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The legal and regulatory challenges of
working with clients whose lives are
affected by addiction
iCAAD, London 9 May 2018
Julie Norris – Partner in Regulatory
Sandra Paul – Partner in Criminal Litigation
Michael Rowlands – Partner in Family & Divorce
Agenda
• Regulation and the talking professional, Julie Norris
• A criminal perspective, Sandra Paul
• A view from a family lawyer, Michael Rowlands
• Q & A
Julie Norris
Partner, Regulatory
Regulation and the talking professional
MICHAEL ROWLANDS, JULIE NORRIS AND SANDRA PAUL - THE LEGAL AND REGULATORY CHALLENGES OF WORKING WITH CLIENTS WHOSE LIVES ARE AFFECTED BY ADDICTION
FAQs
• What is regulation anyway
• What is the difference between
statutory and voluntary regulation
• Why are therapists not statutorily
regulated
• Are they any benefits to regulation
• What about the de-merits
Some routes to achieving compliance
Regulatory
Compliance
Confidentiality
Ethical
boundaries
Patient
contracts
Data Protection
Confidentiality
“All information about the [patients]…whether by
records or otherwise, which relates to their medical,
psychological or therapeutic care is, in principle,
confidential. That confidentiality would, in my
view, extend to art, or any other form of therapy,
and to all those taking part in group therapy, and
not only the therapist…”
- Venables v MGN [2001] 1 All ER 908 per Lady Justice Butler Sloss
Criminal obligations
Civil obligations
Regulatory obligations
The importance of confidentiality
“Respecting clients' privacy and confidentiality
are fundamental requirements for keeping trust
and respecting client autonomy. The
professional management of confidentiality
concerns the protection of personally
identifiable and sensitive information from
unauthorised disclosure”
- BACP Ethical Framework Respecting privacy and confidentiality
There are always exceptions…
• Court order
• Required by law
• Consent
• Public interest
“Disclosure may be authorised by client
consent or the law. Any disclosures of client
confidences should be undertaken in ways
that best protect the client's trust and
respect client autonomy”
- BACP Ethical Framework Respecting privacy and
confidentiality
Test: Does the release of information to protect the interests of a
third party exceptional prevail both over the duty of confidence
owed to the patient and the public interest in a confidential health
and social care service?
Protect the patient
Protect third parties from risk of death or serious harm
Prevent a crime/civil wrong
Discretionary disclosure - harm
Discretionary disclosure - crime
“…Once a serious allegation is made, particularly one
criminal in nature such as abuse, it cannot be ignored…
A child cannot be sheltered from the consequences of
the information disclosed and the person to whom the
confidences have been made or suggested must give
the child a truthful description of the likely outcome…”
- Per Lady Justice Butler-Sloss, Re M [1990] 1 All ER 205
Data Protection and GDPR
“Personal data is any information that can be used to
identify a living person either directly or indirectly. This
includes names, addresses, contact details but also includes
things like IP addresses and acronyms. It doesn’t matter
whether you keep the data electronically or in paper form,
it is still covered by the GDPR. For example, you might keep
electronic information of bank details, phone numbers,
email addresses and you might keep hand written notes of
your therapy sessions. All this falls under GDPR.”
- UKCP Guidance to the GDPR
• Greater accountability for the data controller/processor
• Process for investigating and reporting breaches
• Easier for individuals to access their personal data
• Larger penalties for non-compliance of the GDPR
What is new?
Audit data held
Cleanse data held
Draft new data handling policies
Getting ready for GDPR
Ethical boundaries
• Self-disclosure
• Dual relationships
• Referral fees
• Self-referral
• Supervision
Some common flash points
Referral fees
Bribery – bribing another
• P offers, promises, gives a financial or other
advantage to induce or reward improper
performance of a function/activity
• Direct or 3rd party
Bribery – being bribed
R requests, agrees to receive or accepts a financial or other
advantage:
• In anticipation of
• In exchange for
• As a reward for
the improper performance of a function or activity (by R or someone
else);
Or
The request, agreement to receive, or acceptance itself constitutes
improper performance by R of a relevant function or agreement
The advantage can be direct or through a 3rd party
What activity does the Bribery Act
cover?
• Relevant function or activity if it relates to:
• Any activity connected with a business;
• Any activity performed in the course of a person’s employment
• And one of the following:
• The person performing the function/activity is expected to perform it in good faith;
• The person performing the function/activity is expected to perform it impartially;
• The person performing the function/activity is in a position of trust by virtue of
performing it
• Extra-territorial effect
• Reasonable performance
• Boundaries
• Document it
“We will promptly notify this Association about any criminal
charges, disciplinary procedures or civil claims brought
against us, or where we are in sufficient financial difficulty to
be declared bankrupt or have entered into other types of
debt relief or insolvency arrangements”
- BACP Ethical Framework, para. 43
Self-referral: check the small print!
