Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Gorrell [2022] NSWCATOD 34 Hearing dates: 13,14 December 2021; submissions closed 22 December 2021 Date of orders: 16 March 2022 Decision date: 16 March 2022 Jurisdiction: Occupational Division Before: L Pearson, Principal Member Dr W Roberts, Senior Member T Hannan, Senior Member A Gray, General Member Decision: 1. The practitioner is guilty of unsatisfactory professional conduct as defined in s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW), and guilty of professional misconduct as defined in s 139E of the Health Practitioner Regulation National Law (NSW). 2. The matter is to be listed for hearing as to what, if any, protective orders should be made as a consequence of the Tribunal's findings, on a date to be fixed by the Registrar taking into account the availability of the parties and their representatives. 3. The following directions are made: (1) The parties are to advise the Tribunal by 21 March 2022 of their available dates in May and June 2022, including whether the matter will require more than one day; (2) The HCCC is to provide to the Tribunal and the respondent notice of any protective orders sought as a consequence of the Tribunal's findings, and any further evidence and submissions, on or before 4 April 2022; (3) The respondent is to provide to the Tribunal and the HCCC any further evidence and submissions in response, on or before 26 April 2022; (4) The HCCC is to provide to the Tribunal and the respondent any further material in reply, on or before 3 May 2022; (5) The proceeding will be listed for a stage 2 hearing on a date after 3 May 2022. Catchwords: OCCUPATIONS – health practitioner – psychologist – alleged breach of professional boundaries – inappropriate physical and sexual contact with client – whether unsatisfactory professional conduct – whether professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Surveillance Devices Act 2007 (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 Texts Cited: Australian Psychological Society Code of Ethics (September 2007, reprinted April 2018) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Philip Gorrell (Respondent) Representation: Counsel: D New (Applicant) G Stanton (Respondent) (13 December 2021) Solicitors: Health Care Complaints Commission (Applicant) D Leamey (Respondent) File Number(s): 2021/00210955 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, disclosure to any person or entity of the name of the client set out in schedule to the Complaint is prohibited. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. Pursuant to s 64(1)(b) and (d) of the Civil and Administrative Tribunal Act 2013, publication of those parts of these reasons marked [NOT FOR PUBLICATION] is prohibited, to be disclosed only to the parties and their legal representatives. REASONS FOR DECISION 1. The Health Care Complaints Commission (HCCC) has applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Mr Philip Gorrell, a registered psychologist (the practitioner). Background 1. The practitioner is 62 years of age. He was registered as a psychologist in New South Wales in 1992, having graduated with a Bachelor of Arts from Macquarie University in 1981 and a Master of Arts from the University of Sydney in 1990. 2. Conditions were imposed on the practitioner's registration by the Psychology Council of NSW (the Council) following a Performance Review Panel hearing held on 6 March 2018, including that he not engage in any home visits with clients, and that he provide monthly records of all services undertaken to the Council. On 24 April 2019 in proceedings under s 150 of the National Law the Council imposed a condition on the practitioner's registration that he was not to practise psychology. The practitioner's registration lapsed on 31 December 2019 when he failed to renew his registration. 3. The complaint the subject of these proceedings, and which was the basis of the s 150 proceedings conducted in 2019, arises from a complaint made on-line to the HCCC on 21 March 2019 by Client A, which she summarised as a "sexual relationship". In October 2017 the practitioner had been referred a grant of Legal Aid funding and instructed to assess Client A and to provide an expert opinion as to whether she suffered from a mental illness pursuant to the then s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the section 32 application) for the purpose of proceedings before the Local Court on charges including behave in offensive manner, assault police, and assault, arising from incidents in July and October 2017. Client A was at the time 32 years old, single, and living with her six-year-old son in public housing. 4. On 7 December 2017 the practitioner provided a psychological report in relation to Client A. On 19 December 2017 the section 32 application was considered and an order was made that all charges be dismissed due to mental illness. The Complaint 1. Complaint One alleges that the practitioner is guilty of unsatisfactory professional conduct under s 138B(1)(l) of the National Law in that he has engaged in improper or unethical conduct relating to the practice or purported practice of psychology. 2. The particulars of Complaint One allege a breach of proper professional boundaries in that the practitioner had inappropriately contacted Client A by telephone and text message between about 28 October 2017 to about 27 September 2018 (Particular 1), and that the practitioner engaged in an inappropriate personal and sexual relationship with Client A between about 28 October 2017 to about 27 September 2018 (Particular 2). 3. Leave was granted, by consent, for the amendment of the Complaint in respect of the dates specified in particulars 3, 4, 5 and 6 of Complaint One. Particular 3 alleges that the practitioner breached proper professional boundaries with Client A on or about 28 October 2017 during a consultation for assessment, in that he: (a) attended Client A's home at about 9.00pm to complete an assessment he had commenced earlier that day and did not leave until about 3.00am the following day; (b) despite knowing Client A had a reported history of alcohol abuse, encouraged Client A to drink alcohol; (c) purchased alcohol, namely a six pack of Jim Beam Bourbon and Cola, for Client A; (d) consumed alcohol with Client A; (e) made inappropriate comments to Client A, in that he said words to the effect of: i. "You're beautiful"; ii. "Your breasts are impressive", and moved closer to Client A who was sitting on a separate lounge chair; and when Client A questioned whether he wanted to see her breasts, said words to the effect of, "yes". 1. Particular 4 alleges that on that occasion the practitioner engaged in inappropriate physical and sexualised contact with Client A. 2. Particulars 5 and 6 allege a breach of professional boundaries and inappropriate physical and sexual contact with Client A during a consultation for assessment on or about 31 October 2017. 3. Particular 5 alleges that on or about 31 October 2017 the practitioner: (a) drove Client A to a bottle shop and purchased alcohol, namely a six pack of Jim Beam Bourbon and Cola; (b) consumed alcohol with Client A; (c) made inappropriate comments to Client A, in that he said words to the effect of: i. "do you see me as a challenge"; and when Client A responded that its not that challenging, the practitioner said words to the effect of "one of my little fears if I went too far with you, you might go no, I don't want to see you anymore"; ii. "because I think you're worth more than that", when Client A suggested that the practitioner just enjoy himself with her; iii. "I can do that if you want", when Client A mentioned that she had shaved her vagina and whether the practitioner wanted to rub cream on it; iv. "I felt like what I did was a bit silly", when Client A questioned whether the practitioner felt guilty about what happened the night they had spent together; v. "are you happy buggerising around" and "chasing men up the road"; vi. "I was asking if you cheated because if you had an incredibly high sex drive …", "how often do you want it?", "do you get any pleasure out of it", and "it's not something you necessarily want", when discussing sexual experiences with Client A; vii. "when I gave you cuddles up here the other day, why did you immediately send me down to your breasts?"; viii. "do you get pleasure out of people playing with your breasts? Is it nice?"; ix. "you did like it when I was nibbling on your butt, didn't you?", and "you did like that, but you don't feel comfortable kissing?"; x. "so, intimacy to you equals going straight to the breasts and straight to the pussy?"; xi. "you were saying to me the other day something about foreplay…", "I like making my partner feel nice", and "I need it", when discussing why he likes foreplay with Client A; xii. "I put Viagra in my bag today", when Client A questioned the practitioner about whether he needed Viagra to get an erection; xiii. "have you ever had your feet licked …a kiss, nibble your toes"; xiv. "does it feel nice", when Client A was sitting on the practitioner with her clothes off and they were kissing and touching each other; xv. "you've got a nice sexy bum"; xvi. "I want you to go and put on something sexy", and "I want you to come back with no knickers on", when getting Client A ready for the interview to complete his assessment; xvii. "if you're cold, we can go cuddle up under the blanket, and finish this". 1. Particular 6 alleges that on or about 31 October 2017 the practitioner engaged in inappropriate physical and sexual contact with Client A. 2. Particular 7 alleges that on an occasion in March 2018 the practitioner visited Client A at her home and engaged in inappropriate physical and sexual contact with Client A. 3. Particular 8 of Complaint One is that by his conduct as alleged in particulars 1 to 7, the practitioner breached the Australian Psychological Society Code of Ethics (September 2007, reprinted 2018). 4. Complaint Two is that the practitioner is guilty of professional misconduct under s 139E of the National Law, relying on Complaint One and the particulars of that complaint individually and cumulatively. The Practitioner's Reply 1. The practitioner denies that he is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a), (b) and/or (l), and/or professional misconduct within the meaning of s 139E, of the National Law. In response to the complaint by Client A, he relies on his affidavit sworn on 20 October 2021. In response to Complaint One, the practitioner denies each of the particulars. He denies Complaint Two, repeating his responses to Complaint One. The Issues 1. The practitioner denies all the allegations, and the Tribunal is required to determine whether the subject matter of the complaint has been proved. In that regard, the HCCC bears the onus of proving the complaints against the practitioner, on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). The approach to be adopted by the Tribunal in making findings of fact in respect of matters in dispute was explained in Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 in the following terms: 52. In medical disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal (see Health Care Complaints Commission v Young [2019] NSWCATOD 191 at [17]-[18]). 53. Although the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 is not applicable in these proceedings by force of law, we consider that it is appropriate, on account of the nature of the allegations made by Patient A against Dr Wilcox, that we be mindful, in reaching conclusions about the facts alleged in Particulars 3 and 5 of the amended complaint, of the gravity of the allegations and the seriousness of the consequences which may flow in the event that positive findings are made. (See Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 and Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85 at [10]-[12]). We note, however, that our conclusions would be the same whether or not we were mindful of Briginshaw considerations. 