Angela Emmerson v Human Givens Institute Limited [2025] EWHC 636 (KB)

[2025] EWHC 636 (KB)Case No KB-2022-003162
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
Venue Royal Courts of JusticeDate 17/03/2025
Strand
London
WC2A 2LL
Before
JASON BEER KC(Sitting as a Deputy Judge of the High Court)
Between
ANGELA EMMERSONClaimantHUMAN GIVENS INSTITUTE LIMITEDDefendant(trading as THE HUMAN GIVENS INSTITUTE)
Simon Butler (instructed by BSG Solicitors LLP) for Claimant Katie Ayres (instructed by Mills & Reeve LLP) for the DefendantHearing Hearing date: 27 th February 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 17 th March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
[1]The human givens model is a theory that people are born with innate needs and the resources to meet them – human givens therapy adopts an holistic approach which seeks to help people learn how to meet their needs and improve their mental health.[2]The Claimant (hereafter “Mrs Emmerson”) is practitioner of human givens therapy and was a member of the Human Givens Institute (“the Institute”). From 2013 onwards she was engaged to provide therapy to a married couple who I shall refer to in this judgment as Mr and Mrs A. In March 2017 Mr and Mrs A separated, and Mr A later requested Mrs Emmerson to write a letter for his use in the divorce proceedings. Mrs Emmerson did so. Mrs A complained to the Institute about the letter, in particular that it disclosed confidential information obtained in the course of Mrs A’s therapeutic engagement with Mrs Emmerson. An Adjudication Panel of the Institute upheld elements of the complaint and imposed a sanction on Mrs Emmerson. Its decision on these issues was upheld by an Appeal Panel.[3]By these proceedings Mrs Emmerson challenges the decision of the Institute to uphold the complaint, alleging that it is in breach of the contract between them – in particular that the decision was reached in breach of implied terms that required that any such decision was in accordance with natural justice and was reasonable. She does not seek damages, instead only seeking declaratory relief and an order setting aside the decisions of the Adjudication and Appeals Panels.[4]The claim therefore raises issues as to the terms of the contract, in particular as to the nature and extent of the terms that are to be implied into it; the fairness of the process which the Institute undertook, and which led to the imposition of a sanction on Mrs Emmerson; and the reasonableness of the Institute’s decision. B. The Facts The Claimant[5]Mrs Emmerson is a psychotherapist and a human givens therapist. She became a member of the Institute (a “registrant”) in 2004. The Defendant[6]The Institute is a limited company, a membership organisation and a professional body representing the interests of psychotherapists, counsellors and others who work in alignment with the principles of human givens. The Contract[7]Mrs Emmerson entered into in an agreement with the Institute to become and remain a member of the Institute in exchange for the payment of an annual membership fee. By the contract, Mrs Emmerson was subject to express terms which required her:(i) to uphold the Institute’s ethical standards – i.e. comply with and abide by the Institute’s Code of Ethics and Conduct (“the Code”);(ii) to uphold the Institute’s professional conduct policy;(iii) to complete annual continuous professional development; and(iv) to be supervised by an accredited supervisor.[8]The express terms of the agreement are found in the following documents:a. The Code, which set out: i. A code of conduct for practitioners; ii. Standards of competence; iii. Provisions as to disputes and resolutions; and iv. Provisions as to the ethical foundations of the human givens model.b. The Complaints Procedure (in a document entitled “How [the Institute] deals with complaints”), which includes provision as to the hearing of some complaints by Adjudication Panels and existence of an appeals procedure against the decisions of Adjudication Panels. As to the latter, the Complaints Procedure makes it clear that the Appeals Panel would not normally rehear evidence, but would instead review the evidence placed before the Adjudication Panel. The Complaints Procedure is supplemented by “Appeal Panel Guidelines.” This makes it clear that “The purpose of the appeal procedure is to avoid unfair outcomes arising from poor application of the complaints procedure. It is not an opportunity for either party to ask for a second consideration of matters of fact, nor ask for [a] second opinion on the judgement. The grounds for appeal are therefore limited to (1) demonstration that the [Adjudication Panel] has not followed the complaints procedure properly and that this process failure might have led to a materially unfair outcome…(3) the Adjudication panel could in no way reasonably have come to the decision made on the evidence presented.”c. The Indicative Sanctions Guidance (which speaks for itself, and is not in issue in these proceedings).[9]So far as is material, the Code provided as follows:
“A15.1 Practitioners should respect the privacy and confidentiality of clients as is ethically and legally appropriate…They should respect and maintain confidentiality at all times...Practitioners need to be aware of their responsibilities under the Data Protection Act….GDPR and any other legal requirements. A15.2 [Therapists] should normally obtain the consent of clients who are considered legally competent, or their duly authorised representatives, for disclosure of confidential information. A15.3 [Therapists] should restrict the scope of disclosure. No more information should be disclosed that is consistent with the professional purposes, the specifics of the initiating request or event. A15.8 Before breaching a client’s confidence, [a therapist] should consult a professional supervisor or colleague, unless the need for disclosure is so urgent that any delay is undesirable. A15.10 When disclosing confidential information directly to clients, practitioners need to consider not only their client’s confidentiality; they should also safeguard the confidentiality of information relating to others. A.18 In the event of any ethical dilemmas or queries arising in the course of practice, practitioners may wish to consult with their supervisor or to contact HGI’s…Registration and Personal Standards Committee, for support. B1.20 An effective practitioner should… beware of conflicts of interest arising between clients, particularly in couple therapy, where they may have to choose between clients if they break up during therapy. Think whether it would be best to stop seeing either party and advise that each gets another therapist. If a conflict arises, notify those concerned in writing.”
