Martin Wilks

Preliminary Matters

Application to exclude the HCPC hearsay evidence

1. Ms Manning-Rees submitted on behalf of the Registrant that the Committee at the preliminary hearing erred in deciding to admit the evidence of Service User A without appropriate consideration as to fairness. The preliminary hearing decision states: …admit hearsay evidence, the documents within the HCPC’s bundle include a referral form and emails from Service User A. Unfortunately, she is now dead and thus inclusion of this evidence constitutes hearsay. There is no objection from Ms. Manning-Rees (the Registrant’s Representative) for this course to be adopted and the panel accepts that it is appropriate for the application to be granted. The panel is aware that the final hearing panel will be given the usual legal caveats about the appropriate treatment of hearsay evidence.

2. Ms Manning-Rees submitted: Firstly, the above paragraph is factually incorrect as the referral form was not completed by Service User A but by a member of HCPC staff. Secondly, this brief paragraph is the sole explanation for the admission of the hearsay evidence.

3. Ms Manning-Rees conceded that at the time of the previous hearing she agreed that the evidence was admissible. Having now re-visited the authorities to address as to the admissibility of the Registrant’s bundle, she recognised there had been an error and that none of the careful consideration necessary to admit this evidence had taken place. She invited this Panel to re-assess admissibility due to an error made both by herself and the previous panel. In addition, if the HCPC successfully argue that the Registrant’s bundle should be excluded as it contains hearsay, then the entire basis for including the documentation from Service User A is substantially brought into question. The previous panel did not turn their minds to the issue of relevance and fairness in assessing admissibility according to Ms Manning-Rees. She relied upon the cases of: Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin), El Karout v NMC [2019] EWHC 28 (Admin) and Mansaray v NMC[2023] EWHC 730 (Admin).

4. Ms Bernard-Stevenson submitted on behalf of the HCPC that, rule 10 (b) of the Health and Care Professions (Conduct and Competence Committee) (Procedure) Rules 2003, states the rules on the admissibility of evidence that apply in civil proceedings apply to regulatory proceedings. Section 1 of the Civil Evidence Act 1995 states that in civil proceedings evidence shall not be excluded on the ground that it is hearsay. Panels have a duty to conduct these proceedings expeditiously and to exercise their case management powers to make preliminary decisions. The previous panel considered the four preliminary applications before them in May 2023, which included the uncontested application to admit hearsay evidence and made decisions they were entitled to make, after hearing submissions from Ms Bernard-Stevenson and Ms Manning-Rees and the advice of the Legal Assessor. No concerns have been raised in relation to those decisions until 1 December 2023 in response to objections raised by the HCPC concerning the late request to include the Registrant’s documents. It is necessary to respect the previous process and would be wrong for this Panel to overturn part of the May 2023 procedural decision.
Decision

5. The Panel accepted the advice of the Legal Assessor. The Panel determined that it was not appropriate to revisit the previous panel’s decision to admit hearsay evidence. The application to admit hearsay evidence was uncontested. There was no objection from Ms. Manning-Rees at the hearing in May 2023 for this course to be adopted. The Panel received advice from the Legal Assessor and decided that it was appropriate for the application to be granted. The panel was aware that the Final Hearing Panel will be given the usual legal caveats about the appropriate treatment of hearsay evidence. The preliminary hearing panel also gave permission for expert evidence to be adduced at the final hearing. An expert’s report had been prepared in August 2022 and already exhibited all the documentation that the HCPC were seeking to adduce in their May 2023 application. The directions issued in May 2023 have not been challenged until December 2023, in the context of a separate issue concerning documents from the Registrant. No issues of procedural fairness were raised prior to that date following the preliminary decision as to hearsay.

6. The Panel will consider all the evidence when the time comes and give appropriate weight to the relevant hearsay evidence. The Panel has a duty to progress these proceedings expeditiously with regard to procedural decisions already taken. The Panel will determine the relevant issues as part of a fair hearing process. That does not require the previous decision on hearsay evidence to be revisited. The HCPC application giving rise to that decision was not opposed in May 2023 by the Registrant’s Counsel. The documentation which was the subject of the preliminary application in May 2023 had already been provided to the expert witness in August 2022. No objection was raised prior to today’s application on behalf of the Registrant.

7. The Panel concludes that it is not appropriate or necessary in the interests of fairness to the Registrant, for the preliminary hearing application regarding hearsay evidence to be reopened. Accordingly the preliminary application to do so is refused.

Application to admit the Registrant’s hearsay evidence

8. Ms Manning-Rees submitted that the Registrant’s hearsay documents should be admitted on the grounds of fairness and relevance. This is necessary to assist the Registrant to rebut the HCPC’s case, on the basis of the available evidence. The HCPC’s case is based on hearsay evidence which has been found to be admissible. The Registrant’s bundles should also be admissible as to do otherwise would be procedurally unjust and plainly wrong.

9. Ms Bernard-Stevenson submitted that Service User A sadly committed suicide in November 2020. Therefore, she will not be providing live evidence during the substantive hearing. The document provided to the Registrant prior to the first assessment appointment (and the text in red in the section entitled ‘regarding our work’ in the Progress Report of April 2020) amounts to hearsay evidence. Although the HCPC’s case is largely reliant on hearsay evidence from Service User A, this can be distinguished from the Registrant’s reliance on hearsay evidence from Service User A. The Registrant signed a notice admitting the authenticity of the emails which were exchanged between them. The authenticity of these emails is not in dispute. It can be inferred that the Registrant would not be disadvantaged by the admission of the HCPC’s hearsay evidence from Service User A.

Decision

10. The Panel granted the application by the Registrant to admit hearsay evidence, on the grounds of procedural fairness. The Panel will determine the relevance and the weight to afford to that evidence at the conclusion of this stage; in accordance with the principles set out above with regard to hearsay evidence generally.

Background

11. The Registrant is a registered Counselling Psychologist who was self-employed at the relevant time. In about August 2019 Service User A approached the Registrant for therapeutic work. Service User A had complex circumstances which included long standing mental health issues and sexual abuse. However, it is understood that Service User A had approached the Registrant for therapeutic work initially aimed at assisting Service User A for the preparation and management of Family Court proceedings, concerning her children.