1. The particulars of the Complaint relate to the practitioner's alleged conduct in his visits to the home of Client A during the preparation of the report for the section 32 application, and subsequently, and in text and telephone communications with her. 2. A central issue in dispute concerns the number of occasions on which the practitioner visited Client A at her home, and the dates of those visits. Client A's evidence was that there were four visits to her home: three while the practitioner was preparing the report, and a further visit in March 2018. In the details of the complaint made to the HCCC (ex A1, tab 3), Client A referred to the visits as being in "October 2017", "early Nov 2017", "late Nov 2017", and March 2018. In that document Client A states that on the second of those visits she made a recording on her mobile phone. In oral evidence Client A stated that the practitioner visited her home while he was preparing the report on 28 October 2017; 31 October 2017, being the date of the recording; and 7 November 2017. The recording forms the basis of the detail of particular 5(c) of Complaint One. 3. The practitioner denies that there were three visits while he was preparing the report, and relies on his notes of two assessments, dated 28 October 2017 and 7 November 2017. He denies that he visited Client A at her home in March 2018. 4. The directions made on 6 August 2021 included a direction that any general law application by the practitioner to object to reliance by the HCCC on the recording made without his consent was to be made by 8 October 2021. No application was made. At the hearing a transcript of the recording, and the audio recording, were admitted without objection. The Tribunal heard the audio recording during the course of the hearing, with the parties' legal representatives present, after Client A's oral evidence was concluded and before the practitioner's oral evidence. 5. It is not in dispute that the practitioner did not know that he was being recorded, and that he would not have consented to the recording had he been asked. Whether or not the recording was made in breach of s 7(1)(b) of the Surveillance Devices Act 2007(NSW), or whether, as submitted by the HCCC, that prohibition would not apply by operation of s 3(b)(i) of that Act, the practitioner accepted that the transcript of the audio recording (ex A1, tab 47) is accurate. 6. On a reading of the transcript and listening to the audio recording, the Tribunal notes that the specific comments recorded as paras (i)-(xvii) of particular 5(c) of Complaint One are, for the most part, accurately recorded. The Tribunal notes that for (v) there was a reference to "buggerising around" in the context of Client A's education, and to "the fellows" rather than to "men"; for (vi), the question was "how often did you want it"; for (ix) the reference was to "neck", not "butt"; for (xi), there was no statement "I need it"; for (xii), it was "I put some in my bag today", and not "I put some Viagra in my bag today"; for (xiv) it was "doesn't that make you feel nice"; for (xv), "have you got something that's sexy"; for (xvi) "come back with no knickers on"' and for (xvii) two separate statements, "if you're cold, go and find a blanket" and "we'll go and cuddle up and finish this". 7. The practitioner's position is that what is recorded reflects his testing of a number of hypotheses as to the reasons for Client A's conduct, relevant to his assessment for the section 32 report. 8. The issues to be determined are: 1. Whether the practitioner visited Client A on three occasions, or only two, while preparing his report for the purposes of Client A's criminal proceedings; 2. Whether in the course of his visits to Client A's home he engaged in the conduct as alleged in Particulars 3, 4, 5, 6 and 7 of Complaint One; 3. Whether any such conduct or discourse had a legitimate professional purpose as contended by the practitioner; 4. Whether any personal relationship, including physical or sexual contact, continued after the practitioner had completed the report and case management of Client A; and 5. Whether the practitioner's conduct was inappropriate or in breach of professional boundaries. The Tribunal Hearing 1. The respondent practitioner and the parties' legal representatives participated in the hearing by AVL, with all Tribunal panel members present in the hearing room. The hearing proceeded as a stage 1 hearing, with a stage 2 hearing on protective orders to follow if required. 2. The HCCC relied on the following evidence: 1. Bundle of documents (tabs 1-49) filed 29 November 2021 (ex A1), including: 1. Complaint by Client A made on 21 March 2019; 2. Typed, undated and unsigned notes; 3. Transcript of hearing 24 April 2019 and reasons for decision for s 150 proceedings 15 May 2019, and s 150D referral by the Council to the HCCC; 4. Previous complaints to the Council and the practitioner's responses; 5. Witness statement by Client A, dated 23 August 2019 and signed 26 September 2019; 6. Psychological Report prepared by the practitioner dated 7 December 2017; 7. Practitioner's responses to the HCCC's Letter under s 28 of the Health Care Complaints Act 1993; 8. Statements by GP Dr John Deery 15 August 2019, and Urologist Dr Robert Wines 10 October 2019; 9. Practitioner's response to the HCCC's letter under s 40 Health Care Complaints Act; 10. Clinical records from Psychiatrist Dr Leslie Lim concerning his treatment of Client A between January 2018 to 27 November 2018; 11. Report by Consultant Psychiatrist Dr Anthony Samuels on Independent Health Assessment, 1 October 2019; 12. Transcript of recording; 1. Bundle of documents (tabs 1-6) filed 8 December 2021 (ex A2) including: 1. Mobile phone screen shot; 2. Text messages from Client A's mobile phone; 3. Practitioner's handwritten notes relating to Client A; 4. Health records for Client A; 5. Table of phone calls between Client A and the practitioner 2 January 2018 to 24 January 2018; and 1. USB audio recording (ex A3). 1. The practitioner relied on the following: 1. Affidavit of Philip Gorrell sworn 20 October 2021 (ex R1); 2. Affidavit of Dr John Petelczyc sworn on 18 October 2021 (ex R2); 3. Affidavit of Juliet Ardren sworn on 28 November 2021 (ex R4); 4. Letter to HCCC from Carlos Lindo, Macarthur Law Group, dated 23 July 2020 (ex R5); 5. Reply to Application for Disciplinary Findings dated 29 October 2021 (ex R6). 1. An affidavit of Tyson Ryan, licensee of BWS [NOT FOR PUBLICATION], sworn on 19 November 2021 and tendered and admitted as ex R3, was not relied upon. 2. Client A gave oral evidence on affirmation by AVL, during which she was questioned about the recording of part of the second visit by the practitioner to her home, and a text message she sent to the practitioner on 27 September 2018 stating "Is this recording worth 20 grand to u xxxxx". The representative of the HCCC arranged for a colleague in her chambers to provide pro bono legal advice to Client A. The Tribunal gave Client A a certificate under s 128 of the Evidence Act 1995 (NSW), which applies in these proceedings pursuant to s 38(3)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), for part of her oral evidence. 3. The practitioner gave sworn oral evidence by AVL. Dr Petelczyc and Ms Ardren were required for cross examination, and gave oral evidence by telephone. 4. Final written submissions were provided by the parties after the hearing. Included in the practitioner's written submissions was a document headed "Annexure A: Inconsistencies in Evidence of Client A" which contains additional comments made by the practitioner in response to the evidence of Client A. In its written submissions in reply the HCCC objected to the Tribunal having regard to that additional evidence. No leave was requested, or granted, by the Tribunal for any further evidence from the parties in the directions made at the conclusion of the hearing or subsequently, and the Tribunal has not had regard to the evidence given by the practitioner in Annexure A. 5. An order was made under s 64(1)(a) of the NCAT Act at the first listing of the application, prohibiting disclosure of the name of Client A. The Tribunal has made a further order under s 64(1)(b) and (d) of the NCAT Act prohibiting publication of those parts of these reasons marked "[NOT FOR PUBLICATION]", in order to avoid publication of information that may lead to the identification of Client A; that material may be disclosed only to the parties and their legal representatives. Client A's evidence 1. In oral evidence Client A stated that she typed the 3 pages of notes in evidence (ex A1, tab 3) at the request of the HCCC for details of the complaint made on 21 March 2019. That document is the document referred to as "Annexure A" in her witness statement of 26 September 2019, which she provided to the HCCC on 4 April 2019. 2. In that document Client A reports three visits by the practitioner: 1. On the first occasion (October 2017) her son came home earlier than expected and the practitioner left, returning later that night and staying until 3.00am. She was honest with him, divulging information she would not normally tell someone that is not a professional; that led to sexual type talk and the practitioner made comments about her looks and breasts and she asked if he wanted to see. He did, and she took her top off to let him look at them and play with them. They ended up kissing, fondling and rubbing each other, he was sucking on her neck and she was rubbing his penis; 2. The second time (early November 2017) they went to the bottle shop and he purchased alcohol as it would relax her and make it easier for her to talk. That was the time she recorded him, as he had made a few comments about her coming on to him as if he was a victim. The recording has him asking questions about sexual things; discussing sexual experiences; and discussing foreplay. She stopped recording and shortly after that they went to her room and had foreplay and sex. Client A stated that from the recording it was clear that the practitioner was well aware of her sexual behaviours and that they are part of her illness, and that she gets no pleasure from those experiences, but he was happy to be enjoying himself and putting his hands all over her; that he was aware that he was doing the wrong thing and did not have regrets, or care that she was mentally unwell and very intoxicated; 3. The next time he came to the house (late November 2017) they spent some time doing the report. He took her to the bottle shop and purchased alcohol for her, and bought her dinner. Client A stated that the practitioner manipulated her into thinking he was going to help her get out of the court mess, because he cared about her, and told her how beautiful she was and that she needed someone to be nice to her after her traumatic past. Client A stated that they "messed around" massaging and touching and then had sex. 4. After that most contact was via phone calls or she would text and he would call back; they would talk for hours, mostly sexual talk unrelated to her mental health. 1. Client A's notes record a further visit in March 2018 when the practitioner was in Sydney for work when he stayed overnight as he had more reports to do in Sydney the next day. They were doing "naked massages and foreplay" and had sex. On 6 July 2018 her mental health was declining, and she called him for help. She was seeing a psychiatrist but had not been referred to the services that the practitioner had mentioned in his treatment plan, and her psychiatrist did not have a copy of the report. She told the practitioner what was going on and he gave some advice. He advised her to go swimming and asked her to send photos wearing a bikini; she did not send photos, and she did not ask for help after that. After fuming for a month she texted him on 10 August 2018 that he had given her bad advice and she hated him for it. 2. Client A's notes conclude: It has taken me this long to report him because I've blamed myself for the situation and thought it was my fault. But I now realise that it's not. He used his knowledge of my past and my sensitive information for his own sexual benefit. He took advantage of me, then took it upon himself to stay involved in my life, instead of referring me to the appropriate services I needed. I was in a bad situation and was mentally unstable and he knew that, and I still haven't gotten treatment. He encouraged my manic behaviour by supplying alcohol for me on the occasions he was there. He was turning every conversation into a sexual discussion and every meeting into something that would sexually benefit him. I feel disgusted at the whole situation and its not right. He had a duty of care and legal and professional standards to follow and he has done the complete opposite by getting sexually involved and not referring me to the treatment I need. He is a danger to vulnerable people. 