Mr and Mrs A[10]Mr and Mrs A engaged in marriage counselling with Mrs Emmerson from May 2013. They had joint sessions, when both of them would attend, and also individual sessions when each of them saw Mrs Emmerson separately.[11]In the course of a joint counselling session on 1st March 2017, and in the presence of Mrs Emmerson, Mrs A informed Mr A that she wished to divorce him. Mrs Emmerson made a note (in a “Therapy Session Record Form”) of what happened at that session.[12]Save for one session on 7th September 2017 (in the course of which Mrs Emmerson recorded “A number of the questions were about [Mr A] and how he is coping with the separation, but I had to make it clear to [Mrs A] that I could not share that information even though she showed concern about his mental health”), Mrs A did not see Mrs Emmerson after the 1st March 2017 session. But Mr A continued to do so. The request for a Letter[13]By 2018 Mr and Mrs A were engaged in divorce proceedings. Mr A asked Mrs Emmerson to write a letter for his use in those proceedings. The request was as follows: “Obviously the letter can say what you want it to say. [My solicitor] has suggested you include:• Any diagnosis (PTSD, abuse?)• What I was/am being treated for• How long I have been seeing you for these issues I guess if you have been in court for anything like this before, you probably know what is or isn’t relevant. I give you full permission to use or say anything I have told you for the letter....”• Any diagnosis (PTSD, abuse?)• What I was/am being treated for• How long I have been seeing you for these issues The Letter of 30th August 2018[14]In response to the request, Mrs Emmerson wrote a letter for Mr A’s use in the divorce proceedings (“the Letter”). It had the following heading to it:
“Due to [my] code of confidentiality permission has been given by [Mr A] to share the following information”
. So far as is material, the Letter stated as follows:
“I have been asked to provide you with an overview of the circumstances of the counselling I have been providing to [Mr A] over the last few years. I started seeing [Mr A] and his wife [Mrs A] on 31st May 2013 for couple counselling and I saw them intermittently over a period of months, both individually and together as is usual practice for couple counselling, for safeguarding practices and to allow for sharing in a supportive environment. Subsequently in March 2017 I was a neutral party when [Mrs A] chose to end the relationship during one of the joint sessions. During the session [Mr A] became very overwhelmed and distressed and displayed signs of a panic attack i.e. shaking, shallow and rapid breathing and tearfulness… At the beginning of the couple counselling due to information shared with me about the challenges in the home environment and the stresses that this was having on the relationship, I suggested to [Mr A] that he be of more help to his wife around the house, and with the children, for example getting breakfast for the children so that [Mrs A] may be able to have a shower or to get dressed; allowing [Mrs A] to rest during the day due to still nursing their daughter at night; supporting her in her hobbies; gaining the services of cleaners and that of a childminder so that [Mrs A] may have some free time away from the demands of the children to develop hobbies, to go for a walk or to rest, all of which I was led to believe by both parties, at the time, that [Mr A] had complied with… Though, over time, in my professional opinion I came to the conclusion from the information that was being shared with me that [Mr A] was in an emotionally abusive relationship. I was informed of times when [Mr A] was working from home that [Mrs A] had been verbally abusive to him whilst he was on the phone to his employer because he was unable to her in a task. I was informed of times that [Mrs A] would shout at him or refuse to listen to his point of view, becoming argumentative or aggressive, going over a subject or following him around the family home until he would agree with her point of view. I was informed of times when [Mr A] had gelt intimidated by his wife due to her size and her behaviour around him. I was informed of times when [Mrs A] was emotionally cold and hostile towards him which added to his anxiety and feelings of emotional stress. I was informed of his need for emotional warmth and affection, that I was led to believe that [Mrs A] stated if he mentioned one word about this during the month then he would not be shown any affection or that they would not have sexual intercourse. I was informed of times when [Mr A] was aware of [Mrs A’s] resentment towards him for preparing special meals for him due to his preferences; she would choose not to eat with him and he felt that he was a nuisance to her because of this. I was informed of times when [Mr A] was working away that she informed him that he was away having a rest whilst he was at home managing the children and this made him feel guilty. I was informed by [Mr A] that [Mrs A] often blamed him for her overall unhappiness and depressive mood. In my professional opinion [Mrs A’s] behaviour created feelings of stress and anxiety in [Mr A], undermined his confidence, his self-worth and jeopardized his mental health which all fit the criteria for emotional abuse…”
[15]I have underlined and emboldened the passages in the letter which, as it seems to me, are particularly relevant to the issues between the parties. The Complaint[16]On 24th September 2018 Mrs A made a complaint to Mrs Emmerson to the Institute. So far as is relevant to the present claims, Mrs A complained that:a. In the Letter, Mrs Emmerson had disclosed private information given to her by Mrs A in individual and couple counselling sessions;b. Mrs Emmerson disclosed in the Letter information which was both inappropriate and in excess of what was required; andc. Mrs Emmerson should have questioned the request to provide the Letter in circumstances where Mr A intended to do harm to Mrs A or further his own selfish aims.[17]On 16th October 2018 Mrs A completed a complaint form, but this did not add materially to the complaint, as it referred back to Mrs A’s very full letter of 24th September 2018. The complaint form gave Mrs A’s authority to access Mrs Emmerson’s counselling notes insofar as they related to her. In a covering email sent to the Institute Mrs A said “The letter written by Mrs Emmerson is self-evident. In her letter she clearly discloses information from private sessions without my consent.”