November 2022: Fay Brown, Reference No 00720624, Registrant ID 90244

A Professional Conduct Panel (‘the Panel’) consisting of [ . . . ] met [ . . . ] remotely via Microsoft Teams to consider a complaint submitted by the BACP pursuant to paragraph 1.5 of the Professional Conduct Procedure that the Member, Fay Brown, had made legally inaccurate or misleading statements in a video posted on YouTube on child sexual exploitation and that she had posted a tweet which included an extract from a Social Services report that contained information which could identify the child who was the subject of the report.

[ . . . ]

The complaint concerned alleged failings to comply with Professional Standards and resulted in the Investigation and Assessment Committee formulating the following Allegations:

Allegation 1

1.1 In a video posted on YouTube in April Year 2 on child sexual exploitation, the Member made legally inaccurate or misleading statements including:

a. Stating that possession of drawings and/or cartoons depicting child rape or abuse does not constitute child sexual exploitation material; and/or

b. Suggesting that teenagers in a relationship are entitled to make material which would amount to child sexual exploitation.

1.2 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:

46 (We will give conscientious consideration to the law and how we fulfil any legal requirements concerning our work) and

48 (We will avoid any actions that will bring our profession into disrepute)

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

Allegation 2

2.1 On 20 November Year 1, the Member posted a tweet which included an extract from a Social Services report and contained information which could identify the child who was the subject of the report, thereby raising safeguarding issues.

2.2 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)

2.3 Allegation 2.1 amounts to professional misconduct as defined in the Professional Conduct Procedure.

Preliminary issues

On [ . . . ], the Panel convened for a case management hearing to consider the Member’s application to call four witnesses to give evidence in person at the hearing, and to rely on witness [ . . . ] as an expert witness.

The Panel’s full decision was recorded in its decision notice of the same date. The Panel directed that the Member may call [ . . . ] and [ . . . ], but not [ . . . ]and [ . . . ], and that [ . . . ] would be considered a lay witness and not given expert status.

On [ . . . ], at the outset of the hearing, the Member applied to have late evidence admitted. The Member explained that the evidence was page 2 of a two- page document, page 1 of which was already in the hearing bundle and had been omitted in error. She submitted that it was ‘relevant because it provides more proof of the lies perpetuated against [her] by BACP’.

The BACP Presenting Officer (PO) was neutral in relation to the application.

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

• The document is part of a partial document in the hearing bundle and is likely to have been omitted in error;

• The Member is unrepresented;

• There was no likely prejudice to the BACP in allowing the late admission of the
document;

• The BACP did not object to the application;

• It was in the interests of justice to allow the document to be admitted late.

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

Admissions

The Member admitted posting the video referred to in Allegation 1 on YouTube in April Year 2 but denied it contained legally inaccurate or misleading statements or that she acted in breach of paragraphs 46 or 48 of the BACP Ethical Framework for the Counselling Professions 2018.

The Member also admitted posting the tweet referred to in Allegation 2 on 20 November Year 1 but denied that it raised safeguarding issues or that she acted in breach of paragraph 43 of the BACP Ethical Framework for the Counselling Professions 2018.

Evidence before Panel

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

• The Association’s bundle of evidence and exhibits.
• The Member’s bundle of evidence and exhibits.
• The written and oral evidence of the Member.
• The Panel heard evidence from [ . . . ] and [ . . . ].
• The Panel considered the written statements of [ . . . ] and [ . . . ]
• The BACP Professional Conduct Procedure 2018.
• The BACP Ethical Framework for the Counselling Professions 2018.

Summary of Evidence

The Investigation and Assessment Committee summarised the complaint as:

1. Fay Brown ('the Member') has been a Member of the Association since [ . . . ]. A number of referrals were received in July Year 2 concerning her conduct and social media postings.

2. The Association brings this complaint by virtue of 1.5 of the Professional Conduct Procedure ('PCP'). In summary, the Registrar considers that it is in the public interest for the conduct of the Member to form the basis of a complaint pursuant to the PCP. The Registrar's decision sets out the rationale for this:

‘The issues arising from the Member’s initial posting have generated a number of complaints. The key issues raised have been safeguarding both for the Member’s [ . . . ] and on a wider basis, the legal accuracy of her comments with regard to the viewing of drawings/ imagery of children in sexualised poses, the appropriateness of her comments with regard to child sexual exploitation and child pornography, and reputational risks for the Association.