12. The nature of the therapeutic work between Service User A and the Registrant appears to have changed in or around August 2020 following Service User A’s clear suicidal ideation and desire to no longer proceed with the Family Court process. Service User A and the Registrant emailed each other frequently during this time.

13. The therapeutic relationship between Service User A and the Registrant appears to have come to an end in about September 2020. A complaint was made to the HCPC by Service User A in October 2020, alleging that the Registrant had overstepped professional boundaries and disregarded standards of professional conduct, in relation to her care. It was alleged that the Registrant had engaged in inappropriate communication with Service User A.

Evidence

14. The Panel had before it the HCPC documentation including the hearing bundle, Case Summary, a Schedule of Emails and opening submissions. In addition, two separate bundles from the Registrant, as well as his witness statement.

15. Dr Wood (Consultant Clinical Psychologist and Forensic Psychologist) was instructed by the HCPC to provide an expert report which was dated 18 August 2022. He described Service User A as having a diagnosis of Borderline Personality Disorder (BPD) with complex and enduring health problems, including a history of abusive relationships. He explained that someone diagnosed with BPD would be more likely to project their own feelings onto a therapist and would be more inclined to deviate from the focus of the therapy sessions.

16. Dr Wood gave evidence that professional boundaries are about managing the relationship between the therapist and the client, in order to ensure that it does not change into a personal relationship. He explained that some of the unspoken methods of maintaining professional boundaries between therapist and client included: conducting sessions at the same time in the same place and choosing words carefully, in order to communicate clearly and directly to the service user. He explained that in the context of a professional relationship between a therapist and a service user with BPD, therapists would have to be even more careful to reinforce professional boundaries, as a service user with this condition would ‘project lots of their own feelings’.

17. Dr Wood indicated that a therapist would be aware that professional boundaries had been crossed, if the therapist began having friendly conversations with the service user, including excessive self-disclosure such as sharing their weekend plans. In Dr Wood’s evidence he stated that on one or more occasions, the Registrant failed to communicate appropriately and professionally with Service User A.

18. In Dr Wood’s opinion the volume and content of emails that were exchanged between the Registrant and Service User A, were such that the Registrant fell below HCPC professional standards. In particular, with regard to maintaining appropriate professional boundaries and using all forms of communication appropriately and responsibly. Furthermore, if the Panel conclude that the Registrant introduced interventions via email that had not already been discussed during face-to-face therapy sessions; then this behaviour fell below the standard requiring that he work in partnership with service users, involving them in decisions about care and treatment to be provided.

19. The Registrant provided a witness statement dated 5 December 2023 stating he is a Senior Practitioner member of the Register of Psychologists specialising in Psychotherapy. He is recognised by the British Psychological Society on their Register of Applied Psychology Practice Supervisors. At the date of Service User A’s first approach to him, he was supervising the WAVES service team; an innovative initiative that incorporated psycho-education, team work, individual counselling support and late-night phone lines, to support people with BPD.

20. Service User A first contacted him on 4 August 2019, with a call, followed by a very long email of personal introduction, this outlined a lifetime of traumatic events and decades of mental and physiological health treatments. The Registrant states he was in the grip of the heroic role of ‘therapist to the rescue’. He believed there was nowhere else for her to go locally. To an extent, he felt duty bound and a responsibility to take her on as a client. It barely occurred to him that he might turn down Service User A’s request to work together. He began providing her with weekly therapy from 19 November 2019, working in a garden cabin office at his home-based practice.

21. The Registrant stated Service User A first emailed him between meetings, on 5 February 2020. In July 2020 he sent his first standalone email in reply to her rather than making brief comments within her messages. He accepts this email extended beyond the previous boundary he had set, in respect of email correspondence. At an in-person meeting on 8 August 2020, Service User A informed him that she wanted to end her life with an assisted suicide, and asked if he would accompany her in supportive therapy.

22. The Registrant also stated he should have done more to set and maintain clear boundaries in the email communication with Service User A. He accepts that he should have done more to try to reinforce boundaries with her and only respond to emails during ‘normal office hours’ not almost immediately.

Legal Assessor's advice on facts and grounds

23. The Legal Assessor advised the Panel to consider the HCPTS Practice Notes entitled "Drafting Fitness to Practise Decisions" and “Opinion Evidence, Experts and Assessors”.

24. When the Panel is considering whether an alleged fact is proved, the standard of proof required is on the balance of probabilities. In other words, the Panel must be satisfied that the act or omission alleged is more likely than not to have occurred before it can find it proved. The burden of proof is upon the HCPC in respect of the factual particulars.

25. The Panel should set out the undisputed facts, the facts alleged, the facts in dispute, and in relation to the latter the findings of fact which it has made and why. Where the credibility and/or reliability of witnesses is in issue, or two witnesses give contradictory evidence, the Panel should set out any factors that it considered in giving appropriate weight to a witness's evidence, or which led to the evidence of one witness being preferred over another. This will help readers understand why the Panel has reached a particular decision.

26. The Procedure Rules provide that at hearings before an HCPTS Panel the rules on the admissibility of evidence are those that apply in civil proceedings in the part of the United Kingdom where the Panel is conducting a hearing. Consequently, as in all other civil proceedings, expert evidence is admissible.

27. The paramount duty of an independent expert is to assist the Panel on matters within the expert’s own expertise. This duty overrides any obligation to the party that instructs or pays the expert. Expert evidence should be the independent product of the expert. Experts should consider all material facts, including those which might detract from their opinion and should provide objective, unbiased opinion evidence on matters within their expertise.

28. An expert should make it clear if a question or issue falls outside the expert’s expertise, or if the expert is not able to reach a definite opinion, for example because of a lack of information.

29. It can be a serious matter for an expert witness to give evidence about matters which fall outside their expertise, as it has the potential to lead to injustice. Panels should therefore be careful to ensure that evidence is only given by an expert about matters which fall within their expertise.

30. There is no statutory definition of misconduct. In the case of Roylance v General Medical Council (No.2) [2000] 1 A.C. 311 it was stated that: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standards of propriety may often be found by reference to the rules and standards ordinarily required to be followed in the particular circumstances”.