The psychotherapist agrees to inform UKCP and the relevant
organisational member if they are:
(a) Convicted of a criminal offence, receive a conditional discharge
for an offence, or accept a police caution;
(b) Disciplined by any professional body or membership organisation
responsible for regulating or licensing a health or social-care
profession; or
(c) Suspended or placed under a practice restriction by an employer
or similar organisation because of concerns
- UKCP Ethical Principles, para. 4.2
and
“The psychotherapist commits to report potential breaches of this
Ethical Principles and Code of Professional Conduct by themselves or
by other psychotherapists to the relevant organisational member or
UKCP”
- UKCP Ethical Principles, para. 10
(the critical importance of) Supervision
• Regulatory obligation
• Discuss ethical problems and dilemmas
• Make or break a regulatory case
• Document it
• Care of self
Patient contracts
The regulatory obligations
“give careful consideration to how [you] reach agreement with clients and
contract with them about the terms on which [your] services will be
provided. Attention [must] be given to:
a) reaching an agreement or contract that respects each client’s expressed needs
and choices
b) communicating terms and conditions of the agreement or contract in ways
easily understood by the client and appropriate to their context
c) stating any reasonably foreseeable limitations to a client’s confidentiality or
privacy
d) providing the client with a record or easy access to a record of what has been
agreed
e) keeping a record of what has been agreed and of any changes or clarifications
when they occur”
- BACP Ethical Framework, para 32
Some other really important terms …
• Complaints process
• Data protection and confidentiality
• Limitations to confidentiality
• Consent
• Liability/indemnity
Sandra Paul
Partner, Criminal Litigation
A criminal perspective
Working together
• Mutually supportive
• Complimentary
• Client benefits
• Addictions & mental
health problems common
in criminal litigation
• Range of circumstances
where criminal lawyers
seek therapeutic advice
for client
Drugs / alcohol
• Removal of conscious
control
• Blurred lines between
mental health/vulnerable
and addiction
• Culpability v
mitigating/aggravating
features
Gambling & Aggression
• Fraud
• Embezzlement
• Theft
• Domestic abuse
• Harassment through to
commuter or road rage
• Murder
Sex
• #MeToo – sex addiction
• Children sexting
• Treatment for psycho-sexual
behaviours
• Issues appear sexual but
their motivation is complex
Circumstances where we instruct experts
Pre-charge
• Key to get it right at this stage
During trial
• Expert support during trial
process
- with client
- in relation to expert evidence
Conviction
• Mitigation
• Pre-Sentence report
Post-conviction
• Compliance
• Prevention
Challenges – at the outset
Choosing the expert
• Rapport – trust & confidence – LPP
• Clarity and agreement at the outset on boundaries, areas
of responsibility/competence and obligations e.g.
disclosure
• Different but complimentary roles
• Constant communication
Challenges – during the process
Outcome …
• What if the expert report
doesn’t say what we
want it to?
• What if the “therapy”
goes too far?
• Unexpected
results/unintended
consequences…
Issues to consider
Information sharing
• What information can we
share? (legal & therapist)
• Client consent?
• Third parties – e.g. family
members
External referrals
• Safeguarding – Child
Protection
• Self-harm
• Historical allegations of
abuse
Final thoughts
A client in therapy
makes my job
easier and
more bearable!
Michael Rowlands
Partner, Family & Divorce
A view from a family lawyer
Me and what we have in common?
Doing the right thing
• How to do the right thing by our clients
• How to do the right thing by our regulators
• How to be ethical in the way that we practice
“You’re a lightweight. You’re fired!”
Alan Sugar
“I agree you do have drive,
ambition and self-confidence, but
what we are looking for is
competence”
It’s Monday,
don’t’ forget to be
awesome!
