Professional Conduct notice / SE

December 2024: Sharon Evans, Reference No 00598402, Registrant ID 43262

Allegations

In the allegations below, ‘the Complainant’ refers to the witness […].

1. The Member failed to be competent to deliver the services being offered to at least fundamental professional standards or better in contravention of paragraph 13 of the Ethical Framework for the Counselling Professions 2016, in that she:

a. on a day or days between 1 July Year 1 and 28 July Year 1, told the Complainant that the Complainant’s partner was ‘definitely somewhere on the spectrum’ or words to that effect when the Member was not qualified to diagnose an autism spectrum condition

b. on 1 July Year 1, knowing the Complainant had been […], saw the Complainant and [..] partner together in a counselling session despite knowing that such a session is not recommended and despite feeling uncomfortable about holding a joint session […].

2. The matters set out in the allegations numbered 1.a and 1.b above amounts to professional misconduct.

Preliminary issues

BACP application to withdraw allegation 1(b)

At the commencement of the hearing, the Association’s Counsel, […], applied to offer no evidence in respect of allegation 1(b). […]The Association submitted that it was not in the public interest to obtain an expert report to counter the opinion expressed by […] in his report dated 8 December Year 6 addressing the issue of whether the Member should have seen the Complainant and […] partner together in a counselling session on 1 July Year 1.

The Member’s Counsel, […], submitted that the burden rests with the BACP to show that the Member knew that such a joint session was not recommended and that there was no evidence to establish this, or if there was such evidence then the opinion expressed by […] as to a joint session being recommended in the circumstances could not be controverted and therefore that the only way to establish allegation 1(b) is for the Panel to instruct an independent expert.

The Panel carefully considered the Association’s application and decided to reject the application. The Panel did not consider it necessary to instruct an independent expert. The Panel will hear and consider all the evidence and decide allegation 1(b) based on all the evidence. The Panel considers allegation 1(b) to be serious and that it is in the interests of justice and fairness to both parties and in the public interest to retain such a serious allegation.

Member’s application of no case to answer

At the close of the Association’s case on 1 November Year 7, […] made a submission of no case to answer in respect of allegations 1(a) and 1(b).

In respect of allegation 1(a), […] submitted that the essential part of the allegation were the words ‘…when the Member was not qualified to diagnose an autism spectrum Condition’. He stated that there was no dispute that the Member was not a doctor, but that there was no evidence available to reach a conclusion that there was any diagnosis by the Member. Accordingly in his submission, the Panel, on any view, could not reach a conclusion that whatever was said as captured by the recording was a diagnosis.

In respect of allegation 1(b), […] submitted that the Association had produced no evidence that holding a joint counselling session was not recommended. He stated that the Association had not established a duty, or that such a session was not recommended by, for example, a formal body or any other body. He further stated that the Expert report by […] contained in the Member’s papers was not before the Panel and had not been sworn to by oath or affirmation. […] submitted that the Association had not established its burden.

In respect of allegation 1(a), […], submitted that the Complainant had interpreted what was said by the Member, that the recording captures the Member using the word ‘definitely’ on four occasions, and that the Member did identify the nature of autism by examination of symptoms either from the joint session held on 1 July Year 1 and/or from her own knowledge. He submitted that there was evidence for the allegation, the evidence was not weak and required an answer from the Member.

[…] agreed with […] submission that the Association had produced no evidence in relation to Allegation 1(b) that could establish the allegation.

The Panel carefully considered the Member’s application in respect of allegations 1(a) and 1(b).

In respect of allegation 1(b). the Panel accepted the submission of no case to answer. It found there was no evidence produced during or at the close of the Association’s case to establish the allegation.

In respect of allegation 1(a), the Panel rejected the submission of no case to answer. It found there is evidence that the word ‘definitely’ was used by the Member when referring to the Complainant’s partner and any possible medical condition he may have, and evidence that the Member used her knowledge of having met the Complainant’s partner to explore autism with the Complainant and offer her own views as to what might have caused the Complainant’s partner’s behaviour. The Panel decided that the recording, the transcript, and the Complainant’s statement, taken together, contains evidence that could establish this allegation.

The Panel, having decided that allegation 1(a) remains to be answered, used its power under Rule 4.12 to direct an amendment of the allegations. The Panel heard from both Counsel on this point prior to adjourning. It directed that Allegation 1(b) is deleted and Allegation 2 is amended to read:

‘2. The allegation set out in allegation 1a. amounts to professional misconduct.’

Therefore, the allegations are amended to read:

2. The allegation set out in allegation 1a. amounts to professional misconduct.

Attendance of Member’s witness […]

The Member’s witness, […], was due to attend remotely from the […]. Both parties and the Panel (which had no questions for her) agreed that her evidence is of a character witness and that she was not required to attend. It was agreed that her witness statement, which is accompanied by a statement of truth, would be read into the proceedings.

