KB-2023-003302 - [2025] EWHC 1628 (KB)

Much of the submissions in the Particulars of Claim and skeleton argument focussed on Dr Wilkinson. The Adjudication Panel’s reasoning makes little reference to Dr Wilkinson. They refer only to Dr Wilkinson’s ‘report’ singular.

I do not think that I can infer, from that, that the Adjudication Panel entirely overlooked Dr Wilkinson’s first three reports. What happened, in substance, is that the Claimant presented three reports/letters from Dr Wilkinson for the first hearing and a fourth report for the final hearing. In their findings on misconduct and impairment after the first hearing, the Adjudication Panel did not refer expressly to Dr Wilkinson but there is no reason to doubt that they had read his letters. In particular, the Adjudication Panel’s reference, in paragraph 92, to ‘the personal development it was said the Registrant had undertaken’ was likely intended to include the personal development that Dr Wilkinson said the Claimant had undertaken.

What then happened is Dr Wilkinson produced a fourth report by the time of the sanctions hearing. The Adjudication Panel used the singular term ‘report’ as they were focussing, in their sanction decision, on the new material received since the last hearing. They had already read Dr Wilkinson’s earlier evidence, in the decision on impairment, and nonetheless came to a decision that the Claimant lacked insight and there was a risk of repetition.

However, the more difficult issue, in my judgment, is whether the Adjudication Panel took into account the relevant evidence in relation to insight, remediation and risk of repetition and reached conclusions on insight, remediation and risk of repetition that were rationally open to them.

I am very conscious that the decision was for the Adjudication Panel and not for me. The test is not whether I would have made the findings on insight, remediation and risk of repetition that the Adjudication Panel did. The test is whether the Defendant was in breach of the implied terms.

The Supreme Court in Braganza drew an analogy with Wednesbury rationality when explaining the implied terms they read into that contract. The Wednesbury rationality test is flexible and adapts to the context of the decision and decision-maker under challenge. The context of the Adjudication Panel’s decision was judicial, or quasi-judicial. The Claimant’s career and livelihood were at stake. The power to determine that career and livelihood was in the hands of the Adjudication Panel. The Claimant had a right to expect that this quasi-judicial body, which held so much power over his career and livelihood, would make their decision judicially. In other words, I think the application of the Wednesbury standards, in this context, can be informed by the learning of the common law on what judges and tribunals should and should not do.

In my judgment, in this context, the Wednesbury requirement, to have regard to material considerations, required the Adjudication Panel to consider the evidence in relation to insight, remediation and risk of repetition judicially. Considering evidence judicially requires a decision-making panel not to place excessive reliance on how a registrant comes across to them but to balance any subjective impressions they may have of that person against the relevant documentary evidence. The courts have said that tribunals should not make decisions on a witness’s honesty or credibility based exclusively on their demeanour without due regard to relevant documentary evidence (see e.g. Dr Moodliar v GMC [2025] EWHC 913 (Admin) and Sheikh v Law Society [2006] EWCA Civ 1577 at [97]). One reason for that is a proper recognition of the fallibility of subjective perceptions of how someone has come across in the witness box. In my judgment, a similar approach should be taken to insight, remediation and risk of repetition. A judicial decision-maker should guard against over-reliance on how the witness comes across to them.

Considering evidence judicially also requires a decision-making panel to act fairly. That may require a decision-making panel to ensure that a registrant has had an opportunity to comment on evidence that the tribunal is minded to hold against them, particularly if that evidence is ambiguous or capable of different interpretations. The duty to act judicially also requires a panel only to make findings of fact when those findings are supported by evidence, rather than (for example) speculative supposition.

In my judgment, the Adjudication Panel’s treatment of the evidence of insight, remediation and risk of repetition was in breach of the implied terms. In Wednesbury terms, the Adjudication Panel failed to have regard to material evidence, failed to act fairly, and made irrational findings which were unsupported by the evidence. Another way of putting it, indeed the way I would prefer to put it, is that the Adjudication Panel did not act judicially in their treatment of the evidence on insight, remediation and risk of repetition.

My overall assessment is that the Adjudication Panel took against the Claimant, after hearing his oral evidence, and failed to balance their adverse impression of him against the available evidence, including both the documentary evidence and the actual words the Claimant used in giving oral evidence. I was urged by both parties to read the judgment and the transcript ‘holistically’. I have done so and that is my holistic assessment. I have reached that assessment for the following reasons.

First, the Adjudication Panel made a critical finding, which they relied on, that it was not clear that the Claimant accepted responsibility and that, instead, he ‘blamed’ Client A for what had happened. I have read the transcript more than once, and the underlying evidence, and I do not understand how a fair-minded judicial body could reach such a conclusion. The Claimant repeatedly said that the responsibility was his and repeatedly apologised. I have set out above some of the many instances when the Claimant expressly recognised that the fault was his, that, by virtue of his role as psychotherapist, he was in a position of power over Client A, and that he had been wrong to overlook that inherent power differential.