[18]On 26th October 2018 the Institute notified Mrs Emmerson about the complaint. Amongst other documents that it sent her was a Schedule of Complaints (setting out 11 complaints), alongside a request that Mrs Emmerson should respond to the allegations. The Schedule included the following complaints, and Mrs Emmerson’s response to them:a. “[Mrs A] alleges that you breached her confidentiality by disclosing private information given by her in individual and couple sessions in a letter as part of divorce proceedings…” Response: …During a session with [Mr A] in the summer of 2018 I was asked if I would be available to be a witness for the forthcoming divorce proceedings. I wasn’t aware that I could refuse this request…The letter of 30th August 2018 is a statement of disclosures made by [Mr A] and my opinion of the effect of those on him. At no point are any of [Mrs A's] disclosures included in the letter. I do not believe I have broken confidentiality with regards to [Mrs A]…”b. “[Mrs A] also suggests that the information provided is both inappropriate and in excess of what was required. Response: …I believed that I complied with [Mr A’s] request and that I answered the questions put to me in a truthful manner. The information disclosed in the letter dated 30th August 2018 was at the request of [Mr A] in answer to specific questions that had been put to me…I believe it is not appropriate for me to judge what is appropriate in legal proceedings only to provide information as requested I believe that I have answered the questions as put to me from the information that was shared with me in a balanced and truth way.”c. “[Mrs A] suggests that you should have questioned any such action where a client intends to do harm to another party or further selfish aim. Response: I was asked by [Mr A] to provide information to the court for the divorce proceedings with regards to session with me and information that was shared by him to me, which I am bound to my code of ethics and by information law. The information disclosed was disclosures by [Mr A] himself, it would not be appropriate for me to withhold information pertaining to [Mr A]. These were statements made by him to me and it is not for me to judge whether that may be harmful to another in legal proceedings.”[19]On 27th July 2019 Mrs A sent a detailed reply to Mrs Emerson’s response to her complaint. Insofar as is material, she said:
“Mrs Emmerson should have sought guidance from her supervisor as to how she would best handle this request [for a letter]…I still maintain that the letter includes information from my individual or joint sessions and that I should have been asked for approval or at least have been given visibility…”
[20]On 27th August 2019 Mrs Emmerson wrote to the Institute to apologise for having sent the Letter – she said:
“…I have [had] a long time to reflect on this case…I am truly sorry for any distress I may have caused [Mrs A] by writing the letter to the Court. I have never had any training therein, either by [the Institute] or in any of my previous roles and in hindsight I should have said so. I answered the husband’s questions that he put to me by letter and in all honesty I believed that I was bound to do so but that does not detract from the fact that I did not have knowledge about such procedures. I am very sorry for my actions and I am of course willing to do whatever is required to improve my practice going forwards.”
Adjudication Panel: Hearing[21]On 10th July 2020 Mrs Emmerson appeared before an Adjudication Panel to determine the complaint made by Mrsa. A. The Adjudication Panel was made up of the following individuals: a. Gilli Gladman (the Chair, and the Lay Member);b. Trevor Bailey (a Human Givens Institute Therapist); andc. Colin Mawhinney (a Human Givens Institute Therapist).[22]The Adjudication Panel had before it a Complaint Investigation Record prepared by the Institute – this summarised (accurately) the complaint and Mrs Emmerson’s response to it; summarised the course of the investigation of the complaint; and gave the Adjudication Panel advice and guidance on procedural issues (including the standard of proof).[23]It had been agreed, prior to the hearing (which was conducted by Zoom), that the Adjudication Panel would hear from Mrs A and Mrs Emmerson separately and that they would not be present in the hearing at the same time. On the day of the hearing the Adjudication Panel notified Mrs Emmerson and her legal representatives that Mrs A had decided not to attend the hearing.[24]At the hearing, the Adjudication Panel heard submissions from Mr Butler and oral evidence from Mrs Emmerson. In summary, Mrs Emmerson stated that(i) the letter of 30th August 2018 only contained information that had been provided by Mr A alone, and(ii) she had not disclosed any confidential information relating to Mrsa. A. So far as is relevant to the present issues: a. Mrs Emmerson agreed that whenever she had a joint session with Mr and Mrs A then whatever was said at the session was confidential.b. Mrs Emmerson said that she wrote the Letter in response to a specific request from Mr A at a time when she was seeing Mr A on his own as a client.c. Mrs Emmerson said that her understanding was that she could not refuse or decline to provide a response to Mr A’s request.d. Mrs Emmerson said that she did not seek advice from a supervisor about whether she was required to answer the request, nor about the contents of any response, and accepted that this was a failing on her part.e. Mrs Emmerson said that she wrote the Letter late a night, after having just returned from a holiday, and without the Code in front of her.f. Mrs Emmerson said that she believed that she had answered, and only answered, the specific questions that Mr A had asked to be addressed.g. Mrs Emmerson said that the only information she had disclosed related to Mr A and that she had disclosed no information that Mrs A had disclosed to her.h. Mrs Emmerson said that with hindsight she would do a number of things differently, including (i) contacting her supervisor, (ii) double checking whether the request for information was appropriate,(iii) perhaps send a draft of her letter to her supervisor to check out, and(iv) re-write her contract to specify that if she undertook couple counselling and the couple separate then she would not be able to continue to counsel one of them.[25]The Adjudication Panel had before it a long and detailed witness statement from Mrs Emmerson – this materially stated:
“On 27th August 2019 I did write to [the Institute] apologising for [the Letter] for the reasons set out in that letter. But I did not breach [Mrs A’s confidentiality. All that I put in [the Letter] was with [Mr A’s] authority and request. It was from information that he provided me and no confidential information from [Mrs A] was included… …I answered the questions put to me by [Mr A] in his email to me of 14th August 2018… I repeat I answered a request by my client [Mr A]. I gave my letter in my honest belief… [The Letter] is a statement made from information provided by the husband and opinion of the effect on him. I do not believe I have broken confidentiality with [Mrs A] as I did not include any information that I leant in counselling her. Which was not known to [Mr A] as we had agreed to share…. I believed that I had complied with his request and that I answered the questions put to me in a truthful manner…”
[26]The Adjudication Panel also had before it a witness statement from Mr A – so far as is material, this stated:
“[The letter of 30th August 2018] was fully authorised by me and it contained only information that I had given to [Mrs Emmerson]. There was not information in that letter, as far as I was concerned, that had been uniquely given to [Mrs Emmerson] by [Mrs A].”