1. Client A's witness statement is dated 23 August 2019, and signed 26 September 2019 (ex A1, tab 15). In oral evidence Client A corrected dates in that statement, including at para [32], to state that the date on which she recorded the practitioner was 31 October 2017 and not early November 2018. Client A identified as Annexure A to that document (referred to at [4]) the typed notes at ex A1 tab 3, and as Annexure B to that document, a screen shot of the screen of her phone showing the date, 31 October 2017, and time, 36.54, of the recording (ex A2, tab 2), stating that she took that screen shot on the phone that took the recording, at the time she wrote her statement. 2. In her witness statement Client A summarised the background to her assessment by the practitioner for the section 32 application. She was diagnosed with bi-polar 2 (BPAD) in around 2004 and received support from mental health services at the time. She stopped accessing those services, and did not access support until January 2018, which is when she was re-diagnosed with bi-polar and borderline personality disorder, by psychiatrist Dr Lim from Liverpool Private Hospital. In 2017 she was charged with malicious damage, offensive behaviour, assaulting a police officer, damage and destroy property by fire. She was assigned a lawyer through Legal Aid, Mr Carlos Lindo, who represented her in the criminal matter. He referred her to the practitioner for a report for the section 32 application. 3. Client A stated that the practitioner visited her at her home on three occasions, in October 2017, early November 2017 and on another date that she could not recall. 4. On the first home visit the practitioner talked about the criminal charges, and life events. Her son was due back from his father's at 5.00pm, she left to pick him up, and the practitioner came back to her house around 9.00pm. The practitioner was very casual in how he acted and talked to her. She told him she had an alcohol problem which is triggered when she becomes manic; he asked what kind of stuff she did when she became manic and she opened up and told him. He suggested getting some alcohol to relax her and allow her to speak freely. She told him what she wanted to drink and he went and got a 6 pack of Jim Beam Bourbon and Coke cans from "the local bottle shop [NOT FOR PUBLICATION]" (at [20]). They began drinking together and she was telling him about how her sexual behaviour was getting her into trouble. The conversation became more personal and the practitioner began telling her she was beautiful. The practitioner came to the chair on which she was sitting, and the conversation recorded at particular 3(e) of Complaint One occurred. They were touching and kissing; it was the practitioner who instigated that as she is not a kisser. The practitioner did not leave until around 3.00am, by which time she had drunk 4 or 5 cans and the practitioner about 1 or 2 as the pack was finished. 5. Before the practitioner's second visit she had forgotten his name so she googled his phone number and saw his website and a few articles. On the second visit it was just her and the practitioner in the house and her son was not present. The sexual acts that took place in that visit are recorded in Annexure A to her statement and took place in the living room and bedroom. She and the practitioner went to the [NOT FOR PUBLICATION] (at [33]), the practitioner driving in his white ute, and she went in and bought a 6 pack of Jim Bean and Coke cans. When they got back to the house she started recording on her phone. She and the practitioner were sitting next to each other on the main lounge and she was sitting between the practitioner and the iPhone that was recording the conversation. She provided the recording to the HCCC on an unknown date. 6. In January 2019 she was on a detox program at Odyssey House and she spoke to a nurse who encouraged her to report the incident, however she did not report it straight away. 7. In her witness statement Client A commented that the practitioner told her he had some problems getting an erection. They would spend a lot of time on foreplay and sexy talk to get him excited. During the recording the practitioner spoke about having Viagra in his bag; she did not recall seeing the Viagra or seeing the practitioner taking Viagra. She stated that the practitioner had a bad back and couldn't do much; one of the times they had sex she got on top of him and he screamed out in pain and had to stop. She stated that in terms of distinguishing features, he has a foreskin and two scars on the left side of his belly which looked like keyhole surgery, white in colour and approximately 2cm long. 8. In oral evidence Client A provided detail of the bottle shop referred to in para [20] of her statement. She recounted directions she gave to the practitioner [NOT FOR PUBLICATION]. 9. Client A was questioned about a text she sent to the practitioner on 10 August 2018 (ex A2, tab 3) stating "I hate u. U gave me shit advice and u don't give a fuck about me". That message was possibly while she was having a meltdown. When having meltdowns in the last few months she had been calling him, and the previous month when she had a meltdown and she'd call him, he gave her shit advice and she was not happy about that; she had no other mental help to call, and he was her sole mental health person. 10. Client A was questioned about a text she sent to the practitioner dated 27 September 2018, which states "Is this recording worth 20 grand to u xxxxx" (ex A1, tab 33). Asked why she sent it, she stated that she was angry, it was a fleeting moment, she had somebody in her ear, and she sent it as a one off. Client A said that it was "houso talk and that's all it was". Client A explained that "houso" is a reference to Housing Commission, and "houso talk" was "kind of a joke, it's like you know every time something goes wrong it's like I'll sue this person, I'll ask you know like I hurt my finger at work I'll sue somebody, it's sort of just a general something I said". If she was going to do it she would have done more than send a passing comment like that. It gave her a little bit of power back. 11. In cross examination Client A refused to identify the person who was "in her ear", describing him as a neighbour who had seen the practitioner's car at her house. She stated that it does not involve him, he knows only half the story and she saw no need to involve someone like that when she feels she has enough. That person first got in her ear some time between Dr Lim's appointment and the time she sent the message. He knew certain details, that it was the psychologist who did the section 32, that they had sex, and that he was coming to the house, and that's it. She did not want to go into details with him, she has to live there, and it was none of his business. Client A was not sure if she told him that she had recorded the practitioner. Client A rejected the suggestion she was acting in combination with that person to extort money from the practitioner. Client A stated that it was not an elaborate plan, but a passing comment, and the practitioner did not respond and she took no further action. 12. Client A was questioned about the recording. She stated that she had recorded the practitioner without his knowledge, on the second visit, a few days after the first visit. Asked why she recorded him, Client A stated (Tcpt, 13 December 2021, p 35): Okay so what happened was, he was coming the second time and I wasn't sure what his name was so I already got his phone number because obviously we have this … (not transcribable)… I didn't want to you know like be rude or whatever. Then I saw all this stuff in Google with his name in it, so when he gotten there I told him, I said, like just Googled your name and blah, blah this came up. And I'm pretty much saying to him, like what do you want, you know from somebody like me, like because to me like he was a somebody. And then he like replied to me but you know – oh no you came onto me, this was your idea you know – like you're a beautiful woman, like along those lines. And like in that moment I felt defensive and I was like, alright I mean you know because that's like blatant lie against a lie. And you know there were other times I could have recorded him every time he came but I didn't because I trusted him and by then I did trust him and that first time I was still a bit cautious, it was only the second time that I'd met him. And that comment that he made about – you know if it's my word against yours and you're going to say that about me like you know. Obviously he sort of knew he was doing something wrong and I needed something you know – like that's it wasn't his intention to …(not transcribable) … or anything like that because like I said, I didn't record him any other time, I didn't have to, I had trust. But at that stage I didn't trust him, I didn't like what he said to me. 1. In cross examination Client A was questioned further about the recording. She said she did not take it to the lawyer, because at the time she and the practitioner had developed a relationship and she trusted him. Asked about the relationship, Client A said that he was managing her, and had told her that if she had any mental health problems she could go to him and call him any time; they were having a sexual relationship and had been making plans to see each other again, and had a more personal relationship. Asked why if that was the background up to the date of the recording there was a need on that occasion to record, Client A said (Tcpt, p 58): I was saying that after the recording we had built that – the recording that's the second time he came to my house and like I said earlier he made that comment that made me sit still in my tracks and think hang on a second, after that he didn't say anything that you know gave me alarm bells like that and you know I didn't feel the need to do that after that. 1. Client A agreed that she was at ease with him "in a way, yeah", and trusting. Asked why she did not delete the recording, Client A said "why would I delete it, I've got messages in my phone from ten years ago, like well not ten years ago..". Asked why she kept the recording in light of her present evidence, Client A said (Tcpt p 59): A. Because I didn't go through my phone and delete it, I didn't realise I had it for a while, that's not something that I was going back to and listening to everyday, like it was sort of out of sight out of mind on a voice mail, a voice memo blasting on my phone, it wasn't something I regularly cleared out, I don't clear out my messages like it's not unusual to have something on your phone from a while ago. Q. It's certainly in your mind when you sent him the text message "how does 20 grand sound to you"? A. Because at that stage I realised what I had. Q. What did you have? A. I had a recording that was – Q. That was what? A. That's proof that I had proof that I did exist and that- 1. Client A agreed that the recording did not capture all of what she claimed had occurred on that occasion. She turned the recording off and they went to the room afterwards. She was sure they went to the room and had sex. Asked why she did not record that aspect of the meeting, she responded "No that's crazy for one and for two, it wasn't – I could have done that if I was planning on extorting him I could have recorded that whole thing and I didn't". Asked why she would stop before the sex commenced if she were seeking to get the power that she claimed, Client A stated that "At that point of time I wasn't after the power for one, for two I'm not going to record myself having sex that's pornographic that's different from sitting there recording somebody talking to sitting there recording yourself having sex and making noises". 