YOU’VE INSTRUCTED THE WRONG EXPERT: AND THIS HAS MAJOR CONSEQUENCES

We are returning to the judgment of Mr Justice Ritchie in GKE v Gunning [2023] EWHC 332 (KB). This time to look at the judge’s observations on the claimant’s expert on liability.   The judge observed that the claimant had instructed the wrong type of medical specialist. The evidence the expert gave was of limited assistance to the Court.

“To judge and determine what a trained counsellor would and should have done in the shoes of the Defendant I would have needed to hear from a well qualified, experienced and properly trained counsellor or psycho-sexual counsellor giving expert evidence subject to the duties set out in CPR Part 35. I did not receive such evidence in this trial. Instead the Claimant called evidence from a neuro-psychologist. This fundamental gap in the Claimant’s case has required me to treat the expert evidence on standard of care and breach with the greatest of care.”

THE CASE

The judge was giving judgment in a case where the claimant brought an action alleging abuse of trust in the defendant’s treatment of her as a counsellor/coach.

THE CLAIMANT’S EXPERT ON LIABILITY

The claimant called a consultant neuro-psychologist to report on the duty of care owed by the defendant counsellor. The judge held that the choice of expert was inappropriate.

Doctor Watts

1. 1. Doctor Michael Watts is a consultant neuro-psychologist who provided a report on breach of duty dated the 15th of July 2022. His qualifications were not set out in any CV attached to his report. In my judgment it is always necessary for experts to provide a CV of their qualifications to prove their expertise in the relevant field. One paragraph in the report provided a short summary. He works as an NHS consultant in the North London forensic service at a medium secure psychiatric hospital and in addition at the Stalking Threat Assessment Centre dedicated to dealing with stalking. He has a degree in psychology, a doctorate in clinical psychology and a postgraduate diploma in clinical neuro-psychology. He is a member of the Health and Care Professionals Council and the British Psychological Society. His research interests include brain disorders and fitness to plead. His NHS duties include the provision of evidence based therapeutic treatments to address presenting medical conditions such as mood disorders, psychosis, personality dysfunction, trauma and substance abuse. His report does not suggest that he is a trained counsellor and he is not a member of the BACP. In evidence he accepted that whilst he has 20 years of therapeutic experience working with other therapists he is not an expert on counsellors or the code of conduct of counsellors or regulation of counsellors and accepted that there were experts in those fields. Doctor Watts did not advise in his report that the Claimant should take advice from an expert in the Defendant’s field of practice.

1. 1. I must therefore approach Doctor Watt’s evidence with a good measure of care because he is not the correct expert to advise on the appropriate methods of therapy or standard of care for a counsellor. His expertise is in clinical neuro-psychology. There is a substantive difference between a clinical neuro-psychologist and a counsellor not only by way of qualification and training but also by way of experience and practice.

1. 1. Doctor Watts did not interview the Claimant and was not asked to comment on anything other than breach of duty and duty of care. He was not specifically asked to advise on causation.

1. 1. Doctor Watts recorded that the Claimant had suffered anxiety and stress in late 2018 and early 2019 due to the complaints made against the Defendant. She suffered low mood and depression in 2019 and that the Claimant came off antidepressants in May 2021 and by June 2021 felt her mood was stable.

1. 1. Doctor Watts summarised the Claimant’s GP records. In March 2018 the Claimant provided a statement to the police asserting she had been sexually assaulted in the summer of 2011 and authorising the GP to provide her medical records in support of her complaint. Doctor Watts provided the opinion that the Claimant had a long history of mood instability and self-harm in her teens and taking medication for depression and anxiety. She had received multiple episodes of counselling including for PTSD in 2015 due to being raped at age 19 (in 2011). She also underwent a series of therapy sessions with a focus on trauma at her local well-being services. She was referred in March 2016 by her GP to a specialist psycho-sexual counsellor but dis-engaged by 2017.

