The BACP has asked that individual practitioners’ names be removed from an article published on this site which recounted the details of a violation of client confidentiality by a group of online therapists. While throwing out the majority of claims in a complaint brought by those individuals, and recognizing that the publisher of this site was ethically bound to challenge the incompetence or malpractice of other practitioners, the BACP has deemed that the publisher erred by individually naming those responsible for the violation.
A Fundamental Violation of Trust
In March 2005, I stumbled upon incontrovertible evidence that a group of six self-styled online therapy ‘experts’ had unwittingly published personal details about their clients on an electronic discussion group hosted on a major web portal. In one instance, the discussion group archive apparently exposed a client’s full name, occupation, work and educational history. In another instance, it revealed first name, occupation, work and educational history, medical history, and city of residence of a man openly discussing practices which were punishable by law in his country. And in a third, the therapists’ discussions exposed family details and other information about a child and about ongoing legal proceedings concerning allegations of child abuse, including the name of a local child protection agency involved in the case.
When I informed this group of individuals, in private, that their clients’ personal details — including verbatim session transcripts — were openly available to the public in completely unencrypted form and without any form of password protection, the group refused to acknowledge any possibility of human error on their part. Instead, they blamed it on Google, blamed it on Yahoo!, and blamed it on caches. They openly accused me of lying, refused even to consider informing the affected clients that their confidentiality and trust had been violated, and unleashed a torrent of verbal abuse and self-righteous invective against me. Finally the group refused to talk to me at all, but not before accusing me of all of the following (some over and over):
- criminal activity
- god-like infallibility
- pure fantasy
- assaults and innuendo, tangents and distortions
- grossly unprofessional conduct
- flaming, baiting and distorting facts
- wilful attacks on the group’s integrity
- destructive and non-professional behaviour
- mischaracterization and disparagement
- disregard for collegial civility
- intentional mis-statement
Following this onslaught, I consulted extensively and confidentially with a small number of other senior colleagues, and I reluctantly concluded that I should provide full documentation of the incident to two relevant professional bodies, in an attempt to persuade the head of the group to consider acknowledging the confidentiality violation to affected clients. The rules of those two professional bodies mandate that complainants not be permitted to see, let alone cross-examine, any replies made by practitioners complained against. Thus, I was initially none the wiser about what might have taken place in those bodies’ investigations when both declined to take any action against the practitioner.
In November 2005, I published on this website an entirely factual and evidence-based account of what I had experienced, highlighting the fact that even though both professional bodies had accepted — completely and without question — the veracity of my description of the confidentiality breach by these online therapists, neither had elected to pursue any actual disciplinary action against the head of the group.
Now Who is Lying?
Fast forward a few months, to January 2006, and the group filed a complaint with the British Association for Counselling and Psychotherapy (BACP) against me, alleging that I had fabricated virtually all I had written, alleging that I had lied extensively to support my fabrications, and alleging that I had maliciously and deliberately set out to damage the professional reputation of these ‘experts’.
It was not until this time that I wound up being able to see a copy of the group’s initial response to one of the professional bodies to which I had previously complained. I was astonished to discover that this document contained clear, direct, and incontrovertible evidence that the group had actually lied to the other professional body to secure the dismissal of the complaint against their leader!
And when I say ‘evidence that the group had actually lied’, I don’t mean evidence that they described things a little differently; I don’t mean evidence that they had some different interpretations than I had; I don’t mean evidence that there was a difference of opinion. I mean evidence that they lied. The document showed that the group actually fabricated statements to attribute to me (quite wild ones, at that), that they described their handling of confidential client information in ways demonstrably contrary to fact, and that they presented a re-ordered timeline of the events which took place. All of these could easily be verified as contrary to fact because all our exchanges took place via email: with an automatic and fully time-stamped transcript of every single thing that ever happened, all questions about who said what and who did what and when could be answered completely objectively. Yet, given the rules of engagement for complaints submitted to the other bodies, I had been completely unaware this document had been used to secure the dismissal of my original complaints; the other professional bodies were presumably similarly unaware that they were being duped.
Wow! Who would have thought the profession could work like this? Here is a group of self-proclaimed ‘experts’ in online therapy, first exposing unencrypted confidential client information on a major web portal, then apparently lying to a professional body to secure the dismissal of a complaint against their head, and then apparently lying to another professional body in the course of bringing a complaint against me.
