Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Desland [2022] NSWCATOD 13 Hearing dates: 23, 24, 25 August 2021 and 9 September 2021 (final submissions) Date of orders: 7 February 2022 Decision date: 07 February 2022 Jurisdiction: Occupational Division Before: A Britton, Deputy President D Rae, Senior Member B Sheridan, Senior Member M Christensen, General Member Decision: (1) Mr Desland is guilty of professional misconduct. (2) Mr Desland is reprimanded. (3) Mr Desland's registration is subject to the following conditions: Supervision (a) Mr Desland is to practise under Category C supervision in accordance with the Psychology Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the Psychology Council of NSW. (b) Supervision is to occur for a period of twelve (12) months or for any further period as determined by the Psychology Council of NSW. (c) Mr Desland is to provide supervision reports to the Psychology Council of NSW on a three-monthly basis. (d) Mr Desland to meet with the supervisor on a weekly basis for a minimum of one hour. (e) Within three months of commencing supervision, and thereafter every six months, Mr Desland must discuss with his supervisor, his caseload (hours of work and mix of patients). (f) Mr Desland is to authorise the supervisor to inform the Psychology Council of NSW within one business day if there is any concern about Mr Desland's professional conduct. (g) Mr Desland is to authorise the supervisor to report to the Psychology Council of NSW about his professional conduct at the conclusion of the twelve (12) month period. (h) Mr Desland is to authorise the Psychology Council of NSW to provide proposed and approved supervisors with a copy of these conditions, and any relevant decision or report. Audit (i) Mr Desland is to submit to an audit of his practice by a person or persons nominated by the Psychology Council of NSW and: (i) The audit is to be held within six (6) months of the imposition of these conditions and subsequently as required by the Council. (ii) The auditor is to examine and assess the following aspects of his practice including: (A) Compliance with good record keeping standards and legislative requirements; (B) Compliance with conditions on registration. (iii) To authorise the auditor to provide the Council with a report on their findings. (4) The appropriate review body for the purposes of Pt 8, Div 8 of the National Law is the Psychology Council of NSW. (5) Sections 125 to 127 of the National Law are to apply should the Respondent's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. (6) Within 14 days of this Decision, any party seeking costs must file and serve short submissions in support of their application. (7) Within 10 days of receipt of those submissions, the other party must file and serve any submissions in reply. (8) Within 21 days of the date of this decision, each party must notify the Tribunal and each other in writing whether in their opinion the issue of costs can be adequately determined on the basis of written submissions and without holding a further hearing as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: HEALTH PRACTITIONER – unsatisfactory professional conduct – misconduct – considerations relevant to the exercise of the discretion to make protective orders PRACTICE AND PROCEDURE - suppression orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Rules 2014 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13 Lee v Health Care Complaints Commission [2012] NSWCA 80 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 Ng v Health Care Complaints Commission [2017] NSWSC 53 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Malcolm Desland (Respondent) Representation: Counsel: A Petrie ((Applicant) B Tronson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Hogan Lovells (Respondent) File Number(s): 2021/00070965 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of Patient A and Supervisor A is prohibited. REASONS FOR DECISION 1. These reasons concern a complaint made about psychologist, Mr Malcolm Desland, about his treatment of Patient A. In April 1999, when she first consulted Mr Desland, then 21-year-old Patient A had been diagnosed with Borderline Personality Disorder (BPD) and Major Depressive Episode (MDE). In addition, she been in the care of numerous therapists, had a history of self-harm, suicide attempts and multiple hospital admissions. Sixteen years later, after what can only be described as a most unusual and complicated therapeutic relationship, Mr Desland terminated that relationship following a heated argument with Patient A in a cafe. 2. In May 2019, Patient A's then psychologist made a "mandatory report" to the Australian Health Practitioner Regulation Agency (AHPRA) following disclosures made by Patient A about Mr Desland. The report stated that Patient A claimed, among other things: "That he called her names including: "stupid fucking borderline"; "Evil", "fucking irritant", "You monster". - That he made inappropriate comments using words to the effect of: "you're my asexual lover"; "I tried BDSM once"; "you don't know how to love", "you're too weird for anyone to love"; "you're too messed up for anyone to treat" (this was a recurring theme); "the only reason [someone] cares about you is because they don't really know you"; "oh piss off"; "God I hate you"; "get away from me, you monster". 1. In June 2019, following the referral of that report by AHPRA, the Psychology Council of NSW held proceedings conducted under s 150 of the Health Practitioner Regulation National Law (NSW) (National Law) and imposed several conditions on Mr Desland's registration: 1. not to practise psychology until a supervisor was approved by the Council; 2. to practise under "Category C supervision"; [1] 3. to meet with his supervisor each week for one hour and the supervisor to provide monthly reports, at each meeting to review and discuss his practice with particular focus on: 1. boundary guidelines and principles 2. record keeping 3. APS Code of Ethics 4. APS Ethical Guidelines; 1. to submit to an audit of his practice. 1. Mr Desland continues to work under these conditions. 2. Following referral by the Psychology Council, the Health Care Complaints Commission (the Commission) conducted an investigation and, in turn, referred a complaint about Mr Desland to the New South Wales Civil and Administrative Tribunal (NCAT) for determination. 3. Mr Desland admits most of the conduct particularised in that complaint, which is set out at Annexure A to these reasons (the Complaint [2] ). In addition, he concedes that the admitted conduct amounts to both "unsatisfactory professional conduct" and "misconduct". He agrees with the Commission's submission that his registration should continue to be subject to conditions. The key issue in dispute between the parties is whether Mr Desland's registration should or should not be suspended. For the reasons that follow, we have decided not to suspend Mr Desland's registration and to continue to subject his registration to conditions. Background 1. Patient A had a history of childhood trauma. Her father died when she was eight years of age. In her early teens, she became involved in an abusive and sexualised relationship with a minister of her local church. That relationship lasted for two years. 2. In the two years before commencing treatment with Mr Desland, on numerous occasions Patient A had self-harmed and attempted suicide. During that period, Patient A was admitted to hospital on about 40 occasions. 3. At the request of the Commission, psychologist, Ms Amanda Gordon, prepared a report for these proceedings dated 12 July 2020 and gave oral evidence. Ms Gordon explained that a person with BPD, while superficially intact, lacks capacity to manage several important domains of life, in particular, to form stable relationships, to establish and to enjoy intimacy and to maintain a coherent image of self. According to Ms Gordon, people with BPD are notoriously difficult to treat. 4. Initially, Patient A saw Mr Desland weekly and after a few years, fortnightly. From 2011 to 2014, Mr Desland saw Patient A every two to four weeks. From time to time, Mr Desland had limited contact with Patient A, generally reflecting times when Patient A was busy with work or tertiary studies. 