Information was received by BACP, which was considered under Article 12.6 of the Memorandum & Articles of Association.
The summary of the information, together with the allegations as notified to Ms Scherzer were as follows:
On 26 March 2012, information was provided to BACP by the senior NHS Manager of [ . . . ] NHS Trust regarding Ms Scherzer's dismissal from their employment.
On 1 April 2012, Ms Scherzer made a second disclosure to BACP concerning her dismissal from her employment with [ . . . ] Health Trust on 28 February 2012. Ms Scherzer was notified on 4 May 2012 that her original disclosure relating to [ . . . ], and her subsequent disclosure relating to her dismissal from her employment, would be considered together by the Article 12.6 Panel.
The nature of the second disclosure concerning Ms Scherzer's dismissal raised further questions about the suitability of her continued membership of this Association and suggested that she has brought, or may yet bring, not only this Association but also the reputations of counselling/psychotherapy into disrepute. The nature of this additional information suggested that there may have been a serious breach, or breaches, of the Ethical Framework for Good Practice in Counselling and Psychotherapy. The information disclosed is as follows:
On 27 February 2012, Ms Scherzer was dismissed from her employment with [ . . . ] Health NHS Trust for gross misconduct. The allegations against Ms Scherzer were as follows:
- On Tuesday 8 November 2011, Ms Scherzer rendered herself unfit whilst at work due to the effects of having consumed an excess amount of alcohol.
- Ms Scherzer lacked insight of how her excess alcohol intake had compromised her fitness to provide appropriate care and attention to the patient she saw on 8 November 2011.
- Ms Scherzer breached 4.2 (c) of the Ethical Principles and Code of Professional Conduct in that she failed to inform the [ . . . ] of her suspension from work
The disciplinary panel also noted that Ms Scherzer had continued to work as a teacher in psychotherapy at [ . . . ] despite being advised in her suspension letter dated 22 November 2011, that she was not permitted to work. Ms Scherzer submitted an appeal to [ . . . ] Health Trust against their decision to dismiss her and has advised BACP that her appeal was unsuccessful.
Further, Ms Scherzer gave evidence at the disciplinary hearing that she had had a problem with alcohol since 2002. However, Ms Scherzer did not disclose this to BACP at any time during her period of membership nor in her response dated 29 November 2011 to BACP's letter dated 28 November, when Ms Scherzer stated, "In answer to your question, no, I have never had a problem with alcohol addiction".
The summary of the information originally disclosed by Andrea Scherzer was as follows:
Ms Scherzer [ . . . ] Ms Scherzer also disclosed the circumstances surrounding the incident [ . . . ] and the actions she has subsequently taken to mitigate and minimise any impact on her practice.
The nature of both disclosures raised questions about the suitability of Ms Scherzer's continuing membership of this Association and suggests that her actions have brought, or may yet bring, not only this Association but also the reputations of counselling/psychotherapy into disrepute.
The information further suggests that there may have been a serious breach, or breaches, of the Ethical Framework for Good Practice in Counselling and Psychotherapy and it raises concerns about the following in particular:
- The [ . . . ] suggests that Ms Scherzer's behaviour is incompatible with the values of Counselling and Psychotherapy, and further suggest that her fitness to practise has been impaired.
The Panel carefully considered all the evidence that it had before it at the first meeting, together with the further evidence referred to above, including further evidence provided by the member herself.
Decision of the Article 12.6 Panel
The Panel decided to implement Article 12.6 of the Memorandum and Articles of Association and withdraw BACP membership from Ms Scherzer to take effect 28 days from the notification of the decision.
The Panel gave reasons for its decisions as follows:
- Ms Scherzer demonstrated no personal responsibility for her actions by stating that the client that she saw raised no complaint about her and placing the responsibility on her employer to notify her if they had had any concerns with her when she arrived at work, rather than being self-aware and realising for herself that it was inappropriate for her to be at work when she had had little sleep and had consumed a vast amount of alcohol the previous night. Furthermore, Ms Scherzer appeared to have had no significant understanding of her actions in that she saw a client when her abilities were impaired through her use of alcohol.
- The Panel found that information had to be extracted from Ms Scherzer over a period of time and at times Ms Scherzer appeared to be economical with the truth in the following ways:
- When asked by BACP on 28 November 2011 whether she had an addiction to alcohol, Ms Scherzer responded in writing on 29 November 2011, stating that she did not have a problem with alcohol addiction. However, when asked by her then employer about her alcohol dependency, Ms Scherzer stated that she had had a problem with alcohol since 2002.
- Ms Scherzer told her former employer that she had notified [ . . . ] of her suspension from work but later admitted that this was a lie and she had not notified [ . . . ] of her suspension at that time.
- Ms Scherzer stated in a letter to BACP dated 29 November 2011, as follows; "So as of this time last year I no longer drink any alcohol". She further stated: "I decided last year to abstain from alcohol altogether". However, the Panel noted that, by Ms Scherzer's own admission, on 7 November 2011 she had consumed several bottles of wine.
- Despite Ms Scherzer writing to BACP on 23 November 2011 to notify them of [ . . . ], Ms Scherzer failed to disclose the fact that on 18 November 2011 she had been suspended from her place of work.