Adjudication Panel: Decision[27]On 21st July 2020 the Institute notified Mrs Emmerson of the Adjudication Panel’s decision. The Adjudication Panel dismissed the majority of the complaints made by Mrs A. It found two elements of the complaint to be fully established, and one element of the complaint to be partially established. In relation to those elements which it found to be established, it materially stated as follows: “Point C [Mrs A] alleges that you breached her confidentiality by disclosing private information, given by her in individual and couple sessions, in a letter as part of divorce proceedings... That you wrote a letter on behalf of [Mr A] to the divorce court is not disputed by you and you have expressed regret for writing it. The Panel notes that you were asked to write a letter to the court by [Mr A] and that in the email message asking you to write it that he wrote [the Panel then set out the terms of Mr A’s email, as set out in paragraph 13 above]. The Panel acknowledges that [Mr A] gave you permission to share his confidential information with the court, subject to his being able to check your letter before it was sent. Whilst you have argued that the Court letter was based solely on information provided by [Mr A] it is the view of the Panel that you:• Had previously worked with both [Mr and Mrs A] in couple therapy.• Had worked with [Mrs A] alone, therefore had deep knowledge and understanding of that relationship and of the dynamics within it. This knowledge was an integral part of your work with both parties.• Were inevitably influenced by this in what you chose to write in the letter.• Breached [Mrs A’s] confidentiality in both the process and the content of this letter. In other words, in the view of the Panel, you could not have written the letter in question without having undertaken both couple counselling and the individual counselling of both parties. [The Panel then set out Sections A.15.8 and A.15.10 of the Code] Whereas the Panel acknowledges that the letter you wrote on behalf of [Mr A] was accepted by the court and was legal insofar as it appeared only to convey confidential information provided by [Mr A] it is our view that in fact it must have included [Mrs A’s] confidential information for the reasons given above. That the therapy moved from couple counselling to single client counselling should have made you much more cautious in approaching [Mr A’s] request that you write the letter. It is the Panel’s view that you breached [the Code] in writing a letter that contained confidential information about [Mrs A]. Therefore this part of the complaint is upheld.... Point D (ii) [Mrs A] also suggests that the information provided is both inappropriate and in excess of what was required. The information provided in the letter that you wrote far exceeds that which was asked for or suggested in the email sent to you by [Mr B] on 14th August 2018. The Panel repeats its view that the letter breached [Mrs A’s] confidentiality as a result of the level of detail provided. Therefore this point of the complaint is upheld.... Point E [Mrs A] suggests that you should have questioned any such action where a client intends to do harm to another party of further selfish aims. You, in common with all Human Givens therapists, are required to retain client records for a period of seven years…You therefore have a duty of care to those clients extending over this period. The letter you sent to the court on behalf of [Mr A] was a therapeutic intervention on behalf of a client and it is not clear that you gave any consideration to its potential impact on [Mrs A] once she became aware of its contents which, given it was used in court papers, was inevitable. Given your duty of care to both clients and given that the letter is a filtered release designed for a specific purpose (supporting [Mr A] in the divorce court), the Panel finds that you failed in your duty of care to [Mrs A]. We refer you again to the Code of Ethics and Conduct: Section A.15.10 as above; Section B.1.20; Section B.1.22 [The Panel then set out Sections B1.20 and B1.22 of the Code]. Therefore this point of the complaint is upheld… Conclusion You have acknowledged that the letter should not have been sent and you regret so doing. You claim you were under time pressure to write, it, having just returned from holiday and being faced with a full day working with clients. Lack of time and pressure do not excuse failings… The existence of the letter in the form/contents that it was written supports the finding of unprofessional conduct. In the way that you chose to write the letter it appears to or actually does imply an opinion about [Mrs A’s] behaviour that could only have gained through your couples work with [Mr and Mrs A]. The details given in the divorce court letter may have been taken from your case notes with [Mr A] but they are evidently influenced by your personal experience/observations of [Mrs A’s] behaviour gained as her therapist during the time she was a client. This is a breach of confidentiality. The Code of Ethics and Conduct clearly highlights the sensitivity of information shared in this letter and this should have rung warning bells for you. You not only went ahead and wrote the letter but also failed to contact your supervisor or to seek the advice of the HGI RPSC… In making the professional decision you failed to demonstrate professional competence… [Mrs A] itemised in her complaint the ‘excessive detail’ in the letter to the court which was evidence when the Panel read this letter. These professional decisions do not demonstrate the competence required by an HGI practitioner. Decision of the Adjudication Panel The Panel has decided the Points C, D(ii) and E of the complaint be upheld and that you breached several articles of the HGI Code of Ethics and Conduct as outlined above… Your decision to write the letter to the court on behalf of [Mr A] and the level of detail you included in it who a serious lack of judgment and indicate a serious lack of professional understanding of what is required of you as a Human Givens therapist by the Code of Ethics and Conduct. However, while the Panel do not consider that removal or suspension from the HGI Register are warranted and notes that your supervisor considers you to be fit to practise as a psychotherapist, it is our clear view that in this case you should be required to undertake a period of reflection and learning for the next 12 months…This sanction….is a condition of you remaining on the HGI register.” [The Panel then set out Sections A.15.8 and A.15.10 of the Code] Point D Point E Therefore this point of the complaint is upheld… Conclusion In making the professional decision you failed to demonstrate professional competence… Decision of the Adjudication Panel Appeal Panel