Regulation
“One failed attempt at a shoe bomber, and we all take
off our shoes at the airport”
“31 school shootings since Columbine and no change
in the regulation of guns”
John Oliver
Get ready for a wild ride
Conflict of interest
“If I, taking
care of
everyone’s
interests, also
take care of
my own, you
can’t talk
about a
conflict of
interest”
Silvio
Berlusconi
TURN ON
TUNE IN
DROP OUT
Questions
Michael Rowlands
Partner, Family & Divorce
mrowlands@kingsleynapley.co.uk
T +44 (0)20 7814 1210
Julie Norris
Partner, Regulatory
jnorris@kingsleynapley.co.uk
T +44 (0)20 7814 1290
Sandra Paul
Partner, Criminal Litigation
spaul@kingsleynapley.co.uk
T +44 (0)20 7814 1259
www.kingsleynapley.co.uk | Kingsley Napley LLP is authorised and regulated by the Solicitors Regulation Authority

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MICHAEL ROWLANDS, JULIE NORRIS AND SANDRA PAUL - THE LEGAL AND REGULATORY CHALLENGES OF WORKING WITH CLIENTS WHOSE LIVES ARE AFFECTED BY ADDICTION

  • 1. The legal and regulatory challenges of working with clients whose lives are affected by addiction iCAAD, London 9 May 2018 Julie Norris – Partner in Regulatory Sandra Paul – Partner in Criminal Litigation Michael Rowlands – Partner in Family & Divorce
  • 2. Agenda • Regulation and the talking professional, Julie Norris • A criminal perspective, Sandra Paul • A view from a family lawyer, Michael Rowlands • Q & A
  • 3. Julie Norris Partner, Regulatory Regulation and the talking professional
  • 5. FAQs • What is regulation anyway • What is the difference between statutory and voluntary regulation • Why are therapists not statutorily regulated • Are they any benefits to regulation • What about the de-merits
  • 6. Some routes to achieving compliance Regulatory Compliance Confidentiality Ethical boundaries Patient contracts Data Protection
  • 8. “All information about the [patients]…whether by records or otherwise, which relates to their medical, psychological or therapeutic care is, in principle, confidential. That confidentiality would, in my view, extend to art, or any other form of therapy, and to all those taking part in group therapy, and not only the therapist…” - Venables v MGN [2001] 1 All ER 908 per Lady Justice Butler Sloss
  • 9. Criminal obligations Civil obligations Regulatory obligations The importance of confidentiality
  • 10. “Respecting clients' privacy and confidentiality are fundamental requirements for keeping trust and respecting client autonomy. The professional management of confidentiality concerns the protection of personally identifiable and sensitive information from unauthorised disclosure” - BACP Ethical Framework Respecting privacy and confidentiality
  • 11. There are always exceptions… • Court order • Required by law • Consent • Public interest
  • 12. “Disclosure may be authorised by client consent or the law. Any disclosures of client confidences should be undertaken in ways that best protect the client's trust and respect client autonomy” - BACP Ethical Framework Respecting privacy and confidentiality
  • 13. Test: Does the release of information to protect the interests of a third party exceptional prevail both over the duty of confidence owed to the patient and the public interest in a confidential health and social care service? Protect the patient Protect third parties from risk of death or serious harm Prevent a crime/civil wrong Discretionary disclosure - harm
  • 14. Discretionary disclosure - crime “…Once a serious allegation is made, particularly one criminal in nature such as abuse, it cannot be ignored… A child cannot be sheltered from the consequences of the information disclosed and the person to whom the confidences have been made or suggested must give the child a truthful description of the likely outcome…” - Per Lady Justice Butler-Sloss, Re M [1990] 1 All ER 205
  • 16. “Personal data is any information that can be used to identify a living person either directly or indirectly. This includes names, addresses, contact details but also includes things like IP addresses and acronyms. It doesn’t matter whether you keep the data electronically or in paper form, it is still covered by the GDPR. For example, you might keep electronic information of bank details, phone numbers, email addresses and you might keep hand written notes of your therapy sessions. All this falls under GDPR.” - UKCP Guidance to the GDPR
  • 17. • Greater accountability for the data controller/processor • Process for investigating and reporting breaches • Easier for individuals to access their personal data • Larger penalties for non-compliance of the GDPR What is new?
  • 18. Audit data held Cleanse data held Draft new data handling policies Getting ready for GDPR
  • 20. • Self-disclosure • Dual relationships • Referral fees • Self-referral • Supervision Some common flash points
  • 22. Bribery – bribing another • P offers, promises, gives a financial or other advantage to induce or reward improper performance of a function/activity • Direct or 3rd party
  • 23. Bribery – being bribed R requests, agrees to receive or accepts a financial or other advantage: • In anticipation of • In exchange for • As a reward for the improper performance of a function or activity (by R or someone else); Or The request, agreement to receive, or acceptance itself constitutes improper performance by R of a relevant function or agreement The advantage can be direct or through a 3rd party
  • 24. What activity does the Bribery Act cover? • Relevant function or activity if it relates to: • Any activity connected with a business; • Any activity performed in the course of a person’s employment • And one of the following: • The person performing the function/activity is expected to perform it in good faith; • The person performing the function/activity is expected to perform it impartially; • The person performing the function/activity is in a position of trust by virtue of performing it • Extra-territorial effect • Reasonable performance • Boundaries • Document it
  • 25. “We will promptly notify this Association about any criminal charges, disciplinary procedures or civil claims brought against us, or where we are in sufficient financial difficulty to be declared bankrupt or have entered into other types of debt relief or insolvency arrangements” - BACP Ethical Framework, para. 43 Self-referral: check the small print!