2. In oral evidence Client A confirmed that she had not gone back to her lawyer to make a complaint about the practitioner. On the day of court she made a comment to the lawyer about him being a dirty old man, but did not disclose any other details besides that comment. She had nothing to do with the lawyer after the court decision. She had not complained to Dr Lim. She had made comments to Dr Lim about the practitioner being a dirty old man but she wasn't paying $200 to see a psychiatrist, she was discussing her mental health options, and she wasn't paying him to talk about somebody else. Client A stated that she had told a nurse at Odyssey House while there in January 2019: the nurse taking her blood asked why she was not getting mental health help and she told her it was partly that the practitioner was the reason. Client A said that the nurse told her that it was wrong and she needed to complain about it. She had the same nurse taking her blood every day and she was comfortable. She did not tell the nurse his name. 3. Client A was asked about text messages between her and the practitioner in January 2018, and why she was in contact with him at that stage. Client A said that was because they were in a sexual relationship, they were speaking, he was managing her, and that was completely normal. The practitioner's evidence 1. In his affidavit sworn on 20 October 2021 the practitioner denied ever having sex with Client A, or consuming alcohol with or purchasing it for her. He only drinks occasionally, say 3 times a year, and only beer or wine, no spirits. He does not have any scar on his abdomen; he has an umbilical hernia. 2. The practitioner stated that he did not consent to or have knowledge that Client A was recording any conversation with him ever; he would not have consented if she had asked him. He did not receive the blackmail demand from Client A at the time it was sent, and became aware of it during these proceedings. He would not have paid her $20,000 or any amount at all. 3. At [11] the practitioner stated that in his conference with Client A on the occasion she was recording, he encouraged her in a safe way to make frank disclosures as he needed to assess whether her disclosures were psychotic and delusional talk influenced by her diagnosis of BPAD, talk related to the trauma of her significant past sexual abuse, related to sexual trauma where she considered providing sexual favours to men was her duty, or was for another reason. He received no gratification from the conversation, he was trying to help her. 4. The practitioner stated that he had received many messages from Client A to which he did not respond. On review of the two spreadsheets of telephone calls being records of Client A, there was only one call between her and his number after she commenced with Dr Lim, that being 23 January 2018, the day after her first appointment. The practitioner stated that he is impotent and has been since 2012 and cannot achieve an erection. He has not had a prescription for Viagra since 2012; he tried it in 2012 and it did not work. 5. The practitioner denied inappropriate contact with Client A by telephone and text message as alleged in particular 1 of Complaint One. His only contact with Client A by telephone or text was to arrange appointments, to clarify details for the court report, and for case management. The only time he recalled speaking with Client A in 2018 after she commenced consulting Dr Lim was on 6 July 2018, when she told him she was not taking her medication and he told her to talk to the psychiatrist; she told him about University, and he told her to look after herself. 6. The practitioner denied the conduct particularised in Particular 3 of Complaint One, stating that he was at Client A's home from about 2pm to 5pm and did not attend again on that day; and that Client A asked if he wanted to see her breasts and he responded "no", discounting it because of her condition. He denied the conduct alleged in particular 5, and stated that the alleged words at particular 5(c) were being taken out of context. He stated that it is physically impossible for him the perform the positions alleged by Client A, as he suffers from spondylosis and is only able to sleep on his left side, and any jerks to his body cause excruciating pain. Client A never gave any indication she wanted to have sex with him. During the recording she disclosed sexual promiscuity, psychotic thinking and a panic attack, all to convince him that she was mentally ill; he rejected her line of thinking, he realised she wanted a section 32 and was making it up. He had no idea that Client A had a documented history of alcohol abuse; he was aware that she drank. 7. The practitioner's earlier written responses to the complaint are in evidence: 1. a letter dated 11 June 2019 addressed to the Complaints Assessment Officer, HCCC; 2. a statement dated 18 October 2019 responding to the HCCC notification under s 28 of the Health Care Complaints Act 1993 that it had decided to investigate the complaint against him, to which he annexed a copy of his file notes of telephone case management between November 2017 and January 2018, a record of text messages between him and Client A between November 2017 to January 2018, and between January 2018 to September 2018, and a text message sent by Client A to him on 24 February 2018; and 3. a letter dated 1 December 2020 responding to the HCCC notification under s 40 of the Health Care Complaints Act of the grounds for proposed action and providing an opportunity for submissions. 1. In the letter dated 11 June 2019 (ex A1, tab 20) the practitioner denied the claims that he had a sexual relationship with Client A, and stated that he interviewed her on two occasions, on 28 October 2017 and 7 November 2017. On the first occasion Client A's son was in attendance in the home for the second part of the assessment. Towards the end of the interview he had asked Client A what she liked about herself and she responded that she liked her breasts, and commenced to lift her top up: in response he stated words to the effect of "this is inappropriate", and Client A then apologised. On the second occasion Client A's son was present and was largely in his bedroom. He understood that there was an illegally obtained recording of part of that interview; he had not heard it, but based on the excerpt contained in the Complaint he denied the conversation took place as alleged. If a recording did exist, it was important to assess the conversation in context, and observe what was said before and after the recording. 2. The practitioner referred to text messages on his phone after his case management of Client A ended on 24 January 2018, and to a telephone call from her early in 2019. He commented that as detailed in his court report of 7 December 2017, Client A has a history of using sexual behaviours for personal gain, and in his report is detail of her providing sex to men in return for accommodation. He stated in response to the allegation that he had sex with Client A that on 15 February 2013 he was diagnosed with an arthritic disorder whereby he has bone closing in on and constricting nerves, and that due to that he is impotent, only able to sleep on his left hand side, cannot take weight on his hips without experiencing pain, and he has been unable to have sex for approximately six years. In April 2018 the Council imposed a condition on his registration that he not conduct home visits and he has extended this to not seeing clients in his office when he is on his own. 3. In the statement dated 18 October 2019 (ex A1, tab 27) the practitioner summarised his visits of 28 October 2017 and 7 November 2017. He attended to conduct an initial assessment at approximately 2.00pm on 28 October 2017. He recalled that Client A's son, approximately 6 years of age, was in attendance for the second part of that attendance, which took place over approximately 3 hours. On 7 November 2017 Client A's son was home for the entire duration of the assessment; he arrived at approximately 4.30pm; and it took approximately 2 hours to complete the assessment. 4. In his statement of 18 October 2019 the practitioner stated that he had recently been provided with a copy of the recording made by Client A and a transcript. He stated that the recording ought to be heard in full and in the context of the conversation immediately before and following, and not be considered in isolation in circumstances where his professional role involved clarifying certain aspects of Client A's social history which was, based on the history she provided, marked by sexual abuse, a family and personal history of using sexuality to manipulate advantage, and inappropriate sexual behaviour. The practitioner stated that he did not recall the conversation with Client A. From his reading of the transcript he observed that the sexual discussion was led by Client A and, wanting to better understand her and provide treatment options, he appeared to follow her lead; and her promiscuity appeared to be a tactic to avoid engaging with the interview. He stated that keeping her focused on the interview was difficult; on various occasions he appeared to call her bluff in response to inappropriate sexual discussion in order to get her back to the purpose of the interview; and he appeared to engage with her attempted exposure of her breasts during the earlier attendance. He noted that there was mention of a drink but no reference to alcohol; he did not have Viagra in his bag; he did not express that he would rub cream on Client A's vagina; and he did not acknowledge that she had previously kissed him. He queried why the recording was stopped immediately prior to the alleged occurrence of the sexual intercourse, and why the volume of the recording did not change when Client A allegedly left the room. 5. The practitioner summarised his ongoing contact with and case management of Client A, referring to his file notes. He summarised his court report, in which he considered that Client A suffered a mental illness in the form of BPAD exacerbated by a traumatic history. The practitioner referred to prior complaints by former clients, stating that he had denied and defended each of the complaints and notifications and noted that none were ultimately substantiated. At the time of his case management of Client A there was no condition on his registration not to engage in home visits with clients, and after that condition was imposed he changed the nature of his practice. The practitioner summarised his responses to text messages received from Client A after his file was closed in January 2018, and contact in 2019. He stated that the text messages were not intimate in nature. The practitioner outlined his medical conditions; and concluded with comments on the s 150 proceedings in April 2019, stating that he was strongly of the view that he had been denied procedural fairness. 