31. Nandi v GMC [2004] EWHC 2317 (Admin) indicated that the test of seriousness must be given its proper weight. “In other contexts there has been reference to conduct which would be regarded as deplorable by fellow practitioners. It is of course possible for negligent conduct to amount to serious professional misconduct, but the negligence must be to a high degree”.

32. Mallon v General Medical Council [2007] ScotCS CSIH 17 emphasised the element of judgment that was central to a finding of professional misconduct: “The statute does not lay down any criterion of seriousness; nor does the case-law. Descriptions of serious professional misconduct such as conduct which would be regarded as deplorable by fellow practitioners … tend, we think, to obscure rather than assist our understanding. In view of the infinite varieties of professional misconduct, and the infinite range of circumstances in which it can occur, it is better, in our opinion, not to pursue a definitional chimera. The decision in every case as to whether the misconduct is serious has to be made by the Panel in the exercise of its own skilled judgment on the facts and circumstances and in the light of the evidence…”

33. R (on the application of Remedy UK Ltd) v General Medical Council [2010] DWHC 1245 (Admin) identified principles to assist in determining whether the conduct in question constituted misconduct, including: “Misconduct is of two principal kinds. First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise. Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur outwith the course of professional practice itself, but which brings disgrace upon the practitioner and thereby prejudices the reputation of the profession”.

34. The facts and grounds stages must each be considered separately, and reasons given for the Panel's decision on facts and any misconduct finding arising from the proved facts.

35. Hearsay evidence is admissible but should be approached with caution because it has not been tested by cross-examination. The Panel should consider and decide what weight to afford to the hearsay evidence before it.

36. Finally, the Panel should not speculate with regard to documents which are not before it, or seek to make findings on allegations which are not pleaded.

Decision on Facts

37. Rule 10 (b) of the Health and Care Professions (Conduct and Competence Committee) (Procedure) Rules 2003, states the rules on the admissibility of evidence that apply in civil proceedings apply to regulatory proceedings. Section 1 of the Civil Evidence Act 1995 states that in civil proceedings evidence shall not be excluded on the ground that it is hearsay.

38. Considerations relevant to the weighing of hearsay evidence are:

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

39. The Panel considered the submissions of Ms Bernard-Stevenson and Ms Manning-Rees and all the available documents. The HCPC called one live witness: Dr Harry Wood. The Panel found the content of his report was clear. In his oral evidence following cross-examination (and after the late service of the Registrant’s statement provided to him just before he was due to give evidence), he appeared to amend some of his conclusions. This was understandable in view of the limited time to consider the Registrant’s statement plus the absence of therapy notes and a statement from Service User A. Furthermore, Dr Wood is a Clinical and Forensic Psychologist and the Registrant is a Counselling Psychologist. Dr Wood practises from an office with a personal assistant which differs from the way the Registrant works. Dr Wood’s oral evidence assisted the Registrant to some extent. Subject to the limitations of the information available to him and the different nature of his practice, Dr Wood was trying to be helpful.

40. The Registrant also gave oral evidence at the hearing. He denied the factual particulars. He adopted his witness statement dated 5 December 2023. This formed part of his evidence in chief. His evidence was at times contradictory and there was a lack of clarity. He gave evasive answers and he appeared to have a much clearer recollection of the detail of events at the hearing than he had when he first replied to the HCPC Allegation for the Investigating Committee in 2021. As a result some of his evidence lacked credibility. He said he had destroyed all the therapy notes he made at Service User A’s request once their sessions had ended. In the absence of notes, it was difficult for the Panel to attach great weight to some of his evidence. Although he did make reference to having had access to more contemporaneous documents which were not before the Panel.

41. The Registrant referred to himself as a “hero” in relation to Service User A, but the Panel concluded that Service User A’s needs were so complex that the Registrant should have realised that he was not adequately able to meet them.

42. The Registrant’s oral evidence was generally difficult to follow due to the lack of straight answers; it was lengthy and discursive but not dishonest and he made appropriate concessions. The Panel took into account that the Registrant might be nervous giving evidence and that he was doing so in very difficult circumstances taking into account the vulnerability of Service User A, the fact that she had taken her own life and the impact this had on him.

43. With regard to particular 1a):

Between around 19 August 2020 and 9 October 2020 you did not:

a) Communicate appropriately and professionally with Service User A on one or more occasion;

44. This was a complex case with an extremely vulnerable service user. It was vital for the Registrant to proceed carefully. The Panel found that his communication with Service User A was unclear and ambiguous and even when she had misunderstood the professional relationship he continued to communicate with her in a similar manner and did not directly address her misunderstanding or confusion. The Registrant allowed Service User A to continue a lengthy email correspondence between frequent face to face sessions and on one occasion used email to discuss highly sensitive and complex matters.

45. The Registrant did not communicate appropriately and used email to discuss matters when this was inappropriate using the ordinary definition of the word appropriate. The Panel accepts the HCPC’s submission that the words ‘appropriate’ and ‘professional’ are terms that should be given their ordinary meaning.

46. On 19 August 2020 out of the blue he sent an email concerning a technique which had not previously been discussed. The Registrant continued to send and receive emails almost continuously to Service User A. He did not shut down the email exchanges and the sheer volume of emails and unclear language was confusing to Service User A. She would reply, “what do you mean?” and on 30 August wrote “you need to be more careful the way you word things”.

47. The Registrant’s email to Service User A dated 19 August 2020 included: ‘Open your legs to yourself and lovingly-mindfully present-offer her help to meet her needs. and if there is a mirror nearby gaze into your own eyes at the peak moment of the experience’.

48. Although there had been no express agreement between the Registrant and Service User A to undertake sexual therapy in the initial stages discussion of sexual disfunction did occur over time. However, it was limited to discussion and this “homework” appears to have come out of the blue. Service User A was clearly distressed when he suggested she should masturbate. Although they were meeting on weekly occasions the Registrant did not appear to offer her any clarity in these face-to-face sessions. Following a two-hour session, on 28 August 2020 Service User A sent feedback and the Registrant responded by email and engaged with her. He set a boundary and then broke it on the next day.

