Professional Conduct notice / DW

August 2024: Daniel Welsh, Reference No: 00808922 Registrant ID:330621

Allegations

In the allegations below, ‘Complainant 1’ refers to the witness […], ‘Complainant 2’ refers to the witness […]. […].

PCP[…] - COMPLAINANT 1

Allegation 1

1.1 The Member entered into a sexual relationship with the Complainant.

1.2 The Member's conduct at allegation 1.1 was sexually motivated.

1.3 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:

34 (We will not have sexual relationships with or behave sexually towards our clients, supervisees or trainees).

1.4 Allegations 1.1 and 1.2 amounts to professional misconduct as defined in the Professional Conduct Procedure.

Allegation 2

2.1 The Member sent a number of explicit sexual messages to the Complainant from his professional and personal email address.

2.2 The Member's conduct at allegation 2.1 was sexually motivated.

2.3 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:

34 (We will not have sexual relationships with or behave sexually towards our clients, supervisees or trainees) and/or

35 (We will not exploit or abuse our clients in any way: financially, emotionally, physically, sexually or spiritually).

2.4 Allegations 2.1 and 2.2 amounts to professional misconduct as defined in the Professional Conduct Procedure.

Allegation 3

3.1 The Member sought to dissuade the Complainant from discussing his conduct with others in emails dated from 6 to 9 April Year 1.

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:

43 (We will maintain high standards of honesty and probity in all aspects of our work).

3.3 Allegation 3.1 amounts to professional misconduct as defined in the Professional Conduct Procedure.

PCP[…] - COMPLAINANT 2

Allegation 1

1.1 The Member behaved in a sexual way towards the Complainant in that he:

a) Made sexual comments in therapeutic sessions including (but not limited to) telling her:

i) She was his fantasy; and/or

ii) She was hot; and/or

iii) She was stunning; and/or

iv) He had thought about her when his […] was asleep; and/or

v) He had “a […]”.

and/or:

b) Engaged in sexual conduct in therapeutic sessions including (but not limited to):

i) Putting his hands on her waist; and/or

ii) Stroking her hair; and/or

iii) Asking her for cuddles; and/or

iv) Stroking her back.

1.2 The Member's conduct at allegation 1.1 (a) (i), (a) (ii), (a) (iii), (a) (iv), (a) (v), (b) (i), (b) (ii), (b) (iii), and/or (b) (iv) was sexually motivated.

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:

34 (We will not have sexual relationships with or behave sexually towards our clients, supervisees or trainees) and/or

35 (We will not exploit or abuse our clients in any way: financially, emotionally, physically, sexually or spiritually)

1.4 Allegations 1.1(a)(i), (a)(ii), (a)(iii), (a)(iv), (a)(v), (b)(i), (b)(ii), (b)(iii), and/or (b)(iv) amount to professional misconduct as defined in the Professional Conduct Procedure.

Allegation 2

2.1 The Member breached professional boundaries with the Complainant in that he:

a) Engaged in extensive messaging outside sessions when this was not therapeutically justified; and/or

b) Inappropriately extended sessions without the Complainant’s express agreement.

2.2 The Member's conduct at allegation 2.1 was sexually motivated.

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).

2.4 Allegations 2.1(a), 2.1(b) and/or 2.2 amount to professional misconduct as defined in the Professional Conduct Procedure.

Preliminary issues

Proceeding in Member’s absence

On 27 March Year 3, the Panel had convened and considered and granted the BACP’s application to proceed with PCP[…] and PCP[…] in the absence of the Member who was not engaging with the BACP.

Joinder of PCP[…] and PCP[…]

On 19 June Year 3, the Panel reconvened and considered and granted the BACP’s application to join the two cases PCP[…] and PCP[…] to be heard at the same time under paragraph 4.7 of the Professional Conduct Procedure 2018 and amend the allegations in accordance with paragraph 4.12 of the Professional Conduct Procedure 2018.

[…]

Amendment of allegations

On 15 January Year 4, before the start of the hearing, the BACP applied to amend allegation 2.1 of PCP[…] to remove the words ‘and personal’ to better reflect the basis upon which the BACP was putting its case.
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. However, it concluded that there was no prejudice to the Member in making the amendment in his absence as the amendment did not broaden the allegation or fundamentally change its nature.