In the light of such concerns, the video and the tweet raise potentially serious issues that require consideration by the Association, to assess both alleged misconduct and public protection. It would therefore be in the public interest that the conduct of the Member is addressed.'

3. The information available suggests that the Member may have potentially breached a number of paragraphs of the Association’s Ethical Framework, including, but not limited to:

a. Paragraph 14 - We will keep skills and knowledge up to date by:

f. Keeping up to date with the law, regulations and any other requirements, including guidance from this Association, relevant to our work.

b. Paragraph 46 - We will give conscientious consideration to the law and how we fulfil any legal requirements concerning our work.

c. Paragraph 48 - We will avoid any actions that will bring our profession into disrepute.

4. In April Year 2 the Member posted a video on YouTube headed [ . . . ] #rapeculture #victimshaming #victimblaming.

5. The video discussed her views on how the different groups of victims of child sexual abuse are treated and her views on child sex exploitation imagery. This included her expressing the following views:

a. That Minors Attracted Persons are also victims and should be regarded as such;

b. That child pornography as a term doesn’t exist;

c. That teenagers have the right to make what would be termed 'child exploitation material' if it were to go outside their union;

d. That drawings or animated images depicting children in sexualised poses, even where it depicts the childlike creature as being a willing participant are not offensive and are not child exploitation material;

e. That if people don’t like certain magazines/media that depict such images, they “shouldn’t go there” but that it is offensive to delegitimise people who do watch or read them as that is their “kink” and “we don’t kink shame”;

f. People who find such material offensive should accept it is “just a kink you’re not into”;

g. That survivors who are attracted to minors are also victims and should not be judged;

h. That an attraction to children isn’t an action against a child but a victim coming to terms with victimisation and a trauma condition.

6. The Member made a link with her work as a counsellor by referring to her YouTube video as being a therapeutic session. This means that the views expressed can impact on the reputation of and confidence in the profession.

7. In addition, on 20 November Year 1 the Member also used her twitter account to put online an extract from a social services investigation into whether her [ . . . ] was being put at risk by allowing “People attracted to minors” into her premises for counselling. She attached part of the report and commented:

‘ I wk telescopically w minor attracted ppl, social services hv put me under [ . . . ] (also bc of cptsd they hv diminished as my responsibility & shame)
Legal?’

8. The Member's [ . . . ] identity and address can be identified by the tweet by virtue of:

a. the fact the Member refers to the fact that it is a report about [ . . . ], and

b. the reference to the fact that the premises where [ . . . ]

9. This raises concerns about knowledge and application of safeguarding principles, which again has the potential to impact on the reputation of and confidence in the profession.

10. The Member also suggests that she has the support of her 'governing body legal ethics team'. There is no evidence that this is the case. This therefore brings the reputation of the Association as a regulator into question, as well as the reputation of the profession.

The Member submitted a preliminary response:

11. The Member has responded stating that the allegation is slander and that the Association's actions are harassment. She references several occasions when she has made the Association aware of her work and claims it has previously supported her.

12. The Member feels it is clear people have a specific vendetta against her because she works "in a spectrum of ways for creating movement in this area for beneficiary results". She has submitted an article that she has written in further support of the views that she has expressed online.

13. The Member states that social services have offered a cash settlement for their treatment of them during her [ . . . ]. She does not specifically address the concern about her tweet which contains an extract of the report.

Applications during the hearing

The BACP applied on the morning of the final day of the hearing to amend the allegations as follows under paragraph 4.12 of the Professional Conduct Procedure 2018:

• Allegation 1.2 should include paragraph 14f of the BACP Ethical Framework for the Counselling Professions 2018.

• Allegation 2.2 should include paragraph 48 of the BACP Ethical Framework for the
Counselling Professions 2018,

The PO accepted that the application should have been made earlier but submitted that it would not result in any injustice to the Member as the additional allegations flow from the same facts.