49. The Registrant’s email to Service User A dated 2 September 2020 stated: “Hey, Spider woman. Now you’re lured me into your net, AND we’ve established that we aren’t mating-then maybe you’ll be able to relax the black widow routine and allow me to help, if and where I can”.

50. The Registrant’s email to Service User A on Saturday 19 September 2020 stated: “there is so much magnificence in the ocean waves are coming in waves are coming in. Relax, let go, enjoy NDE” [Near Death Experience].

51. The Registrant’s email to Service User A dated 22 September 2020 stated: “Thank you for what sounds like a ‘wise mind’ suggestion for me to consider. I have left space for us both to consider further. On reflection I recognise that ‘gain’ is quite unlikely and that ‘pain’ is a strong possibility- and one that we don’t* have to* risk in order to pursue some (my) idealised ‘good ending’ at the previously planned last meeting”.

52. The Panel took into account the entirety of the emails as set out above and found that the Registrant had not communicated appropriately and professionally with Service User A on numerous occasions between 19 August 2020 and 9 October 2020.

53. Particular 1a) is proved to the requisite standard.

54. With regard to Particular 1b):

b) Maintain professional boundaries in your email exchanges and communication with Service User A on one or more occasion, including by asking her whether she masturbates and/or proposing she try to do so in the bath.

55. The Panel accepts that the Registrant did not use the word “masturbate” but he did use “self-pleasuring” in the context of suggesting Service User A touch herself, use a mirror, open her legs and use a wet room in which she had an inflatable bath. The Registrant accepted this was an invitation and proposal (not an instruction) and it did happen; with dire consequences. These are clearly set out in emails.

56. An email from Service User A to the Registrant dated 19 August 2020 stated: “whilst I'm trying to stop sexual thoughts/intentions towards you and then you're instructing me to touch myself sexually...which in that moment felt like a head fuck for me and confusing, mixed signals and stress/panic inducing. I think we might have first discussed if sexual therapy was something I wanted to explore with you before setting me homework like that?”.

57. The email sent from Service User A to the HCPC dated 3 November 2020 at 17.51 stated: “On one occasion during a video session, he asked if I ever masturbate and when I told him I did not, he suggested that I try in the bath”. The Registrant in answer to Panel questions accepted that although he did not use the word masturbate, which he considered to be “crass”, he had invited Service User A to take pleasure in herself. He also accepted that the contents of the 3 November 2020 email to the HCPC were largely an accurate reflection of what had occurred as could be seen in the corresponding emails exhibited in the Schedule of Emails Bundle.

58. The Registrant’s email to Service User A on Saturday 19 September 2020 stated: ‘there is so much magnificence in the ocean waves are coming in waves are coming in. Relax, let go, enjoy NDE” [Near Death Experience].

59. The email from Service User A on 20 August 2020 at 1.28 stated: “I still love you, [Service User A], x”

60. The email from Service User A on 28 August 2020 stated: “Love [Service User A] xxxxxx.”

61. The Registrant’s email to Service User A on Saturday 29 August 2020 stated: “I imagined ‘holding’ you psychologically rather than romantically, fondly nonetheless”.

62. The Registrant’s email to Service User A on 1 September 2020 stated: “...I’m enjoying quoting that as because it’s the title of one of my favourite songs that a play on the accordion and sing- mostly on the healing field at Glastonbury festival-here's Ry Cooder's version…”

63. The Registrant’s email at 9.38 on 19 September 2020 to Service User A stated: “No rush. I’d like to sing live to you but cannot…you have a recording in your memory vault. Allow all the amazing human experience you’ve had to be reviewed in the time remaining”.

64. There was also discussions between the Registrant and Service User A with regard to Dignitas which was a complete “red flag” and the therapy between them should have stopped there.

65. The Panel finds the Registrant failed to reinforce boundaries and did not shut down the unprofessional exchanges and communication between himself and Service User A. There are numerous examples of this failure, caused by his wanting to be a “hero”. He was sending mixed messages to a vulnerable person. The Panel found that the sheer number of emails, as well as the fact that a number were sent, or received very late at night, on Sundays and a Bank Holiday Monday, in between regular face-to-face and virtual meetings was excessive. These would not make for a therapeutic and professional relationship. Further, the Registrant failed to “shut down” inappropriate communication from Service User A.

66. The Registrant signed off all his emails with the word “metta” which he explained was a Buddhist term for “loving kindness”. Additionally he did nothing to discourage Service User A from signing her emails off with “love Service User A XXX”. The Panel found this to have breached professional boundaries.

67. Dr Wood stated that the Registrant was not a crisis line. He was not the only person available to help her and he was not providing a mental health crisis assessment. He did not maintain professional boundaries in his email exchanges and communication with Service User A on numerous occasions between 19 August 2020 and 9 October 2020, including by asking her whether she masturbates and/or proposing she try to do so in the bath.

68. Particular 1b) is found proved to the requisite standard.

Decision on Grounds

69. The material time period is between 19 August 2020 and 9 October 2020. Therefore, the standards which applied to the Registrant at this time were: ‘The HCPC Standards of Conduct, Performance and Ethics (2016) and The Standards of Conduct for Practitioner Psychologists’.

70. The Panel finds that the Registrant’s conduct specified in particulars 1a) and 1b) fell below the standards to be expected of a Practitioner (Counselling) Psychologist. In particular, that the Registrant has breached the following Standards of Conduct, Performance and Ethics:

Standard 1 - Registrants must promote and protect the interests of service users and carers.

Standard 2 - Registrants must communicate appropriately and effectively.

71. The Registrant has also breached the following Standards of Conduct for Practitioner Psychologists:

Standard 1 - Registered Practitioner Psychologists must work within the legal and ethical boundaries of their profession.

Standard 8 - Registered Practitioner Psychologists must be able to communicate effectively.

Standard 9 - Registered Practitioner Psychologists must be able to draw on appropriate knowledge and skills to inform practice.

72. The Registrant’s breaches of the above standards were sufficiently serious to amount to misconduct in respect of Particulars 1a) and 1b).