Decision of the Adjudication Panel

[28]On 1st August 2020 Mrs Emmerson appealed against the Adjudication Panel’s decision – this was pursuant to the Institute’s “Appeal Panel Guidelines”. Mrs Emmerson’s grounds of appeal were, in summary, as follows:a. In circumstances where(i) there was no witness statement or witness summary from Mrs A, and instead only her letter of complaint, emails and the complaint form,(ii) Mrs A did not attend to give evidence, and(iii) Mrs Emmerson and Mr A had provided witness evidence that the information in the letter was only provided by Mr A, the Adjudication Panel had no evidence on which to base a conclusion that any information in the Letter was Mrs A’s confidential information.b. The Adjudication Panel failed to set out what information in the Letter was Mrs A’s confidential information.c. The Adjudication Panel took into account irrelevant considerations when determining the complaint (namely its analysis of facts that suggested that Mrs Emmerson must have included information in the Letter which was confidential to Mrs A).d. The Adjudication Panel acted in breach of the rules of natural justice and irrationally by making findings of fact which were unsupported by any evidence.[29]24th September 2020 the Appeal Panel promulgated its decision. It dismissed the appeal, materially finding in relation to the complaint that the Adjudication Panel had failed to set out what information the Letter was Mrs A’s confidential information as follows: “[5] The Appeal Panel would like to draw your attention to the beginning of [the Letter]: [the Appeal Panel then set out the first three paragraphs of the Letter, underlining passages within it] [6] As you can see from all that has been underlined, Mrs Emmerson breached confidentiality four times. Confidentiality doesn’t have time limited. [Mrs A] had been a client of Mrs Emmerson and therefore nothing of that should be disclosed to anyone, even that she had therapy at all. Perhaps the most serious breach of confidentiality is the last underlined sentence [this was the one relating to witnessing the events of 1st March 2017], for which [Mrs A’s] permission for disclosure to the court was not sought. [7] Point 7 goes on to state: [The Appeal Panel then set out the paragraph of the Letter beginning with “At the beginning…” and ending with “…had complied with”, again underlining passages within it] [8] It is clear from the contents of the above paragraph that much of the information contained therein must have come from [Mrs A] and not her husband….” [the Appeal Panel then set out the first three paragraphs of the Letter, underlining passages within it] [The Appeal Panel then set out the paragraph of the Letter beginning with “At the beginning…” and ending with “…had complied with”, again underlining passages within it][30]On 7th October 2020 the Institute re-issued a revised version of the Adjudication Panel’s decision, in accordance with recommendations of the Appeal Panel. None of the revisions are material for present purposes (as they related to sanction, and not finding). External Oversight Committee Decision[31]Mrs Emmerson did not undertake the reflective practice required. Accordingly, at the next membership renewal date, the Institute did not renew her membership.[32]Mrs Emmerson asked the Institute to review the decision not to renew her membership. On 18th October 2021 the External Oversight Committee of the Institute promulgated its decision in relation to that request for a review. It held (in summary) that due process had been followed by the Institute in investigating and determining Mrs A’s complaint and that Mrs Emmerson had been given the opportunity to remain a member by meeting certain conditions, but that she had failed to do so. The Trial[33]I heard brief evidence from Mrs Emmerson. So far as is material, she:a. Agreed that it was itself a breach of confidentiality to tell a third party that a client is in therapy.b. Agreed that the Letter that she wrote disclosed that Mrs A was in therapy, which was a confidential fact, which she had therefore disclosed to a third party.c. Agreed that information given and discussed in a joint counselling session is confidential to both clients who are present in that session.[34]The Institute served four witness statements. Mrs Emmerson did not require these witnesses to give evidence and so I took their evidence as read. In summary, they said as follows:a. Andy Tarrant: Mr Tarrant is a self-employed consultant who provides services to the Institute, one of which is co-ordinating the Institute’s Registration and Professional Standards Committee (“RPSC”) which, amongst other things, oversees and manages the complaints process. Mr Tarrant describes the process of becoming a member of the Institute, narrates the annual membership renewal process, and describes in detail the complaints process.b. Trevor Bailey: Mr Bailey is a retired headteacher and was a co-Chair of the RPSC. He explains his experience of sitting on Adjudication Panels and describes what happened on this Panel.c. Colin Mawhinney: Mr Mawhinney is a psychotherapist and sat on this Adjudication Panel. Of this experience he says:
“At this hearing itself, I recall it seemed to be about her barrister. He had one single point he kept reiterating which about the complainant not attending the hearing. He wanted the case to be thrown out immediately because of that but we as a panel resisted that because, whether or not she was in the room we had the hard evidence of the letter and that did need an explanation.” d. Tina Hamilton-Jones: Mrs Hamilton-Jones is a nurse and a psychotherapist and sat on this Appeal Panel. So far as is material, she stated: “…the written evidence was pretty detailed…It was (and remains) my view that there was clear written evidence of breach of confidentiality…I thought that the complaint made against [Mrs Emmerson] was indefensible.”