As a result of the submissions, 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 decided to decline the application for the following reasons:

• The changes are of substance and not merely corrections or clarifications of poorly worded allegations and the Panel believes that had those allegations been put to the Member in the first place she may have approached her defence differently.

• The application was brought at a very late stage, after the Member had given her evidence and whilst the Panel accepted this was not a bar to it granting the application, it must consider what adjustments would be needed to ensure there is no injustice.

• At this stage of the hearing the Panel would have to put in measures to ensure there was no injustice to the Member, including allowing her to give further evidence, to consider and if necessary gather new documentary and/or witness evidence, all of which would necessitate an adjournment. Such an adjournment would be contrary to the public interest in an expeditious conclusion of the complaint and would exacerbate the health impact on the Member to a disproportionate level.

• The Panel has balanced these issues against the public interest in the matters being properly alleged and decided to give more weight to the timeliness issues above.

Decision and Reasons for Findings

At the beginning of its deliberations, having heard all the evidence, the Panel rewatched the video referred to in Allegation 1. On balance, having fully considered all the evidence presented, the Panel made the following findings:

Allegation 1 - UPHELD IN PART

The Panel found that the Member posted the subject YouTube video in April Year 2 on the basis of the video itself that clearly showed and named the Member and her admissions.

Allegation 1.1(a) – Not Proved

The Panel considered whether the Member stated in the video that possession of drawings and/or cartoons depicting child rape or abuse does not constitute child sexual exploitation material and, if she did, whether what she said was legally inaccurate or misleading. It further considered whether the Member made any other legally inaccurate or misleading statements in the video.

The Panel found that the Member did not make a statement that possession of drawings and/or cartoons depicting child rape or abuse does not constitute child sexual exploitation material or words to that effect.

The Panel did identify in the video a number of phrases/comments made by the Member that could fall within this allegation. The Panel accepted the Member’s evidence that the video was intended as an opinion piece. However, it found that the Member was a professional on a platform she used for therapy and needed to recognise this and take care how she expresses herself. She used several sweeping statements, such as ‘child porn does not exist’ and ‘labelling drawings as CSEM... they are not... they are a drawing’.

• ‘child porn does not exist’. The Panel found that the context of this phrase made it clear the Member was advocating for the use of alternative more contemporary terminology and language and used this phrase to emphasize her point. But as a professional held in high esteem in the field, she had a responsibility to be clear. The phrase was misleading. The Panel accepted the PO’s submission that under section 62 of the Coroners and Justice Act 2009, ‘prohibited images of children’ are defined as having to be, amongst other things, ‘pornographic’. However, it did not find that this amounted to a legal definition of ‘child porn’ and therefore concluded that this phrase was not legally inaccurate.

• ‘labelling drawings as CSEM... they are not... they are a drawing’. The Panel found that a cartoon or drawing is capable of constituting a ‘prohibited image’ of a child under the Coroners and Justice Act 2009, but it would depend on the nature of the drawing. Thus the Member’s sweeping statement in relation to all drawings was misleading. However, noting the legal references from the Clerk’s advice and the PO’s closing comments, the Panel found that there was no single legal definition of the term CSEM and that it did not find the Member’s statement was legally incorrect.

The Panel therefore found that Allegation 1.1(a) was not proved.

Allegation 1.1(b) – Proved

The Panel considered whether the Member suggested in the video that teenagers in a relationship are entitled to make material which would amount to child sexual exploitation and, if she did, whether what she said was legally inaccurate or misleading.

From the video, the Panel found that the Member said: ‘that doesn’t mix up a teenager’s right to make what would be termed CSEM if it was going to go beyond their union’. Indecent images of teenagers under 18 years old are illegal whether they are distributed within or beyond the couple (Coroners and Justice Act 2009) and, as the Member accepted, a teenager under 16 cannot legally consent to such images. The Panel concluded that to say that teenagers have a right to make CSEM and it would only be considered CSEM if it went beyond them as a couple was legally incorrect and misleading. The Panel accepted the Member’s evidence that discretion is used in such cases as to whether the offences committed are prosecuted, but that does not detract from the fact that such images are likely to amount to a criminal offence.