Presence of […] during hearing

[…] requested that the expert witness […] be allowed to observe the hearing and, following no objections from […], the Panel allowed the application. […] attended throughout days one and two of the hearing. Once Allegation 1(b) was deleted, he did not attend further.

Reasonable adjustments

[…] applied for the Member to have her camera off while witness […] was giving evidence. This was to allow […] to give […] best evidence to the Panel. The application was granted.

Late evidence application by Member

On day three of the hearing, when the Panel reconvened on 26 June Year 8,
[…] applied for the admission of late evidence. This was comprised of sources to assist the Panel with the commonly understood meaning of the word ‘diagnosis’.

[…] said that the interpretation of the word was a matter for the Panel, but he had no objections to the admission of this information.
[…]

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

Late evidence application by Association

After lunch on 26 June Year 8, […] applied to admit late evidence in the form of a single screenshot of an NHS website page entitled ‘how to get diagnosed as autistic’. He submitted this was in response to the Member’s refusal ,when questioned, to accept that autism can be diagnosed as she considers it to be a developmental condition not a medical condition. […] made no objection to this application.

The Panel took, and accepted, advice from the Clerk and decided in the interests of justice to allow the application.

Admissions

The Member accepted that she was not a qualified doctor but made no admissions to the allegations.

Evidence before Panel

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

• The BACP’s bundle of evidence and exhibits including a digital voice recording and transcript of that recording.

• 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 transcript of proceedings on 31 October-1 November Year 7 was provided to the Panel to prepare for its reconvening and during deliberations.

• The BACP Professional Conduct Procedure 2018.

• The Ethical Framework for the Counselling Professions 2016.

Decision and Reasons for Findings

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

The Panel noted and took into consideration the Member’s good character in deciding on the credibility and reliability of her evidence. Nevertheless, the Panel agreed that she was in their view, at times, evasive when questioned directly by the Panel, which was also relevant to her credibility.

The Chair re-confirmed with each panel member that they had relistened to the recording of the therapy session.

The Clerk provided the Panel with the Oxford English dictionary meaning of the word ‘diagnosis’:

a. Medicine. Determination of the nature of a diseased condition; identification of a disease by careful investigation of its symptoms and history; also, the opinion (formally stated) resulting from such investigation.

It also took into account the information about the meaning of diagnosis provided by the parties, including the following proposed definitions:

‘the making of a judgment about the exact character of a disease or other problem’

‘the identification of the nature of an illness or other problem by examination of the symptoms.’

Allegation 1 - PROVED

Allegation 1(a)

Having listened to the recording of the therapy session and reviewed the transcript, the Panel found:

1. The Member, referring to […] partner, said:

a. ‘He’s definitely got something more than a normal problem’ (p.62 Association bundle).

b. in response to […] raising the possibility of autism, ‘but certainly I would have thought he fell into that category, because with autism, there’s a big, whole spectrum’ (p.62 Association bundle).

c. ‘they don’t have to have every single trait, they can have some traits on the length of the full spectrum, you know. They can have sometimes… he strikes me as definitely in that category’ (p.63 Association bundle).

d. ‘From what you said, from the way he was, yes definitely’ (p.63 Association bundle).

e. in response to […] describing […] partner’s behaviour, ‘And that’s very autistic, because they have to learn absolutely everything’ (p.63 Association bundle).

f. in response to […] suggesting it might be shyness, ‘No, it’s not shyness, no, because with autism, they have to be taught everything,’ (p.63 Association bundle).

g. ‘I think he definitely needs to be assessed by someone in clinical psychology’ (p.67 Association bundle).

h. in response to […] saying he’s a […], ‘He’s… that’s where a lot of autistic or Asperger’s syndrome people go’ (p.67 Association bundle).

i. in response to […] asking if it could be autism, ‘It sounds like to me, more like autism, yeah’ (p.68 Association bundle).

j. in discussion about what counselling support the partner is getting, ‘I just hope they recognise that there is a sort or slight deficit there’ (p.74 Association bundle).

k. in response to […] describing […] partner’s behaviour, ‘I mean that is just so much autistic trait’ (p.75 Association bundle).

2. The Panel noted […] told the Member around five minutes into the session that she had got ‘into the mindset’ where she thought she caused […] partner to […]. Despite this disclosure, the Member focused on investigating the partner not […] state of mind.

3. Throughout the session, the Member was focused on […] partner, not […] as her client. She repeatedly associated the partner’s behaviours that she had observed and those described by […] with autism and how autistic people behave. This was evidenced by the fact that the first time the Member mentioned […] protecting herself was around 50 minutes into the session.

The Panel concluded that the passage of conversation bounded by the comments quoted at (b) and (c) above amounted to the Member saying words to the effect of ‘definitely somewhere on the spectrum’ in relation to […] partner.

The Panel found that the Member was acting in a professional role and expressed personal knowledge and experience of […], which added credibility and weight to her statements. This was evidenced by […] evidence. When asked whether […] was more or less confident that […] partner was autistic following the Member’s comments, […] responded, ‘Yes, because she was a counsellor and, you know … she wasn’t involved… she felt better, she was better qualified, it was a, a therapist, a person in a responsible position.’