5. Patient A had a history of becoming fixated with, and idealising, certain people throughout her life. When those relationships ended, which they inevitably did, Patient A would become overwhelmed with a sense of rejection. Six months after commencing treatment, Patient A wrote to Mr Desland and disclosed that she was fixated with him. 6. Very early on in the relationship, Mr Desland failed to impose proper professional boundaries. He took no action, or ineffective action, to prevent Patient A sending him voluminous correspondence and repeatedly contacting him outside consultations. Among other things, Mr Desland attended Patient A's university graduation ceremony, took her to lunch on her 30th birthday, attended her home after a threatened suicide attempt, and accompanied her to the vet while her dog was euthanised. 7. Mr Desland admits that from time to time he found Patient A's demands overwhelming and he lost his composure and swore at her and made comments, such as "stupid fucking borderline people, monster". 8. In 2010, after completing an undergraduate degree, Patient A commenced an honours degree in psychology. While undertaking that degree, Patient A became close to, and idealised, one of her lecturers, a Canadian clinical psychologist (the Supervisor). At Patient A's request, Mr Desland agreed to be supervised by the Supervisor. At her insistence, Patient A vetted all correspondence from Mr Desland to the Supervisor. In addition, Patient A gave the Supervisor detailed critiques of Mr Desland's performance as a psychologist. Mr Desland terminated the relationship with the Supervisor in about 2014. 9. In October 2011, Mr Desland entered into a contract with Patient A that had been prepared by Patient A. The terms of that contract included that: 1. Mr Desland agreed to continue to provide psychological services to Patient A without payment (apparently, since 2007 he had been providing his services to Patient A on a pro bono basis); 2. Patient A agreed to commence paying Mr Desland for his services once she commenced full-time employment or obtained a post-graduate scholarship; 3. Mr Desland undertook to pay Patient A $1200 per month and Patient A undertook to repay that money once she commenced full-time employment. 1. In the recitals to that contract, Mr Desland and Patient A acknowledged that Mr Desland's "professional failings" amounted to "professional misconduct" and that the financial arrangement was a "measure of restitution while at the same time avoiding legal action". In these proceedings, when asked why he had agreed to enter into that contract, Mr Desland said he probably saw it as a way forward in what had become a very difficult relationship. He said that he is ashamed for having acquiesced to Patient A's demands and deeply regrets his actions. 2. From about 2011, Mr Desland and Patient A met every two to four weeks in a café. At the final meeting in July 2015, Patient A became extremely upset, asked Mr Desland to hug her, police were called, and she was admitted to hospital. Patient A later begged Mr Desland to resume the therapeutic relationship. He refused. 3. It is not suggested that the relationship between Mr Desland and Patient A was of a sexual or an intimate nature. 4. Ms Gordon was extremely critical of Mr Desland's management of the relationship. Nonetheless, Ms Gordon acknowledged that over the period of that relationship, the number of times Patient A presented to mental health services had diminished significantly as compared to the period before that relationship had commenced. In Ms Gordon's view throughout the relationship, Mr Desland was out of his depth and unable to maintain the boundaries necessary for an effective therapeutic relationship. In oral evidence, Ms Gordon said that Patient A held the power in the relationship and Mr Desland lacked the ability to manage that power imbalance. In her view, within the first 12 months Mr Desland ought to have recognised from the numerous "red flags" that he lacked the ability to manage the relationship. Ms Gordon is very critical of Mr Desland's action in permitting the relationship to continue. The Complaint 1. The Complaint consists of three individual complaints: 1. Complaint 1 alleges that Mr Desland is guilty of unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law ("improper or unethical conduct relating to the practice or purported practice of the practitioner's profession") and consists of three particulars which allege: 1. that Mr Desland failed to maintain proper professional boundaries (Particular 1); 2. that on several occasions Mr Desland made inappropriate comments to Patient A (Particular 2); and 3. that by the above conduct Mr Desland breached the Australian Psychological Society's Code of Ethics, 2007, reprinted April 2018 (the Code of Ethics) (Particular 3). 1. Complaint 2 alleges that Mr Desland is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law ("conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience"). Complaint 2 consists of 10 particulars which allege: 1. that throughout the course of the relationship, 12 April 1999 to 6 July 2015, Mr Desland failed to: 1. adequately manage Patient A's BPD (Particular 1); 2. maintain adequate clinical records for his care and treatment of Patient A (Particular 2); 3. cease the relationship and arrange for Patient A to be referred to another practitioner (Particular 3); 4. adequately manage the volume and frequency of emails exchanged between himself and Patient A (Particular 9). 1. that on or about 2003, Mr Desland failed to adequately manage an episode of Patient A's suicidal ideation (Particular 4); 2. that sometime between 1999 and 2003, Mr Desland failed to provide adequate care to Patient A after she attempted to jump from a window during a consultation (Particular 5); 3. that between April 1999 and August 2010, while treating Patient A, Mr Desland worked without adequate clinical supervision, in circumstances where adequate clinical supervision was necessary in treating Patient A (Particular 6); 4. that Mr Desland failed to end the supervisory relationship with the Supervisor, when it was no longer therapeutically beneficial to Patient A (Particular 7); 5. that Mr Desland sent correspondence about his therapeutic relationship with Patient A to her review, prior to sending that correspondence to the Supervisor (Particular 8); 6. in July 2015, that Mr Desland failed to appropriately manage the termination of the therapeutic relationship with Patient A (Particular 10). 1. Complaint 3 alleges that Mr Desland is guilty of professional misconduct under s 139E of the National Law. Onus and standard of proof 1. The Commission bears the burden of proving, on the balance of probabilities, the matters particularised in the Complaint: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [3] (Leeming JA). 2. The Tribunal is not bound by the rules of evidence and, strictly speaking, "neither Briginshaw nor s 140 of the Evidence Act [1995 (NSW)] applies directly in decision-making by NCAT": Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127], (Leeming JA, Gleeson JA agreeing); Ng v Health Care Complaints Commission [2017] NSWSC 53 at [56]. (cf Gautam v Health Care Complaints Commission at [89] (Payne JA, Leeming JA and Simpson AJA agreeing)). Nonetheless, given the gravity of the allegations made against Mr Desland, in deciding whether the particulars alleged are proven, we have adopted the approach set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. See Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13 at [3]. 3. Dixon J explained in Briginshaw (at 362) that when the law requires proof of any fact, "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences, the more this will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities. 4. The authorities have cautioned against the use of the term "comfortably satisfied" (a phrase adopted from Rich J in Briginshaw at [350]) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [1]. Complaint 1 1. Mr Desland admits the conduct particularised in Complaint 1, except parts of Particulars 1(a) and 1(b). Sadomasochistic activity disclosure: Particular 1(a) 1. Particular 1(a) states: "on or about 1999, he disclosed to Patient A that he had engaged in sadomasochistic activity with an ex-partner, described the sexual activity, and disclosed to her that the activity, 'it didn't do much for me'" 1. Mr Desland admits that he disclosed to Patient A that he had engaged in sadomasochistic activity with an ex-partner. However, he contends that as formulated Particular 1(a) is imprecise and does not accurately reflect what occurred. 