And suddenly there was a defence...

[heisenberg]

Re: And suddenly there was a defence...

If you have a listed disability has it been diagnosed and documented

Indeed.

[Openlaw15]

Re: And suddenly there was a defence...

Background

"I sought assistance from a psychotherapist in respect to my mental health condition (the disability). The disability essentially significantly impedes my overall mental health."

You have not defined your disability as how it affects you as mental health problems could simply be anything from anxiety to a tremendously acute nervosa, to depression, to suicidal propensities. What is your disability and what medical evidence do you posses to confirm such disability?

This psychotherapist in question denied me a service which I believe to be for unethical reasons (discrimination). This person also shared confidential information he should not have shared.

What service were you deprived of? What service, in your expectation, do you think you should have got and why?

It is accepted by the psychotherapist's employer (the NHS) that this person acted in a manner well below that that was reasonably expected generally and that confidential information should not have been shared. The PHSO made a similar finding and recommend financial compensation.

If you have received compensation for the alleged misconduct, why do you think the courts will award you anymore?

I raised a concern with the psychotherapist's professional body (the Defendant) who he is registered with (before the paragraph above facts arose). They have the powers to strike him off their register or issue a warning.

I complained of a) discrimination b) wrongful sharing of confidential information and c) dishonesty once I had seen the initial response from the psychotherapist in respect to complaints (a) and (b).

What is the discrimination type, why do you think you were discriminated against if you're considered to have a disability? What type of confidential information about you was 'wrongfully shared', with whom. In short could this sharing of information identify you to a third party in that you were made vulnerable to such sharing? I am asking was it trivial information, or was it substantial? You say, dishonesty, what did the psychotherapist do to put you on alert or to make you think that the actions of said professional were dishonest, or more broadly considered 'dishonest' by whose standards?

In this case of (a) above they would not even process my complaint beyond the most initial stage(s). They simply averred that "we do not consider that the evidence you have provided demonstrates a reasonable prospect of success".

What evidence did you present and why wouldn't they think it would have that prospect?

It has become evident that they did not process complaints (b) and/or (c) correctly or at all (having seen a recent report published by the Professional Standards Authority and relative discussions with Professional Standards Authority before this was published).

I remain unclear on why all complaints were not progressed correctly or at all. In the case of complaint (a) I remain exceptionally unclear on what the substantive reasons were . I made significant attempts to gain clarity and none has been forthcoming.

If in their view, where there is no material evidence to substantiate any allegations made they will necessarily have their own filtering of complaints systems to ensure that the NHS is not overwhelmed by having to divert limited resources to defend spurious claims, ensuring that there is an NHS public service system available and free to the public.

The Defendant is seemingly obliged (although this is not clear) to provide a little more rationale than that to assist me in drafting a fresh complaint if I so do deem necessary.

Assist you how, why would they, in your opinion, be so obligated?

The Professional Standards Authority, who oversee this organisation in terms of professional standards, has recently made it clear that the limited wording used was insufficient and difficult to comprehend. They also have made it clear to me that this overall decision-making was not sound nor fair.

Now this is an important issue - and this should have been included in your submissions to the court, and not just in your witness statement.

The Defendant refused to engage further (in respect to this matter as whole and, seemingly, as a consequence of me requesting further information) and has caused me prejudice in regards to processing my complaints appropriately and caused me further prejudice by not assisting me in understanding the full reasons underlying the decision not to progress the complaints. I made the Defendant abundantly aware of my mental health so it is aware that I have/had problems in this regard.

When you say the defendant, it's not known whether you mean the NHS collectively or the psychotherapist individually, I hope you have addressed this in your witness statement. You seem to be a reasonably educated person to me, able to converse with many person regardless of their education type and professional experiences. What was so perplexing about the NHS' dialogue, communication to you, that you believed it prejudiced your right to a fair hearing possibly, more importantly, are you saying prejudiced by the NHS collectively or any submissions from the individual psychotherapist or their immediate line-manager?

The Claims

The Equality Act 2010 makes it unlawful to knowingly assist another person discriminate (section 112). On the face of it, the Defendant is making every effort to assist the psychotherapist in question. Other organisations have relied on the Defendant's 'findings'.

What in your view is 'knowingly assist another to discriminate? Well, if you're trying to sue the defendant (the psychotherapist), as they're their employer I think this should be common sense.


The Defendant also has/had a duty to make reasonable adjustments. In the event that it is standard practice (though this remains unclear notwithstanding complaints to the Defendant in this regard) for the Defendant to simply assert "no prospects" in response to a series of complaints then I aver that they would need to offer more comprehensive reasoning in these circumstances. Such a request was not unreasonable and something the Defendant could easily have done to facilitate the adverse effects of my disability (unless of course it had something to hide).