The Panel concluded that the Member had provided her opinion that […] partner was autistic based on her own observed and […] reports of his behaviour. It accepted this would not constitute a formal diagnosis, in common terms, if it was during a chat between friends. However, it concluded that these comments were made in the context of a professional therapy session where the Member was in a position of power and influence as the counsellor in the room and had set out her knowledge and experience of autism. Given the level of certainty communicated by the Member’s choice of language, and the tone and manner with which she expressed this, the Panel found that the comments at 1(b) and 1(c) above, in the context of the cumulative effect of her comments during the session, amounted objectively to a diagnosis in common terms. The Panel accepted the Member’s evidence that she did not think she told […] she was only giving her opinion and not a diagnosis.

The Panel found, on the Member’s evidence, that she had no specialist training or qualifications that made her qualified to diagnose an autistic spectrum condition.

The Panel concluded, from […] evidence, that the effect of the Member’s comments was to make her ‘dramatically more confident’ […] partner was autistic, and this contributed to […] delaying […].

The Panel then applied these findings to the stem of allegation 1 and paragraph 13 of the Ethical Framework for the Counselling Professions 2016.

The Panel found it was not disputed that the Member was providing therapeutic services to […] who had experienced […]. […]wanted to understand what had happened. The […], and the Member was aware […] was involved. The Panel found the Member misdirected the session at an early stage when she chose to investigate the partner and not to focus on […] and ensure […] safety. As a result, the Member gave a diagnosis that appeared to reduce the partner’s personal responsibility for the […], only touched on […] safety peripherally towards the end of the session and had the effect of delaying […].

The Panel concluded that this amounted to a failure to deliver the services she had agreed to provide to […] to fundamental professional standards.

The Panel found that allegation 1(a) was proved.

Allegation 2 - PROVED

The Panel went on to consider whether the Member's actions that it had found proved in relation to Allegation 1 amounted to Professional Misconduct, as defined by the BACP Professional Conduct Procedure 2018 which states:

‘professional misconduct means a failure to meet professional standards that is of sufficient seriousness that a period of suspension of membership or withdrawal of membership of the Association may be warranted’.

The Panel also noted the guidance in the BACP Protocol 14: Guidance on Sanctions, which sets out the following criteria that may result in a decision that suspension or withdrawal of membership is appropriate:

1. Where the Member has knowingly and deliberately behaved in a way to cause harm to the Complainant or other members of the public;

2. Where the Member has been dishonest or lacked integrity;

3. Where the complaint involves sexual misconduct;

4. Where the Member has shown a blatant disregard for professional standards;

5. Where the Member has abused their position or another’s trust;

6. Where the harm to the Complainant is particularly severe;

7. Where the Member has shown a complete lack of insight into, or remorse for, their behaviour; and

8. Any other factors the Decision Maker considers warrant withdrawal of membership.

The Panel concluded that the Member had abused her position of trust and shown a lack of insight into or remorse for her actions. It also found that the Member’s conduct would be considered deplorable by her fellow counsellors.

The Panel therefore concluded that Allegation 1 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 in a way that amounted to Professional Misconduct, specifically that the Member had acted contrary to paragraph 13 of the Ethical Framework for the Counselling Professions 2016.

Sanction

The Panel reconvened on 24 August Year 8 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.

The Panel reviewed and took into consideration the submissions on sanction from […]. It concluded that the Member was still not demonstrating insight into her failings or the impact of her conduct on the Complainant and the reputations of the BACP and the counselling professions.

The Panel considered whether a letter of apology to […] was appropriate and proportionate. It concluded from […] evidence and […] request for an

adjustment during the hearing so […] did not have to see the Member that any further contact between […] and the Member, particularly if instigated by the Member, could be harmful. The Panel therefore discounted this sanction.

The Panel did, however, conclude that it was appropriate and proportionate to require the Member to demonstrate specific change/improvement in practice and to undertake specific training. It also concluded this would be adequate to ensure public protection and the maintenance of the reputations of the BACP and counselling professions. It therefore dispensed with consideration of a period of suspension or withdrawal of membership.

The Panel requires the Member to, within 8 weeks of the date of this letter, provide the BACP with:

1. evidence of successful completion of no less than 12 hours continuous professional development1 (CPD) addressing the impact of personal disclosure by a counsellor and bringing their personal perspective/beliefs into the therapeutic relationship, including but not limited to the context of clients […].

2. a personal statement demonstrating specific changes/improvements in the Member’s practice that;

(i) reflects on what went wrong with the Complainant and shows acceptance of responsibility for what the Panel found went wrong;

(ii) demonstrates a deep understanding of the harm that can be caused by personal disclosure by a counsellor and bringing their personal perspective/beliefs into the therapeutic relationship;

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

3. Confirmation that the Member has discussed her CPD and personal statement with her supervisor.

1 The BACP Registrar 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’.

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