2. According to Mr Desland, in 1999 Patient A told him that as a teenager she had been in a sadomasochistic relationship and had been regularly beaten. Subsequently, Patient A asked him whether he had "done anything like that", "what did you think about it" and "did you enjoy it?" He said he told Patient A that a former partner had asked him whether she could blindfold him and tie his hands and he agreed. When asked by Patient A whether he enjoyed it, he replied "it didn't do much for me". 3. Mr Desland said that he shared this experience with Patient A "as an example of mutually consented behaviour in a loving relationship". He said that he did so to emphasis the concept of "sexuality as a continuum involving open discussion, mutual consent", and where, on occasion, one party "may explicitly consent to engage in behaviours for the pleasure of the other". 4. Patient A's account of this incident is consistent with that given by Mr Desland. 5. Mr Desland said that on reflection and with the benefit of clinical supervision, he understands that this disclosure blurred personal boundaries and compromised his role as a therapist. He concedes that the conduct to which he admits amounts to unsatisfactory professional conduct within the meaning of s 139(1)(l) of the National Law. Consideration 1. Mr Desland submits that the appropriate finding is that Particular 1 is proven but "only to the extent of his admissions and evidence, and not beyond that". 2. While the account given by Mr Desland is relevant to the assessment of the objective seriousness of the subject conduct, it is not relevant to whether that conduct is proven. Mr Desland has admitted to the conduct the subject of Particular 1(a). Particular 1(a) is therefore established. Taren Point incident: Particular 1(b) 1. Particular 1(b) states: "b. on or about 2003, in the course of a single day, he: i. met with Patient A at Captain Cook Bridge at Taren Point after she was feeling suicidal; ii. sat with Patient A in his car and talked to her; iii. followed Patient A home in his car; iv. entered Patient A's apartment unit and waited in the lounge room while she changed her clothes, and while she took a Valium and fell asleep, before he let himself out of her unit;" 1. Mr Desland denies paragraph (ii) but admits the balance of Particular 1(b). In addition, he agrees that the admitted conduct amounts to unsatisfactory professional conduct within the meaning of s 139(1)(l) of the National Law. 2. According to Mr Desland, at about 6 pm on 6 November 2003, Patient A left several "desperate and distressed" voice messages on his phone. In those messages Patient A said that she was "driving around", "did not know what to do", "everything was going badly", "I want to die", "can I die now" and "[I am] driving badly". Mr Desland claimed that when he suggested that they meet in his Miranda office, Patient A said she could not? guarantee that she would be there. He said he formed the view that she was suicidal and potentially a risk to others. 3. Apparently, the trigger for Patient A's behaviour was the ending of a friendship by a former schoolteacher, whom Patient A idealised. 4. Mr Desland asked Patient A to meet him at a park near Taren Point, Sydney. He said that he decided not to recommend that she go to hospital or contact the local mental health team because he apprehended that she would interpret this as a rejection, or "punishment for being 'bad'". 5. Mr Desland and Patient A met at about 7 pm and talked. Patient A was "quite distressed". Mr Desland denied, as alleged by the Commission, that they talked in his car. Rather, he claimed they talked while standing near his and other parked cars. 6. Mr Desland said that he tried to soothe Patient A and talked with her about what to do next. Patient A said that she did not want to go home alone and did not feel safe. She begged Mr Desland to stay with her and to accompany her home until she settled. He agreed. 7. Mr Desland followed Patient A home in his car and waited in the lounge room while she changed. According to Mr Desland, by that time Patient A had "settled to a degree". She took a Valium, which she was prescribed to take as needed, and went to bed. At Patient A's request, Mr Desland waited until the Valium took effect and she had fallen asleep. Mr Desland left Patient A's apartment at about 9 pm. 8. Patient A prepared a statement for these proceedings dated 16 November 2000 and gave oral evidence. The account she gave in that statement, while less detailed, is consistent with that given by Mr Desland. The only material difference is whether, as claimed by Patient A, she and Mr Desland talked in his car after meeting at Taren Point. In oral evidence, Patient A agreed that she and Mr Desland also talked while standing near Mr Desland's car. She said that the reason they moved to Mr Desland's car was for privacy because some people had arrived at the place where she and Mr Desland were meeting. Consideration 1. The only factual issue in dispute is whether, as alleged in paragraph (ii), that after meeting up at Taren Point, Mr Desland and Patient A sat in Mr Desland's car and talked. Patient A and Mr Desland gave conflicting accounts about that issue. 2. In these proceedings, Patient A and Mr Desland each appeared to be attempting to give truthful evidence, including in relation to the Taren Point incident. Throughout these proceedings, Mr Desland made several admissions that were contrary to his interests in circumstances where the subject allegations were unsupported. Similarly, Patient A did not appear to be attempting to embellish her account of the Taren Point, or any other incident, the subject of the Complaint. Nor did she appear to be attempting to seek revenge or to punish Mr Desland. 3. Patient A appeared to have a reasonably good recollection of the Taren Point incident, notwithstanding that, as she readily concedes, at that time she was extremely distressed. 4. On the other hand, there is no apparent motive for Mr Desland to deny sitting in his car with Patient A. He had admitted to far more egregious conduct, including meeting Patient A outside his office, accompanying Patient A to her apartment and remaining until she fell asleep after observing her take Valium. 5. In circumstances where each account is plausible, where both witnesses appear to have endeavoured to give truthful evidence, where neither account is supported by other evidence, we could not be satisfied on the balance of probabilities that as alleged, Mr Desland and Patient A spoke while seated in Mr Desland's car. 6. Paragraph (ii) of Particular 1(b) is not proven. Mr Desland admits the balance of Particular 1(b). We find that the admitted conduct amounted to unsatisfactory professional conduct. The alleged slap: Particular 1(c) 1. Mr Desland denies Particular 1(c) which states: "c. sometime between about 1999 and about 2003, he slapped Patient A in the face; " 1. In an email sent in July 2003 to a friend (the former teacher whose decision to terminate her friendship with Patient A triggered the Taren Point incident, (the Friend)), Patient A wrote: "… that's why even being the very incompetent therapist that he is, he has totally lost it a few times. It's really funny. Even though it is ages since Malcolm last hurt me. He still gets all apologetic if I try to joke about it. We were fooling around the other day, talking about boundaries, because I was suggesting that we buy an investment property together. We were joking about how we are so careful with boundaries; you know, I call him at all hours, he cuddles me at the end of a session, he sends me postcards every time he goes away ….. and I added that he hits me when he gets too angry. When I said it he got all sooky and apologetic. I know he was far more distressed about it than I was. I know you said to say that it wasn't true that only guys hurt, but it really is. On the two occasions when Malcolm has lost it, he only struck once, but it still hurt quite a bit. I can't imagine a female being able to hurt that much. The first time, Malcolm kicked me while I was curled up in a foetal position, and the second time he slapped me across the face. I know that as soon as it happened, he was totally freaked out. I do still cringe pretty readily around him - I think I will always be more sensitive around guys. It isn't that I'm consciously frightened, it is just a reflex action." (emphasis added) 1. In a further email sent to the Friend two days before the Taren Point incident, Patient A wrote that Mr Desland hit her twice. 