The Panel directed that Allegation 2.1 of PCP[…] be amended to read:

2.1 The Member sent a number of explicit sexual messages to the Complainant from his professional email address.

Admissions

The Member had made no admissions.

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 complainants, Complainant 1 […] and Complainant 2 […] and the BACP.
• The written evidence and submissions by and on behalf of the Member.
• The Panel heard oral evidence from witness […] and witness […].
• The BACP Professional Conduct Procedure 2018.
• The Ethical Framework for the Counselling Professions 2018.

Decision and Reasons for Findings

PCP[…]

Allegation 1 - UPHELD

The Panel found witness[…] (Complainant 1) to be credible and reliable. Her oral evidence stood up to questioning by the Panel and was consistent with her original complaint and written witness statement. The Panel also found that the copies of electronic messages between the Member and […] were consistent with and supportive of her account. It found that the Member had entered into a sexual relationship with Complainant 1 while she was his client. Allegation 1.1 was found proved.

The Panel concluded that the Member’s conduct was sexually motivated in that there was no evidence of an alternative explanation for the Member entering into a sexual relationship other than for his own sexual gratification. Allegation 1.2 was found proved.

The Panel applied these finding to paragraph 34 of ‘Good Practice’ in the BACP Ethical Framework for the Counselling Professions 2018. It concluded that the Member’s conduct had breached both limbs of paragraph 34, which prohibited both sexual relationships and behaving sexually towards clients. Allegation 1.3 was found proved.

The Panel went on to consider whether the Member's actions that it had found proved in relation to Allegations 1.1 and 1.2 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 Allegations 1.1 and 1.2 amounted to Professional Misconduct as defined in the BACP Professional Conduct Procedure 2018.

Allegation 2 - UPHELD

The Panel reviewed the documentary evidence of the emails from the Member to Complainant 1 using his professional email address. The Panel found that the content of a number of the emails was overtly sexual and explicit. Allegation 2.1 was found proved.

The Panel concluded that, in the absence of an innocent explanation, which had not been provided, the emails were more likely than not sexually motivated in that their nature and the language used was clearly in pursuit of a sexual relationship with Complainant 1 and for the Member’s own sexual gratification. Allegation 2.2 was found proved.

The Panel applied these finding to paragraphs 34 and 35 of ‘Good Practice’ in the BACP Ethical Framework for the Counselling Professions 2018. It concluded that the Member’s conduct amounted to behaving sexually towards Complainant 1 in breach of paragraph 34 and that it amounted to emotional and sexual abuse of Complainant 1. Allegation 2.3 was found proved.

The Panel went on to consider whether the Member's actions that it had found proved in relation to Allegations 2.1 and 2.2 amounted to Professional Misconduct, as defined by the BACP Professional Conduct Procedure 2018 (see above). The Panel took into considerations the guidance in the BACP Protocol 14: Guidance on Sanctions (see above). The Panel concluded that Allegations 2.1 and 2.2 amounted to Professional Misconduct.

Allegation 3 - UPHELD

The Panel reviewed copies of the emails from the Member to Complainant 1 between 6 and 9 April Year 1. It found that the Member used emotional manipulation throughout the emails, that in the absence of an innocent explanation it was clearly intended to dissuade Complainant 1 from discussing the Member’s conduct with others. It found Allegation 3.1 proved.

The Panel applied these finding to paragraph 43 of ‘Good Practice’ in the BACP Ethical Framework for the Counselling Professions 2018. The Panel found the Member’s conduct was not dishonest. It accepted the Clerk’s advice that, as ‘probity’ in paragraph 43 is not defined, they should apply the generally accepted meaning and provided the Panel with the Oxford English Dictionary definition:

‘The quality or condition of having strong moral principles; integrity, good character; honesty, decency’.

The Panel found that the Member’s conduct in trying to conceal his misconduct by trying to persuade Complainant 1 not to discuss it with others showed a lack of strong moral principles, good character and decency. Allegation 3.3 was found proved.

The Panel went on to consider whether the Member's actions that it had found proved in relation to Allegation 3.1 amounted to Professional Misconduct, as defined by the BACP Professional Conduct Procedure 2018 (see above). The Panel took into considerations the guidance in the BACP Protocol 14: Guidance on Sanctions (see above). The Panel concluded that Allegation 3.1 amounted to Professional Misconduct.