What the Claimant did do, on occasions, was seek to mitigate his admitted failures and lack of judgment. He did that in several ways, referring to factors that may have impacted on his judgment at the time (isolation, depression, the ending of a relationship) and also by stating that Client A was less vulnerable than some clients and had been the one to initiate the hug and initiate the subsequent contact. It is very common that someone, admitting wrongdoing, will seek to mitigate their wrongdoing. A judicial body, considering such mitigation, should be careful to distinguish between mitigation and denial. However, the Adjudication Panel was not so careful. On the contrary, they treated statements of mitigation as statements of denial or blame. What is more, they gave the Claimant no fair opportunity to address their concern, that he did not accept responsibility and, instead, blamed Client A.

To take one example, the Adjudication Panel placed great emphasis on a particular phrase that the Claimant used – that he ‘chose to be seduced over the boundary into more intimate relationship’. They suggested that this ‘phraseology’ ‘places the blame’ on Client A. I do not see that. Taken in isolation, ‘seduced’ might imply that Client A was responsible. However, the Claimant did not say ‘I was seduced’ but I ‘chose to be seduced’. The phrase ‘chose to be’ is an acknowledgement that the Claimant had power and agency and made the wrong choice. It is, in my view, illustrative of their general approach that the Adjudication Panel did not cite the earlier part of the same sentence, which made it even clearer that the Claimant could and should have maintained a ‘firm boundary’. What is most telling of all is that the Adjudication Panel gave the Claimant no opportunity at all to address their concern about his ‘phraseology’. The phrase on which they placed such reliance was taken not from oral evidence but from a reflection statement produced before the hearing. The Claimant was not cross-examined about this phrase and the Adjudication Panel did not ask him about it. He had no opportunity to explain what he meant by this ‘phraseology’. If it had been raised with him, he might have drawn attention to the phrase ‘chose to’ and what that meant. He might have explained that the word ‘seduced’ was not intended to take away from his admission, repeated on several occasions, that the responsibility for the transgression was his and his alone. He was not given that opportunity and the Adjudication Panel held against him an (at worst) ambiguous phrase which he was not asked to clarify.

I should add that, although the Adjudication Panel did not ask the Claimant about this phraseology in terms, Ms Iona and the Chair did ask him whether he accepted that there was ‘vulnerability’ in Client A, whether there was a power imbalance between client and therapist, and whether he was saying the power between him and Client A was ‘equal’. The Claimant expressly accepted that there was vulnerability in Client A (albeit not as much vulnerability as some other patients), that there was always an inherent power differential between a patient and a therapist, and that he was not saying the power was equal. That was all of a piece with his repeated accepted that, although he had lost sight of it ‘at the time’, there was always a power differential between a therapist and client. I do not understand how, in light of the evidence before them (including the questions and answers summarised above), the Adjudication Panel felt able to say that there was a risk of repetition because the Claimant still had not shown that he understood the power imbalance or the fact Client A was vulnerable. I can only infer that the Adjudication Panel had lost sight of the actual words the Claimant used but were relying instead on their subjective impressions of how he delivered those words.

Secondly, the approach of the Adjudication Panel to the material which weighed against their conclusions, on insight, remediation and risk of repetition, was peremptory and, at times, irrational and/or unfair. That material came from the following sources: the Claimant himself, Dr Wilkinson, the Claimant’s character witnesses, the Claimant’s employer and the IOP. Each of these sources of material was either ignored or peremptorily dismissed, in some cases for inadequate and unfair reasons.

I begin with Dr Wilkinson as he was the principal focus of this ground. I agree with the finding of the Appeal Panel that Dr Wilkinson’s evidence was ‘relevant’ and ‘to be considered’. Dr Wilkinson had spent a very large amount of time listening to the Claimant, far more time than the Adjudication Panel. The Adjudication Panel were not bound to follow Dr Wilkinson’s opinion, that the Claimant was not a recidivist and posed no risk, but they should have given it due weight. It is fair to say that Dr Wilkinson was not independent – he was, after all, being paid by the Claimant to act as a mentor. On the other hand, Dr Wilkinson was a distinguished and regulated psychotherapist who could be assumed to be giving his honest opinion.

In my judgment, the Adjudication Panel did not give Dr Wilkinson’s opinion on risk of repetition due weight, or indeed any weight. In their reasoning on impairment and risk of repetition, they make no direct reference to Dr Wilkinson at all. Their reasoning only addresses Dr Wilkinson directly when they considered sanction. At that stage, they say that the length of the supervision plan set out in Dr Wilkinson’s fourth report: ‘rather indicated an on-going risk’. This was unfair and unreasonable. Reading Dr Wilkinson’s reports together, he was very clear that the Claimant posed no real risk of repeating his misconduct. Dr Wilkinson only produced a fourth report because the Adjudication Panel reached a different conclusion to him on risk of repetition. It was understandable, in such circumstances, that the Claimant and his legal advisers might obtain a further report from Dr Wilkinson, to respond to the Adjudication Panel’s findings. It could not fairly be held against the Claimant that he planned to continue, for several months, his supervision with Dr Wilkinson. To treat that plan for further supervision as indicative of ‘on-going risk’ is unfair and/or unreasonable. It ignores what that Dr Wilkinson actually said about risk.

