Fortune Favours The Brave

Claims and complaints in the psychological world - part 2

• Howden Insurance Brokers Ltd

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We're unlocking the secrets of navigating the British Association for Counselling and Psychotherapy's complaints process with Max Ekstein from Arch Law.

Welcome back to part 2 of our series on claims and complaints in the world of psychological and related professionals.

We are also looking at the BACP's role and its evolving procedures, especially the significant changes since 2018 and the shift to remote hearings post Covid-19. The importance of promptly notifying insurers when faced with a complaint should also be a priority for any practitioner.

Max walks us through the critical steps involved in filing a complaint, from understanding the BACP's threshold test to recognising potential complicating factors, like ongoing police investigations. Learn why most complaints meet the low bar of the threshold test and how to effectively manage early-stage issues.

Join us next time in the last episode of this series, where we will be looking at the complaints process of the Health and Care Professions Council (HCPC).

Podcast Intro/Outro:

Welcome to Howden's podcast. Fortune Favours the Brave. We all take risks in our everyday life, and business is no different. In this podcast, we're speaking to the experts about a topical challenge or issue and what business leaders can do to overcome it.

Jo Mountain:

Welcome to Howden's Fortune Favours, the Brave podcast. This is part two, where we were discussing the complaints process of the BACP, the British Association of Counselling and Psychotherapy. My name is Jo Mountain of Howden and I'm joined again by Max Ekstein of Arch Law. Max, could you explain about the BACP, what sort of organisation it is and their complaints process, please?

Max Ekstein:

Sure, absolutely so. The BACP is a non-statutory regulator. It's a members organisation and just to expand on what that means a little bit. So some of the regulators, like the HCPC, the GMC, will be set up by statute, so set up by legislation. The BACP isn't like that, it's a member's organisation. They've got their complaints process, but it's internal to the BACP.

Jo Mountain:

And is that a compulsory regulation or membership?

Max Ekstein:

No, it's voluntary. You don't have to be a member of BACP. There are other regulators and other organisations out there the UKCP is one of the other big ones, but some employers, for example, will require membership of an organisation like BACP as part of their requirements.

Jo Mountain:

And can you tell us about the changes to the BACP procedure at the end of 2018?

Max Ekstein:

Sure, absolutely so. Again, just some background. I probably first started dealing with the BACP in about 2008, 2009. At that stage, they just had effectively one complaints procedure. Then, at the end of 2018, they introduced a new complaints procedure, as it turned out with COVID, it took a while for this new complaints procedure to kick in and for those kind of complaints to come through. The actual BACP complaints procedure document runs to I think it's 42 pages, so obviously we can't go through all of that today, but I'll happily give an overview of some of the main features.

Jo Mountain:

Okay, so now after COVID, most of the hearings are remote rather than in person, which is probably a good thing. Can you tell us about when you're notified of a complaint and what that process will be within the BACP complaint procedures?

Max Ekstein:

Sure, I mean, I think, as we mentioned in the first episode, it's vital as soon as you are notified of any kind of official complaint, you get any kind of official communication from a regulator, including the BACP, you should tell your insurers. It's a requirement under the policy and there is assistance under the policy, so definitely notify your insurers.

Jo Mountain:

So can you tell us about what the BACP will do with that complaint and the threshold test?

Max Ekstein:

Yeah, absolutely. I mean. Just one thing to point out is that there can be again, there can be sort of complicating issues that you need to be careful of and obviously if you have assistance via somebody like me, then they will obviously assist with that. But there can be some issues that you do need to look out for at the early stages. So, for example, is the complaint being made on behalf of somebody else? Is it being made on behalf of a child by the parents? Is an ongoing police investigation, for example, somewhere in the background in relation to the complaint? These are all matters that can impact on how the complaint is dealt with at the early stage.

Max Ekstein:

Moving on from there, assuming that all those issues are dealt with, then the first test that the BACP will apply when looking at a complaint is whether it meets what they call the threshold test, and I'll read out what that says. It's a complaint meets the threshold test where it is a complaint which the case manager reasonably considers that the facts alleged and evidenced by the complainant could, if proved, amount to a failure by the member to meet professional standards. And two, it is not vexatious and or frivolous, in accordance with Protocol PR2. That's obviously sort of quite wordy, but the crucial bits here in relation to how things proceed, in other words, whether the facts alleged could, if proved, amount to a failure, because at this stage the BACP don't engage in any analysis as to whether the facts are likely to be proved. It's just whether, if proved, it could amount to that failure. Therefore, the reality is that the vast majority of cases do meet the threshold case because it's such a low hurdle.

Jo Mountain:

So then, what happens if the threshold test is met?

Max Ekstein:

So if the threshold test is met, the matter will then be assessed by what the BACP call the Investigating and Assessment Committee, and they apply the proceedings test. And this is essentially where the complaints will be analysed in more detail, Because there, unlike the threshold test, they have to decide whether there is a realistic prospect that the facts justifying a finding of such a failure will be proved, Whereas at the threshold test failure there's no real analysis as to whether the case is likely to be proven. At the IAC stage, that panel do actually have to decide whether there's a realistic prospect whether a failure will be proved.

Jo Mountain:

Okay, so if the case then proceeds, can you talk us about the two routes that that can go down? So the practice review process for the less serious complaints and the disciplinary proceedings track for the more serious complaints.