  • 26. The psychotherapist agrees to inform UKCP and the relevant organisational member if they are: (a) Convicted of a criminal offence, receive a conditional discharge for an offence, or accept a police caution; (b) Disciplined by any professional body or membership organisation responsible for regulating or licensing a health or social-care profession; or (c) Suspended or placed under a practice restriction by an employer or similar organisation because of concerns - UKCP Ethical Principles, para. 4.2 and “The psychotherapist commits to report potential breaches of this Ethical Principles and Code of Professional Conduct by themselves or by other psychotherapists to the relevant organisational member or UKCP” - UKCP Ethical Principles, para. 10
  • 27. (the critical importance of) Supervision • Regulatory obligation • Discuss ethical problems and dilemmas • Make or break a regulatory case • Document it • Care of self
  • 29. The regulatory obligations “give careful consideration to how [you] reach agreement with clients and contract with them about the terms on which [your] services will be provided. Attention [must] be given to: a) reaching an agreement or contract that respects each client’s expressed needs and choices b) communicating terms and conditions of the agreement or contract in ways easily understood by the client and appropriate to their context c) stating any reasonably foreseeable limitations to a client’s confidentiality or privacy d) providing the client with a record or easy access to a record of what has been agreed e) keeping a record of what has been agreed and of any changes or clarifications when they occur” - BACP Ethical Framework, para 32
  • 30. Some other really important terms … • Complaints process • Data protection and confidentiality • Limitations to confidentiality • Consent • Liability/indemnity
  • 31. Sandra Paul Partner, Criminal Litigation A criminal perspective
  • 32. Working together • Mutually supportive • Complimentary • Client benefits • Addictions & mental health problems common in criminal litigation • Range of circumstances where criminal lawyers seek therapeutic advice for client
  • 33. Drugs / alcohol • Removal of conscious control • Blurred lines between mental health/vulnerable and addiction • Culpability v mitigating/aggravating features
  • 34. Gambling & Aggression • Fraud • Embezzlement • Theft • Domestic abuse • Harassment through to commuter or road rage • Murder
  • 35. Sex • #MeToo – sex addiction • Children sexting • Treatment for psycho-sexual behaviours • Issues appear sexual but their motivation is complex
  • 36. Circumstances where we instruct experts Pre-charge • Key to get it right at this stage During trial • Expert support during trial process - with client - in relation to expert evidence Conviction • Mitigation • Pre-Sentence report Post-conviction • Compliance • Prevention
  • 37. Challenges – at the outset Choosing the expert • Rapport – trust & confidence – LPP • Clarity and agreement at the outset on boundaries, areas of responsibility/competence and obligations e.g. disclosure • Different but complimentary roles • Constant communication
  • 38. Challenges – during the process Outcome … • What if the expert report doesn’t say what we want it to? • What if the “therapy” goes too far? • Unexpected results/unintended consequences…
  • 39. Issues to consider Information sharing • What information can we share? (legal & therapist) • Client consent? • Third parties – e.g. family members External referrals • Safeguarding – Child Protection • Self-harm • Historical allegations of abuse
  • 40. Final thoughts A client in therapy makes my job easier and more bearable!
  • 41. Michael Rowlands Partner, Family & Divorce A view from a family lawyer
  • 42. Me and what we have in common?
  • 43. Doing the right thing • How to do the right thing by our clients • How to do the right thing by our regulators • How to be ethical in the way that we practice
  • 44. “You’re a lightweight. You’re fired!” Alan Sugar
  • 45. “I agree you do have drive, ambition and self-confidence, but what we are looking for is competence”
  • 47. Regulation “One failed attempt at a shoe bomber, and we all take off our shoes at the airport” “31 school shootings since Columbine and no change in the regulation of guns” John Oliver
  • 48. Get ready for a wild ride
  • 49. Conflict of interest “If I, taking care of everyone’s interests, also take care of my own, you can’t talk about a conflict of interest” Silvio Berlusconi
  • 53. Questions Michael Rowlands Partner, Family & Divorce mrowlands@kingsleynapley.co.uk T +44 (0)20 7814 1210 Julie Norris Partner, Regulatory jnorris@kingsleynapley.co.uk T +44 (0)20 7814 1290 Sandra Paul Partner, Criminal Litigation spaul@kingsleynapley.co.uk T +44 (0)20 7814 1259
  • 54. www.kingsleynapley.co.uk | Kingsley Napley LLP is authorised and regulated by the Solicitors Regulation Authority