1. 1. In relation to the services offered by the Defendant he described them as low level and light touch to manage patient’s recovery from common mental health problems principally anxiety and depressive disorders. Light touch therapy, he said, typically focused on minimising residual symptoms and enhancing well-being. He recognised that IFS was a psycho-therapeutic approach assuming subpersonalities or parts and aiming to help individuals reconnect with their core undamaged true self. In Doctor Watts’ opinion the initial goals and process set out by the Defendant were reasonable and appropriate and he was content that sexual and body dysmorphic issues could appropriately be dealt with in a relatively light way within the broader work on emotional adjustment and well-being. However he was concerned that the sessions became increasingly sexualised by the time of the privately funded therapy. He advised that the Defendant should have made it clear that he was not offering specialist treatment for sexual problems or body dysmorphia. Doctor Watts advised that those issues should have been referred onto a more specialist service or to a therapist with the appropriate level of training and experience. In his review of the records he made no reference to the counselling notes of the Defendant for the three private sessions.

1. 1. Doctor Watts was unclear whether the Defendant had any substantial clinical experience or training in the treatment of sexual problems or body dysmorphia. Doctor Watts advised that if the Defendant denied providing sex therapy this did not in his view sit well with the level of sexualised content of the therapy he was providing. He advised that the Defendant should have encouraged the Claimant to reconsider being referred to specialist counselling services. He advised that there is a significant, material difference between the well-being services and the privately funded services the Defendant was offering but they were both models of therapy aimed at improving emotional well-being and adjustment.

1. 1. Doctor Watts advised that as far as he knew in the field of counselling there was more variability in practice in relation to contact between formal sessions. He explained that the reason why the BACP information sheet at S.4 on professional boundaries recommended limiting intersessional contact was because such can interfere with boundaries and create serious issues around dependency.

1. 1. Doctor Watts considered that the electronic communications were inappropriate in frequency and content and breached the BACP EF. He described the content and style as “highly improper.” Specifically the use of the words “hey”, “X” and wink emojis, asserting they were not professional. He was concerned they suggested friendship and were sexually suggestive. He queried whether the Defendant had been properly supervised and whether the Defendant had brought key therapeutic issues up with his supervisor in relation to the Claimant. He queried whether the supervisor had been informed of the uncontested details about the therapy, for instance viewing images of the patient in her underwear.

1. 1. Doctor Watts opined that well-being coaching is a form of therapy. He did not criticise the model of counselling provided by the Defendant. He did criticise the method of delivering the counselling. He considered there were no circumstances in which it would have been justified for the Defendant to have asked the Claimant to undress during two therapy sessions or to touch herself sexually on her genitals in the last session. He advised that it was inappropriate to ask whether she liked to give blow jobs or suggest she experimented sexually with women or to suggest he was proud of her and that she should be “fucking proud” of herself.

1. 1. In giving that opinion Doctor Watts did not descend into the context or the circumstances in which some of those comments were made and took no account in the relevant part of his report of the defence explanation for those. He made no reference whatsoever to the counselling notes in his report. I do not consider that the way he provided his views on the texts or the comments about underwear was properly contextualised, reasoned out or justified in his report. I separate out the main two allegations from the other allegations and will deal with those later.

1. 1. Doctor Watts also criticised the Defendant for viewing multiple images of the Claimant in her underwear. He suggested there was no therapeutic rationale for this. He suggested that a therapist should not need to look at the patient’s self-image journal. Instead the therapist should encourage a third party to view, he suggested that what was needed was for the Claimant to approach a trusted female friend.

1. 1. In view of the fact that Doctor Watts is not a counsellor and does not profess to be an expert in counselling, or psycho-sexual counselling, I do not find his opinion in relation to viewing images of the Claimant which were sent by the Claimant to the Defendant satisfied the necessary burden of proof. He is not an expert in the correct field. The same applies to the Defendant asking what underwear the Claimant wore at home. If I had heard evidence from an expert on psycho-sexual therapy or an expert on counselling with sexual therapy experience, that would have been a completely different matter. However, this is a neuro-psychologist giving evidence on what is and is not proper in relation to counselling for self-image difficulties and psycho-sexual difficulties who does not profess expertise in those fields.

