Pyschotherapists Challenge to Interim Order by Judicial Review

The registrant psychotherapist – a profession not statutorily regulated – challenged by way of judicial review, an Interim Order of Suspension from membership of the United Kingdom Counsel for Psychotherapy (UKCP) Aston v United Kingdom Council for Psychotherapy [2025] EWHC 3288 (KB)  Cotter J

The order was imposed upon the registrant for public protection and public interest grounds in respect of the alleged breaching of sexual boundaries.

The legal relationship between the registrant and the UKCP was a contractual one.

In support of his application the registrant prayed in aid implied terms as identified by the Supreme Court in Braganza v BP Shipping Ltd and anor [2015] UKSC 17 which established that decisions made under a contractual discretion must satisfy the following principles derived from public law standards of rationality:

a. The Wednesbury test of reasonableness (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. The decision must not be so unreasonable that no reasonable decision-maker could have made it.

b. A duty to avoid arbitrariness: The decision-maker must have acted rationally and fairly in reaching a conclusion.

c. A focus on the process, not just the outcome: The decision must be based on proper evidence and logical reasoning without undue bias or improper motives.

The exercise of a contractual discretion was now to be judged by the same principles as the exercise of public law discretion.

Although the UKCP’s authority did not derive from statute, the registrant’s counsel referred to R (Shiekh) v General Dental Council [2007] EWHC 2972 (Admin) in respect of the public interest test in the regulation of healthcare and associated professions, and Sandler v General Medical Council [2010] EWHC 1029 (Admin). For guidance on the principle of proportionality he relied on Houshian v General Medical Council  [2012] EWHC 3458 (QB).

The principles concerning the grant of injunctive relief were well settled. The purpose of injunctive relief was to protect an applicant against injury by a future (perhaps also ongoing) violation of its rights for which it could not be adequately compensated in damages if the applicant were to succeed at trial. In American Cynamid v Ethicon Limited [1975] AC 396 at p 406-9 the court asked (i) whether there was a serious issue to be tried; (2) if yes, whether damages would be an adequate remedy for refusal (or grant) of relief; and (3) if damages would not be adequate for either party, where does the balance of convenience lie?

The issue under balance of convenience was which course carried the lower risk of injustice, because the court had to engage in trying to predict whether and to what extent the granting or withholding of an injunction was likely to cause irremediable prejudice.

Where the interim injunction may be finally determinative of the matters in dispute between the parties, it was appropriate for the court to assess the likelihood of the registrant claimant succeeding when assessing the balance of convenience and to make some sort of assessment of the merits: Lansing Linde Ltd v Kerr [1991] 1 WLR 251. Where matters were evenly balanced, it was prudent to take such steps as were calculated to preserve the status quo.

Although damages only had to be an adequate as opposed to a perfect remedy, the court recognised the difficulty in compensating for the reputational damage caused to the registrant, and also the emotional impact (distress and inconvenience falling short of recognisable psychiatric harm). After some hesitation it formed the view that damages would not be a wholly adequate remedy for the registrant.

The present case, whilst not involving an action against a public authority was closely analogous to such a claim. The sole raison d’etre of the UKCP was to advance the use, effectiveness and safety of psychotherapy and psychotherapeutic counselling.

For the purposes of this judgment the UKCP could be properly viewed as in an analogous position to that of a public authority. Interference in the exercise of its functions would seldom be capable of being quantified in money. It was therefore necessary to move to the balance of convenience.

At first blush, his Lordship found it surprising that there was no mention of the ability to impose conditions/restrictions less than suspension in the Complaints and Conduct Process. However, given the findings of the panel related to breaching professional boundaries and failing to take seriously the position of responsibility and power, it was difficult to see how an adequate condition/restriction less than suspension would work.

The final assessment of the appropriate sanction would depend on the factual findings made. At this stage and taking into account the full case against the registrant, the merits of the arguments favoured the conclusion that the interim suspension order was properly made.

Taking all the factors together, they were not evenly balanced and weighed significantly in favour of refusing an interim injunction.