C. The Issues[35]The parties agree between themselves that, in relation to the process undertaken by the Institute in response to Mrs A’s complaint, the Contract:a. Contained an implied term that the Institute would comply with the rules of natural justice; andb. Contained an implied term that the Institute’s decision-making would be reasonable in the Wednesbury sense.[36]I am prepared to proceed on the basis that the Contract contained the implied term set out in paragraph 35(a) above. This is because the statements of case contained concessions and admissions as to that issue and because the parties oral and written arguments proceeded on that basis. I should note, however, that the issue of the extent to which a term requiring procedural fairness can be implied into a contract (whether as an incident of, or extension to, the Braganza principle; or otherwise) should be treated as a live one in other circumstances.[37]The implied term set out in paragraph 35(b) above is, by contrast, straightforward in the circumstances of this case: as the Contract gave the Institute a power (through the Adjudication and Appeal Panels) to form an opinion as to relevant facts, which opinion would affect the rights and obligations of both parties to the Contract, an term is readily implied that the power should be exercised not only in good faith but also without being arbitrary, capricious or irrational in the Wednesbury sense (see Braganza v BP Shipping Ltd [2015] 1 WLR 1661 at [18], [29], [30], [52], [53], [102] and [103]).[38]It follows that the main issues which arise are as follows:a. What was in fact required of the Institute in order for it to act in accordance with the implied term in the Contract that it would comply with the rules of natural justice – i.e. in the circumstances of this case what were the standards of natural justice?b. By reference to those standards, did the Institute comply with the rules of natural justice in determining those complaints which were upheld against Mrs Emmerson?c. Was the Institute’s decision, in relation to those complaints which it upheld, reasonable in the Wednesbury sense? E. Analysis and Conclusions Natural justice: the standards[39]The authorities emphasise the importance of the context, and in particular the nature of the relationship of the parties, in determining what exactly “natural justice” requires in the circumstances of any particular case (the cases speak of a certain vagueness in the term, as if it has a Protean quality): one size certainly does not fit all.[40]Here, the relationship between the parties is a contractual one. The Contract regulates it. It is important to note that the Institute is a private limited company and not a regulatory body (like the Bar Standards Board, the General Medical Council or the Architects Registration Board). A therapist does not have to join the Institute (or indeed any membership body) to practise. Even then, the Institute is but one of a number of organisations which a therapist can decide to join. Continued member of the Institute is not necessary in order that a therapist can continue to practise.[41]What, in these circumstances, did natural justice require in the determination of Mrs A’s complaint against Mrs Emmerson? It is of course not enough for a party to persuade a court that some procedure other than the one adopted by the decision-maker would be better or more fair – rather, they must show that the procedure adopted was actually unfair: see R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531, per Lord Mustill at 560H. It is for the court to determine for itself whether a fair procedure was adopted: see R (Osborne) v Parole Board [2014] AC 1115, per Lord Reid at [65]. In my view the incidents of natural justice in the present context required:a. The Institute to give Mrs Emmerson the opportunity to make representations on her own behalf: see e.g. Doody, per Lord Mustill at 560D: “(5) Fairness will often require that person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.”b. The Institute to inform Mrs Emmerson of the gist of the case which she had to answer: see e.g. Doody, per Lord Mustill at 560G: “(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weight against his interests fairness will very often require that he is informed of the gist of the case which he has to answer…”c. The allegations to be determined by an unbiased decision maker – see e.g. Ridge v Baldwin [1964[ AC 40, per Lord Hodson at 152 – which acts in good faith. Procedural fairness[42]In my very clear view the process which the Institute followed was fair and ensured procedural fairness for Mrs Emmerson and was in fact fair.[43]If anything, the process adopted exceeded the minimum standards of procedural fairness that the law required in these circumstances. The allegations against Mrs Emmerson were laid out very clearly. Those allegations were provided to her very well in advance of the hearing before the Adjudication Panel, alongside the material that the Institute proposed to rely on in support of them. Mrs Emmerson was given the opportunity to provide written responses to each of the allegations, and filed a very detailed witness statement. The Adjudication Panel was properly constituted and acted without bias (indeed, it is not suggested otherwise). Mrs Emmerson was allowed the opportunity to be legally represented at the hearing, and used that facility through representation by Mr Butler. The hearing was conducted very fairly, with Mr Butler being given the opportunity to make submissions on all issues as he wished (a facility which he utilised to maximum effect). Mrs Emmerson was given a full opportunity to say everything that she wished at the hearing (in her “evidence”) and was asked measured and sensible questions by the Panel. The Adjudication Panel’s decision is fully and closely reasoned. It displays balance and judgment, analysing the merits each of the complaints individually, one after the next, and then coming to an overall conclusion. Mrs Emmerson was given a right of appeal (which right could be exercised without leave or other limitation), a right which she used. The Appeal Panel’s decision engaged closely with the issues which Mrs Emmerson had raised on the appeal and delivered a reasoned judgment.[44]It is against this background that the complaints that Mrs Emmerson raises about the process fall to be judged.