Allegation 1.2

In relation to paragraph 46 of the BACP Ethical Framework for the Counselling Professions 2018, the Panel considered whether the video was ‘concerning her work’.

The Panel noted the Member’s evidence that this was a personal ‘rant’ in her charitable role not her counselling role. The Panel found that the Member did use the words ‘rant over’ at the end but also referred to a ‘rumbling’ between lay people and professionals, called the video a ‘therapy bubble’ used a lot of therapeutic terminology and described her YouTube channel as ‘(offering therapy bubbles, monthly minor-attraction live support group and education, creative dance and lyrical poetry depicting all ranges of therapeutic and emotion process work), and a multi-medium exhibition depicting therapeutic process and childhood trauma’ (page 68 Member’s bundle). It therefore concluded that the video was sufficiently associated with her professional role as a counsellor to any viewer that it was subject to paragraph 46.

For the same reasons, when considering paragraph 48, the Panel found that the video was sufficiently connected to the Member’s professional role to amount to being ‘in a professional respect’ and therefore potentially capable of bringing the profession into disrepute.

The Panel found that, as it concluded the two additional phrases it identified under Allegation 1.1(a) were not legally incorrect, the Member’s actions as proved under Allegation 1.1(a) did not amount to a breach of paragraph 46. However, her statement proved under Allegation 1.1(b) was legally incorrect, which indicated that the Member failed to give conscientious consideration to the law. The Member submitted that she had consulted widely. The evidence of [ . . . ] was that they worked together in relation to what laws needed changing in order to align the law better with the reality of modern teenage lives in a digital society. The Panel concluded the Member was likely to have been aware that her comment was legally inaccurate and, perhaps, intended to communicate that it should be changed. However, by making this legally inaccurate sweeping statement she misrepresented the current legal position when speaking on a platform she used for therapeutic purposes.

The Panel therefore found that Allegation 1.1(b) breached paragraph 46 of the BACP Ethical Framework for the Counselling Professions 2018.

In relation to paragraph 48, the Panel found that the Member did not intend to be legally incorrect or misleading but had been careless when speaking as a respected professional on a channel she used for therapy. The Panel found her attempts to seek appropriate guidance were inept and ineffective and that she had demonstrated little insight into her misconduct. The Panel concluded that there was a real risk of harm to viewers who may act or rely on the member’s misleading statements and that she had failed to ensure an adequate and effective boundary between her professional profile and role as a counsellor and her campaigning work for [ . . . ]. This blurring of boundaries also put the reputation of BACP and the counselling professions at risk of harm.

The Panel found that the comments proved under Allegation 1.1 breached paragraph 48 of the BACP Ethical Framework for the Counselling Professions 2018.

Allegation 1.3 - Proved

The Panel noted the definition of Professional Misconduct in the BACP Professional Conduct Procedure 2018 and referred itself to BACP Protocol 14 Guidance on Sanctions, which indicates factors that may suggest withdrawal of membership should be considered.

It concluded that the Member’s disregard for the professional standard had been blatant, it had abused the trust of those who viewed her channel and she had shown a lack of insight. The Panel also decided that she had put viewers at risk of committing criminal offences unwittingly by relying on her comments and had failed to put in place any safeguards to establish and maintain a clear boundary between her professional role as a counsellor and her campaigning work. The Panel therefore concluded that her conduct, as proved, was of sufficient seriousness that a period of suspension of membership or withdrawal of membership of the Association may be warranted and that it amounted to Professional Misconduct.

Allegation 2 – NOT UPHELD

Allegation 2.1 – Proved in part

The Panel found, from the screenshot evidence of the tweet and the Member’s admissions, that the Member posted a tweet on 20 November Year 1, which clearly referred to one of the Member’s [ . . . ] and included references to [ . . . ]. It further found that, as the Member had [ . . . ], the tweet contained enough information to identify the [ . . . ].

The Panel accepted the Member’s evidence that she had the consent of [ . . . ] to post the tweet and that she received the Social Services report in her private not professional capacity. Nevertheless, the Panel agreed that in identifying [ . . . ] as having been subject to a Social Services investigation, there was the potential for the tweet to have raised safeguarding issues. However, the Panel found that the BACP had not provided evidence identifying any actual risk of harm [ . . . ] as a result and the tweet and noted that it had not resulted in any safeguarding action by the Social Services. The Panel therefore found that the BACP had not proved that the tweet raised safeguarding issues.