1. 1. In relation to the assertion that the Defendant offered to buy lubricant for the Claimant this again appears to me to be a matter outside the expertise of a neuro-psychologist and in particular of Doctor Watts. In addition Doctor Watts did not set out the circumstances in which the offer is alleged to have been made. He did not consider the Claimant’s presenting complaint of being “too dry” to accept penetration, or the discussion the Claimant and the Defendant agreed that they had about using lubrication to facilitate that. He did not refer to the Defendant’s evidence to the BACP or the session notes or the GP notes which set out that she had used lubrication before. I do not find that this part of his opinion has been properly contextualised, reasoned or analysed.

1. 1. For the same reasons I am not prepared to accept Doctor Watts’ criticism of the Defendant asking the Claiming what she wore in bed. The Defendant’s explanation for the discussion about her clothing centred on the Claimant’s poor body image and her serious sexual problems with her boyfriend. In that context discussing whether the Claimant has tried to improve her self-image and her sexual relations with her boyfriend by considering wearing different undergarments needs to be carefully considered by an expert in the field of psycho-sexual therapy. The evidence from Doctor Watts does not, in my judgment, amount either to expert evidence on this or provide sufficient contextualisation, reasoning or analysis for the conclusion that he has reached.

1. 1. In relation to the assertions that the Defendant asked the Claimant to masturbate in session or record masturbating at home and offered to help her to masturbate, Doctor Watts described this as grossly inappropriate and considered that there could never be any therapeutic rationale for making these requests. However, in cross examination Dr Watts accepted that there were sex therapists who used various techniques like these. His real criticism was that the Defendant was not qualified to do so and that made it grossly inappropriate in the circumstances of the service that he was providing to the Claimant. In relation to this evidence it seems to me that despite Doctor Watts’ lack of experience in sexual and psycho-sexual therapy, and lack of training in those fields, and his lack of expertise in counselling, I can apply weight to his opinion. He has worked alongside many therapists and when these allegations are considered an element of common sense arises. More importantly the Defendant accepted that those actions (which he denied) would have been a breach of his duty of care to the Claimant.

1. 1. In the last page and a half of his report Doctor Watts advised that all of the actions that he had considered, all the BACP findings, were inappropriate and also amounted to breaches of duty. What he did not set out was the nature of the duty of care owed by the Defendant to the Claimant or the standard of care of a counsellor in each circumstance. He made no reference and gave no express consideration to the Bolam test. Doctor Watts did not need to recite the case law but, in my judgment, he did need to set out not only the duty of care and but the standard of care that he was applying when advising that there was a breach. His only attempt at analysis is provided right at the end of his report, at 31F, in which he does finally provide some context to the allegation relating to the Defendant asking the Claimant what type of pornography she watched but then describes it as overly sexualised. That was not sufficient by way of explanation or analysis to discharge the burden of proof for civil liability.

1. 1. It is a challenging task for a litigant in person to cross examine a medical expert. The Defendant did so with calmness and politeness. Doctor Watts could not explain why he had given the Defendant the wrong name in his report. The Defendant’s first name is Brett. Doctor Watts described him as “Bryan”. Doctor Watts was challenged on the basis that he had not engaged with the Defendant’s version of events in his report and had based his report entirely on the Claimant’s version of events. Doctor Watts agreed he would change his opinion if his assumptions were inaccurate. He accepted that he had seen the Defendant’s witness statement of the 2nd of February, but stated that he was not aware of any incongruities with his report despite that witness statement. This was an unimpressive statement. The counterfactual situation to the Claimant’s assertions was not considered at all by Doctor Watts.

1. 1. When asked about the underlying schemas which the Claimant was suffering Doctor Watts said that he had not done a psychiatric evaluation of the Claimant. That was an unhelpful comment. He is not a psychiatrist yet he was prepared to summarise her post index event suffering in psychiatric terms yet he avoided assisting the Court on the pre-existing conditions. He advised that to understand her underlying beliefs he would have needed to do a psychiatric evaluation of her. When challenged in relation to the nature of the services the Defendant provided Doctor Watts repeated his view that the Defendant was providing therapy. He accepted that coaching and counselling are unregulated fields of practice and poorly defined. He opined that counselling and therapy were both therapy. He accepted that the Defendant’s actions had not caused the Claimant’s mental health conditions but he agreed with the psychiatrist that those conditions had been exacerbated. Doctor Watts accepted that by June of 2021 the GP notes showed that the Claimant was stable. He noted that the Claimant had never been seen by a psychiatrist but had been seen by a range of therapists and counsellors for cognitive behavioural therapy, counselling, sex therapy and hypnotherapy and each time she had withdrawn after only a few sessions for various reasons. Doctor Watts advised that the Claimant had difficulties engaging with treatment. He advised he had seen this pattern of behaviour a lot in people with mental health difficulties. In relation to contact between sessions, Doctor Watts advised there was a debate over the validity and extent of such contact. In his experience it was only offered between sessions for patients with severe personality disorders.