2. Patient A made no mention of being slapped by Mr Desland in her November 2020 statement or her "reflective piece" sent to the Supervisor in January 2011. In oral evidence, Patient A said that if she had remembered being slapped by Mr Desland, she would have recorded that in her November 2020 statement and her reflective piece. She said that she could now not recall Mr Desland ever slapping her. In re-examination she said that while she could not recall sending the email to the Friend in July 2003, it was "entirely possible". 3. Mr Desland has at all times denied slapping Patient A. He admitted, as alleged by Patient A, that especially in the early years of therapy, Patient A "got to him" and on occasion he swore at her. He claimed that he did so as a "last ditch attempt to ... stop her behaviour" and in the context of Patient A being "demanding, relentless and anti-social". Mr Desland admitted that on numerous occasions he lost his composure with Patient A. Consideration 1. In contrast to Particular 1(b), here there is evidence of a contemporaneous or near contemporaneous report of the alleged conduct. In addition, given the seriousness of an allegation of an assault on a patient, there is a motive for Mr Desland denying having slapped Patient A. It is not implausible that Mr Desland's lack of composure progressed to him slapping Patient A. It is also possible that close to two decades after the alleged slap, Patient A can no longer recall that incident. 2. On the other hand, Patient A made no mention of being slapped by Mr Desland in her voluminous correspondence with the Supervisor, which included the detailed 30-page reflective piece titled "The Making of Me". In that document Patient A critiqued and described in detail her relationship with Mr Desland. 3. It is possible that the reason Patient A made no mention of being slapped by Mr Desland in her correspondence with the Supervisor is because seven years later she had forgotten that incident or had decided to "forgive" Mr Desland and to move on. Given the level of detail Patient A gave to the Supervisor about Mr Desland, both favourable and unfavourable, we find it improbable that if Patient A recalled being slapped by Mr Desland that she would have withheld that information. 4. It is possible that sometime between 1999 and about 2003, Mr Desland slapped Patient A in the face. However, on the available material we are not satisfied on the balance of probabilities that he did so. 5. Particular 1(c) is not proven. Summary 1. Particulars 1(b)(ii) and 1(c) are not proven. The balance of the Complaint 1 is proven. We find that the admitted conduct amounts to unsatisfactory professional conduct within the meaning of s 139(1)(l) of the National Law. Complaint 2 1. Mr Desland denies Particular 10 and, in part, Particular 6. He admits the balance of Complaint 2. In addition, he concedes that the admitted conduct amounts to unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law. Inadequate supervision: Particular 6 1. Particular 6 states: "6. Between about 12 April 1999 and about August 2010, whilst treating Patient A, the practitioner worked without adequate clinical supervision, in circumstances where adequate clinical supervision was necessary in treating Patient A." 1. The basis for Mr Desland's partial denial of Particular 6 is that he claims that he worked under the supervision of Dr Clive Williams from the commencement of the relationship with Patient A (April 1999) until Dr Williams' retirement in 2003. In a statement dated 18 June 2021, Dr Williams confirmed that Mr Desland attended supervision sessions with him on "an irregular basis". 2. Mr Desland does not dispute that he was without any supervision from the time of Dr Williams' retirement and until he commenced supervision with the Supervisor in 2010. 3. In oral evidence, Mr Desland agreed with Ms Gordon's opinion that the supervision provided by Dr Williams was inadequate. After the filing of Mr Desland's amended reply, the Commission sought leave to amend Particular 6 by inserting the word "adequate", so that it reads: "the practitioner worked without adequate clinical supervision, in circumstances where adequate clinical supervision was necessary in treating Patient A" (emphasis added). We understand that Mr Desland admitted to the amended Particular 6 (but not in writing). 4. The clinical supervision provided by Dr Williams was inadequate. It is not possible to say whether responsibility for this lay with Mr Desland, Dr Williams or both. Given the complexities of Patient A's condition and the challenges in treating Patient A, adequate clinical supervision was necessary. We find Particular 6 proven. 5. In addition, we find that by failing to obtain adequate supervision between 1999 and 2010, Mr Desland demonstrated that the judgment he possessed and care exercised fell significantly below the standard reasonably expected of a psychologist of an equivalent level of training or experience to Mr Desland (s 139B(1)(a) of the National Law). Termination of the relationship: Particular 10 1. Particular 10 states: "10. On or about 6 July 2015, the practitioner failed to appropriately manage the termination of the therapeutic relationship with Patient A." 1. The basis for this allegation appears to be the assertion Mr Desland failed to arrange for the handover of the care of Patient A to another health practitioner. 2. On 3 July 2015, as part of their regular consultation sessions, Patient A and Mr Desland met in a café. While there is some difference between their respective accounts, it is agreed that during that meeting Patient A told Mr Desland that she very depressed about her employment prospects. Patient A had submitted her honours thesis a few weeks earlier. In her statement dated 20 November 2020, Patient A wrote: "I remember expressing my distress to Malcolm and finding his response unhelpful. I remember becoming increasingly emotionally dysregulated and beginning to dissociate. I told Malcolm, 'I need help.' I repeated this once or twice and then went into extreme crisis, meaning that I moved from my chair to the floor and started screaming very loudly. I remember leaving the cafe with Malcolm, and him walking away from me and towards his car. I was still extremely distressed and sought a hug from him, at which point he pushed me away. I then curled up on the ground and again became very loud and distressed. I remember calling my then-friend, [name omitted], who helped me to settle. I think she also spoke to Malcolm. I then remember Malcolm and I continuing to walk back to our respective cars, which were parked in the same street. I continued to seek physical comfort from Malcolm and he continued to push me away." 1. Police attended the café, apparently after being contacted by a bystander. In a COPS report the attending police officer recorded: "Patient emotionally distraught, shaking uncontrollably, scratching her face. … Police attended … to reports of a female who was crying hysterically. Police attending the scene observed the patient to be emotionally distraught. The patient was crying, clutching her phone and holding onto the doorframe of the above doctor's vehicle. Police escorted the patient off the road. The patient informed police of her mental illness which was clarified by her doctor. Whilst speaking with the patient Police observed scratch marks to her forehead and cheek areas. The police asked the patient how she sustained such injuries to which she stated 'I did it because I am anxious'. … Police requested ambulance to attend who did a short time later. The patient agreed to be conveyed by ambulance to Westmead Hospital in order to speak to mental health professional." 