What in your view in a reasonable adjustment that also in your view you expect either said individual or the NHS collectively to make? You are not being clear as to the whomever you're referring to. Stop talking like a lawyer and make yourself clear - your statements are just too vague.

Section 19 (indirect discrimination) is also called into question for the above reasons.

How is it called into question, what in your view constitutes indirect discrimination and more importantly, why do you believe you were indirectly discriminated against?

It is further evident that I have been treated poorly. The question arises is this the normal manner in which the Defendant treats all complainants (section 13).

How is it further evident, as though this were an addition to the previous treatment. Poorly treated, how, by whom?

By virtue of the Defendant's refusal to engage with me at all in regards to this matter have I been treated unfavourably? The answer has to be yes. I am unable to draft another complaint appropriately and it seem the Defendant is refusing to deal with any further correspondence in any event. Section 15 (discrimination arising from disability) is therefore called into question.

Which defendant? Why do you believe that this is tantamount to 'treated unfavourably?'

Have I also been victimised (section 27) due to asserting that I am disabled person and that I need further assistance? I believe I have suffered at least one detriment as set out above.

How have you been victimised, what further assistance did you require, why did you require it? Oh so you're saying you have suffered at least one, which implies that you do not know what discrimination means and are just making guesses.

NB: am playing devil's advocate

[heisenberg]

Re: And suddenly there was a defence...

Wowser! Easy tiger!

You have not defined your disability as how it affects you as mental health problems could simply be anything from anxiety to a tremendously acute nervosa, to depression, to suicidal propensities. What is your disability and what medical evidence do you posses to confirm such disability?

The disability is major clinical depression. I have medical evidence in the form of clinical reports.

What service were you deprived of? What service, in your expectation, do you think you should have got and why?

Psychotherapy as there are no other options. The Trust conceded to a failure in this respect and referred me to a different psychotherapist.

If you have received compensation for the alleged misconduct, why do you think the courts will award you anymore?

I am entitled to seek redress through both the PHSO and the court.

What is the discrimination type, why do you think you were discriminated against if you're considered to have a disability? What type of confidential information about you was 'wrongfully shared', with whom. In short could this sharing of information identify you to a third party in that you were made vulnerable to such sharing? I am asking was it trivial information, or was it substantial? You say, dishonesty, what did the psychotherapist do to put you on alert or to make you think that the actions of said professional were dishonest, or more broadly considered 'dishonest' by whose standards?

Direct discrimination and discrimination arising from a disability.

Sensitive information was shared with my GP. It was by no means trivial.

The psychotherapist was less than truthful in defending the complaint(s) against him. Had the Defendant been more engaging I would have detailed this more clearly.

What evidence did you present and why wouldn't they think it would have that prospect?

This is a key point. I presented evidence that there were issues in the manner the psychotherapist approached my case (enough for a realistic prospect of success). The question of why my complaint(s) was/were not progressed is a point that they have not elaborated on and they have failed to respond to the pre-action letters and e-mails. They have also failed to serve a defence so far.

Now this is an important issue - and this should have been included in your submissions to the court, and not just in your witness statement.

Indeed I have.

When you say the defendant, it's not known whether you mean the NHS collectively or the psychotherapist individually, I hope you have addressed this in your witness statement. You seem to be a reasonably educated person to me, able to converse with many person regardless of their education type and professional experiences. What was so perplexing about the NHS' dialogue, communication to you, that you believed it prejudiced your right to a fair hearing possibly, more importantly, are you saying prejudiced by the NHS collectively or any submissions from the individual psychotherapist or their immediate line-manager?

The Defendant is the psychotherapist's professional body (not the NHS). Witness statement are jumping ahead slightly. There is no response to the pre-action letter or any sign of a defence.

What in your view is 'knowingly assist another to discriminate? Well, if you're trying to sue the defendant (the psychotherapist), as they're their employer I think this should be common sense.

The Defendant is the psychotherapist's professional body (not the NHS). They are abundantly aware that there actions (or lack thereof) could be assisting this person.

What in your view in a reasonable adjustment that also in your view you expect either said individual or the NHS collectively to make? You are not being clear as to the whomever you're referring to. Stop talking like a lawyer and make yourself clear - your statements are just too vague.

The Defendant is the psychotherapist's professional body (not the NHS). Quite simple - decision making rationale and all documents. facts and matters relied upon in making the decision. This was not a lot to ask for.

How is it called into question, what in your view constitutes indirect discrimination and more importantly, why do you believe you were indirectly discriminated against?

How am I to draft a fresh complaint if a) I do not have the foggiest idea as to why complaint was not progressed and b) I have a debilitating mental health condition that effects my abilities in this respect?