73. Service User A’s responses to the Registrant stated she did not understand and could not take any more. His replies did not deal with these issues or explain what she did not understand. She had seen him since April 2020 and he did not make it clear enough that he was a therapist not a friend or partner which was deplorable. There were other examples of when he joked inappropriately with Service User A, for example when he called her “Spider Woman” and told himself off as “naughty Martin”. Service User A would have been confused by this.

74. The Panel considered he was thinking about himself first and not Service User A. He told the Panel that in creating the “second contract” which related to her ending her life, was trying something he had not done before and wanted to make a success of it. He told the Panel he found it rewarding as a male therapist, taking into account that she had suffered such significant abuse from males in the past. He found her intriguing and was fascinated as he had never had a client such as Service User A. He wanted to help her deal with Dignitas and redress unfairness in her life. This was professionally arrogant on the part of the Registrant and ultimately their relationship was no longer about her, it was about him as a “hero”.

75. The Registrant’s misconduct was sufficiently serious that it could properly be described as misconduct going to fitness to practise. The Panel found that he repeatedly breached professional boundaries and communicated in an inappropriate and unprofessional way towards Service User A.

76. Based on the facts that have been found proved the Panel concludes that they constitute misconduct.

Impairment

Application to admit the Registrant’s evidence

76. Ms Manning-Rees submitted that the Registrant’s documents relevant to the impairment stage, namely: his reflective account and impairment stage bundle should be admitted, on the grounds of fairness and relevance. The bundle contains relevant opinion evidence in testimonials which relate to the Registrant’s supervision, practice and character. This is relevant at both impairment and any sanction stage. There is nothing unusual in providing either a reflective account or testimonials at this stage. The witnesses do not purport to give expert evidence. They are giving an opinion about matters within their direct knowledge which clearly stems from their relationship with the Registrant. The Panel are able to consider opinion evidence and give it what weight they see fit. When it comes to evidence on impairment and sanction it is not helpful to take an unnecessarily rigid approach.

77. Ms Bernard-Stevenson submitted firstly that the Registrant’s reflective account was served out of time. Secondly the Registrant’s impairment stage bundle should be redacted in order to remove confidential, irrelevant or inadmissible information and opinion evidence; in accordance with the civil rules of evidence and the relevant HCPTS Practice Notes. A proposed redacted bundle has been prepared enabling the Panel to determine the admissibility of the text marked for redaction.

78. After receiving advice from the Legal Assessor the Panel granted the Registrant’s application to admit his reflective account out of time, on the grounds of procedural fairness. The Panel noted that the late stage and piecemeal fashion in which the Registrant’s documents have been provided both shortly before this hearing commenced and during the hearing itself is unsatisfactory. The Panel accepted that the redacted text consists of matters either relevant to the facts and misconduct stages (not the impairment stage), opinion evidence from a witness who does not have the status of an expert witness in this case; or confidential, irrelevant, or inadmissible information.

79. Accordingly, the Panel decided that the Registrant’s impairment stage bundle should be redacted as proposed by the HCPC; in order to remove confidential, irrelevant or inadmissible information and also opinion evidence. The Panel exercised its discretion, taking into account the civil rules of evidence and the relevant HCPTS Practice Notes, and in accordance with the principles of fairness to both parties and the public interest.

Evidence at impairment stage

80. The Registrant and his witness PC gave oral evidence at this stage of the hearing. PC stated that the Registrant is a gentle, warm, mindful, kind and generous person. PC stated that she had seen the Panel’s decision on facts and misconduct, and from the snapshot of the emails referred to therein, it had been very clear to her that the Registrant had acted well beyond professional boundaries. However, she has not changed her view of the Registrant’s character since the Allegation. He is a very experienced practitioner with wisdom and years of experience in professional practice.

81. The Registrant stated that he had been shocked by the Panel’s decision on facts and misconduct. However, he stated it was helpful for him to hear the views of PC and he acknowledged that his email communication with Service User A was indefensible. He explained that he has made changes to his practice since his involvement with Service User A. He has regular supervision from an HCPC registered supervisor to understand the HCPC process. He has decided to refrain from working with BPD clients. He has reduced the number of days he practises and communicates with clients by email only to arrange appointments. He is also no longer using WhatsApp to communicate. Service User A was a very unusual client and now he would not deal with a client by email except for last minute changes. He is now on alert for any text-based communication between appointments. His enthusiasm to help Service User A had opened a window to something he could not close. His reflection has given him more clarity as to the advantages of communication in person rather than by email. He recognises that it is hard to stop the flow of emails once it has started. If he was ever in a COVID type lockdown situation again he would be cautious about variations in his practice, to facilitate remote contact with clients.

82. The use of email caused him to reinforce the error of continuing a dialogue of a therapeutic nature. He now has a case load of less complex issues and is dealing with the “worried well” rather than the severely traumatised. He has revisited the HCPC standards and professional guidelines, undertaken on-line courses and is working again from his office supervising 5-6 professional clients on a monthly basis. He currently has no restrictions on his practice and sees about 14 service users per week on average.

83. The Registrant stated that he has taken on board the observations of Dr Wood that he is not an emergency service and should not have been available to respond to emergency calls. He should have waited until face to face sessions to discuss therapy in order to limit any harm Service User A was doing to herself and not placed himself in a dangerous position with regard to professional standards and boundaries.

84. The Registrant has monthly supervision with SVS. He has worked effectively with supervision and would be willing to comply with conditions of practice. He trusts his supervisor and acts in accordance with her advice and support.

85. The Registrant explained how he recognises when matters are too complex for him to deal with and he gave an example of how he had ceased to provide therapy for a couple when the complexity became clear. He has been practising unrestricted since these events occurred in 2020 and there have been no further complaints since then. If a similar situation arose again; he would manage it by reducing the client contact and make a referral to another practitioner. If he could speak to Service User A now, he would say he had learned a lot from her, they had a unique relationship and he is sad she had such an abused and traumatic life. He is sorry she left this life feeling her last therapist had let her down. He is speaking from the heart and not just watching out for his own back.