The approach to the evidence of the Claimant was also unfair. There was no dispute between the parties that, in the middle of treating Client A, the Claimant had to take a prolonged break due to illness. The Claimant’s evidence, that this physical illness left him depressed and isolated and led to the break-up of his relationship, was not challenged by the Defendant in cross-examination. Indeed, there was no challenge to any of the Claimant’s evidence of primary fact. It was not suggested that he was an untruthful witness. It was unfair, in those circumstances, for the Adjudication Panel to place no weight on the Claimant’s evidence, about his own vulnerability at the time, on the basis that ‘no medical or other professional evidence was provided’.

The approach to the findings of the employer was also unfair and/or unreasonable. The Adjudication Panel dismissed the significance of the Claimant being reinstated by his employer on the basis that they ‘had moved the Registrant to a non-client facing position to manage the situation pending determination in the regulatory process. That was indicative of managing potential risk pending a decision and is quite different to asserting they had found no risk at all.’ That is an unfair and/or unreasonable synopsis of what happened. The Claimant’s employer did initially move him to a non-client-facing position but that was pending the determination of their own investigation, not pending ‘determination in the regulatory process’. More importantly, once the employer concluded their investigation, they were willing to reappoint the Claimant to a client-facing role. That suggests that they did not think that he posed a material risk to clients. It is true that this did not happen – that the Claimant did not resume a client-facing role but that was due to the interim suspension from the BABCP. It appears from the letter of 14 October 2021 that the Claimant’s employer did not expect the interim suspensions to be in place for long – they appear to have expected and intended that the Claimant would soon resume a client-facing role. The fairest inference from the employer’s actions was that they reached the view that the Claimant posed no material risk to patients. The Adjudication Panel’s attempt to draw the opposite inference, that the actions of the employer were ‘indicative of managing potential risk’, was unfair and/or unreasonable in these circumstances.

The approach to the findings of the IOP was also unfair and/or unreasonable. The relevance of the IOP’s findings was dismissed, by the Adjudication Panel, on the basis that the IOP had not heard live evidence from the Claimant. I accept that the Adjudication Panel was not bound by any of the IOP’s findings. I accept also that the IOP was concerned with risk of repetition over a different time period: their focus was risk of repetition pending the substantive hearing. I further accept that the Adjudication Panel heard the Claimant give live evidence and they were entitled to place reliance on that live evidence. That live evidence could provide a reason for reaching different conclusions to the IOP. However, the caselaw cited above cautions against giving too much weight to the subjective impressions formed of a witness giving live evidence. The Adjudication Panel should have checked their impressions of the Claimant in the witness box against the words he used and the other available documentary evidence. The findings of the IOP could and should have been a sense check against the Adjudication Panel’s findings – they were, after all, considering much the same documentary evidence. The Adjudication Panel did not take care to compare their findings on the documentary evidence with the findings of the IOP on the precisely the same evidence. If they did, they would have noticed that they reached diametrically opposite conclusions based on the same material – the IOP considered that the reflection statement, the certificates for courses attended and the evidence from Dr Wilkinson ‘demonstrated’ that the Claimant had developed insight. The Adjudication Panel looked at the same material and dismissed it, saying there was ‘little reference’ and ‘little or nothing’ to show what he had learned from the training he had undertaken in a way that might prevent recurrence. The Adjudication Panel was entitled to reach a different conclusion to the IOP on the significance of such material but they ought to have explained why they had done so. They provided no explanation for taking a different view to the IOP other than the IOP had not had ‘the benefit’ of hearing the Claimant’s live evidence. In my judgment that was not an adequate explanation for taking the view that the documentary evidence, which the IOP had placed weight on in finding insight, in fact showed ‘little or nothing’ in the way of insight and remediation. On the contrary, it supports my conclusion that the Adjudication Panel took against the Claimant, because of how he came across to them when giving live evidence, and dismissed or discounted all the evidence which weighed against their subjective impressions.

Finally, in my judgment, it is telling that the Adjudication Panel reached various findings, adverse to the Claimant, which were struck down by the Appeal Panel on the basis that they were unsupported by the evidence – e.g. findings that the Claimant had harmed Client A and deprived her and her son of a therapist. The Appeal Panel concluded that these errors did not impair the Adjudication Panel’s ultimate conclusion. It is true that the errors were in relation to matters which are not expressly referred to in the paragraphs of the determination which set out the conclusion on sanction. However, in my judgment, these errors were illustrative of an Adjudication Panel that had taken against the Claimant and was not acting judicially.