UT (Tax & Chancery) UT-2024-000010 - [2024] UKUT 00416 (TCC)

[The Applicant’s counsellor] provided her qualifications and experience in her first letter dated 7 October 2023 in which she stated:

“I am a Counsellor and Psychotherapist []. I am a Registered Member of the British Association of Counsellors & Psychotherapists (BACP), qualified with a level 7/Masters Degree in Counselling. []...”

She is a counsellor, but not a qualified medical professional such as a medical doctor, psychiatrist or clinical psychologist. In any event, [her] letters do not claim to be medical or expert reports and they are not in the required form – for example they include no statement of truth or statement of understanding of an expert’s obligations and duties to the Tribunal etc.

Instead, [the Applicant’s counsellor] refers to her first letter dated 7 October 2023 as being a “character reference” [HB/17/282] as it had been prepared for and relied upon in relation to the proceedings before the RDC of the Authority. Her second letter dated 26 January 2024 is signed off as a “Character Witness Regarding … Heather Dunne” [HB/20/285]. In summary, these are not expert reports let alone from a qualified medical practitioner, clinical psychologist or psychiatrist. The Tribunal also takes into account that [the Applicant’s counsellor] was not called to give oral evidence nor sign a witness statement and therefore places less weight on her written evidence.

In her letters, [the Applicant’s counsellor] also gives detail of her interactions with the Applicant in her capacity both as a therapist but also seemingly as a friend (e.g. recounting a time when [the counsellor] had dislocated her shoulder and the Applicant offered to collect groceries on her behalf [HB/18/278]). She states: “In some ways, I am saddened by the fact I am Heather’s counsellor because it means our relationship must always remain ethical and will come to an end in due course, when in actuality Heather has the character I would look for in a friend.” [The Applicant’s counsellor] then expresses her “belief” in the second letter (seemingly without having considered any of the evidence in this case) that the Authority’s substantive case is wrong and the Applicant “would have followed the rules at the point in which she was providing the advice” [HB/20/284]. The contents of the letters undermine the independence or objectivity of the facts and opinions contained described in the letters.

In terms of commenting on medical matters, the closest [the Applicant’s counsellor] comes is to say that she ‘screened’ the Applicant for ASD but that this was “not a diagnosis” and if the Applicant wanted a diagnosis then “she would be able to take the screening to her doctor to get a referral to a psychiatrist, where formal testing would be carried out” [HB/18/279]. It seems that no referral has been made. Despite [the Applicant’s counsellor] accepting she is not qualified to make any diagnosis in respect of ASD, she goes on to make statements in her letters such as:

“In more recent months of our counselling relationship, knowing that some of her nephews have been diagnosed with Autism Spectrum Disorder (ASD) I felt able to suggest to Heather that I believe it is highly likely that she may be Autistic too. I said to her that obviously, this can only be diagnosed by a psychiatrist. Therefore, I am not giving her a diagnosis, simply a suspicion based upon the number of clients I have worked with over the years who have been on the Autistic Spectrum.

…

I decided to include my belief that it is highly likely that she has Autism Spectrum Disorder into this character witness statement.

…

Heather’s genetic make-up being that of someone on the autistic spectrum, means that she gets a hyperfocus, where she can focus on nothing but the proceedings, going over and over everything increasing her stress levels and leaving her unable to sleep for weeks at a time.”

[The Applicant’s counsellor] does make direct comment in the second letter regarding the effect of publication on the Applicant’s mental health and that she believes that “[f]rom the time I have spent with Heather, it is my opinion that her conviction would be extreme concern that people reading a publication of the Decision Notice or any details of the case taken against her, would be led to the belief that she had not followed due process” and that “I do not feel confident that I would be able to keep her safe should these details be published before she has had the chance to clear her name” [HB/20/285].

Whilst these comments or opinions suggest a serious potential impact on the Applicant of publication, the Tribunal is not satisfied that they are cogent evidence or establish a substantial risk or any likelihood of harm. This is for all the reasons set out above which undermine her evidence including that [the Applicant’s counsellor] is not a qualified medical professional whose opinion, to the extent it can be admitted at all, should carry significant weight. With due respect to [the Applicant’s counsellor], a counsellor’s primary role in the treatment of mental health conditions is not to “keep [the Applicant] safe”; that role primarily belongs to qualified medical professionals. In addition, there is no consideration given to the information on the allegations about the Applicant that is already in the public domain and the effect this has previously had upon her – this is addressed below.

For the reasons set out above, the Tribunal admits [the Applicant’s counsellor’s] letters in evidence, pursuant to Rules 2 and 15 of the Rules, to the extent they provide hearsay evidence of primary fact – such as what the Applicant has said and how she has behaved. However, the Tribunal places little weight on any opinions expressed by [the Applicant’s counsellor] as to the extent of mental illness that the Applicant is suffering and the potential effect of publication. The Tribunal is not satisfied that the letters provide reliable, let alone cogent evidence that publication will cause a significant likelihood or substantial risk of psychological harm to the Applicant.