The case of Peter Aston v United Kingdom Council for Psychotherapy [2025] EWHC 3288 (KB) concerned a private law challenge to a decision by the UK Council for Psychotherapy (UKCP) to impose an interim suspension order on the Claimant. The Claimant applied for an injunction reinstating him to the register pending the final hearing.

The Claimant, a psychotherapist, had entered into a consensual relationship with a former client shortly after therapy ended. He admitted that this amounted to a significant breach of professional boundaries but maintained an interim suspension was not necessary to protect the public or in the public interest. He argued that the risk of repeating the conduct was low, the relationship was consensual, and there was no pattern of misconduct. The allegations were not serious criminal offences, making suspension disproportionate given its severe financial and reputational impact.

This case provides a useful insight into the Court’s approach to a challenge to an interim order and an interesting examination of the position of professional membership bodies such as UKCP and the extent to which the public interest can properly be taken into account.

Private or public law?

Having noted that the relationship between the parties was contractual, Mr Justice Cotter held that UKCP, a charity and company limited by guarantee, was “comparable in important relevant respects” to a public authority and that the claim could “not sensibly be viewed as a private commercial dispute”. In relation to the application for an interim injunction, the Judge held that UKCP could properly be viewed as being in an analogous position to a public authority.
Having regard to the contractual nature of the relationship between the parties, the Judge noted that, in imposing the interim order, UKCP had exercised a contractual discretion. The Judge relied upon the Supreme Court decision in Braganza v BP Shipping Ltd & Anor [2015] UKSC 17 as authority for the proposition that decisions made pursuant to a contractual discretion were to be judged by the same principles as decisions made in exercise of a public law discretion.

The application for an interim injunction

The Claimant’s application was based on the merits of his substantive case and the argument that the interim suspension was disproportionate. In determining the application, the Judge applied the American Cynanamid principles: prospects of success, adequacy of damages as an alternative remedy and balance of convenience.
The Judge held that there was clearly a serious issue to be tried. The test imposed a low threshold and it was arguable that the Panel had fallen into error. The approach to be taken to the adequacy of damages and the balance of convenience would be the same as was taken to interim relief in public law proceedings: damages would rarely be an adequate remedy such that the granting or withholding of relief will generally be determined by the balance of convenience and that, in deciding that issue, there was a strong public interest in not restraining public authorities from exercising their powers, particularly in relation to matters of health and safety.

On the balance of convenience, the Judge held as follows:

• While the interim suspension would have adverse implications for the Claimant, there was a wider and strong public interest in permitting the interim order of a specialist regulatory body, whose aims included ensuring public safety and promotion of the public interest, to remain in force pending a final hearing
• The Panel had not been permitted to make findings of fact but at most would consider whether or not there was a prima facie case that an allegation was well-founded. As such little weight could be given to the substantive merits of the Claimant’s case, as presented in support of the application
• Having considered the evidence that was before the Panel and the admissions and acceptances made by the Claimant, it was strongly arguable that the Panel was entitled to reach the conclusions that a suspension order was necessary and not merely desirable (the test imposed by UKCP), there was a real risk to clients, colleagues or other members of the public if an order was not made and there was a real risk of repetition of breach of boundaries
• It was strongly arguable that the Panel was entitled to reach the conclusion that an order was in the public interest as it is necessary for those seeking and undergoing therapy to know that boundaries, and in particular sexual boundaries will be upheld, so that they could have confidence in the profession.

The relevant factors were not evenly balanced and weighed significantly in favour of refusing the application for an interim injunction.

Conclusion

  This case indicates that professional membership bodies, such as UKCP, will be treated as if they were public bodies when considering decisions taken in the public interest in exercise of their disciplinary functions. While the relationship between the parties is contractual, the Supreme Court decision in Braganza makes clear that Wednesbury principles are applicable to the exercise of contractual discretion and as such will be applied to decisions by professional membership bodies exercising disciplinary functions in relation to their members.

Capsticks’ view

The Court is likely to be extremely reluctant to interfere with disciplinary decisions taken in the public interest and to show considerable deference to the judgment of specialist tribunals. Unless there is a material error of law, serious procedural irregularity or irrationality, practitioners seeking to challenge interim orders will face an uphill struggle in persuading the Court to interfere with such decisions which are not based on findings of fact, but are in effect risk assessments. The situation is particularly difficult where, as with UKCP, the panel does not have the power to impose interim restrictions short of suspension. Therefore, while any acknowledgment by the practitioner—whether through admissions or acceptance that some form of restriction is warranted—may indicate a degree of insight, such acknowledgment is likely to be viewed as supporting the imposition of an interim restriction. In this instance, the only restriction available to the panel was an interim suspension.

It is also of note that the judgment contained a significant, identifiable amount of information about the claimant’s client, who is named, and the evolution and nature of the relationship to which the allegation related. Ordinarily we would expect the identity of a patient/client/witness to be pseudonymised and the fact this did not happen in this case indicates a further distinction between the way in which private and public law proceedings are conducted and reported.

How Capsticks can help

Capsticks’ market leading professional disciplinary practice acts for a wide range of statutory and non-statutory regulatory bodies. Our team of specialists are experienced at navigating both complex public law issues, such as those discussed in this article, as well as allegations concerning breaches of professional boundaries. Please contact Ros Foster to find out more about how Capsticks can help.