The Panel noted that the incident at work which led to Ms Scherzer's dismissal was not an isolated incident. The Panel noted from the information disclosed by Ms Scherzer's former employer that issues were raised around her alcohol consumption in 2009, when Ms Scherzer was sent home after appearing to be under the influence of alcohol. The issue of Ms Scherzer's alcohol intake was again raised in June 2011 when it was recorded that whilst at work Ms Scherzer was shaky, had rapid inconsistent speech and there was a strong odour of alcohol. As a result of this Ms Scherzer took annual leave rather than medical suspension and thereafter returned to work on 6 September 2011.
- The Panel also took note of the letter from the [ . . . ] Service dated 19 October 2012, which stated that Ms Scherzer had been in treatment at their service since November 2011 but had only been abstinent from alcohol for 2 months.
- The Panel was concerned with the issue of patient safety and noted that although no complaint was made against Ms Scherzer by the client she saw whilst under the influence of alcohol, as a professional and a member of BACP, Ms Scherzer should not have allowed herself to go to work and see a vulnerable client, whilst she was under the influence of alcohol and when her judgment was clouded. The Panel viewed this as a serious transgression of the Ethical Framework showing unacceptable poor judgment.
- Whilst the Panel took note of Ms Scherzer's personal experiences, it did not consider it an excuse for, or justification of, her actions.
- Ms Scherzer demonstrated a lack of insight in not realising that she was too drunk to go to work and was unaware that her effectiveness to perform was impaired.
- The Panel were also concerned that despite Ms Scherzer stating that she teaches and supervises students, her actions demonstrate that she appeared to have no insight into her own responsibility to protect the standards of the profession and to take reasonable steps to prevent clients being exposed to risk or harm. The Panel found that there had been serious breaches of the Ethical Framework. In particular by seeing a client, when by her own admission she was under the influence of alcohol, Ms Scherzer lacked the personal moral quality of wisdom. Further, Ms Scherzer's actions lacked the personal moral qualities of integrity and humility and the ethical principles of being trustworthy and of beneficence.
- The Panel further found that Ms Scherzer lacked the insight to refrain from work when, by her own admission, the previous night she had consumed several bottles of wine and had virtually had no sleep.
- The Panel found that going to work, when it was obvious that her fitness to practice was impaired as a result of the alcohol she had consumed, was a serious lack of Ms Scherzer's responsibility to maintain her fitness to practice to a level which would have enabled her to provide an effective service.
Ms Scherzer appealed against the Article 12.6 Panel's decision to invoke Article 12.6 believing that it was unjust and unreasonable in all of the circumstances to implement Article 12.6.
The Article 12.6 Appeal Panel, in addition to the information considered by the Article 12.6 Panel, was provided with Ms Scherzer's appeal against the decision to withdraw membership, as well as further supporting information from Ms Scherzer. All of the preceding information, including the oral evidence given on the day, was carefully considered by the Article 12.6 Appeal Panel.
It was the duty of the Article 12.6 Appeal Panel to decide whether the decision of the Article 12.6 Panel to implement Article 12.6 was just and reasonable in all the circumstances and then to decide whether an appeal should be allowed or denied.
The Article 12.6 Appeal Panel was satisfied that the Article 12.6 Panel had reached a just, fair and reasonable decision based on the information with which it was presented. The Article 12.6 Appeal Panel came to the unanimous decision that the Appellant's appeal should be denied.
The reasons for its decision are as follows:
The Article 12.6 Appeal Panel was satisfied that Ms Scherzer had admitted that she had seen a client at work while under the influence of alcohol. The Article 12.6 Appeal Panel was further satisfied that Ms Scherzer was dismissed by her employer for gross misconduct and that her subsequent appeal against its decision failed. The Article 12.6 Appeal Panel noted that while Ms Scherzer maintains she does not have an alcohol addiction, she does not dispute that she has a relationship with alcohol which entails her periodically drinking to excess.
The Article 12.6 Appeal Panel noted that Ms Scherzer attributed the appearance of being economical with the truth and issues with regard to information being extracted from her over a period of time to mistakes and administrative oversight. However, the Article 12.6 Appeal Panel was not satisfied with Ms Scherzer's explanation.
The Article 12.6 Appeal Panel was satisfied that Ms Scherzer's behaviour raised serious concerns over her integrity, honesty and relationships of trust. The Article 12.6 Appeal Panel was not satisfied that she demonstrated insight nor had taken sufficient responsibility for her actions. The Article 12.6 Appeal Panel was also concerned that Ms Scherzer did not fully appreciate the gravity of her actions in seeing a client when under the influence of alcohol. The Article 12.6 Appeal Panel also was concerned that she had not demonstrated good judgement and demonstrated little regard for the safety of the client.
The Article 12.6 Appeal Panel noted the work that Ms Scherzer had done on herself, some of it starting as early as 2000. This work involved therapeutic support and specialist help for certain periods of time. The Article 12.6 Appeal Panel also noted that Ms Scherzer demonstrated some limited evidence of learning with regard to self-care and management. However, despite the mitigation provided by Ms Scherzer, the Article 12.6 Appeal Panel was not satisfied that it had detracted from the very serious nature of the findings against Ms Scherzer.
Mindful, of the purpose of Article 12.6 in relation to public protection, the Article 12.6 Appeal Panel was unanimous in its finding that the decision of the Article 12.6 Panel in invoking Article 12.6 was just and reasonable in the circumstances and denied the appeal.
Consequently, Ms Scherzer's membership of BACP is withdrawn with immediate effect.
Any future re-application for membership will be considered under Article 12.3 of the Memorandum & Articles of Association.
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