Allegation 2.2 – Not proved

The Panel agreed that the Member’s actions in posting the tweet were ill-advised but did not amount to a breach of paragraph 43 of the BACP Ethical Framework for the Counselling Professions 2018.

The Panel found that the tweet did relate to an aspect of the Member’s work, bringing it within the scope of paragraph 43 because the tweet referred to the Member working with minor attracted people and was posted on a Twitter account visibly linked to her professional counselling email account. While the tweet was drawn to the attention of specific individuals by the Member using the ‘@’ function, it was openly visible to any Twitter user on the Member’s profile.

The PO had confirmed that the BACP was not alleging lack of honesty and relied solely on the probity limb of paragraph 43. The Panel accepted the definitions of probity provided by the PO in closing and the Clerk, the latter of which was from the Oxford English Dictionary, which defines probity as:

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

The Panel found that the Member’s testimony, the nature of the work she undertakes and the contents of the video referred to in Allegation 1 showed that the Member had very strong moral principles; in submitting the tweet to ‘whistle blow’ in relation to what she perceived as inappropriate comments in the Social Services report, the Member was acting in pursuit of her strongly held moral principles. She had posted the tweet openly and with [ . . . ] consent. The Panel concluded that her behaviour did not demonstrate a failure to maintain high standards of probity.

The Panel commented that, even if the BACP had proved that the tweet had raised safeguarding issues (which it had not), the Member’s actions would been considered as misguided, rather than an ethical breach.

Allegation 2.3

As the alleged breaches were not proved, the Panel was not required to consider this paragraph of Allegation 2.

Decision

The Panel was unanimous in its decision that there had been a failure to comply with the Professional Standards, specifically that the Member had acted contrary to paragraphs 46 and 48 of the BACP Ethical Framework for the Counselling Professions 2018.

The Panel decided that the Member's actions in relation to Allegations 1.1 and 1.2 amounted to Professional Misconduct (Allegation 1.3).

Sanction

Due to one member of the Panel and the Clerk being unavailable the BACP Registrar appointed a replacement Panel member and Clerk under paragraph 4.1 of the Professional Conduct Procedure.

Accordingly, a differently constituted Panel (the Sanction Panel) consisting of [ . . . ] to decide what, if any, sanction was appropriate.

The Sanction Panel reminded itself of the findings made, the definition of Professional Misconduct in the Processional Conduct Procedure and the sanctions available to it under the Professional Conduct Procedure 2018 and the BACP Sanction Protocol.

Decision and Reasons

The Member has provided no material for the Sanction Panel to consider. Having read correspondence between the Member and the BACP since the hearing [ . . . ], the Sanction Panel considered the Member had been afforded a fair opportunity to provide such information but had not taken this opportunity. The decision of the Sanction Panel was that it was in the interests of justice to proceed with its decision on sanction in the absence of submissions from the Member.

In the absence of any submissions by the Member the Panel has no information on which to conclude that the Member has:

• reflected on the Panel’s findings

• gained a greater and sufficient understanding of the importance of clearly separating the expression of her opinion on the law as it stands and doing this in her personal/campaigning capacity and also of acknowledging the law as it actually stands in her professional capacity

• understood the impact of her conduct on the reputation of BACP and the counselling professions as a whole and how this might deter members of the public who would benefit from therapeutic services from accessing them

In the circumstances the view of the Panel is that there is a risk that the Member would in the future again blatantly disregard professional standards and make further misrepresentations as to the law thereby putting those who listen to her comments at risk of unwittingly committing criminal offences.

The Sanction Panel considered all lesser sanctions at length but its decision is that no lesser sanction than withdrawal of membership of the BACP is sufficient to meet the gravity of the findings made. It concluded that the reputation of, and confidence in, the counselling professions and in the BACP would be undermined if a lesser sanction was imposed and that withdrawal of membership is necessary to promote and maintain proper professional standards for members of the counselling professions.

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