1. Mr Desland broadly agrees with Patient A's account, however, he claims that when Patient A slammed herself into the wall of the café, screaming, he knelt down beside her in an attempt to help her to settle. When that did not work he told Patient A he was leaving. He claims that Patient A approached him for a hug, and he gently pushed her away. 2. The following day Patient A sent Mr Desland an SMS message requesting assistance and asked to meet him. On 6 July 2015, he replied: "Dear [Patient A], I received your text message at 7.15am this morning. On Friday evening your behaviour was unacceptable. It interfered with the safety, peace and quiet of all people who were in the cafe or on the street. So much so that someone called the Police and they attended. Since the Police have advised me to apply for a Personal Violence Order against you. I have never received such advice before. This emphasises the severity of what happened. It was evident that my safety and well-being was severely compromised. My personal right to say no and right to personal space was ignored and violated. It is evident that you cannot guarantee acceptable behaviour or my safety when we have contact; in public, in the office, by phone or email. I acknowledge your request for continued contact. I believe it will more of the same over again I cannot do this any longer. Please do not contact me again. I advise you to seek out the other support people in your life, [university counsellor and 2 friends of Patient A]. Regards, Malcolm Desland" 1. When Mr Desland terminated the relationship, Patient A had been seeing university counsellor, Ms Katie Murrell-Orgill, for about 14 months. Patient A had told Mr Desland that she trusted Ms Murrell-Orgill. A series of emails between Ms Murrell-Orgill and Patient A and between Ms Murrell-Orgill and Mr Desland reveal that by 1 July 2015, Ms Murrell-Orgill was actively working to help Patient A to find a new therapist and Mr Desland was aware of that. 2. According to Mr Desland, before sending the 6 July 2015 email terminating the relationship with Patient A, he consulted his then supervisor, Mr David Howson and, before notifying Patient A, had informed Ms Murrell-Orgill of his decision. 3. In her report dated 12 July 2020, Ms Gordon stated that it was clear from the correspondence between the Supervisor and Mr Desland throughout 2012 that Mr Desland "had no idea how to terminate" and that he would be unable to do so "without really damaging Patient A". 4. Mr Desland's current supervisor, clinical psychologist, Mr Norman Rees, is critical of Mr Desland's actions in permitting the relationship with Patient A to continue as long as it did. However, in Mr Rees opinion Mr Desland managed the termination of the relationship with Patient A appropriately. Mr Rees considered it relevant that Mr Desland had been advised by police that he should cease the relationship with Patient A, had sought guidance from his supervisor and had informed Ms Murrell-Orgill of his decision. Consideration 1. The termination of the relationship with Mr Desland caused the vulnerable and fragile Patient A great distress. As properly conceded by Mr Desland, it was a serious error of judgment on his part not to have brought the relationship with Patient A to an end earlier. In 2011, the Supervisor squarely advised him to do so. Exercising reasonable professional judgment, it ought to have been apparent to Mr Desland many years earlier that it was damaging to Patient A's interests to permit the relationship to continue. 2. However, the issue raised by Particular 9 is not whether, as alleged by the Commission and admitted by Mr Desland, Mr Desland's failure to terminate the relationship before 3 July 2015 demonstrated unsatisfactory professional conduct (Particular 3 of Complaint 2). Rather the issue raised is whether Mr Desland "failed to appropriately manage the termination of the therapeutic relationship with Patient A". While not retreating from her criticism of Mr Desland for not ending the relationship earlier, in oral evidence Ms Gordon said that at that point Mr Desland had no other option but to terminate the relationship. 3. We are not persuaded that Mr Desland failed to appropriately manage the termination of the therapeutic relationship with Patient A. 4. Particular 10 is not proven. Summary 1. Particular 10 is not proven. The balance of the Complaint 2 is admitted. We find that the admitted conduct amounts to unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law in that it demonstrates that the judgment possessed, and care exercised by Mr Desland is significantly below the standard reasonably expected of a psychologist of an equivalent level of training or experience to Mr Desland. Complaint 3 1. Mr Desland admits that the conduct to which he admits amounts to "professional misconduct" as defined by s 139E of the National Law. 2. That concession was properly made. The conduct admitted by Mr Desland and found by us to amount to unsatisfactory professional conduct (the impugned conduct) undoubtedly is of a "sufficiently serious nature" to justify an order for suspension or cancellation. 3. Complaint 3 is established. What if any disciplinary powers should be exercised? 1. Where a complaint made under the National Law is admitted or proven, the Tribunal may exercise any of the powers in Subdiv 6, Div 3 of Pt 8 of the National Law. They include the powers to caution, reprimand and to impose conditions on a practitioner's registration. Where, as here, a practitioner is found guilty of professional misconduct, the Tribunal may suspend or cancel the practitioner's registration: s 149C(1) of the National Law. 2. In exercising the power to make disciplinary orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. 3. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order." 4. In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA observed at [20] that, in making protective orders, the task of the decision maker centres not on punishment but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]. Submissions 1. The parties agree that the Tribunal should exercise the power to issue a reprimand and to impose conditions on Mr Desland's registration. 2. In addition, the Commission urges the Tribunal to suspend Mr Desland's registration for a period of six months. Citing the comments of Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 (Do) at [35], the Commission contends that suspension will serve to denounce Mr Desland's conduct and to send a message to him, the profession, and the public as to the standard of conduct expected of psychologists. Further, argues the Commission, it will give Mr Desland the opportunity to reflect on the impugned conduct. 3. Mr Desland opposes the suspension of his registration. 4. Relevant to the appropriate form of protective orders are Mr Desland's conduct since conditions were imposed on his registration and the observation of and opinions expressed by his supervisors. A key consideration is the likelihood of the impugned conduct being repeated. Supervision 1. Between June 2019 and April 2020, Mr Desland worked under the supervision of clinical psychologist, Ms Lynda Doland. At the end of April 2020, Mr Desland commenced supervision with Mr Rees. Mr Desland remains under the supervision of Mr Rees. 2. We accept, as claimed by Mr Desland and confirmed by his supervisors, since conditions were imposed on his registration in June 2019 by the Psychology Council, Mr Desland has fully complied with those conditions. Supervision with Ms Doland 1. Mr Desland tendered in these proceedings the monthly supervision reports prepared by Ms Doland throughout the period of her supervision. In those reports, Ms Doland detailed the agreed objectives of the supervision, the method of achieving those objectives and "progress and learning outcomes". Attached to each report is a "reflective component" prepared by Mr Desland. 2. Each of the reports prepared by Ms Doland is favourable to Mr Desland. Ms Doland stated that she was satisfied that Mr Desland has established a positive supervisory relationship and was committed to reviewing and addressing the "boundary issues" as they relate to Patient A. Mr Desland highlights the following parts of the reports: 1. In the first report dated 5 August 2019, Ms Doland stated that Mr Desland has "successfully demonstrated awareness of the reason for supervision"; "is coming to terms with the shock and additional requirements that have been placed on him as result of the imposed conditions". In the accompanying reflective piece, Mr Desland wrote that he has "'made the decision to fully engage in and utilize the supervision". He has "consciously made the decision not to be defensive or cynical in the supervisory process". 