How is it further evident, as though this were an addition to the previous treatment. Poorly treated, how, by whom?

Anyone with half a brain would come to the conclusion that I have been treated poorly here. The Defendant has seemingly overlooked complaints completely and been inconsistent in its explanation as to why the first complaint was deemed to have "no prospects". As a result of reasonably trying to get clarity (as suggested by the PSA) I have then told by the Defendant that it will engage no more. Does this sound like anything other than poor treatment?

Which defendant? Why do you believe that this is tantamount to 'treated unfavourably?'

There is only one Defendant. As above, if I did not have the disability I would not have requested further clarity. As a result of my requests for further clarity I have been denied a service.

How have you been victimised, what further assistance did you require, why did you require it? Oh so you're saying you have suffered at least one, which implies that you do not know what discrimination means and are just making guesses.

I asked for further clarity. I informed the Defendant of the relevance of section 15. I was immediately denied a service. I am familiar with discrimination principles.

[heisenberg]

Re: And suddenly there was a defence...

Openlaw15, do you feel the other side will be successful in the set aside application (if it ever crops up)? As you can see, their failure to engage with the pre-action protocol has caused me serious difficulty.

Defence was due on the 2nd February. Still no sign of it.

[heisenberg]

Re: And suddenly there was a defence...

Update

Nothing further received (which is fine by me of course).

[R0b]

Re: And suddenly there was a defence...

If their defence is due by 2nd February, don't you want this application dismissed? IT would be very difficult to come back from 2 applications of a failure to submit a defence and try to apply a third time.

[heisenberg]

Re: And suddenly there was a defence...

If their defence is due by 2nd February, don't you want this application dismissed? IT would be very difficult to come back from 2 applications of a failure to submit a defence and try to apply a third time.

Hi Rob,

You mean the application to set aside the default judgment? There is still no sign of it. Presumably I would have to receive a copy of such an application?

[heisenberg]

Re: And suddenly there was a defence...

Update

Still not a sausage.

If the Interlocutory Judgement Hearing is in 4 weeks time that does not leave much time for a set aside application and a judicial decision on that does it?

[heisenberg]

Re: And suddenly there was a defence...

The other side's solicitors have just e-mailed me threatening to strike out my claim and apply for costs. My solicitor has advised not to be concerned as they haven't complied with the CPR on more than one occasion.

Still no sign of the defence or set aside application of course.

[Amethyst]

Re: And suddenly there was a defence...

Do you have a copy of the Interlocutory Judgement Hearing date listing order? What does it actually say ?

[heisenberg]

Re: And suddenly there was a defence...

Do you have a copy of the Interlocutory Judgement Hearing date listing order? What does it actually say ?

Hi Amethyst, see attached. It is clear the Hearing is to consider the amount payable.

[mariefab]

Re: And suddenly there was a defence...

It is clear the Hearing is to consider the amount payable.

Indeed it is.
Perhaps they've taken a view that it may cost substantially more to strike out the claim than it will to settle it. If so, the threats to have the claim struck out and go for costs could be intended to soften you up ready for a settlement offer.

I don't know what compensation you've asked for, but if they were to offer a hand-out of a couple of hundred quid or so, I'd bite off their hand to the elbow in the haste to accept it.

[heisenberg]

Re: And suddenly there was a defence...

Indeed it is.
Perhaps they've taken a view that it may cost substantially more to strike out the claim than it will to settle it. If so, the threats to have the claim struck out and go for costs could be intended to soften you up ready for a settlement offer.

I don't know what compensation you've asked for, but if they were to offer a hand-out of a couple of hundred quid or so, I'd bite off their hand to the elbow in the haste to accept it.

Do they not need to successfully apply for the judgement to be set aside first before applying to strike the claim out?

My solicitor has recently taken steps to try and settle the matter by sending across a offer.

Seems to me you don't think this claim is a winner?

[mariefab]

Re: And suddenly there was a defence...

Do they not need to successfully apply for the judgement to be set aside first before applying to strike the claim out?

You are quite correct, they would need to do so. What's more, they would be certainly be aware of this requirement.
It's good that your solicitor is properly trying to resolve this.:tinysmile_grin_t:

[heisenberg]

Re: And suddenly there was a defence...

You are quite correct, they would need to do so. What's more, they would be certainly be aware of this requirement.
It's good that your solicitor is properly trying to resolve this.:tinysmile_grin_t:

mariefab, you are a shining star!

That does not leave them much time. They have given me until the 17th March to discontinue (which I won't be). That means they somehow need to make at least one successful application in circa a week (Interlocutory Hearing on the 29th March). I don't see that happening.