86. The Registrant stated he is a good team player. He does still feel he has the qualities to enrich the profession as a Counselling Psychologist and to help people, whilst he is still able to work in that role. At the time he felt he was in a heroic role providing therapy for Service User A but he has since reflected and in a similar situation he would not feel obliged to play the hero. He has maintained appropriate boundaries since then and does not offer services to similar clients. In response to cross-examination regarding breach of Standard 1 of the HCPC Standards for Practitioner Psychologists he explained that he did not do anything illegal, or unethical but the way he used emails to communicate with Service User A was indefensible. His explanation in relation to the use of email during the COVID pandemic was to explain his use of email not to excuse it. There were restrictions on clients and therapists and this contributed to the Registrant seeing an opportunity for wider communication. He accepts he failed to close this down in time, before dysfunctionality had developed. In the future he is not going to use email to communicate generally or to cross boundaries. He does not pose a risk to service users, there have been no further complaints and he would not agree to work with a service user who did not want him to keep notes of their therapy.

87. The Registrant also supplied a reflective account and an impairment document bundle (which has been redacted as explained above).

88. The Registrant’s reflective account concludes: “My relationship with my professional regulator matters to me and I hope to emerge from this process having fully and openly engaged, with my reputation intact, and with many of these remedial measures already in place. This three-year long process has taken its toll and I know that I will now need to be more aware of my professional boundaries and take additional steps to ensure that I am more regularly reviewing and assessing my practice into my uncertain future. One of my short-term CPD needs is to attend another ten-day mindfulness retreat. I will continue to work with [SVS], my HCPC recognised supervisor, for as long as she is willing and available, and I will of course share this reflective account with her and I am certain she will hold me accountable to these intentions. I reiterate my understanding that serious concerns have been raised in this FTP investigation. I understand that they needed to be examined in full and I hope the supplied context, background and ensuing reflections have better illuminated my explanations. I assure the panel that ‘watching my back’ will not be a selfish intention. If there ever is a next time, where I find myself considering taking a risk on behalf of a service user, I shall remind myself that I need to include all my mental health colleagues, with all of our clients, past and future, the reputation of our profession and the regulator, into my costs/benefits calculations”.

89. The Registrant’s impairment document bundle includes testimonials from SVS (Consultant Psychologist), PC (Clinical Psychologist), RW (Assistant Professor and Staff Psychologist) and SG (experienced psychotherapist); plus two CPD certificates dated 15 November 2023.

Legal Assessor's advice on impairment

90. The Panel has found the facts proved and that the statutory ground applies but a finding of impairment is not automatic. Each stage must be considered separately and reasons given for the Panel's decisions. Whether the Registrant is currently impaired by reason of his misconduct is a matter for the Panel's judgment.

91. The Panel should consider the HCPTS Practice Note ‘Fitness to Practise Impairment’. The test of impairment is expressed in the present tense; that fitness to practise “is impaired”. A Registrant may have been impaired at the time of the failing identified in the allegation. However, the Panel’s task is to form a view about the Registrant’s current fitness to practise, by taking account of the way in which the Registrant has acted or failed to act in the past and, looking forwards, whether the Registrant’s ability to practise safely is compromised; and/or whether public confidence in the profession would be undermined, in the absence of a finding of impairment. Thus, in determining fitness to practise the Panel must take account of two broad components: the ‘personal’ component: the current competence, behaviour etc. of the Registrant; and the ‘public’ component: including the critically important public policy issues.

92. When assessing insight, the Panel will need to consider what effect, if any, the fact that the Registrant has denied the factual particulars has on this assessment. It is wrong to conclude that a Registrant who has denied the facts alleged cannot then demonstrate insight at the impairment stage. Each case must be considered on its own facts, but a nuanced approach should be taken in assessing insight in these circumstances.

93. In assessing harm and future risk, the Panel should take account of the fact that harm can be caused in different ways. In considering character evidence for the purpose of determining impairment, the Panel must exercise caution but should not adopt an over-strict approach. It is important that all evidence which is relevant to the question of impairment is considered.

94. Cohen v General Medical Council [2008] EWHC 581 (Admin) states that: “It must be highly relevant in determining if a doctor’s fitness to practise is impaired that first his or her conduct that led to the charge is: (a) easily remediable? (b) has been remedied? (c) is highly unlikely to be repeated?”

95. Cheatle v General Medical Council [2009] EWHC 645 (Admin) states: “There is clear authority that in determining impairment of fitness to practise at the time of the hearing, regard must be had to the way the person has acted or failed to act in the past.... In my judgment this means that the context of the doctor’s behaviour must be examined. In circumstances where there is misconduct at a particular time, the issue becomes whether that misconduct in the context of the doctor’s behaviour both before the misconduct and to the present time, is such as to mean that his or her fitness to practise is impaired. The doctor’s misconduct at a particular time may be so egregious that, looking forward, a panel is persuaded that the doctor is simply not fit to practise medicine without restrictions, or maybe at all. On the other hand, the doctor’s misconduct may be such that, seen within the context of an otherwise unblemished record, a Fitness to Practice panel (FTPP) could conclude that, looking forward, his or her fitness to practise is not impaired, despite the misconduct.”

96. Zygmunt v General Medical Council [2008] EWHC 2643 (Admin) helpfully identified recurrent features of cases in which impairment of fitness to practice has been found to exist, from paragraph 25.50 of the Shipman report: In the examples I discussed above, four reasons for unfitness recurred. These were (a) that the doctor presented a risk to patients; (b) that the doctor had brought the profession into disrepute; (c) that the doctor had breached one of the fundamental tenets of the profession; and (d) that the doctor’s integrity could not be relied upon.

97. Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) states: “In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”

98. Yeong v General Medical Council [2009] EWHC 1923 (Admin) stated: “It is a corollary of the test to be applied and of the principle that a FTPP is required to look forward rather than backward, that a finding of misconduct in the past does not necessarily mean that there is impairment of fitness to practise - a point emphasised in Cohen and Zygmunt...In looking forward, the FTPP is required to take account of such matters as the insight of the practitioner into the source of his misconduct, any remedial steps which have been taken and the risk of recurrence of such misconduct. It is required to have regard to evidence about those matters which have arisen since the alleged misconduct occurred.”