PCP[…]

Allegation 1 – UPHELD

The Panel found witness […] (Complainant 2) to be credible and reliable. Her evidence in oral testimony was consistent with her original complaint and witness statement and stood up to the Panel’s questioning.

The Panel accepted Complainant 2’s account of the member’s conduct in sessions and found as a matter of fact that he had made the comments listed in Allegation 1.1(a)(i)-(v). It concluded that in the context of a counselling session the comments were wholly inappropriate and, in the absence of an innocent explanation, were sexual. The Panel concluded that it was more likely than not that the comments were an initiation of grooming of Complainant 2 by the Member in pursuit of a future sexual relationship with her.

The Panel also accepted Complainant 2’s account of the Member’s sexual conduct in sessions as listed in Allegation 1.1(b)(i)-(iv). It found that the Member had acted as alleged and that, in the absence of an innocent explanation, this conduct was sexual.

The Panel concluded that the facts proved in relation to Allegations 1.1(a) and 1.1(b) amounted to sexual behaviour towards Complainant 2 who was a client of the Member at the time. Allegation 1.1 was found proved.

The Panel concluded that, in the absence of an innocent explanation, which had not been provided, the conduct at allegations 1.1(a)(i), (a)(ii), (a)(iii), (a)(iv), (a)(v), (b)(i), (b)(ii), (b)(iii), and (b)(iv) were more likely than not sexually motivated in that they were in pursuit of a sexual relationship with Complainant 2 and for the Member’s own sexual gratification. Allegation 1.2 was found proved.

The Panel applied these finding to paragraphs 34 and 35 of ‘Good Practice’ in the BACP Ethical Framework for the Counselling Professions 2018. It concluded that the Member’s conduct amounted to behaving sexually towards Complainant 2 in breach of paragraph 34 and that it amounted to emotional and sexual abuse of Complainant 2. Allegation 1.3 was found proved.

The Panel took into consideration the guidance in the BACP Protocol 14: Guidance on Sanctions and the definition of Professional Misconduct in the BACP Professional Conduct Procedure 2018 (see above). The Panel decided that Allegations 1.1(a)(i), (a)(ii), (a)(iii), (a)(iv), (a)(v), (b)(i), (b)(ii), (b)(iii), and (b)(iv) amounted to Professional Misconduct.

Allegation 2 – UPHELD

The Panel took into consideration the evidence of the copy messages between the Member and Complainant 2. It found that the number of messages was excessive and inappropriate, and that the Member steered the conversations beyond issues relevant and related to counselling. The content of the Member’s messages went beyond what was therapeutically justified. In doing so, the Panel found that the Member had failed to establish and maintain appropriate professional boundaries with Complainant 2.

The Panel accepted Complainant 2’s evidence that the Member extended her sessions without notice or her consent on a number of occasions. It found the Member extended at least three sessions:

• The third session was extended by approximately 90 minutes, which was such an extreme extension that the Panel was unable to contemplate any situation in which it would be appropriate. The Panel found this was without the consent of or discussion with Complainant 2.
• The fourth session was started 20 minutes early by prior arrangement with Complainant 2. The Panel found Complainant 2 gave her implied consent to this extension by arriving 20 minutes early.
• The fifth session was extended by 20 minutes without the consent of or discussion with Complainant 2.

The Panel accepted Complainant 2’s evidence that the extra time was used by the Member, not for therapy, but for the purposes of the conduct and comments set out in Allegation 1. The Panel concluded that, while there could be a therapeutic reason for short extensions of therapy sessions, the Member had extended them in order to initiate grooming of Complainant 2 and assess how his conduct had been received by her.

The Panel concluded that Allegation 2.1 was proved.

The Panel concluded that, in the absence of an innocent explanation, which had not been provided, the conduct at allegations 2.1(a) and 2.1(b) were more likely than not sexually motivated in that they were in pursuit of a sexual relationship with Complainant 2. Allegation 2.2 was found proved.

The Panel applied these finding to paragraph 33 of ‘Good Practice’ in the BACP Ethical Framework for the Counselling Professions 2018. It concluded that the messages sent by the Member bore no relevance to Complainant 2’s therapeutic needs and the extensions were not for therapeutic purposes. Allegation 2.3 was found proved.