In the face of such a complaint against me, my defence focused on the actual documented facts of the case to demonstrate that it was instead the practitioners who had lied repeatedly and that every single statement I had ever made about the incident was 100% supported by well documented and independently verifiable evidence. While the group’s representatives sought to portray me as simply having a different opinion and having no respect for the opinions of others, it rapidly became clear that this had very little to do with differences of opinion. (When one practitioner says, in effect, "your private files are open to the public", and another practitioner says, in effect, "no they’re not, you’re a criminal hacker just making it up", that’s not a difference of opinion.) Notably, the BACP complaints procedure contrasts markedly with that of the other two professional bodies, in that everyone involved is provided with the opportunity to see all responses made by anyone, as well as to cross-examine the other party. Thus, it was not until this complaint was brought against me — long after the practitioners had first violated their clients’ confidentiality — that the full evidence of the whole affair was ever properly considered and cross-examined by any professional body.
The end result? The BACP threw out virtually all of the complaint against me.
BACP Verdict: Discussion is OK, But Don’t Name Names
The BACP did, however, rule that it was unfair for me to have published the names of the individual perpetrators of the confidentiality violation. The BACP’s decision permitted that I may publish the factual account that I did, provided that I removed the names and identifying features of those responsible for violating client confidentiality, and of the professional organizations to whom the evidence later emerged that the practitioners had lied in securing the dismissal of the complaint against their head.
That full decision and sanction are included below. Note that the BACP decision clearly highlights the conflict between my ethical duty to challenge the other practitioners’ incompetence, on the one hand, and my ethical duty to treat them fairly in the material I published. In an ironic twist, the BACP routinely announces publicly the names and personal details of any and all practitioners against whom any type of complaint is upheld, "for the purposes of public information in the interests of protecting the public"; however, they protect the identity of complainants, even where complainants have demonstrably lied in the course of filing a complaint against one of their peers.
BACP Professional Conduct Hearing Findings, Decision and Sanction
The complaint against the above individual member was taken to Adjudication in line with the Professional Conduct Procedure.
The complaint was heard under the BACP Professional Conduct Procedure 2002 and the Panel considered the alleged breaches of the BACP Ethical Framework for Good Practice in Counselling and Psychotherapy.
The focus of the complaint, as alleged by the Complainant, was that Dr Gregory Mulhauser had acted contrary to clause 43, 46 and 48 of the BACP Ethical Framework for Good Practice in Counselling and Psychotherapy concerning respect in working relationships with colleagues, making unjustified comments about colleagues, and failing to take account of conventions in different working contexts.
Having fully considered the aforementioned, the Panel finds that:
- Dr Mulhauser had been genuinely concerned at the ability for the public to access confidential information archived by the Complainant’s online forum.
- In raising this issue with forum members, Dr Mulhauser experienced their response as insufficient and provocative.
- The forum members nevertheless acted to protect the confidential information and experienced Dr Mulhauser as continuing to protest about informing clients of the possible breach of confidentiality.
- The response to Dr Mulhauser did not make it sufficiently clear that clients had been appropriately consulted.
- Dr Mulhauser consulted with senior colleagues about his next course of action and pursued the matter with formal complaints to certain professional bodies, who found there was no case to answer.
- Dr Mulhauser published an account of these events on his website, and contacted members of an online counselling association to draw attention to his article.
- The article itself showed lack of judgement in that it named an individual colleague who represented the forum whose actions had not been found to be unethical. In naming both the individual and the professional associations, Dr Mulhauser showed a lack of respect for those associations and potentially undermined a colleague’s professional reputation.
- In mitigation, it was a difficult ethical decision for Dr Mulhauser in that there were competing principles, between non-maleficence and ‘a personal responsibility to challenge, where appropriate, the incompetence or malpractice of others’, and clauses 43, 46 and 48 of the BACP Ethical Framework for Good Practice in Counselling and Psychotherapy. While it was appropriate to take the issue to professional bodies, it was unwise not to accept the findings of those bodies and then to publish an article which re-visited the issues in the form which it did.
- Dr Mulhauser acknowledged that on reflection he might have responded differently in the light of what he had heard and learned at the hearing. Therefore, the panel finds in relation to the article published by Dr Mulhauser on his website that there was a breach of clause 43 of the BACP Ethical Framework for Good Practice in Counselling and Psychotherapy. The alleged breaches of clauses 46 and 48 are not upheld.
Accordingly the following sanction is imposed:
That Dr Mulhauser withdraws the aforementioned article from his website within three days of receipt of the Panel’s decision and provides a written declaration to the Sanctions Panel confirming that he has done so; stating that if he chooses to re-publish the article he will not do so on any website or in any other form unless all identifying features of the persons and of any of the professional bodies involved in the matter are removed, and with a URL suffix which clearly distinguishes any such revised article from the offending material.