6. In his response dated 1 December 2020 to the s 40 notification (ex A1, tab 38) the practitioner stated that Client A's statements are untested and hence unauthenticated, and the recording is illegal under the Surveillance Devices Act 2007. He denied the allegations that he consumed alcohol with Client A, or discussed her sexual interests and engaged in foreplay and sexual contact with her, and repeated his response to Client A's attempted exposure of her breasts at the first assessment visit. He disputed the claim that he visited Client A's home on the night of 28 October 2017 or on any other night, or that he purchased alcohol as alleged by Client A. Referring to Client A's witness statement that on 28 October 2017 he attended the [NOT FOR PUBLICATION] bottle shop and purchased alcohol, the practitioner stated that a perusal of the internet reveals there is no [NOT FOR PUBLICATION] Bottle Shop; however, while there is a BWS Bottle Shop at [NOT FOR PUBLICATION], that closes on Saturday evenings at 9.00pm, and on Tuesday at 8.00pm; and so he could not have purchased alcohol as Client A details. He disputed the claim that he consumed alcohol with Client A, stating that Client A was consuming a soft drink and he was consuming a cup of coffee, and noted that only one can of drink was heard to open. 7. The practitioner provided detailed comment on what occurred in the interview of 7 November 2017 and the context. He stated that he attended in the late afternoon and observed Client A's interactions with her son. She had said that she and her neighbour had discussed "fucking the psychologist", and he said that such was not going to occur; she responded that he had already on 28 October cuddled and kissed her and sought to see her breasts, and alleged he had bitten her on the backside, and he said that was not correct. He reminded her she had attempted to show him her breasts and had hugged him as he was leaving on 28 October and she argued that point with him; he informed her such talk was inappropriate; and Client A continued to argue the point with him. 8. The practitioner stated that he hypothesised whether Client A's discussion was psychotic and delusional talk influenced by her diagnosis of BPAD, talk related to the trauma of her past significant sexual abuse, related to sexual trauma where she considered providing sexual favours to men was her duty, related to her enjoying sexual activity, or was for another reason; and he asked questions to test his hypotheses. He stated that he did not leave the interview as that would most probably have led to Client A being incarcerated when she required psychiatric and psychological treatment. He asked questions in order to test the issues of sexual trauma and Client A's sexuality, by feeding back to Client A what she had fed to him. During the interview and before hearing the recording he suspected that Client A was using the conversation to convince him that she was suffering from a mental illness in order for him to prepare a section 32 report. Information during the recording that supported the view that Client A was attempting to convince him that she was mentally ill was the content of the discussion about sexuality led by Client A; a put on example of her suffering a panic attack; a bizarre story involuntarily given about an aeroplane trip to Brisbane; and her being able to read eyes. He formed the conclusion that Client A was using the discussion to convince him she was mentally ill, and made various statements which he now regretted in order for her to cease the promiscuous content of her discussion. He had previously written about attempting to bluff her into ceasing the promiscuous content, as confronting her about that had only previously led to her further arguing the point with him. 9. The practitioner stated that at no time did he seek sexual activity with Client A. He went outside to smoke a cigarette and while outside explained that she did not have to convince him that she was eligible for a section 32 order; they returned to the lounge room and without further sexual innuendo or suggestive psychotic behaviour from her he completed the assessment and left within the hour. He did not attend her home again or see her in person, however he had telephone contact with her to case manage her as requested by the court until she consulted the treating psychiatrist, at his first available appointment on 28 January 2018. 10. The practitioner commented that the conversation in the recording was stimulated by the accusations Client A had made before the recording about what had occurred when he previously attended on her; he declared that such was not correct, and despite his saying he could leave, Client A continued with her view. In testing his hypotheses in the recording he had agreed with what Client A was saying, even to the point of suggesting he may have participated, to assess whether she was psychotic as evidenced by delusions. 11. In oral evidence the practitioner maintained his denial of the allegations particularised in Complaint One. The practitioner stated that in preparing a section 32 report his duty is to the court, and that he would include everything relevant so that the court could consider the appropriate treatment plan. Asked whether if Client A had attempted to show him her breasts on the first visit, it was appropriate for him to return unaccompanied on the second visit, the practitioner stated that Client A had attempted to show him her breasts, she had apologised and he had said that was fine. On the second occasion her son was there and he expected she would not behave like that in front of him. He learns more from the client at their home. He conducts a risk assessment before seeing anyone in their home. The practitioner denied that there had been sexual activity on the first visit. 12. The practitioner stated that he did not believe he was at Client A's home on 31 October 2017, and the date recorded on her phone could be wrong. Asked if he was aware of Client A's alcohol problem, the practitioner stated that she was not alcoholic according to the DSM or WHO criteria. He accepted, taken to his notes for 28 October 2017 (ex A2, tab 4), that by the end of the first interview he was aware that Client A used alcohol to cope. He was aware that Client A used sex to manipulate and get what she wanted. 13. As noted above, the audio recording was played after Client A had concluded her evidence and before the practitioner gave oral evidence. In questions about the recording, the practitioner agreed that there was the sound of two cans being opened; he could not recall a can being handed to him, but accepted it was on the recording. He thought it was a soft drink. He was surprised, as he usually drinks coffee. 14. After Client A asked whether the practitioner was "going to 'Cheers' me?", and said "Cheers, big ears", the transcript records: Practitioner: Did you feel guilty the other night, after the other night? Client A: No. Practitioner: Not at all? Client A: Did you? Practitioner: No. As I said, I went away thinking, "Oh jeez (indistinct)" Client A: I shaved yesterday so yeah, nice and smooth. Practitioner: (indistinct) Client A: Maybe (indistinct) some cream or something (indistinct) Practitioner: You did? Client A: Maybe you can for me. Practitioner: I can do that if you want. Client A: Keep nice and soft. Why, did you feel guilty the other night? Practitioner: No. Client A: Did you feel like you did something wrong. Practitioner: I felt that what I did was a little bit silly. Client A: Mm. But you're back for more. Practitioner: No, I came back to work on this and we're going to do some more work on it. Client A: Okay, are we doing work now? Practitioner: Mm. 1. The practitioner stated that the context for the comment about him putting cream on her vagina was that he was keen to explore the issues relating to his hypotheses, and that if someone is psychotic or manic you encourage them to say more and don't shut them down. Client A kept going and provided psychotic material; he was bluffing all along. She was desperate to avoid incarceration, and people with BPAD can be manipulative. 2. Asked about his recorded response to the question whether he felt "guilty the other night", the practitioner said there was no sexual activity, he had agreed with what Client A was saying to get her to say more. He decided Client A was making it up and faking it. 3. The practitioner agreed that the comment at particular 5(c)(vii) was a reference to the first visit on 28 October 2017. He did not cuddle Client A, he was just feeding back to her what she claimed, to see if she was psychotic. Responding to his question as recorded in particular 5(c)(ix) (and agreeing that the word used was "neck", not "butt"), the practitioner said that was what Client A said he had done before the recording, and the question was whether she was psychotic. He denied that he had come up with that explanation after he learnt of the audio recording. 4. The transcript of the recording includes the following exchange: Practitioner: Doesn't that make you feel nice? Client A: You can't touch me there. Practitioner: No? Client A: I don't know. Practitioner: Why? Client A: I don't know --- Practitioner: What happens if there? Client A: I'll freak out. Practitioner: Why? Client A: I don't know, I just will. Practitioner: Have you ever had your feet licked? Client A: No, I can't. Practitioner: A kiss, nibble your toes --- Client A: They've got germs on it, my feet have been on the floor and the floor – okay, I walk outside with my thongs at all these places that could have Hep-C and I've walked with thongs in my house and then my feet have been on the floor and I could have Hep-C on my toes, and then now it's on your hands and you're going to go – and then it's on my arm --- Practitioner: That's getting carried away. Client A: It's real, it's a real thing. Practitioner: No it's not. Client A: Yes, it is. Practitioner: No, it's not (indistinct) do you like your back being rubbed? Client A: Not really. Practitioner: You've never had it rubbed properly. Client A: Well I don't like people touching me and I can't see what they're doing. You can touch all here all you like. I like your eyes. … 1. The practitioner denied that his first question indicated he was touching Client A's vagina, stating that she was touching herself. 2. Further in the recording, the following exchange occurred: Practitioner: Mm. You okay? Client A: Yeah, are you? I'm fine. I like talking about you than I like talking about me. So you're telling me in 35 years of your psychological history or whatever that you haven't hooked up with some girl before, or you have? Practitioner: I haven't hooked up with a young client. Client A: Well, yeah. You haven't? Practitioner: No. Client A: So why did you --- Practitioner: Because you hooked up with me. Client A: That's not a good enough reason. That's not a proper reason. Practitioner: Look, I have all these bad thoughts about you and I also have "But I shouldn't be doing, that I shouldn't have those thoughts". Client A:Yeah, but surely there's other people you thought about that too and you haven't done it before you say. Practitioner: You don't have an opportunity. 1. The practitioner commented that the reference to "hooked up" was to what Client A said had happened, before the recording, and not a reference to sexual activity on the first visit. Asked whether he had put all the blame on Client A, the practitioner agreed and said he would do some things differently now, that she was being manipulative. Asked about the comment recorded at particular 5(c)(xvi) the practitioner said that he was testing to see if his hypothesis was correct. Asked how the comment about "no knickers" in particular 5(c)(xvi) was relevant, the practitioner said that by that time he had figured out Client A was trying to convince him she had a mental illness which would be relevant to the section 32 application. He did not have her take her knickers off, and he did not think that she did. Asked why he did not record in his notes that he was following up on a psychosis hypothesis, the practitioner said that he had not thought that was relevant to the court, and he had a treatment plan that was relevant. 2. The practitioner was asked about his notes of the telephone conversations with Client A, recorded for 20 November 2017, 9 December 2017, 19 December 2017, 23 December 2017, 4 January 2018, 18 January 2018, and 24 January 2018. He stated that those conversations were when he was case managing Client A, as ordered by the court, until she could see Dr Lim. He could not recall whether that was all the conversations, it would have been most. Possibly some of the telephone calls from his number to Client A's number were made while he was driving. Asked if he accepted that the written notes do not correspond with the dates recorded on the records produced by his mobile provider (ex A2, tab 6), the practitioner stated that there could have been a conversation and he recorded it later when he was at home: the dates may not be accurate but the content was. 3. In responding to questions from the Tribunal panel, the practitioner explained his assessment process. He can normally conduct an assessment in 3 hours, this time he could not and so he went back. He has never had a client offer to have sex with him. Asked if he considered his approach a safe way to encourage a client to make disclosures, the practitioner said that he was not going to confront Client A with what she was saying, he accepted what she was saying and encouraging her to say more in order to determine the reasons for her behaviour. Asked whether given her history his method was safe and respectful, the practitioner said that in hindsight he would not go down that path. He had enough history for a diagnosis of BPAD but Client A was not acutely unwell at the time. He did not use the DSM for his diagnosis but had her history and that of her father, and he was happy to accept that Client A had BPAD. The practitioner said that he generally takes notes as he goes, recording what he thinks is relevant, unless there is an issue where he needs to listen. His file notes show the dates 28 October 2017 and 7 November 2017; he could have got the dates wrong. 