Max Ekstein:

Sure, absolutely so. Historically there was just one single track that complaints would go down. That changed under the new procedure. So you've got the practice review process for what are perceived to be less serious complaints and the disciplinary proceedings track for more serious complaints. They've got slightly different procedures and they've got different possible outcomes. The main difference in terms of outcomes is that under the praxis review process, they can't impose the two most serious sanctions, which are suspension or strike off.

Jo Mountain:

So we know that those changes have been implemented, and can you tell us a little bit more about the background for those changes and what difference it's made?

Max Ekstein:

Yeah. So I think the theory behind the changes and introducing these two tracks was so that less serious complaints could be dealt with in a less formal manner. I think that was the BACP's rationale behind it. Having now dealt with this for a few years under the new procedure, I've actually got a couple of issues with this. The first is the practice review process is for complaints where the BACP say well, there's no allegation of professional misconduct, so they're saying it's a less serious complaint.

Max Ekstein:

Now, with most of the other regulators that I deal with, if things aren't serious enough to amount to misconduct, the complaint won't proceed to a hearing. So with the BACP, however, you've got less serious matters that are nevertheless proceeding to a hearing, and that's obviously a very stressful process to go hearing. So with the BACP, however, you've got less serious matters that are nevertheless proceeding to a hearing, and that's obviously a very stressful process to go through. So that's my first issue with it. The second issue is that, although it's meant to be less serious in the event of an adverse outcome, the decision nevertheless appears on the BACP website, which many BACP members will obviously see as being very serious for them. So in reality, I'm not sure that it's necessarily assisted having this twin track approach.

Jo Mountain:

Okay, can you tell us a little bit more about the consensual disposal that's available?

Max Ekstein:

Sure. So consensual disposal was something that was introduced under the new procedure procedure. It essentially gives the BACP member the opportunity to conclude a complaint without going to a hearing. Now, for example, this may involve the BACP member writing a letter of apology to the complainant, writing a piece on their learning points. If this is something that the BACP agree, then that matter can be concluded without the need for a hearing, which obviously can be a helpful thing. There is a caveat to this. Again, consensual disposal outcomes will appear on the BACP website, so there's still an element of publicity to it. So, again, that's a consideration that people have to bear in mind.

Jo Mountain:

And how are you finding that our clients feel about that consensual disposal process?

Max Ekstein:

I think it's mixed. I mean, I think some people are very keen not to go to a hearing for all the obvious reasons the stress involved, the time involved in preparing. I think, again, as I say, it's the publicity element that obviously puts some people off from doing that.

Jo Mountain:

So if we do go to a hearing, then there are different processes, with the differences being how that case is presented by the BACP and the protocols in terms of calling witnesses etc. Can you talk us through the possible outcomes?

Max Ekstein:

Yeah, sure. So where a case is allocated to the disciplinary proceedings track and that's for the most serious cases, the sanctions that they can impose, going from the less serious to the more serious it starts with a written apology to the recipients of the therapeutic services. It then moves to a requirement to demonstrate a specific change, improvement in practice, and that may, for example, involve writing, attending a course, something of that nature. Three, a requirement to undertake specific training by a specific date. Again, that's probably fairly similar to two. And then we move on to the two most serious outcomes, which are suspension of membership for a specified period, which can't exceed 18 months, and then the most serious outcome, which is withdrawal of membership.

Jo Mountain:

Okay, and of those two serious elements, how often do we see those actually occurring?

Max Ekstein:

Yeah, it's very rare. Over the years as I've dealt with this, it's a handful of occasions and that's over a lot of cases and it's for the most serious complaints.

Jo Mountain:

And at the hearing itself is a decision made there, and then no, so generally not At the BACP.

Max Ekstein:

unlike most of the other statutory regulators, you don't get a decision on the day of the hearing. You get notified of the decision within 28 days afterwards.

Jo Mountain:

And can you tell us whether there's an appeal process and, if so, what that looks like?

Max Ekstein:

Yeah, there is an appeal process and again, unlike with the statutory regulators, the appeal isn't to the courts, it's internal within the BACP.

Jo Mountain:

Okay, and some concluding thoughts on that BACP change of process.

Max Ekstein:

Yeah, I mean, I think, just echoing what I said before, really, I think the BACP have probably tried to make their process maybe less formal, maybe less legal under the new procedures. I think that was the intention behind it with the practice review process. I'm not necessarily sure that's had the desired effect, as I say you've got if, if the outcome is potentially going to appear on the bacp website, that that is going to be a serious outcome. Um, for the uh, for the councillors, you know, may have they been better off just adopting a process which was similar to the statutory regulators, possibly, um, but that's uh, that's the process they adopted okay, so I hope that's been helpful in taking you through the BACP procedures and likely outcomes.

Jo Mountain:

Thanks once again, M max, for your invaluable input. Join us next time in part three, where Max will join me again to discuss the complaints process of the HCPC, the Healthcare Professionals Council.

Podcast Intro/Outro:

Thank you for listening to this episode of Fortune Favors the Brave from Howden. Thank you for listening to this episode of Fortune Favors the Brave from Howden. To hear more episodes and subscribe to our channel, search Fortune Favors the Brave on your favourite podcast app.