2. In her report dated 6 September 2019, Ms Doland noted that Mr Desland has shown "a candid awareness of the issues involved and the implications in his management of [Patient A]". In his reflective piece, Mr Desland referred to the "guilt, shame and numbness" he felt when Ms Doland read the complaint to him. Commenting on the concession and compromises that he had made, and their effect, Mr Desland wrote: "[i]n hindsight my approach of concession and compromise resulted in an out of balance therapeutic relationship which compromised boundaries and my own self-care and well-being as a therapist and a person. I believe this contributed in part to my inappropriate reactions in swearing and being verbally abusive. Reactions occurred when I felt attacked, exhausted or compromised or stretched to the limit. This does not excuse what happened, rather it seeks to explain what happened." 1. In her report dated 4 October 2019, Ms Doland wrote that Mr Desland "demonstrates an awareness of his shortcomings and limits" and has "reviewed his understanding of ethical and professional behaviour and reflected in-depth on his management of Patient A's case". In his reflective piece, Mr Desland refers to his abusive and denigrating comments to Patient A and stated that "such exchanges should not have occurred". He went on to write "I now understand appropriate limit setting is necessary. This permits safety for both client and psychologist". 2. In her report dated 7 November 2019, Ms Doland wrote that Mr Desland "continues to apply himself diligently in supervision". In the accompanying reflective piece, Mr Desland identifies several things he has learned in supervision, including the importance of keeping continuous and contemporaneous records. 3. In her report dated 4 December 2019, Ms Doland noted that Mr Desland has participated in several professional development workshops and conferences. In his reflective piece, referring to a recent conference he had attended about BPD, Mr Desland wrote that it "acutely triggered" his feelings of "self-consciousness and shame". 4. In the reflective piece attached to Ms Doland's report dated 7 January 2020, referring to having just completed the APS ethics course, Mr Desland referred again to his embarrassment and shame at his departures from ethical practice. 5. In her report dated 7 February 2020, referring to the recent audit of Mr Desland's practice, Ms Doland wrote that Mr Desland "demonstrated an open awareness to the comments and critiques made by the auditors and reported the audit as a positive learning experience". 6. In her report dated 7 March 2020, Ms Doland wrote that Mr Desland continues to "build on and implement what he has learned from the audit, with respect to record keeping" and to reflect on the "limitations it highlighted". 7. In her final report dated 7 April 2020, Ms Doland wrote that Mr Desland continues to respond positively to supervision. 1. In the reflective piece attached to Ms Doland's final report, referring to his decision to discontinue supervision with Ms Doland and to commence supervision with Mr Rees, Mr Desland stated that that decision was made "purely to diversify the supervisory input". Mr Desland recorded his thanks to Ms Doland for her "support and wise guidance". Mr Rees 1. Mr Desland has been undertaking weekly supervision with Mr Rees since April 2020. In monthly supervision reports, Mr Rees has consistently rated Mr Desland good, very good or excellent on each of his "progress goals" and "goals achieved", "understanding of appropriate ethical and professional behaviour", "response to supervision" and Mr Rees' "satisfaction as to Mr Desland's understanding of his limits". 2. According to Mr Rees the sessions with Mr Desland have focussed on the issues the subject of the Complaint. 3. Mr Rees prepared a report for these proceedings dated 18 June 2021 and gave oral evidence. Mr Rees has significant experience treating patients with personality disorders. 4. Commenting on "boundary issues" Mr Rees wrote: "[Mr Desland] improved effectiveness in this regard has been apparent during our discussions of recent complex clients who have required management of boundary issues. For example, he now agrees that boundary setting is crucial with clients such as Patient A. He now sets very clear boundaries with his clients and this has been demonstrated in our discussions of clients who have tested boundaries in the therapy relationship. We have also discussed various therapeutic strategies for working with borderline personality disordered clients and he has shown an openness to utilizing these additional approaches." 1. Further, Mr Rees wrote: "Malcolm accepts that his conduct fell significantly below the standard reasonably expected of a qualified psychologist when previously dealing with his client. He says she was diagnosed with Borderline Personality Disorder and he accepts that he struggled with setting appropriate boundaries with the client and did not fully appreciate that his failure to establish clear boundaries at key junctures of the therapy potentially replicated the inappropriate conduct of the client's caregivers when she was younger. He also accepts that whilst he had some supervision for parts of the therapy, the supervision fell short of that required given the complexity of the client' s problems. There appears to have been a hiatus at times in supervision and he accepts that given the combination of the client's manipulation and control he required more continuity of supervision. He accepts that he should have terminated therapy on several occasions rather than continuing. He says he has had two personality disordered female clients in the past 5 years and he succeeded in terminating the therapy in a timely fashion. He expressed a good deal of shame regarding the letter and was concerned that I would not continue to offer supervision given the transgressions detailed in the letter." 1. In his June 2021 report Mr Rees stated: "We have been working through the 'areas of inadequacy' highlighted by the Audit Report dated 29th Mar 2020 with a set goal to deal with the matters raised. Over the past year discussions with Malcolm and review of his notes on cases indicate that these inadequacies have been satisfactorily dealt with. In particular, We have been working through the 'areas of inadequacy' highlighted by the Audit Report dated 29th Mar 2020 with a set goal to deal with the matters raised. Over the past year discussions with Malcolm and review of his notes on cases indicate that these inadequacies have been satisfactorily dealt with." 1. The observation about Mr Desland recorded by Mr Rees in his monthly supervision reports are consistent with those recorded by Ms Doland. 2. In his October 2020 supervision report commenting on Mr Desland's management of boundary issues, Mr Rees wrote: "[Malcolm] has been able to pull himself up short on several occasions when clients have made approaches for extra assistance. One example was that of a client who wanted information about sources of compensation and financial assistance regarding him being the victim of trauma. Malcolm suggested that the client contact the Victims Tribunal rather than venturing an opinion about the probability of compensation. The client was able to follow this approach and to find out for himself the eligibility for compensation." 