Decision on Impairment

99. The Panel accepted the advice of the Legal Assessor and took into account the impairment evidence and submissions from Ms Bernard-Stevenson and Ms Manning-Rees, in order to determine whether the Registrant’s fitness to practise is currently impaired.

100. The HCPTS Practice Note ‘Fitness to Practice Impairment’ states there are two components: Firstly, the personal component, which includes looking at the current competence, behaviour etc. of the individual registrant. Secondly, the public component which includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

101. The test of impairment is expressed in the present tense, that fitness to practice is impaired at the current date. The Panel has taken into account the lapse of time since these matters occurred; but it has also looked at the Registrant’s past actions in order to assess his likely future conduct.

102. The Panel considered the need to uphold the HCPC Standards of Conduct, Performance and Ethics (2016) and The Standards of Conduct for Practitioner Psychologists and public confidence in the profession, in deciding whether a finding of impairment should be made.

103. Whether a Registrant’s fitness to practise is impaired is a matter for the Panel’s judgment. There is no burden of proof on the HCPC or the Registrant at this stage.

104. The Registrant denied the factual particulars of the Allegation which have been found proved. However, the Panel reminded itself that registrants are entitled to a fair hearing which includes defending themselves against allegations which they deny, and that doing so should not count against them. The Panel also noted that the Registrant is not facing any secondary allegation of dishonesty. The Panel took into account that although the Registrant denied the Allegation, the nature of his defence did include partial concessions in both his reflective account and his evidence throughout this hearing. The Registrant did not seek to deceive but rather to explain the very difficult circumstances surrounding this case and this particular service user. The Panel acknowledges and it is not disputed that Service User A was a very intelligent yet also complex client who expressed herself at length through what could be described as ‘therapeutic journalling’ in her emails.

105. The character evidence from PC was positive and she has known the Registrant for a long time. She stated he does a good job, but he was out of his depth with Service User A and in her view his response to Service User A’s emails was completely wrong. Having seen the Panel’s decision on facts and grounds PC gave her assessment of the Registrant’s actions which he accepted when he subsequently gave evidence.

106. The Panel moved on to consider the personal component and looked at the Registrant’s current competence and behaviour. The Panel considered that the acts or omissions which led to the allegation are remediable and indeed the Registrant has taken remedial action. In practical terms he no longer takes on BPD clients, he has reduced his hours and working days and only uses email when necessary for administrative matters such as changing appointments, not for journaling therapy purposes. He also conducts the majority of therapy face to face and is reluctant to use on-line methods of communication. He stopped WhatsApp use when that might cause a potential problem. The Panel noted that the Registrant had undertaken CPD and research into more complex presentations even though he did not intend to take on such cases in the future. The Panel finds that it is unlikely that he will repeat his errors in relation to conducting therapy by email, given the insight he has shown and the indication that he learned from this experience.

107. The Panel found that on balance the Registrant is no longer using email inappropriately, is working fewer hours and with a less difficult client group. The question is whether the acts or omissions are likely to be repeated and the Panel concluded that the risk of repetition is low. In coming to this decision the Panel took into account the significant complexities of Service User A and the circumstances surrounding her need for therapy in 2019, as well as the impact of COVID on how therapy was being provided at that time. The Panel also took into account the Registrant’s until now 30 year unblemished career. In addition, he has worked with self-imposed conditions of practice (in the form of restricted client group, reduction in working hours and appropriate use of email) for the last 3 years without any further issues. Indeed, he gave an example in evidence of how he decided to stop providing therapy for one couple recently when it became clear their needs were too complex.

108. The Panel acknowledged the difficult circumstances the Registrant faced in 2020; due to the COVID pandemic virtual hearings were introduced and working practices changed. The Registrant was relatively new to working online and his use of email got out of control because Service User A was bombarding him with emails. The Panel further noted that the Allegation relates to a single service user. The Registrant has shown insight into his failings by changing his practice and his acceptance of the evidence of Dr Wood and PC.

109. The Panel therefore finds the Registrant is not currently impaired under the personal component.

110. In considering the public component, as identified in the relevant HCPTS Practice Note the first element, the need to protect service users, overlaps with the personal component and the Panel has found that the Registrant has insight and the likelihood of repetition is low. The other two elements of the public component relate to maintaining professional standards and the need to maintain public confidence in the profession. Given the nature of the Allegation and the facts found proved public confidence in the profession would be undermined if a finding of impairment were not made. Although the Panel has found that the Registrant is not currently impaired on the personal component, his behaviour at the time fell far short of what is to be expected, and it is necessary to maintain public confidence in the profession and the regulatory process by finding that there is a current impairment of his fitness to practise.

111. The Panel concluded that a member of the public in possession of the facts of this case would find it shocking if a finding of current impairment was not made. Service User A was distressed and confused by the Registrant’s email exchanges and his failure to shut down her increasingly lengthy and inappropriate discussions on email. The Panel found that the Registrant breached boundaries for a period of more than 2 months whilst the email exchanges continued. He breached a fundamental tenet of the profession in relation to professional boundaries.

112. Public confidence would be undermined if a finding of impairment of fitness to practise were not made in this case given the seriousness of the misconduct. Accordingly, due to the need to uphold proper professional standards, the Panel finds that the Registrant’s fitness to practise is currently impaired under the public component.

Decision on Sanction

113. The Panel considered the submissions and accepted the advice of the Legal Assessor.

114. Ms Bernard-Stevenson submitted that the sanctions available to the Panel are set out in Article 29 of the Health Professions Order 2001. The Panel should consider the factors in the HCPC Sanctions Policy, including the need to address all the facts found proved. All sanctions are available to the Panel in this case. The Panel should seek to identify the aggravating and mitigating features. The potentially aggravating features include a pattern of unacceptable behaviour by the Registrant over a period of several months, the likelihood of repetition, an abuse of the professional position of trust and the unequal balance of power between the Registrant and Service User A. The Registrant should have been aware of these factors and not abused his position. He failed to maintain clear boundaries and engaged inappropriately with a vulnerable service user.