[45]She submits, firstly, that natural justice required the Adjudication Panel to hear evidence from Mrs A as to(i) what information in the Letter was her confidential information, and(ii) the circumstances in which that confidential information had been provided to Mrs Emmerson. She suggests that this was because Mrs A’s letter of complaint (and her letter to the same effect to Mrs Emmerson) of 24th September 2018, her complaint form, and her emails did not descend into the detail of the two issues. Mrs Emmerson suggests that this stood in the face of her own response to the complaint, her own witness statement and the witness statement from Mr A – which, taken together, constituted evidence that none of Mrs A’s confidential information was disclosed in the Letter. Mrs Emmerson says that, in the absence of such evidence from Mrs A as to these issues, the Institute could not discharge the burden of proving the allegations on the balance of probability.[46]I unhesitatingly reject this submission. Firstly, the standards of natural justice did not require the Adjudication Panel to hear from any particular witness in order to reach their determination in relation to the complaints letters C, D(ii) and E. For reasons which I expand upon below, when considering the reasonableness of the Adjudication Panel’s decision, the determination of these complaints was perfectly capable of being fairly undertaken by reference to the Letter itself, alongside such evidence as Mrs Emmerson placed before the Adjudication Panel. Secondly, the Adjudication Panel demonstrated very clearly that it was alive to the possibility that some of Mrs A’s complaints were such that it may need to have some evidence from Mrs A in order fairly to determine them – in fact, because there was not such evidence, in written or oral form from Mrs A, it dismissed those other complaints (I have not set them out in this judgment so as not to extend its already considerable length – suffice it to say that these complaints turned on things which Mrs A alleged that Mrs Emmerson had said or done and which Mrs Emmerson denied doing or saying, and there was no documentary evidence which established the basis of the complaint).[47]Mrs Emmerson’s second point is that the Adjudication Panel did not identify to Mrs Emerson in the course of her giving evidence the elements, or particular parts, of the Letter which were or might constitute Mrs A’s confidential information and so she did not have a reasonable opportunity of setting out her position in relation to such elements or parts of the Letter.[48]In my judgement Mrs Emmerson had every opportunity to make representations and be heard on the complaints made against her. Natural justice did not require the questions that she has now identified as being essential to be put to her when she gave evidence. Mrs A’s letter of complaint was helpfully distilled into individual complaints and formulated into a Schedule by the Institute. This set out with precision the allegations that Mrs Emmerson faced. She was given a copy of the Letter. That is all that she needed: the complaints lettered C, D(ii) and E set alongside the Letter. She gave a full response to the complaints in the Schedule, setting out her replies against each of those complaints. She then addressed those complaints again in her detailed witness statement. She was then given free reign in her oral “evidence” to address these complaints. Her counsel was at liberty to make such submissions as he wished in response to these complaints.[49]Overall, the complaint of a breach of the rules of natural justice fails. Wednesbury reasonableness Complaint C – disclosure of confidential information[50]It is common ground between the parties that Mrs Emmerson owed contractual and equitable obligations of confidence in relation to information that she received from Mrs A in the course of private therapeutic sessions with her (whether they were individual sessions with Mrs A alone, or joint sessions with Mr and Mrs A). It is similarly agreed between the parties that Mrs Emmerson was, in the circumstances of this case, prevented by those obligations from disclosing such information to any other person without first obtaining the express consent of Mrs A.[51]Mrs Emmerson submits that the real issue in the case is not the existence or extent of the obligation of confidence, but rather the conclusion by the Adjudication Panel and then the Appeal Panel that the Letter contained information which was confidential to Mrs A. Mrs Emmerson says that this was a decision which was unreasonable in the Wednesbury sense because there was no evidence from Mrs A to support it, and evidence from Mrs Emmerson and Mr A that the Letter only contained information which was confidential to Mr A, who had given his permission for it to be disclosed.[52]In my view this misses the point. It was not necessary for there to be evidence from Mrs A as to which elements of the Letter constituted her confidential information in circumstances where the Letter spoke for itself on this issue (I note in passing that it was seemingly the Institute’s case, as pleaded in its Defence, that the Adjudication Panel did not have regard to the documents created by Mrs A, and which were before the Adjudication Panel, in arriving at its decision: instead, it determined the allegations on the basis of the papers before it, alongside Mrs Emmerson’s evidence and the representations made by Mr Butler).[53]The Letter does speak for itself on this issue. There are three parts of it which in my judgment plainly disclose, in the words used, Mrs A’s confidential information:a. First, the sentence stating “I started seeing [Mr A] and his wife [Mrs A] on 31st May 2013 for couple counselling and I saw them intermittently over a period of months, both individually and together as is usual practice for couple counselling, for safeguarding practices and to allow for sharing in a supportive environment.” This discloses Mrs A’s confidential information that(i) she had attended counselling with Mrs Emmerson,(ii) such counselling was for “couples”, and(iii) the start date of such counselling. Mrs Emmerson admitted as much when she gave “evidence” before the Adjudication Panel. She directly admitted it when she gave evidence before me.b. Second, passage of the Letter which narrates Mrs Emmerson witnessing, in the course of a joint session on 1st March 2017, Mrs A announcing that she wished to divorce Mr A. This discloses Mrs A’s confidential information that (i) she attended a joint counselling session on 1st March 2017 and (ii) it was she who announced that she wished to divorce her husband.c. Third (and, to my mind most significantly) the paragraph of the Letter which sets out a list of suggestions which Mrs Emmerson says that she made to Mrs A in the course of joint sessions and which she was led to believe at the time, by both parties, that Mr A was carrying into effect. This discloses Mrs A’s confidential information that (i) information was shared in a joint session about stresses and challenges that she and Mr A were having in the home, (ii) in Mrs A’s presence Mrs Emmerson made suggestions to Mr A as to things which he could or should do to help Mrs A, (iii) both Mr and Mrs A informed Mrs Emmerson at the time of the joint counselling that Mr A had undertaken or complied with her suggestions.