R (on the application of Mandic-Bozic) v British Association for Counselling and Psychotherapy [2016] EWHC 3134

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The Claimant, a psychotherapist sought a judicial review of the decision of her professional body (the British Associate for Counselling and Psychotherapy or 'BACP') to initiate disciplinary proceedings against her.

The Claimant was also a member of another professional body, the United Kingdom Council for Psychotherapy (UKCP). UKCP had already initiated its own proceedings against the Claimant in respect of the same concerns which had been raised with them by the same complainant.

Due to the almost identical nature of the allegations raised with each body and the fact that the two bodies were almost indistinguishable (in terms of the activities that they regulated and the ethical standards that they applied), the Court determined that cause of action estoppel applied. The Court therefore barred BACP from proceeding any further in adjudicating upon the matter that it had received.

Facts

The Claimant was a member of both BACP and UKCP. Because psychotherapists are not regulated by statute, individual practitioners voluntarily engage with a regulatory framework which is overseen by both BACP and UKCP. Both bodies stipulate common ethical standards for their members and the membership of each body is essentially the same.

Between 2009 and 2014, the Claimant treated the complainant. From 2013, the Claimant sought to transfer the complainant to other colleagues for treatment in light of the increasing complexity of the complainant's presentation. It appears that the complainant would not agree to this 'transfer' and therefore initiated a formal complaint against the Claimant with the local safeguarding team.

Following this, in January 2015, the complainant initiated a complaint with UKCP.  Seventeen days later the complainant initiated a complaint with BACP. The Court observed that the differences between the complaints were 'minimal', that the actual allegations were 'word-for-word identical' and that '(n)o-one reading them' could conclude that they were anything other than 'duplicative and exposed the Claimant to double-jeopardy'.

Upon receipt of the complaint, UKCP drafted particularised charges (a number of which were subsequently withdrawn). It was alleged that Claimant had behaved inappropriately following the making of the complaint in that she had viewed the complainant's LinkedIn profile and followed her Twitter feed. 

The matter then proceeded to a hearing which the Court described as 'exhaustive' and where 'no stone was left unturned'. The Committee determined that only those matters which had been admitted by the Claimant (which related to 28 out of the 37 allegations) were found proved. It determined that the complainant was a credible witness before finding that the facts in relation to 10 of the allegations amounted to misconduct. It then went on to conclude that the conduct had been remedied and decided not to impose any sanction. The Court noted that the Claimant had however sought to appeal the finding of misconduct. 

In turning its attention towards of BACP, the Court described it as having 'unreasonably progressed the complaint in a dogged and obstinate manner' where 'elementary principles of fairness would have caused the Defendant to stay its hand while the identical complaint was dealt with by its sister body'. 

In July 2015, the BACP informed the Claimant that the matter would be considered for pre-hearing assessment in order to determine whether or not there was a case to answer. The Claimant requested that the process be stayed pending the disposal of the matter by UKCP.  The BACP rejected the request and determined that there was a case to answer in respect of 15 separate allegations. The Court observed that these allegations were 'in substance the same' as those that had been considered by UKCP.

In June 2016, a consent order was prepared in which BACP undertook to 'recognise' any decision to be made by UKCP in their parallel proceedings. The Court interpreted this document as an acceptance by BACP that any decision made by UKCP would be 'binding against it'. Despite this, it was apparent that BACP intended to now proceed with its own hearing.

Judicial review was therefore sought on two separate grounds (1) that to proceed with the second complaint would amount to a collateral attack on the decision by UKCP and (2) that it was unfair or irrational to allow the complainant personally to prosecute her complaint to BACP's adjudicatory panel (as its procedures appeared to require).

 The Court considered the argument put before it by BACP, namely that a number of the allegations that it was proposing to proceed with were matters which UKCP had decided to withdraw from its own proceedings. The Court rejected this submission and determined that 'there had been full quasi-judicial determination of all of the Complainant's allegations (already by UKCP). Some were sifted out by means of preliminary determination. Some were determined by lengthy hearing. But they were all adjudicated'.

Though the Court was satisfied that the two complaints had essentially been the same, that the ethical standards of each body had been the same and the allegations had covered the same ground, the 'more difficult question' was whether the parties were the same in each set of proceedings. Though in relation to BACP, the complainant was considered to be 'the prosecutor', the Court determined that this did not reflect the reality of the position and that the status of the complainant in each set of proceedings was effectively the same.

In the circumstances, the Court had little hesitation in determining that in relation to ground (1) cause of action estoppel applied and that this provided an absolute bar against litigating the same matter twice (applying the principles as set out within Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46). The Court further stated that in the event that cause of action estoppel did not operate, that under the 'doctrine of collateral attack' (separate to both 'cause of action estoppel' and 'issue estoppel'), it would be manifestly unfair to allow the complaint to proceed. In relation to the latter point the Court concluded that the case was indistinguishable in terms of principle to that within the case of Secretary of State for Business, Innovation and Skills v Weston [2014] EWHC 2933 (Ch)).

The Court concluded that ground (2) was unarguable and that it could not be said to be unfair or irrational to allow a complainant to act as prosecutor. It determined that in such circumstances, the complainant would be afforded assistance by BACP but in any event even if she had to act alone, this could not be considered to be unfair as there were already proceedings, such as within family law, that vulnerable litigants could often be expected to conduct their own proceedings.

Commentary

Despite the almost unique regulatory regime that exists within the factual background of this case, the judgement does provides a useful reminder of the key principles underlying the doctrine of res judicata, its application within disciplinary proceedings and the hierarchy of the types of case that fall within it. The unusual circumstances are acknowledged within the judgment and the Court observed that had the two bodies regulated different activities or had applied different ethical standards, the outcome would have been quite different.