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The Claimant in Mandic-Bozic was a psychotherapist and a member of both the British Association for Counselling and Psychotherapy (“BACP”), the Defendant, and, the United Kingdom Council for Psychotherapy (“UKCP”), the Interested Party. Although in theory the regulation of psychotherapists is voluntary, Mr Justice Mostyn held (at ) that “in practice a practitioner has to be member of at least one body or else they would not get any work. Most are members of both.”
From 2009 to 2014 the Claimant treated Patient A. In January 2015 Patient A made a formal complaint about the Claimant to UKCP. On receipt of this complaint, UKCP drafted particularised charges deriving from the allegations made by Patient A. Some of the allegations were discontinued at a preliminary stage and the remaining charges went to a full hearing by UKCP’s adjudication panel over eight days in June and July 2016. The panel then conducted an evaluative exercise to determine whether the facts found proved amounted to misconduct and what sanction should be imposed.
Meanwhile, BACP was also progressing the formal complaint which Patient A had made to it about the Claimant in February 2015. In February 2016 BACP’s pre-hearing assessment panel produced a report particularising the complaints made by Patient A and concluding that the Claimant did have a case to answer. Mr Justice Mostyn held (at ) that BACP intended to proceed with a full rehearing of the allegations, including those allegations discontinued by UKCP at the preliminary stage.
On 21 June 2016 a consent order was made in which BACP agreed not to take any steps in its disciplinary proceedings before 3 August 2016 and to “recognise” any decision made in the UKCP proceedings “in accordance with [Professionals Standards Authority] standard 10(e)”.
Grounds for Judicial Review
Proceedings for judicial review were commenced on 15 June 2016 on five grounds. On 11 August 2016 permission was granted on two of the grounds, namely:
(1) that to proceed with the second complaint would amount to a collateral attack on the decision by the interested party; and
(2) that it was unfair and/or irrational to allow Patient A to prosecute her own complaint to the BACP’s adjudicatory panel (as its procedures appeared to require).
Mr Justice Mostyn described the situation in this case as “unique” (at ). He made the following findings of fact: BACP and UKCP governed the same practitioners; stipulated the same ethical standards; received complaints from Patient A that were in substance exactly the same; and formulated particularised charges deriving from those complaints which were also identical in substance.
As he pointed out at  “there is no case in the books where two regulators… exercising the same functions over the same people in the same field” have been asked to consider “identical complaints at the same time.”
Mr Justice Mostyn considered Ground 1 firstly under the cause of action estoppel doctrine. As he put it (at [5(i)]) “this is where both the parties and the subject matter of the litigation are the same in both the first action and the prospective second action.”
He had little hesitation in concluding that the subject matter of the two complaints were the same and that there been a “full quasi-judicial determination” of all of Patient A’s allegations by UKCP: as he held at , “Some were sifted out by means of a preliminary determination. Some were determined after a lengthy hearing. But they were all adjudicated.”
He described the question of whether the parties were the same in both proceedings as “more difficult”, but was satisfied that, in reality, they were. (1) Patient A was UKCP’s “privy” in its proceedings, so that Patient A had the status of prosecutor in both proceedings. (2) Alternatively, the verb “to recognise” in the consent order must be taken in its legalistic sense of “to accept the authority of”. Thus in recognising the UKCP decision BACP adopted it and in effect became a party bound by it.
Thus, he was satisfied that a cause of action estoppel did operate to bar BACP from adjudicating the complaint made to it.
However, Mr Justice Mostyn went on to hold that even if was wrong in his determination that a cause of action estoppel operated, the collateral attack doctrine would bar BACP’s disciplinary proceedings. He held that it would be manifestly unfair to the Claimant to be exposed to the same complaint twice. He relied on The Secretary of State for Business, Innovation and Skills v Weston  EWHC 2933 (Ch) where duplicative claims were considered unfair and which he held at  to be “indistinguishable (in terms of principle)” to Mandic-Bozic.
The first ground for judicial review was therefore successful.
Mr Justice Mostyn held that the second ground was “unarguable” (at ) as it was not unfair to make Patient A act as formal prosecutor in the BACP proceedings. In reality she would be assisted by BACP. However, even if she had to do it alone that would not render the proceedings unfair. As he pointed out (at ) “in the family law sphere vulnerable and impoverished litigants are now routinely expected to conduct the most difficult cases entirely without assistance, and attempts to remediate the problem have been rebuffed.”
The second ground for judicial review was therefore refused.
Mr Justice Mostyn refused to grant the Defendant permission to appeal to the Court of Appeal.
Ijeoma Omambala (instructed by Russell Cooke) appeared for the Defendant .
Case Report prepared by Mark Greaves
13 December 2016
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