4. The practitioner was asked about the distinction between the role of therapist and assessor as discussed in the article by Prof Alfred Allen "Psychologists as Expert Witnesses in Courts and Tribunals" (Annexure G to his affidavit of 20 October 2021), and said that at the time he was writing 2 to 4 reports a week and only in occasional circumstances as here would he case manage someone as a way to support a section 32 application; he usually gets the client to arrange further referrals for therapists. Ms Juliet Ardren 1. In her affidavit sworn on 28 November 2021 Ms Ardren stated that she is a colleague of the practitioner, having known him in a professional capacity for approximately 7 years. She is a Clinical Social Worker specialising in womens' issues such as domestic violence, child sexual abuse and sexual trauma. The practitioner told her about Client A on or about 29 October 2017, telling her that on 28 October 2017 she had asked him if he wanted her to show him her breasts and he told her that he had said no as it was not appropriate. The practitioner asked if she would counsel Client A and after discussing her history she agreed. In early November 2017 the practitioner told her he had undertaken a second assessment and that Client A had faked suffering a mental illness by offering him sex, pretending to have a panic attack and faking psychotic thinking. He had completed the assessment. Client A had agreed to contact her for counselling, and did not do so; the practitioner later told her that Client A had decided she wanted to consult her psychiatrist first. 2. Ms Ardren had provided a character reference, dated 21 October 2019 (ex A1, tab 39), in which she referred to the practitioner having referred a client to her. Ms Ardren confirmed that that client was Client A. She agreed she had not mentioned in that document the conversation of 29 October 2017 recorded at [6] of her affidavit of 28 November 2021. She probably got the date for the conversation from her diary, she would have progress noted it. She did not think the practitioner had told her the date, she would have referred to her notes. She accepted that she had not mentioned the conversation about the second assessment in her character reference. Asked who approached her to provide the affidavit, Ms Ardren stated that she had asked if she could do it, she remembers this case as certain cases stand out. Dr Petelczyc 1. In his affidavit dated 18 October 2021 Dr Petelczyc stated that he had examined the practitioner on 11 October 2021, and he did not appear to have a scar on his abdomen from surgery or other injury, and he does not appear to have had keyhole surgery or surgery on his abdomen; he observed him to have an umbilical hernia. Dr Petelczyc stated that the practitioner "… is sexually impotent and I had not prescribed him Viagra or any other medication for such". Submissions HCCC submissions 1. The HCCC submits that while there may be some human fallibilities in her recollection in terms of dates, the detail of the narrative is consistent and Client A's evidence is honest, accurate and reliable. Client A did not falter in her evidence and recollection of events. 2. The HCCC submits that Client A's evidence as to 28 October 2017 ought to be preferred in proof of particulars 2 to 4 of Complaint One. Evidence that corroborates her testimony includes: 1. The audio recording which captured the respondent referring to sexual activity they engaged in on the first visit on 28 October 2017, and which shows an established familiarity and sexual connection between him and Client A; 2. The evidence given by Client A was consistent between her complaint of 4 April 2019, her written statement of August 2019, and her oral evidence; 3. Client A recalled tangential details consistent with her narrative such as telling the respondent the directions for the bottle shop and what they drank; 4. Client A did not embellish the narrative of the first visit by stating that they engaged in sexual intercourse. 1. The HCCC submits that the audio recording is a genuine representation of the discourse between the respondent and Client A on the second visit on 31 October 2017, and proves the particulars in particular 5 of Complaint One. The HCCC submits that: 1. The respondent accepted in oral evidence that two cans of drink can be heard being opened in the audio recording, stating that he drank a soft drink; however in his s 40 response he had told the HCCC that he drank coffee, demonstrating the unreliability of the respondent; 2. Client A's evidence that she went in the practitioner's car for them to purchase alcohol from the bottle shop was reliable and honest and corroborated by what is heard on the audio; 3. The evidence in the audio recording shows that the respondent engaged in sexual activity and intercourse with Client A; 4. The evidence suggests that on this visit there was no assessment for a section 32 purpose, which explains why the practitioner does not have notes of 31 October 2017. 1. The HCCC submits that: 1. no inference that the recording was deliberately staged by Client A to extort or blackmail the practitioner can be drawn from the text sent to the practitioner on 27 September 2018, because Client A sent only one text about it. The suggestion of extortion happened almost one year after the incident; and Client A explained this was sent when her mental health was poor and she felt unsupported and alone because of how the respondent treated her. She stated that although there was a neighbour "talking in her ear" she was the person who wrote and determined to send the text one evening when she likely had a few drinks of alcohol; 2. The respondent's notes for 7 November 2017 are explained by Client A's statement in her notes of 4 April 2019 that there was another visit in November 2017 during which they spent more time on the section 32 report; 3. Client A's evidence in her notes of 4 April 2019 as to the practitioner yelling in pain during sexual intercourse in March 2018 is consistent with the respondent's medical records that he suffers from back issues: Client A had no access to those notes, and this is an unblemished and honest recall. The practitioner's submissions 1. The practitioner submits that the allegations are serious and made in a one-on-one situation, and the HCCC must satisfy the Tribunal to the required standard. The practitioner submits that Client A has not satisfied the Tribunal that her version could reasonably be true, and that he has provided an account in response that is reasonably true: and in essence the Tribunal is in the position of choosing which of the two is to be believed. The evidence of a single witness making serious allegations should be scrutinised with great care, a reason being the ease with which evidence can be concocted, which is the practitioner's assertion here. The practitioner relies on inconsistencies in the various accounts and evidence of Client A over time. 2. The practitioner submits that the following matters raise concerns as to the veracity of Client A's evidence: 1. The delay in making a complaint; 2. An illegal covert recording; 3. The $20,000 blackmail demand; 4. The refusal to name or provide details of the alleged neighbour who is said to have had knowledge of the $20,000 demand; 5. Uncertainty as to the name of the alleged bottle shop; 6. Her evidence as to scars on the practitioner's torso; 7. The late change in the date of the consultation; 8. Late service of material in the week prior to the hearing; 9. Her performance in cross examination. 1. Further matters of concern are: 1. while Client A explained in part the $20,000 blackmail as being due to her mental health during a meltdown, she was attending university at the time; 2. while she said that the reason she sent the practitioner the message about him giving her "shit advice" was that she was due for a meltdown, she was under the care of Dr Lim and the practitioner had only had to manage her until January to hand over to him; 3. Client A's demeanour at times did not assist her, for example when she laughed a few times and when she refused to answer questions about the neighbour and the $20,000 blackmail; 4. Client A got the date of the recorded conversation wrong and needed to correct it; 5. Inconsistencies in evidence about the bottle shop, including whether the fact that the tavern is the drive through could have been referred to more precisely in her early evidence in the complaint; 6. Her memory, for example not retelling the "houso talk"; 7. Reliance on her own perception of her mental health; and 8. Unusual google enquiries about the practitioner confirming that he might be a suitable target. 1. The practitioner submits that the motivation for Client A's complaint is that he declined to assist her further after his watching brief until Dr Lim took over, and that she told him she was not taking her medication and she believed he told Dr Lim. 2. The practitioner submits that he has raised good character, whereas Client A has contrived an illegally recorded conversation which she controlled and directed. Further, the s 128 certificate raises concerns about her evidence. The practitioner submits that he gave credible evidence and withstood cross examination, making concessions where appropriate. Discussion and findings Assessment of the evidence 1. The allegations made in the complaint are serious, and are denied by the practitioner. In making its findings as to whether the conduct alleged in the complaint occurred, in the face of the conflicting accounts the Tribunal is required to determine whether the evidence of Client A or that of the practitioner should be accepted. 2. The principles relevant to assessment of credit, including reliance on demeanour, were summarised in Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 in the following terms: 101. In Campbell v Campbell [2015] NSWSC 784 Sackar J at [73]-[79] considered the principles which apply to the assessment of the credit of a witness: 1. where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence are all matters of primary importance: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477; 2. the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation: Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34] (Keane JA); referred to with approval by Leeming JA in State of New South Wales v Hunt [2014] NSWCA 47 at [56]; 3. in cases involving events which occurred long before the litigation, a court usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable, and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable facts, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]. … 105.…In approaching the evidence, we have been mindful that the authorities have consistently cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability based solely or mainly on demeanour. That is because a witness may, for example, appear evasive or combative for reasons that are unrelated to the honesty or reliability of their evidence. Likewise, a witness may give evidence in an apparently forthright and persuasive manner and yet their evidence may be found to have been unreliable or, worse, dishonest. Scientific research has cast doubt on the ability of anyone, including decision-makers, to distinguish truth from falsehood on the basis of appearances: see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [30]-[31]. Nevertheless, as the High Court made clear in Fox v Percy at [41], demeanour evidence, if not decisive, remains relevant to the assessment of the credibility of witnesses, especially when supported or contradicted by other forms of evidence. 