1. 1. In cross examination when challenged on his qualifications to act as an expert at all in the case he admitted that he was not a counsellor, was not a member of the BACP and he was not an expert on the duties of care of counsellors. However he had 20 years of experience in the therapeutic field and working with therapists. He advised that there were experts on counselling and the ethics of counselling and regulation of counselling but he was not one such. When challenged on whether he could prove that the Claimant’s allegations against the Defendant did not arise out of her pre-existing pathology he stated he was not aware of prior mental health generated allegations of the type in this claim.

1. 1. In re-examination Doctor Watts stated that he had provided high level counselling and therapy across the board at all levels. In relation to his experience in psycho-sexual counselling he would refer patients to other experts to deal with that and would not deal with it himself.

THE JUDGE’S CRITIQUE OF THE  EXPERT EVIDENCE

1. In relation to the evidence of Doctor Watts I consider that he should have thought far more carefully before he agreed to provide evidence on breach of duty and standard of care as a neuro-psychologist when the subject of the allegations was a counsellor with a wholly different set of qualifications and experience. I also struggle to understand why he completely ignored the Defendant’s clinical notes of the private therapy sessions and failed even to mention them in his report and why he did not give any sufficient analysis and reasoning in relation to the nature and scope of the Defendant’s duty of care and the standard of care in context. Furthermore Doctor Watts did not reason out his opinions on the allegations which he found were breaches of the Defendant’s duty of care as a counsellor and did not put them into the context of the counselling being given on each relevant issue.

1. When asked whether the text messages sent between the Claimant and the Defendant would give rise to a foreseeable risk of psychiatric injury Doctor Watts said that in his opinion they would not. In contradistinction Doctor Watts opined that when the Defendant asked this Claimant to undress in session and to masturbate in front of him that would have given rise to a foreseeable risk of injury to this Claimant.

NO APPROPRIATE EXPERT BEFORE THE COURT

1. 1. To judge and determine what a trained counsellor would and should have done in the shoes of the Defendant I would have needed to hear from a well qualified, experienced and properly trained counsellor or psycho-sexual counsellor giving expert evidence subject to the duties set out in CPR Part 35. I did not receive such evidence in this trial. Instead the Claimant called evidence from a neuro-psychologist. This fundamental gap in the Claimant’s case has required me to treat the expert evidence on standard of care and breach with the greatest of care.

1. 1. I do not consider that the Doctor Watts was sufficiently expert in the field of counselling and psycho-sexual counselling to be able to satisfy the burden of proof on the Claimant to establish (1) the requisite standard of care or (2) any breach thereof, in relation to any of the text messages or outside session communications between the Claimant and the Defendant or the majority of the in-session allegations. Doctor Watts himself accepted that there was a range of practices and approaches to communication outside sessions for counsellors.

1. I do not consider that the Claimant has discharged the burden of proof on the balance of probabilities through Doctor Watts’ evidence in relation to any of the treatment modalities used by the Defendant: IFS; sexual advice; body image journals or changing the nature of the pornography watched by the Claimant or suggestion of using lube for facilitating penetrative sex. He did not profess expertise in those areas as a psycho-sexual counsellor. His opinions on what was and what was not appropriate were not sufficiently analytical or set in context and were not compared with good practice of counsellors dealing with the identified specific concerns of the Claimant.

THE RESULT

The judge did find the defendant was negligent in some respects and awarded £10,000 for pain and suffering and some special damages, including 30% of the costs of past counselling.