The Panel took into consideration the guidance in the BACP Protocol 14: Guidance on Sanctions and the definition of Professional Misconduct in the BACP Professional Conduct Procedure 2018 (see above). The Panel decided that Allegations 2.1(a), 2.1(b) and 2.2 amounted to Professional Misconduct.

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 paragraphs 33, 34, 35 and 43 of the BACP Ethical Framework for the Counselling Professions 2018.

Sanction

The Panel reconvened on 4 April Year 4 to consider what, if any, sanction was appropriate in this case. It reminded itself of its findings above. It also considered the guidance within the BACP Protocol on Sanctions (PR14), the BACP Indicative Sanctions Guidance and reminded itself of its powers of sanction under Article 5.12 of the BACP Professional Conduct Procedure 2018.

The Panel was advised that the Member, who was no longer a member of the BACP, had made no submissions on sanction despite attempts to contact him to inform him that he could do so. The BACP provided evidence that it had sent emails to the Member’s registered email address that produced non-delivery messages stating that the email address no longer exists, and two electronic messages to his registered mobile telephone numbers without response. The Panel noted that the BACP was precluded from contacting the Member by post because he had notified the BACP that he had moved home and refused to provide his new address.

The Panel was satisfied that the BACP had taken all reasonable steps to ensure that the Member had the opportunity to make submissions in respect of sanction.

The Panel therefore considered what sanction it would impose if the Member were still a member of the BACP. The Panel noted the Indicative Sanctions Guidance advised that where sexual misconduct has been found, the resulting sanction will almost always be suspension or withdrawal of membership as such conduct seriously jeopardizes public confidence in the profession.

Nevertheless, the Panel considered, in turn, whether it would have been appropriate to impose no sanction, to require the Member to write a letter of apology, demonstrate specific change/improvement in practice or undertake specified training or a combination of these. It concluded that none of these sanctions, or combinations thereof, would have been proportionate or appropriate for the following reasons:

1. The Member posed a serious and ongoing risk to the public, had not taken responsibility for his actions or demonstrated insight to the extent that these sanctions were inadequate to protect the public and to safeguard public interest and public confidence in the profession.

2. The misconduct found proved was at the higher end of the spectrum of seriousness of Professional Misconduct so that these sanctions were inadequate to protect the public and to safeguard public interest and public confidence in the profession.

3. The Member has failed to engage with the BACP consistently, or at all since 26 January Year 3, and did not engage with the hearing or sanction processes, indicating that he was unlikely to engage with a requirement to undertake training or demonstrate changes to his practice.

It therefore concluded that only a period of suspension or the withdrawal of the Member’s membership was adequate to protect the public, maintain confidence in the profession, promote and maintain proper professional standards and conduct for members of the BACP (and the wider counselling profession) and send a clear message to other members that such behaviour is wholly unacceptable.
It first considered whether a period of suspension would adequately address these objectives. The Panel concluded that a period of suspension to reflect and remediate was inappropriate as the Member was not engaging with the BACP. It decided that a period of suspension would be inadequate to safeguard the public as there was no indication that, at the end of such period, the Member would practice safely.

The Panel reviewed the list of factors in PR14 that may indicate that withdrawal of membership is an appropriate sanction:

• where the Member has knowingly and deliberately behaved in a way to cause harm to the Complainant or other members of the public;
• where the Member has been dishonest or lacked integrity;
• where the complaint involves sexual misconduct;
• where the Member has shown a blatant disregard for professional standards;
• where the Member has abused their position or another’s trust;
• where the harm to the Complainant is particularly severe;
• where the Member has shown a complete lack of insight into, or remorse for, their behaviour; and
• any other factors the Decision Maker considers warrant withdrawal of membership.

The Panel concluded that all the factors listed were present in this case and, for all the above reasons, decided that only a withdrawal of membership was adequate to address the objectives of protecting the public, maintaining confidence in the profession, promoting and maintaining proper professional standards and conduct for members of the BACP (and the wider counselling profession) and deterring similar behaviour by other members.

The Panel reviewed the evidence but found no mitigating factors and, while it considered the impact on the Member’s ability to work as a counsellor, it concluded that no other sanction sufficiently addressed the gravity of the Member’s misconduct and this and the risk he posed to the public outweighed the impact on his ability to work as a counsellor.

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