1. The Tribunal adopts that statement of principle. 2. The practitioner submitted that Client A's demeanour in cross examination, for example in laughing a few times and in refusing to answer questions about her neighbour, counts against the reliability of her evidence. The Tribunal does not agree. Client A gave evidence, and was cross examined, for an extensive period of time, on sensitive and personal issues including on the matters that led to the grant of the s 128 certificate. Her evidence was direct and forthright, for example in recounting the directions she said she gave the practitioner to travel to the local bottle shop at [NOT FOR PUBLICATION] to purchase alcohol. In the Tribunal's view any uncertainty as to which bottle shop it was arose from the practitioner's misunderstanding that it may have been a BWS, Client A's evidence being consistent that it was the local bottle shop [NOT FOR PUBLICATION]. Client A's evidence was thoughtful and responsive, for example when it was put to her in cross examination that the practitioner had not raised or discussed her past use of alcohol, she responded that it was clearly in the section 32 report when the practitioner wrote about her alcohol problem. Client A readily conceded her lack of recall of specific dates, and on some details on matters which were for the most part on peripheral issues such as the content of what she described as "houso talk" with her neighbour. Client A did not embellish her account: there was no allegation of sexual intercourse on the first visit; and she confirmed that while there was discussion of Viagra during the second visit, she did not recall seeing it or see the practitioner taking Viagra. 3. The Tribunal is satisfied that while Client A's recollection of specific dates was variable, overall the central elements of her narrative as to the number of visits to her home, and what occurred during those visits, is supported by her responses in cross examination, including her explanations for seeming inconsistencies and unexpected behaviour such as how she looked up details of the practitioner before the second visit, and why she did not immediately delete the audio recording from her phone. That evidence is consistent with her written notes of April 2019. 4. It was accepted that those notes were prepared in April 2019, at the time Client A made her formal complaint some 18 months after the practitioner's visits to her home. Client A has acknowledged that time gap, stating in oral evidence that she was aware of the time period but not the dates. The Tribunal is satisfied that those notes are a reliable record of what occurred, and when. That evidence is also consistent with her witness statement; and is supported by the audio recording. 5. The practitioner submits that the delay in Client A making a complaint casts doubt on her evidence. The Tribunal does not agree. The Tribunal accepts Client A's explanation that she did not disclose to the legal aid lawyer representing her in the Local Court proceedings what had happened, because she only spoke to him at the time of her court matters and not again thereafter. That her focus at that time was on the section 32 application is supported by her texts to the practitioner on 19 December 2017 to inform him that she had "got the 32" and was "so happy and on top of the world I'm not gonna wreck this chance…" (ex A2, tab 3). The Tribunal also accepts Client A's explanation as to why she did not disclose details of the relationship to Dr Lim: that her focus in the consultations for which she was paying privately was on her mental health and medication is consistent with Dr Lim's record of what was discussed in their consultations in his clinical notes (ex A1, tab 45). 6. The Tribunal accepts that while having admitted disclosing some details about what had occurred to one of her neighbours, Client A was reluctant to disclose all the details including the practitioner's name to someone with whom she would have to continue to live, or to involve that neighbour further by disclosing his name in her evidence. The Tribunal regards those explanations, and her reasons for not providing more details to or about the neighbour who was "in her ear" at the time she sent the text to the practitioner, as reasonable and justified. 7. Client A was questioned at length about why she kept the recording on her phone and why she waited until September 2018 to send the text message disclosing to the practitioner that she had a recording. Client A's evidence was that she thought she had a relationship with the practitioner beyond the professional relationship of preparing the section 32 application and case managing her until she could see Dr Lim, which she described in oral evidence as a "personal" relationship. That evidence is supported by the text messages in evidence (ex A2, tab 3): the tone of those messages between 12 December 2017, when they wished each other a good evening, through to January 2018 when Client A informed the practitioner of her university scholarship, is one of friendship and trust. 8. That evidence is also supported by the audio recording, as apparent in the following passage: Practitioner: I suspect at another level – Client A: Another level? Practitioner: Mm. Client A: Of what? Mm. Practitioner: You see me as a challenge. Client A: No. Practitioner: Not at all. Client A: Well like a little bit maybe. Practitioner: Mm. Client A: But it's not that challenging. Do you think I find you challenging? Practitioner: I don't know. One of my little fears if I went too far with you might go "No, I don't want to see you any more". Client A: Yeah. Practitioner: Yeah? And that's the reality, isn't it? Client A: Oh, so, why don't you just enjoy yourself? Practitioner: Because I think you're worth more than that. Client A: Oh yeah. Practitioner: Mm. 1. In oral evidence Client A agreed that having looked him up before the second meeting she was "startled" that the practitioner would have been showing an interest in her, stating that he "was doing my report but he liked me"… "He had an interest in me", which was not as a patient but a "sexual interest". 2. Given that context to the relationship, it is not implausible that Client A might not recall that the recording was retained on her phone until some time after it was made, at a time when her opinion of the practitioner had changed and she had sent the text message of 10 August 2018. That there was only one text message which referred to money, with no follow up, supports Client A's evidence that the text was not part of a deliberate or concerted attempt, either by Client A alone or prompted by her neighbour, to extort money from the practitioner. 3. The practitioner submits that a motive for the complaint was that he had declined to assist Client A further after his watching brief until Dr Lim took over, and further that she had told him she was not taking her medication and believed that he had told Dr Lim. That is not consistent with the practitioner's statement in his statement of 18 October 2019 that he had responded to Client A's request on 6 July 2018 for him to phone, recording that he had advised her to explain the situation if she was not taking her medication and was becoming manic, and with his further advice about how she should look after herself apart from her study and home duties. That she did inform Dr Lim is supported by Dr Lim's notes, which record that Client A told him in June 2018 that she had recently ceased her medication, but hadn't "had a bad day in a long time". On 25 September 2018 she told Dr Lim that she had not been taking her medication, and needed to go back on it again: she was "not totally off the rails", and while she was not attending university, she was passing (ex A1, tab 45). 4. In oral evidence the practitioner commented that Client A may have been trying in the part of the assessment visit that she recorded to get information in case she did not get the report she wanted from him, as he was her last chance and if the report was unfavourable she could go to gaol. The Tribunal accepts that the section 32 application was extremely important for Client A. Her response texted to the practitioner on 19 December 2017 confirms that she saw it as an opportunity to turn her life around, including by furthering her education; and she subsequently kept the practitioner informed of the offer of a university place, and a scholarship. That her attitude to the section 32 application was a positive one is reflected in the practitioner's comments in the report that she was very genuine in the interviews, and was seeking to improve herself. 5. The Tribunal does not accept the practitioner's suggested motive for the complaint, or that the delay diminishes the reliability of Client A's evidence. Rather, the Tribunal accepts Client A's evidence that she was not aware of the inappropriateness of the relationship with the practitioner until later in 2018 or early 2019 when she spoke to the nurse at Odyssey House. By that time the practitioner was not, on his evidence in the s 28 response of 18 October 2019, responding to Client A's texts; and whether or not the practitioner had not made the referral to Ms Ardren as proposed in the section 32 report, as Client A maintained in her evidence, or Client A had not taken up that offer, as the practitioner stated, that further counselling had not occurred. The Tribunal accepts that Client A became aware that she could and should make a complaint by the time she was in Odyssey House; that she did so shortly thereafter when she made the online complaint to the HCCC; and that her motive for the complaint was as recorded in her typed notes (at [37] above). 6. The practitioner has consistently denied all the allegations. He submits that he prepared the section 32 report for Client A and then had a watching brief until Dr Lim took over, and that the complaint is a result of Client A suffering a borderline personality disorder, a feature of which is fear of rejection and learnt behaviour to manipulate others for their own gain. He submits that he gave credible evidence and withstood cross examination, making concessions where appropriate. In addition to his criticisms of the reliability of Client A's evidence, he relies on the medical evidence as to his impotence, and on his contention that he was testing his hypotheses as to the cause of Client A's behaviour while assessing her. 7. The practitioner's evidence is that he is unable to maintain an erection, and that while he was prescribed Viagra in 2013 it does not work for him; and he denies having Viagra with him on his second visit to Client A. The medical records provided to the HCCC with the practitioner's response on 11 June 2019 to the complaint that he had sex with Client A (ex A1, tab 21) confirm that the practitioner saw Dr John Deery on three occasions in 2013, once in 2014 and once in 2016; and he saw Dr Petelczyc on one occasion in 2018 and one occasion in 2019, on the last occasion to obtain medical records. The notes made by Dr Deery record consultations relating to back pain, osteoarthritis, and hip pain; and a prescription for Viagra (4 tablets with 5 repeats) on 15 February 2013. 8. In his report dated 15 August 2019 (ex A1, tab 34) Dr Deery stated that it was impossible to determine the sole cause of the practitioner's impotence, it being unlikely that his spondylosis or arthritis of the spine is the cause of erectile dysfunction. The practitioner had presented in 2013 with significant back pain; he was prescribed Viagra in 2013 once for treatment of erectile dysfunction and had since received no further treatment. Dr Deery confirmed that the practitioner was prescribed Viagra in 2013 once for treatment of erectile dysfunction, and had since received no further treatment. 