That this written declaration is to be provided to the Sanctions Panel within 28 days of receipt of this decision.
All written submissions under this sanction will be considered by the Sanctions Panel.
BACP has received a report, which verifies that the requirements of the sanction have been met. As such, the sanction, reported in this edition of this journal, has been lifted. The case is now closed.
This report is made under clause 5.2 of the Professional Conduct Procedure 2002.
- From the October 2006 edition of therapy today, vol. 17 no. 8, pp. 57-58, reproduced here under the provision of "fair dealing for the purposes of research or private study, or criticism or review, as permitted under the UK Copyright, Designs and Patents Act 1988".
Note that contrary to the wording used above, the other professional bodies patently did not find that "there was no case to answer": this factually erroneous snippet is a bit of cunningly misleading spin crafted by the complainants and which inexplicably wound up in the BACP text. In fact, the bodies dismissed the complaints, which is a completely different matter. What difference does it make? One of the organizations explicitly requires that any complaint be dismissed if the practitioner simply agrees to rectify the situation. In other words, however badly the practitioner has fouled up something, no complaint can be upheld as long as they rectify it. Agreeing to do what is necessary to rectify the mistake is a rather different matter than there being no case to answer! Indeed, given that I immediately complied with what the BACP requested as an appropriate way of rectifying the situation which led to the complaint against me, one might speculate that were my own case to have been heard under the other professional body’s rules, it would almost certainly have been dismissed. And had the other practitioners had to answer for their behaviour under the vastly more stringent procedural rules of the British Association for Counselling and Psychotherapy, they may well have been kicked out of the organization entirely — and had the full story of their behaviour publicized in the organization’s magazine.
What a difference such accidents of geography can make…
The Principle of Fidelity: Honesty With Clients
I’d like to clarify one last nuance of this case.
The decision above suggests that I pressed for disclosure of the confidentiality breach to clients. Obviously I recognize now — and have always recognized — that the specific decision as to whether to inform clients that their confidentiality had been violated was up to the practitioners concerned. But did I nonetheless "continue to protest about informing clients"? You bet I did!
I continued to protest about informing clients because of the practitioners’ steadfast refusal even to entertain the possibility that something worth informing clients about had occurred. There is a fundamental ethical principle at stake here — one called the "principle of fidelity" by the BACP, but which is also incorporated under one heading or another within virtually every ethical framework in the field. That principle, which the BACP describes as "honouring the trust placed in the practitioner" means, among other things, that one does not lie to clients (or to colleagues, for that matter), and one does not promise confidentiality and then deliver something else. The principle of fidelity demands honesty with clients when things go wrong, and most practitioners agree that this fundamental principle should not be set aside or suspended except in the case that some extraordinary circumstance arises, some circumstance of such over-arching importance or significance that it would actually be worse to uphold the principle of fidelity than to set it aside. The usual hypothetical example of where a practitioner might be justified in over-riding the principle of fidelity is a situation where the practitioner truly believes their client to be so extremely vulnerable that being honest with them could lead to immediate and serious harm to the client or others. (And for the avoidance of any doubt: I believe very few practitioners would consider the protection of their own personal or professional standing, or the avoidance of negative publicity regarding their practice, to be sufficient grounds for abandoning the principle of fidelity.)
In my exchanges with this group of practitioners, however, they repeatedly and consistently refused to discuss even the possibility of informing clients that their confidentiality had been violated. In other words, there was no discussion about how their clients were so extremely vulnerable that the principle of fidelity should be set aside (or, indeed, any significant discussion at all about client interests): instead, there was only sustained refusal to acknowledge even the possibility of human error on the part of the practitioners or any need whatsoever to ponder disclosure to clients. The practitioners made it abundantly clear that they did not believe anyone’s confidentiality had ever been violated in the first place, so of course there was no need to consider disclosure.
Finally, during the course of the hearing considering the case against me, the practitioners made some new claims about what they had said and done at the time, new claims that explicitly contradicted what they said to me at the time, and what they have continued to say to their peers and to their parent organization. If those claims are true, and if I they had made them known at the time (rather than insisting on the opposite), I believe this all would have gone very differently; I certainly would have undertaken different actions myself. But given what they were insisting to be the case at the time, and what they continue to insist to their peers, I believe I did the right thing. I am glad to see the BACP effectively throwing out the bulk of the complaint against me by failing to uphold alleged breaches, and explicitly declining to impose limits on the publication of this material, provided that no specific names are attached.
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