The document summarizes a presentation given by three partners from a law firm on the legal and regulatory challenges of working with clients affected by addiction. Julie Norris discusses regulation of helping professions and issues around confidentiality. Sandra Paul provides a criminal law perspective on how addictions relate to various crimes and when they may instruct experts. Michael Rowlands discusses similarities and challenges family lawyers face working with addicted clients, including potential conflicts of interest. They take questions at the end on various topics discussed.

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

7. Confidentiality

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

15. Data Protection and GDPR

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

19. Ethical boundaries

20. • Self-disclosure
• Dual relationships
• Referral fees
• Self-referral
• Supervision
Some common flash points

21. Referral fees

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

28. Patient contracts

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”

46. It’s Monday,
don’t’ forget to be
awesome!

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

50. TURN ON

51. TUNE IN

52. DROP OUT

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