[54]The third class of confidential information set out above was the focus of some attention at the hearing before me. Mrs Emmerson suggested that the sentences “At the beginning of the couplecounselling due to information shared with me about the challenges in the home environment and the stresses that this was having on the relationship…all of which I was led to believe by both parties, at the time, that [Mr A] had complied with…” (my emphasis) in fact referred to information provided to her by Mr A alone, in the absence of Mrs A and did not refer to information provided by or in the presence of Mrs A at all. When questioned, Mrs A accepted that the natural reading of the words is to the opposite effect. Firstly, because being led to believe that a state of affairs existed “by both parties” naturally and obviously means that one has been given information by both parties i.e. Mr and Mrs A. Secondly, because being led to believe that a state of affairs existed “at the time” naturally and obviously means that one was being given information at the time to which the information related i.e. in this case at the time that Mrs Emmerson’s suggestions were being carried into effect (namely when the couples counselling was ongoing). Mrs Emmerson said in the course of her evidence that, in relation to both phrases, that is not what she meant; that she had used the wrong words; and that she had done so because she has in a rush, having just returned from holiday. I need not make a finding on whether that evidence was truthful – what matters is what the words meant on their face, or at least how they would reasonably be read.[55]In my view a reasonable Adjudication Panel properly directing itself could reasonably find that the Letter on its face disclosed the confidential information of Mrs A.[56]The Adjudication Panel found that Mrs Emmerson had previously worked with both Mr and Mrs A in couple therapy, that Mrs Emmerson had worked with Mrs A alone, that her work in this regard was an integral part of her work with both parties, and that Mrs Emmerson breached Mrs A’s confidentiality in the contents of the letter. The Adjudication Panel did not set out the parts of the letter (with emboldening and underlining in the manner that I have done) which they found to constitute the wrongful disclosure of Mrs A’s information. But it was not required to do so. The Adjudication Panel’s narrative commentary was more than sufficient to justify its findings of breaches of the Code. The Letter was so clear on its face that it was not necessary to set it out in the manner that I have done. In any event, such an approach was not required by an Adjudication Panel of this kind – as Mocatta J observed in The Vainqueur José [1979] 1 Lloyd’s Rep 337, 577:
“…it would be a mistake to expect [of a lay body] the same expert, professional and almost microscopic investigation of the problems, both factual and legal, that is demanded of a suit in a court of law.”
[57]Overall, the decision of the Adjudication Panel was very well within the range of reasonable decisions that such a panel could reasonably take: it was not unreasonable in the Wednesbury sense.[58]In any event, any perceived irregularity in the formulation of the Adjudication Panel’s reasoning was cured by the approach taken by the Appeal Panel. The Appeal Panel did identify the passages in the Letter which on their face were confidential – it did to by setting them out and underlining them. Complaint D(ii) – excessive and inappropriate information[59]It will be noted (see paragraph 13 above) that Mr B framed his request to Mrs Emmerson for a letter to be used in the divorce proceedings by reference to what he had been advised by his solicitor that it should include. The three topics that he identified all related to him, rather than to Mrs A or their relationship:(i) whether any diagnosis had been made in relation to a condition from which he suffered,(ii) what he had been (or was being) treated for, and (ii) how long Mrs Emmerson had been seeing him for these issues. These were reasonable, but circumscribed, requests.[60]The letter of 30th August 2018 went far, far beyond answering these requests. It contained(i) information that Mrs Emmerson had been counselling Mrs A,(ii) information as to when that counselling had commenced,(iii) information about the events which she witnesses on 1st March 2017,(iv) information which Mrs and Mrs A had shared with her about challenges in the home environment,(v) information as to the advice she had given the couple about how to seek to overcome these challenges,(vi) information from the couple, given in the course of the couple counselling, as to whether Mr A was acceding to the advice she had given, and(vii) an opinion of the effect that Mrs A’s behaviour (which she treated as an established fact) had on Mr A.[61]The Adjudication Panel did not need to hear from Mrs A to determine this aspect of the complaint, nor have evidence from her in the form of a witness statement or similar: it was plain and obvious that the Letter provided excessive information. This was a decision which the Adjudication Panel was not only entitled to reach, it was almost bound to do so in the light of the terms of the request for a letter from Mr A and the contents of the Letter in fact written by Mrs Emmerson.[62]By reason of the Adjudication Panel’s finding as to the breach of confidentiality involved in the provision of some of the information in the Letter (which decision I have held to be a Wednesbury reasonable decision), it follows that it was entitled to conclude that the information provided, in addition to being excessive, was inappropriate. Complaint E – Failure to consider impact of the Letter on Mrs A[63]Mrs Emmerson essentially admitted that she had failed to consider the impact of preparing and sending the Letter on Mrs A (which Letter Mrs A was almost bound to see in the course of the divorce proceedings) in her apology to the Institute and in her “evidence” to the Adjudication Panel – she apologised, said that she had no training about such issues, thought that she was duty bound to send the letter, said in hindsight that she would have done things differently, and apologised for her actions. In such circumstances, the Adjudication Panel was very much entitled to come to the conclusion that the disclosure was a breach of inter alia Section 15.10 of the Code. Its decision to do so was not unreasonable in the Wednesbury sense. F. Outcome[64]I shall therefore dismiss the claim. I will set a timetable for the provision of written submissions as to consequential matters, including costs, if agreement cannot be reached. I shall determine any remaining issues on the basis of these written submissions.