The FCA – Transformation to Assertive Supervision
In The Queen on the application of Vesna Mandic-Bozic v British Association for Counselling and Psychotherapy  EWHC 3134 (Admin), the BACP was criticised by the High Court for its approach to dealing with a complaint against a member and prohibited from adjudicating upon it as it had already been authoritatively dealt with by the UKCP
In July 2016 the United Kingdom Council for Psychotherapy (UKCP) heard a complaint of impaired fitness to practise, raised by Patient A under its Complaints and Conduct Process, against Vesna Mandic Bozic, a counselling psychotherapist (the claimant). The UKCP Adjudication Panel ultimately concluded that the claimant’s fitness to practise was not currently impaired and therefore imposed no sanction. A matter of weeks after making the complaint to the UKCP, Patient A had made the same complaint, in virtually identical terms, to the British Association for Counselling and Psychotherapy (BACP); the claimant was a member of both organisations. After the UKCP proceedings had concluded, the BACP sought to adjudicate upon the complaint under its own process, in accordance with its Professional Conduct Procedure (PCP), justifying its actions by arguing that the allegations were crafted differently and were designed to uphold a qualitatively different set of ethical and professional standards. The court disagreed.
The claimant sought to challenge the BACP’s decision to proceed by way of Judicial Review on the basis that it amounted to abusive duplicative action. The claimant relied on the doctrines of res judicata and cause of action estoppel, and the doctrine of collateral attack. The judgment of Mostyn, J. was handed down last week. The court ruled that to pursue an identical complaint that had already been adjudicated upon would be unfair, abusive and unlawful and prohibited the BACP from taking the complaint any further.
The restraint of duplicative proceedings in criminal and civil law is well established. The doctrine in civil law is known as res judicata (the matter has been adjudged). Whilst the doctrine has been held by the courts to apply in quasi-judicial disciplinary proceedings (such as these), there was no binding legal authority dealing with the situation where, as in this case, two professional bodies were seeking to exercise disciplinary functions over the same profession, seeking to adjudicate upon identical complaints and vindicating the same, single public interest.
The Court’s decision
When looking at the facts of the case, the court concluded that the allegations made by the complainant to the UKCP and the BACP were the same. The court determined that although the UKCP and the BACP have differently worded ethical standards, they cover the same ground, even if the language used to express them is different.
A full quasi-judicial determination of the complaint had been undertaken by the UKCP and Patient A’s complaint had been adjudicated upon. The UKCP adjudication of the complaint involved an eight day hearing, where both parties were represented and during which six witnesses gave oral evidence.
In granting the claimant’s application on this ground of review, Mostyn, J. held that the doctrine of cause of action estoppel applied and the BACP was barred from commencing proceedings to adjudicate upon the complaint. As an alternative position, Mosytn, J. concluded that even if he was wrong about the principle of action estoppel applying, then under the collateral attack doctrine, it would be manifestly unfair for the BACP to allow the complaint to proceed.
Mostyn, J. launched a scathing attack on the BACP for the ‘dogged and obstinate’ manner in which it had proceeded against the claimant and criticised it for being “impervious to [the claimant’s solicitor’s] pleas to act reasonably and fairly”.
The issues raised in this case are novel; it is likely to set a precedent for cases in which professionals are members or registrants of more than one professional body or regulator and one body of the same profession seek to adjudicate upon an identical complaint against a member or registrant.
The decision is also likely to attract the attention of members who wish to challenge the BACP’s PCP. The BACP undertook a consultation last year to revise its PCP but the fruits of that consultation are yet to be seen. Although the PCP was not under detailed consideration in these proceedings, Mosyn, J was critical of certain aspects of the disciplinary scheme, comparing parts of it to the Star Chamber.
The court urged the BACP and UKCP to work together to avoid duplication of regulatory enforcement functions. The bodies have previously committed to working together, as recently as October 2015 [https://www.kingsleynapley.co.uk/comment/blogs/regulatory-blog/talking-therapists-what-does-the-statement-of-intent-mean-for-practitioners]. This case demonstrates the need for, at the very least, a detailed memorandum of understanding as to how they will deal with identical, simultaneous complaints.
Kingsley Napley LLP acted for the claimant in this case.
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