115. Ms Manning-Rees submitted that any sanction must be just and proportionate. It must also be fair, not punitive and the minimum sanction required to address the findings made by the Panel. The mitigating features are the positive evidence of his good character. The Registrant is honest, kind and generous. He prioritised those in need and less fortunate than him. The facts giving rise to his misconduct are unlikely to recur. The salutary effect of these proceedings, the lack of further complaints and his remediation (including through supervision) will prevent any repetition. He has recognised his failings and taken steps to address them. The Panel has found current impairment on the public component only. The Registrant has insight and the Panel should take a measured approach. The extent of the misconduct is limited to one service user over one period. The low risk of repetition and the character references show a lower level of sanction, if any, is applicable. The Registrant would be a great loss to the profession if he were no longer allowed to practice. He had shown no malevolent intention towards Service User A. The Panel has evidence of his genuine insight and reflection which would justify a Caution in this case.

116. The Legal Assessor’s advice to the Panel was to follow the HCPC Sanctions Policy, which states that Sanctions should only be imposed in relation to the facts found proved, but should address all of those facts which have led to a finding of impairment. The primary function of any sanction is to protect the public. The considerations in this regard include: any risks the registrant might pose to those who use or need their services; the deterrent effect on other registrants; public confidence in the profession concerned; and public confidence in the regulatory process. All sanctions are available in this case.

117. Sanctions are not intended to punish registrants, but instead ensure the public is protected. Inevitably, a sanction may be punitive in effect, but should not be imposed simply for that purpose. In writing any decision on sanction, the Panel must provide clear and detailed reasoning to support its decision, explaining the issues it has considered and the impact any aggravating or mitigating factors have had on the outcome. Any sanction must be proportionate and should be no more than is necessary to meet the legitimate purposes of providing adequate protection to the public, to protect the reputation of the profession, maintain confidence in the regulatory system and declare and uphold proper professional standards.

118. The Panel should start by considering the least restrictive sanction first, working upwards only where necessary. The final sanction should be a proportionate approach, and will therefore be the minimum action required to protect the public and the public interest.

119. The Sanctions Policy states: Registrants should take care to set clear boundaries, and avoid conduct which strays beyond that typically expected of a therapeutic / professional relationship.

120. The Panel identified the following aggravating factors:

• The Panel has found there was a breach of trust in relation to a vulnerable service user.

• The Registrant is currently impaired under the public component.

121. The Panel identified the following mitigating factors:

• There was no sexual or otherwise inappropriate relationship being pursued by the Registrant.

• There was not a pattern of inappropriate behaviour involving more than one service user.

• The impact of COVID created difficulties for the Registrant in providing therapy to a complex service user.

• There have been no previous regulatory or disciplinary matters over the course of his 30 year career.

• He has undertaken extensive remediation and produced positive character references.

• The Registrant has engaged in the regulatory process and demonstrated insight and genuine remorse.

• There is a low risk of repetition and no current impairment under the personal component.

122. Taking no further action or mediation is not appropriate, as the Panel consider that a Sanction is appropriate and is necessary to recognise the impact of the Registrant’s misconduct on the reputation of the profession.

123. The Panel next considered a Caution Order. The HCPC Sanctions Policy states:

101.A caution order is likely to be an appropriate sanction for cases in which:
• the issue is isolated, limited, or relatively minor in nature;
• there is a low risk of repetition;
• the registrant has shown good insight; and
• the registrant has undertaken appropriate remediation.

102.A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate. In these cases, panels should provide a clear explanation of why it has chosen a non-restrictive sanction, even though the panel may have found there to be a risk of repetition (albeit low).

103.The panel can impose a caution order for any period between one and five years. As discussed earlier, the panel should take the minimum action required to protect the public and public confidence in the profession, so should begin by considering whether or not a caution order of one year would be sufficient to achieve this. It should only consider imposing the caution order for a longer period where one year is insufficient.

104.Each case should be considered on an individual basis, and the panel’s decision should clearly state the length of sanction it considers to be appropriate and proportionate, and the reasons for that decision.

124. On the facts of this particular case a caution is sufficient to mark the significance of the Panel’s findings. The Registrant’s misconduct was not relatively minor in nature but there is a low risk of repetition and conditions of practice are not likely to be appropriate. The facts arise from a very specific set of circumstances over a two month period. The issue is isolated as it concerned one complaint from one service user in the context of a 30 year unblemished career. The Panel consider that meaningful restrictions could not be imposed today because the Registrant is already subject to supervision which is an integral part of a counselling psychologist’s practice. The Registrant has already explained that he no longer takes on such complex cases. The Panel considered that there is a low risk of repetition and there have been no further complaints during the last three years of unrestricted practice. Accordingly, the Panel has decided to impose a three year Caution Order. The period of three years is consistent with the Panel’s findings at the facts, grounds and impairment stages. A one year or two year caution is not be sufficient to maintain public confidence in the profession; or to mark the seriousness of the misconduct, in relation to a vulnerable service user. A three-year caution is proportionate, to reflect the facts proved and will maintain public confidence in the profession and the regulatory process.

125. Having determined that a Caution Order appeared to meet all the legitimate requirements of a sanction in this case and that it was proportionate in all the circumstances; the Panel then considered whether the case would more properly merit conditions of practice or a Suspension Order under the Sanctions Policy.

126. In the judgement of the Panel conditions of practice are not practicable and a Suspension Order would be disproportionate, in view of the Registrant’s insight as to the seriousness of his misconduct and would be unduly punitive. The Registrant’s misconduct was not sufficiently serious, persistent or reckless to justify conditions of practice or a Suspension Order on the grounds of public protection and the wider public interest. The Registrant was not dishonest. There is full insight and acceptance of what he has done and the effect of his misconduct. These failings have been remedied and the Registrant is not impaired under the personal component.

127. The Panel today has concluded that a Caution Order for three years is the appropriate and proportionate sanction in this case.

Order: The Registrar is directed to annotate the register entry of Mr Martin Wilks with a Caution which is to remain on the register for a period of three years from the date this order comes into effect.

No notes available

History of Hearings for Martin Wilks