1. In his November 2020 report Mr Rees wrote: "[Mr Desland] 'is continuing to develop an "early warning radar" with clients regarding his need to provide extra attention/caring. He has made progress with his tendency to overinterpret urgency and/or distress on the client's part…" 1. Commenting on Mr Desland's understanding of the relationship with Patient A, Mr Rees wrote in his June 2021 supervision report: "Malcolm accepts that his setting of boundaries with the patient who is the subject of complaint was at time ineffective and not conducive to effective therapy. He has said that he did not want to rupture the therapy alliance by refusing to comply with her many requests. He now accepts that the major therapeutic strategy with such clients is the setting and maintenance of appropriate boundaries. He accepts that he should have sought more regular supervision to assist him with therapy. He also accepts that a stronger team approach with psychiatric, medical and allied health workers would have likely led to a more effective therapy. He also accepts that calling Police or Crisis Team would have been useful in several instances with the patient. We have also discussed the length of the therapy and the implications of him terminating the therapy earlier. Whilst there is no strict limit on the length of therapy, he accepts that termination should become an option if the patient is not prepared to adhere to reasonable therapeutic boundaries. We have contrasted the often long term therapies (over ten years) with clients who have complex trauma or other personality difficulties and have discussed the weighing up of termination with gradual benefit being demonstrated by the patient to justify continuance." 1. In these proceedings, Mr Rees said that in treating patients with personality disorders setting and maintaining boundaries is an important, if not the most important part of the therapy. He said that managing the demands of a patient with a personality disorder is critical to maintaining an effective therapeutic relationship. 2. According to Mr Rees, in reflecting on his relationship with Patient A, Mr Desland demonstrated "significant maturity". He said that Mr Desland was no longer professionally isolated as he been throughout the period, he was treating Patient A. In his opinion, if Mr Desland were to be presented with a similar patient, he would take a very different approach to that he took with Patient A, and would avoid the "slippery slope" that led to the loss of boundaries with Patient A. In Mr Rees' opinion, Mr Desland was now prepared to challenge his patients and, if necessary, risk losing established emotional rapport. In addition, Mr Rees said he was confident that Mr Desland would adopt a "team approach" and liaise with other professionals, GPs, members of crisis teams, psychiatrists etc. 3. In answer to questions from the Tribunal, Mr Rees said that "undoubtedly" Patient A would have been a very difficult patient to treat and from the outset the prospect of therapeutic success was poor. In Mr Rees' opinion, very few psychologists would have the appropriate level of training and skill to treat a patient as complex as Patient A. A "team approach" was required. 4. Mr Rees said that throughout the period of supervision Mr Desland has taken his advice and made "substantial changes" to his practice. Mr Rees said he was confident that Mr Desland could continue to work as a psychologist and, further, that he would recommend clients to him. 5. Mr Rees said that he was prepared to continue to supervise Mr Desland. He said that Mr Desland now appreciated the value of supervision and that he was confident that even without conditions Mr Desland would seek out supervision. Risk of repeating conduct 1. It is notoriously difficult to determine whether a health practitioner facing the prospect of the loss of their professional registration and livelihood, who expresses remorse and claims to have insight into the conduct the subject of the disciplinary proceedings, is genuinely remorseful and has insight into their conduct. An intelligent person, Mr Desland undoubtedly appreciates that in deciding the appropriate form of protective orders, significant weight is likely to be placed on whether his claim of being remorseful and having developed insight is genuine. 2. Since the Complaint came before the Psychology Council in 2019, Mr Desland has not sought to deny the conduct, and has consistently expressed remorse. Ms Doland and Mr Rees agree that throughout the period of their respective supervision, Mr Desland has demonstrated both remorse and a better understanding of his conduct and the extent to which it deviated from professional norms. In oral evidence, Ms Gordon agreed with that opinion. 3. In these proceedings, Mr Desland impressed us as being genuinely remorseful for his conduct in relation to Patient A. His comment in the reflective piece, attached to Mr Rees' June 2020 report, the Complaint "walks beside [him] constantly" is consistent with comments made by Mr Desland throughout these proceedings. 4. In addition, we accept as claimed by Mr Desland that he now appreciates the extent to which he failed to appropriately manage the relationship with Patient A, by among other things: 1. failing to maintain proper boundaries; 2. failing to manage Patient A's intense, idealised and unrealistic relationship with him; 3. permitting the relationship with Patient A to continue in circumstances where exercising reasonable professional judgment, it ought to have been apparent after six or so months that he would be unable to maintain proper boundaries and that it was not in Patient A's interest that the relationship continue; 4. "going it alone" and failing to involve or seek assistance from other health practitioners in the treatment of Patient A; 5. failing to seek out adequate supervision for himself; 6. participating in the triangulated supervision relationship, between the Supervisor, Patient A and himself; 7. in 2011, entering into the bizarre financial agreement proposed by Patient A; 8. maintaining grossly inadequate clinical records. 1. However, it does not necessarily follow that because Mr Desland is remorseful and has developed insight that he has the necessary skills and personal qualities, so as not to repeat the mistakes he made with Patient A. Mr Rees impressed us as a thoughtful witness who has given serious consideration to the question of whether Mr Desland is likely to repeat the conduct that led to the highly dysfunctional relationship with Patient A. Mr Rees is confident that those mistakes will not be repeated, and that Mr Desland not only has a more mature understanding of the need to maintain proper professional boundaries but also the knowledge and skills to enable him to do so. 2. Mr Desland's answers to questions by the Tribunal about steps he would take to guard against a repeat of impugned conduct, confirmed the observations made by Ms Doland and Mr Rees that Mr Desland now has the tools needed to guard against a repeat of that conduct. 3. Ms Gordon was not asked to and did not address the issue of risk in her report. When asked about the issue in oral evidence she said she was unable to say whether Mr Desland would or would not be able to manage a patient as complex as Patient A. It was apparent that she had misgivings about whether Mr Desland had the skills necessary to do so. 4. It is always difficult to say whether a particular individual will repeat conduct that they have committed in that past. However, for the following reasons, we are comfortably satisfied that, with conditions, there is no real and appreciable risk that the impugned conduct will be repeated. 5. First, Mr Desland is genuinely remorseful for and perhaps more importantly has insight into the conduct. 6. Second, as observed by Ms Doland and Mr Rees, Mr Desland has actively engaged in supervision, and now has a sound understanding of the need to maintain professional boundaries. 7. Third, Mr Rees' opinion that Mr Desland is unlikely to repeat the series of egregious errors that characterised his management of the relationship with Patient A. Mr Rees has had the advantage of working closely with Mr Desland for over 18 months and in our view is well placed to make that assessment. Conclusion 1. While we agree with the Commission that Mr Desland's conduct must be denounced, we do not accept the implicit submission that any order short of suspension is effectively a 'Clayton's' denouncement. As observed by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [105], it does not follow that because an order for cancellation or suspension is not made that the practitioner's conduct has not been denounced. In exercising the power to make disciplinary orders, the protection of the health and safety of the public is the paramount consideration, nonetheless, the form of order must be proportionate (which takes into account the public interest) and individualised (which takes into account the actual person upon whom measures are imposed). 