The BACP’s bundle of evidence and exhibits.

• The Member’s bundle of evidence and exhibits.

• The written evidence and submissions of the original complainant […] and the BACP.

• The written evidence and submissions by and on behalf of the Member.

• The Panel heard oral evidence from witness […] and the Member.

• The BACP Professional Conduct Procedure 2018.

• The Ethical Framework for the Counselling Professions 2018.

Decision and Reasons for Findings
On balance, having fully considered the above, the Panel made the following findings:

Background

The Panel found it was not in dispute that the Member had been […] tutor during […] Level 2 counselling studies from September Year 1 to June Year 2. The Member was also a counsellor with […] who […] applied to for counselling. In November Year 2 […] attended her therapy assessment session, which was with the Member, and in January Year 3 […] started regular therapy sessions with the Member that continued until the final session on 13 November Year 3.

The Panel also found it was not disputed that the Member applied for an associate lecturer position with […] in May Year 3 and was interviewed and offered the job in June Year 3. At that point, the Member understood that she would be teaching on the second year of the Level 4 counselling course. At the same time, […] was applying to study on the first year of the Level 4 course.

The Panel found that, given the evidence from […] that ‘individual lecturers cannot determine the courses they deliver on or their individual timetable as both these issues are matters entirely for the line manager’ (p.23 BACP bundle), the Member ought to have recognised that there was the possibility that she would be asked to teach […] year group, and if things didn’t change, the likelihood that […] would progress into the second year and the Member may become her tutor.

The Panel found that when the Member was applying for and accepted the job, she did not consider the risk to […] therapy with her.

Allegation 1 - UPHELD IN PART

Allegations 1.1 – PROVED

[…] and the Member both gave evidence that in late August Year 3, the Member discovered that she would be teaching the course and year group that […] was applying for and communicated this to […]. However, the Panel found that the Member accepted a role as tutor to the Complainant on or shortly before 16 September Year 3 when she learned that […] had secured a place on the course. This was on the evidence of both […] and the Member that the Member indicated to […] she had been accepted on the course on or around 16 September Year 1, the date on which […] sent a WhatsApp message to her fellow students about when to expect their results (p.43 BACP bundle).

The Panel found it was not disputed that the Member had been and was still […] counsellor at this time. It concluded that this amounted to a dual relationship and that it was inappropriate for the Member to have agreed to teach […] course while she was still her counsellor. Indeed, the Panel noted […] evidence that the harm of the dual relationship extended beyond the end of the therapeutic relationship due to the Member’s extensive knowledge about […] through counselling.

The Panel therefore found Allegation 1.1 proved.

Allegation 1.2(a) and (b) – PROVED

On the basis of the evidence of both the Member […] and the witness statement of […], the Panel found that the Member interviewed the Complainant for entry on to the counselling course and conducted a mock counselling session with the Complainant in the presence of other students.

In relation to the context of Allegation 1.2(a), the Panel found that the Member informed […] in advance that she would be on her interview panel, but reassured […] that the Member would not ask any questions. This was based on the evidence of […] and the Member. On the same evidence, it found that the interview was conducted by video meeting and the Member was located in her office, which was the same room that she conducted […] therapy sessions from. The Member also asked […] at least one question and, when […] answered mentioning a particular book, the Member raised up a copy and said she had the book. The Member accepted she should not have asked a question and was unable to explain why she did.

The Panel accepted […] evidence that the Member’s location, her asking a question and showing the book, which […] had recommended to the Member during a therapy session, were triggering for her, making her think only about her therapy and not the interview. The Panel accepted […] evidence that she left the interview thinking she had been unsuccessful. It also accepted her account that when the Member told her she had been successful, […] questioned whether she had only got in because the Member was her therapist and felt that she did not deserve her place.

The Panel concluded that this was difficult and distressing for […] and therefore found 1.2(a) proved.

In relation to the context of Allegation 1.2(b), the Panel found that the Member’s description of a demonstration of psychodynamic techniques using a student as the subject fell within the allegation wording of conducting a mock counselling session. It was also undisputed that the rest of […] class were present.

[…] said she had limited recollection of the demonstration because it was traumatic and much of her evidence was based on what other students present had told her.

The Member stated that she did not explain to […] what the demonstration would involve or give her any guidance or boundaries to minimise the risk of harm. The Member admitted that, when it transpired […] would be the subject she felt uncomfortable but thought that refusing to use […] as the subject would disclose that she was in therapy with the Member. Nevertheless, she continued and asked […] to select objects and say who they represented. The Member confirmed she did not tell […] what group of people to select from and that […] used members of her family, but the Member allowed the demonstration to continue and did not intervene to cut it short. She stated she accepted it was inappropriate and she has changed her practice now and has students conduct exercises on each other in small groups.

It was accepted by the Member that this exercise was difficult and distressing for […]. […] said the harm caused was long-lasting as she had disclosed very personal matters to her fellow students that she had only told the Member about in therapy.

The Panel considered whether it was significant whether […] had volunteered willingly or under peer pressure. It was agreed between […] and the Member that the Member did not select […] as the subject. The Panel concluded it was immaterial as the Member should have been in control and […] was unaware of what she was volunteering for (if she did) so could not give informed consent. The Member had failed to foresee the risk of […] volunteering when she asked for a volunteer. Then when […] did step forward, the Member failed to decline her offer or to intervene and stop the demonstration early.

The Panel found that that this was difficult and distressing for […] and therefore found 1.2(b) proved.

Allegation 1.2(c) – NOT PROVED

The Member denied this allegation. The Panel gave significant weight to this as she had made significant admissions in relation to the other allegations and given consistent and credible evidence during her oral testimony. The Panel also noted that as a person of good character, it is inherently less likely she would act as alleged.