2. Nor do we accept, as argued by the Commission, that an order for suspension is warranted because it will provide Mr Desland with an opportunity to reflect on his conduct. Since June 2019, as confirmed by Ms Doland and Mr Rees, Mr Desland has thoughtfully reflected on the impugned conduct. 3. In our view, the conditions proposed by the Commission with several minor amendments, together with a reprimand, are appropriate. 4. We have decided to add to the conditions proposed by the Commission and agreed to by Mr Desland, a requirement that Mr Desland review with his supervisor his caseload both in terms of hours and the proportion of "complex" patients being treated. Mr Desland is currently working 35-40 hours per week. About a quarter of his patients have BPD, although according to Mr Desland and confirmed by Mr Rees, none are as complex as Patient A. In our view, it is necessary that Mr Desland regularly review his caseload, and seek guidance from his supervisor so that he has the necessary time and emotional reserves to meet the unpredictable demands of the practice of psychology. Non-disclosure orders 1. With the consent of the parties a differently constituted Tribunal made orders prohibiting the disclosure of the name of Patient A and the Supervisor. 2. The Commission now seeks further orders, specifically, that the name of any friends and family members of Patient A not be disclosed. Mr Desland opposes that application, submitting that the Commission has failed to explain why it now seeks orders different in form to those it proposed at the hearing and to which he agreed. The original form of orders proposed by the Commission, prohibited the disclosure of the names of specified friends and family members of Patient A. 3. Mr Desland argues that the Commission's revised application is that it requires the the friends and family members of Patient A to be identified. He contends that it is not immediately apparent whether some people, could be classified as e friends of Patient A. 4. Section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) gives the Tribunal the power to make an order prohibiting or restricting the disclosure of the name of any person if the Tribunal is satisfied that "it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason". Section 64(4) defines the term "name of a person" to include a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 5. The Commission has a legitimate concern that Patient A's identity might be disclosed if the names of family members and friends were to be disclosed. Where information about a person, who is the subject of an order made under s 64 of the NCAT Act is included in published reasons for decision, there is often a risk that the identity of that person will be disclosed. The more detailed the information, the greater the risk. For example, here including the name of the tertiary institution Patient A attended might permit other students or teachers to identify Patient A. In preparing reasons for decision, the Tribunal must be mindful of what is at times the tension between giving effect to an order made under s 64 of the NCAT Act and at the same time complying with the obligation under s 62 of that Act, to include in a written statement of reasons the findings on material questions of fact, referring to the evidence or other material on which those findings were based. 6. In preparing these reasons we have taken the approach of limiting the personal information about Patient A. We did not refer to any family member or friend of Patient A by name. 7. The published reasons for decision is not the only avenue by which the name of a person may be disclosed. Disclosure can occur by mention of the name of a person in the course of hearing. (Here, the only people who attended the hearing were the parties and their legal representatives.) In addition, any member of the public, including journalists, can seek access to documents that have been admitted into evidence or relied upon as submissions in proceedings held in public (public access documents) once proceedings have been finally determined: r 42(2) of the Civil and Administrative Tribunal Rules 2014 (the Rules). However, the practical effect of the orders prohibiting the disclosure of the name of Patient A and the Supervisor, is that it is unlikely that a person would be entitled to be given a public access document which contained the names of or family members of Patient A: r 42(5)(d) of the Rules. 8. As explained, the order sought by the Commission is unnecessary to achieve the objective of not disclosing the identity of the Patient A. We decline to make the order sought by the Commission. Costs 1. Mr Desland seeks the opportunity to respond to the Commission's application for costs after having the opportunity to review this decision. Our preliminary view is that there are no apparent grounds, which would warrant a departure from the "usual rule". 2. Nonetheless, we have decided to give Mr Desland the opportunity to consider the Commission's application. We direct the parties to use their best endeavours to reach agreement on costs. If agreement is not reached, any party applying for costs must provide submissions in support in accordance with the timetable set out in the orders below. Orders 1. Mr Desland is guilty of professional misconduct. 2. Mr Desland is reprimanded. 3. Mr Desland's registration is subject to the following conditions: Supervision 1. Mr Desland is to practise under Category C supervision in accordance with the Psychology Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the Psychology Council of NSW. 2. Supervision is to occur for a period of twelve (12) months or for any further period as determined by the Psychology Council of NSW. 3. Mr Desland is to provide supervision reports to the Psychology Council of NSW on a three-monthly basis. 4. Mr Desland to meet with the supervisor on a weekly basis for a minimum of one hour. 5. Within three months of commencing supervision, and thereafter every six months, Mr Desland must discuss with his supervisor, his caseload (hours of work and mix of patients). 6. Mr Desland is to authorise the supervisor to inform the Psychology Council of NSW within one business day if there is any concern about Mr Desland's professional conduct. 7. Mr Desland is to authorise the supervisor to report to the Psychology Council of NSW about his professional conduct at the conclusion of the twelve (12) month period. 8. Mr Desland is to authorise the Psychology Council of NSW to provide proposed and approved supervisors with a copy of these conditions, and any relevant decision or report. Audit 1. Mr Desland is to submit to an audit of his practice by a person or persons nominated by the Psychology Council of NSW and: 1. The audit is to be held within six (6) months of the imposition of these conditions and subsequently as required by the Council. 2. The auditor is to examine and assess the following aspects of his practice including: 1. Compliance with good record keeping standards and legislative requirements; 2. Compliance with conditions on registration. 1. To authorise the auditor to provide the Council with a report on their findings. 1. The appropriate review body for the purposes of Pt 8, Div 8 of the National Law is the Psychology Council of NSW. 2. Sections 125 to 127 of the National Law are to apply should the Respondent's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. 3. Within 14 days of this Decision, any party seeking costs must file and serve short submissions in support of their application. 4. Within 10 days of receipt of those submissions, the other party must file and serve any submissions in reply. 5. Within 21 days of the date of this decision, each party must notify the Tribunal and each other in writing whether in their opinion the issue of costs can be adequately determined on the basis of written submissions and without holding a further hearing as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). ********** Endnotes 1. Psychology Council of NSW's Compliance Policy – Supervision, defines category C supervision to mean "indirect supervision". 2. The final version of the Complaint was filed on 25 August 2021, and further amended by the email sent by the Commission to NCAT on 25 August 2021 at 6.56 pm. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2022