The Panel found it was undisputed that the Member and […] discussed the frustration of […] fellow students about delays in the provision of information to the students by […] and that […] felt unable to explain to her peers that it was not the Member’s fault as this would disclose they had met in therapy. What was disputed was whether […] or the Member suggested that […] tell her fellow students that she had ‘bumped into [the Member] in Sainsburys’.

Given the inherent unlikelihood of the Member telling a client to mislead people, the Panel found that the BACP had not satisfied the burden of proof and not proved that the suggestion came from the Member on the balance of probabilities.

The Panel found 1.2(c) not proved.

Allegation 1.3 – PROVED IN PART

The Panel then applied its above findings to paragraphs 33(a), (b) and (d) and 79 of the BACP Ethical Framework for the Counselling Professions 2018.

The Panel found that the Member had failed to establish boundaries between her dual roles with […]. There was acceptance by the Member that she discussed University business with […] during therapy sessions, including receiving a telephone call and sending an email. The Panel accepted […] evidence of the harm this had caused. It concluded the lack of boundaries was not consistent with the aims of working together and beneficial to […]. It found the Member had breached paragraph 33(a) of the BACP Ethical Framework for the Counselling Professions 2018.

The Panel noted the Member’s admission that she did not discuss this dilemma in supervision or seek […] consent to discuss with managers at […]. It concluded that she had not taken any steps to avoid the dual relationship but had sought to limit its duration. The Panel found that the risk of harm to […] was significant and long-lasting and outweighed the benefit of […] being able to access the course that year, if that was in fact at risk. The Panel found that it was likely that if the Member had declared a conflict of interest, […], which was reactively and flexibly managing the course due to COVID-19, would have found an alternative way of running the course rather than losing the income. It found the Member had breached paragraph 33(b) of the BACP Ethical Framework for the Counselling Professions 2018.

On the Member’s admission, the Panel found she did not seek advice from her supervisor before entering into the dual relationship; she did not review it with her supervisor; or with […] or colleagues or managers. It found the Member had breached paragraph 33(d) of the BACP Ethical Framework for the Counselling Professions 2018.

In relation to paragraph 79 of the BACP Ethical Framework for the Counselling Professions 2018, the Panel found that the BACP had put the case on the basis of management of boundaries and dual relationships, so it limited its consideration of paragraph 79 to those aspects. It noted that as a trainer, the Member was required to model high levels of good practice in their work with regard to the management of personal boundaries and any dual relationships. It concluded that the Member’s lack of personal boundaries with […] and entry into a dual relationship without seeking advice or guidance fell far short of high levels of good practice. It found the Member had breached paragraph 79 of the BACP Ethical Framework for the Counselling Professions 2018.

Professional Misconduct – PROVED

The Panel went on to consider whether the Member's actions that it had found proved in relation to Allegations 1 and 2 amounted to Professional Misconduct (as defined by the BACP Professional Conduct Procedure 2018).

The Panel agreed that in finding that Allegation 1.2(c) was not proved, and thus removing the allegation that called into question the Member’s integrity, the overall seriousness of the Member’s behaviour was reduced. Nevertheless, it found the seriousness of the Member’s failures to meet professional standards in respect of the proven allegations was gravely naïve and incompetent. These failings were significantly aggravated by the Member’s failure to make use of advice and support that was available to her, in particular her supervisor, but also (subject to […] consent) her managers at the University.

The Panel also decided that the seriousness of the failings was further aggravated, although to a significantly lesser extent, by the fact that the Member was a tutor for counselling students. As such, she was required by the BACP Ethical Framework for the Counselling Professions 2018 to not merely perform to good practice standards but to model ‘high levels’ of good practice in her work. So the standards expected of her in this formative, role modelling position, were higher than solely as a counsellor.

The Panel therefore concluded that the allegations proved (1.1, 1.2(a), 1.2(b) and 1.3) amounted to Professional Misconduct as defined in the BACP Professional Conduct Procedure 2018.

Decision

The Panel was unanimous in its decision that the Member had failed to comply with the Professional Standards, specifically that the Member had acted contrary to s 33(a), 33(b), 33(d) and 79 of the BACP Ethical Framework for the Counselling Professions 2018 and that her failings amounted to Professional Misconduct.

Sanction

The Panel reconvened on […] to consider what, if any, sanction was appropriate in this case. It 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.

It took into consideration the Member’s submissions dated […] and her unreserved acceptance that it is appropriate for her to be subject to a sanction.

Having taken all the above into consideration, the Panel decided that it was appropriate and proportionate to impose the following sanction:

1. Within two months of the date of this letter, the Member is required to provide the BACP with:

a. Evidence of successful completion of a minimum of six hours continuous professional development (CPD) activities addressing:

i. establishing and maintaining professional boundaries including dealing with dual relationships; and

ii. identifying ethical dilemmas.

b. A personal statement demonstrating specific changes/improvements in her practice that, with reference to and following her CPD and other learning since this complaint

_______________________________

[1] The BACP Register defines CPD as:

‘Any learning experience that can be used for the systematic maintenance, improvement and broadening of competence, knowledge and skills to ensure that the practitioner has the capacity to practise safely, effectively and legally within their evolving scope of practice. It may include both personal and professional development.’

i. reflects on what went wrong with the Complainant and shows acceptance of responsibility for what went wrong;

ii. demonstrates a deep understanding of the harm that can be caused by dual relationships and the need to identify ethical dilemmas and seek guidance in supervision;

iii. details what she has learned and what she has changed to prevent repetition of what went wrong.

c. A genuine and sincere letter of apology that acknowledges the harm caused to the Complainant and accepts responsibility for that harm.

(Where ellipses [ . . . ] are displayed, they indicate an omission of text)