9. In his report dated 16 October 2019 (ex A1, tab 35) Dr Robert Wines, consultant urologist, stated that on examination there was an umbilical hernia, and the practitioner is not circumcised; and X-ray reports of the spine showed no obvious pathology giving rise to problems with nerve supply to the genito-urinary tract. Dr Wines stated that while unable to categorically deny the possibility of sexual function, in view of the history including smoking, and the physical findings suggesting generalised vascular disease and orthopaedic radiological and clinical findings, it was most likely that he is incapable of normal sexual activity. 10. The practitioner provided a photograph of a box of Viagra dispensed in February 2013 with his letter of 11 June 2019 (ex A1, tab 21). In oral evidence Dr Petelczyc confirmed that Viagra is not covered by Medicare, that any repeats could be filled without the prescribing doctor knowing, and that it could be prescribed by another doctor. 11. The transcript of the recording includes the following: Practitioner: You were saying to me the other day that – something about foreplay, "I don't think there's been a lot of foreplay," you were giving me the impression you thought that was a nice thing. Client A: It was something new. Yeah. Practitioner: (indistinct) Client A: Nothing. Practitioner: Tell me, if you don't mind nothing, it's all right, you're not allowed to say "Nothing" you've got to say what's in your head. If you – Client A: Why do you like foreplay? Is it you get hard? Can you perform? Practitioner: Why do I – I like making my partner feel nice. Client A: (indistinct) do you need Viagra or something? Practitioner: Why? Client A: I don't know, because you're old. It doesn't work properly. Because see that's what I was thinking maybe you like that other stuff because you're hiding something. Practitioner: Well, the truth of the matter is I do need some (indistinct) form. Client A: Yeah. Practitioner: And the other part of it is I actually put some in my bag today. Client A: Oh. Practitioner: (indistinct) Client A: Wow. What does it do? Practitioner: It gets the blood flowing. Client A: So you know what that says to me, this is like a different perspective so because that's what I thought, that's why you like this other stuff because – Practitioner: It's not, it's not. Client A: Because you might have a bit of trouble so you need to do all that stuff to get that. Practitioner: No, no I can, I can – Client A: But then me, I don't need that kind of stuff to do that. Practitioner: I can do all of that. … Practitioner: But I don't naturally get it up. 1. The Tribunal is satisfied, on the basis of that interchange, that the practitioner's denial that he used Viagra or had it with him on the occasion of his second visit should not be accepted. The medical evidence as to the practitioner's impotence is based on his self-reporting, and other than a prescription for Viagra provided by Dr Deery in 2013, there is no evidence of any further investigation. Dr Deery acknowledged that the practitioner does not frequent that medical centre often. The practitioner acknowledged in cross examination that Dr Wines' statement that Viagra did not work for him was based on what he had told Dr Wines. Based on Dr Petelczyc's evidence, the photograph of the 2013 box of Viagra does not rule out the possibility that the prescription repeats were filled, or that Viagra was obtained elsewhere. 2. The Tribunal accepts that the practitioner has erectile dysfunction; however the Tribunal does not accept his evidence that he was incapable of sexual intercourse at the time of his visits to Client A's home. 3. The medical evidence that the practitioner suffers from arthritis and experiences back pain and some physical limitation in movement is consistent with Client A's evidence as recorded in her affidavit at [50], and her observations of him during sex at [51]. Dr Petelczyc and Dr Wines recorded that the practitioner has an umbilical hernia, which is contrary to Client A's evidence of a scar or indication of some previous surgery. That the practitioner does not have a scar as stated by Client A does not in the Tribunal's view undermine her evidence as to the physical nature of the relationship. Client A maintained in oral evidence that they had been naked in each other's presence. The Tribunal regards her observation that there was some noteworthy aspect to the practitioner's stomach which she was able to observe as consistent with the presence of what Dr Petelczyc described in oral evidence as a visible bump around his belly button. Client A may have been incorrect in her recollection of her observation, but that does not detract from the reliability of the totality of her evidence. Whether there were two or three visits by the practitioner to Client A's home in 2017 1. It was not in dispute that the practitioner's first visit to Client A's home was on 28 October 2017, and that the audio recording was made on the practitioner's second visit to Client A's home. It is not in dispute that the practitioner visited Client A in her home on 28 October 2017 and 7 November 2017. The Tribunal finds, for the following reasons, that the practitioner also visited Client A in her home on 31 October 2017, and that that was the date on which Client A recorded their interaction for part of that visit. 2. Client A's evidence, relying on the screen shot on her phone, was that the recording was made on 31 October 2017. The practitioner denies a visit on that date, relying on the dates recorded on his handwritten notes. In oral evidence he suggested that Client A's phone may have been damaged so the date was incorrect. That possibility was not put to Client A in cross examination, and there is no evidence to suggest any damage to the phone. 3. Client A's oral evidence was that there were only a few days between the two visits, saying it was "very short"; and "I believe about three days, I believe". In oral evidence concerning the visits to the bottle shop, Client A acknowledged that she was not sure about dates, stating that the only one she has an exact date on is 31 October 2017, and the other times were "a guesstimate of time because I did write that statement, you know, it was a long time after, it wasn't – so I wasn't quite sure on – I am aware of the time periods but not the date". 4. The recording includes references to the earlier visit, when the practitioner referred to "when I gave you cuddles up here the other day…", "when we did the other night…", "… the other day". In the Tribunal's view those references are consistent with there being only a short gap of three days between the first and second visits (from Saturday to the following Tuesday), rather than the 10 days, or more than a week later, that the practitioner's evidence would suggest. That period is consistent with the date stamp on the mobile phone recording (ex A2, tab 2). The Tribunal accepts that Client A had intended to annex the screen shot to her statement of 26 September 2019, referring to it as Annexure B at [47] of that statement. 5. The practitioner's handwritten file notes in evidence are dated 28 October 2017, 7 November 2017, and 6 dates thereafter to 24 January 2018 (ex A2, tab 4). That there is no record of a visit on 31 October 2017 in the practitioner's notes is consistent with there being no professional assessment purpose for the visit; an explanation supported by Client A's notes of April 2019 in which she stated that the recording demonstrates that the practitioner "…was prolonging the visits to me, and because we weren't getting much of the report done, there was always an excuse for him to call and talk about things, and to arrange to come back the next time". That is also supported by the practitioner's comment in the recording that "generally I only see people once so there's no …" "there's no opportunity to get connections going". 6. The Tribunal finds, based on the phone screen shot and the evidence as to the time gap between the first two visits, that the practitioner visited Client A at her home on 31 October 2017, the occasion on which part of their conversation and interaction was recorded. The practitioner's conduct during the visits to Client A's home in 2017 1. As to what took place at each of the practitioner's visits to Client A's home, his notes of the first visit on 28 October 2017 confirm Client A's evidence that they discussed the criminal charges against her and life events, including family composition, education, the relationship with the father of her son, her Department of Housing accommodation, her medical history including mental health, and previous history of sexual assault. 2. The audio recording confirms Client A's evidence that on that earlier occasion, the practitioner had also engaged in sexualised conduct, including cuddles; nibbling on her neck, as recorded in particular 5(c)(vii), (ix) and (ix) of Complaint One; and kissing, when Client A said "I kissed you before" and the practitioner replied "I know but you don't – it was really interesting, when the other night you kept giggling …". 3. The recording also supports Client A's evidence that the practitioner was at her home on 28 October 2017 later than the three hours from 2.00pm referred to in his statement of 18 October 2019, in the inclusion in that latter exchange to "the other night", and a further reference to Client A asking "Why, did you feel guilty the other night?", to which the practitioner responded "No". The practitioner's comment in his letter of 11 June 2019 that Client A's son was in the home for the second part of that visit is consistent with her evidence that she had had to leave to pick her son up, and that the practitioner returned later in the evening when he was asleep. 4. The practitioner and Client A differed as to what occurred at the end of the first assessment visit: whether Client A initiated showing him her breasts and he told her that was inappropriate and she apologised, or whether he commented on her breasts and Client A asked if he wanted to see them. In support of his evidence that it was the former, the practitioner relied on the evidence of Ms Ardren in her affidavit of 7 December 2021 that the practitioner told her on the day following the first assessment visit what had happened. However, while in her earlier character reference dated 21 October 2019 Ms Ardren indicated that she was aware of the complaint of an alleged sexual relationship with a client, who she knew to be Client A, there was no mention in that document about the practitioner having told her that that client had made a sexual advance at that visit. Nor was there any mention in that reference of the practitioner's having told her that at the second assessment Client A had faked suffering a mental illness by offering him sex. 5. In the absence of contemporaneous notes, and given the passage of time, the Tribunal is not persuaded that the reference by Ms Ardren in her affidavit of 28 November 2021 to what the practitioner told her in October 2017 is sufficient basis on which to accept the practitioner's version of what occurred at the end of his first visit. Against such a conclusion is the reference in the recording made on the second visit to his not feeling guilty "after the other night", and the comment recorded at particular 5(c)(vii) of Complaint One. Those comments indicate that whatever actually occurred at the first visit was not him rejecting any sexual advance made by Client A. 6. The practitioner's notes for 7 November 2017 include a record of Client A's mental health issues, the circumstances of the offences, what happened afterwards, and her plan. The content of that discussion is consistent with Client A's recollection as recorded in the notes of April 2019 that they "spent some time doing the report", and the section 32 report itself. No allegation is made of any inappropriate conduct on that visit. Whether the discussion and conduct had a legitimate professional purpose 1. The practitioner does not dispute the accuracy of the transcript of the recording made during his second visit. His position, as explained in his response to the s 40 notification on 1 December 2020 and in his evidence to the Tribunal, is that what was said and discussed on that occasion was his encouraging Client A in a safe way to make frank disclosures so he could assess whether her disclosures were psychotic or delusional talk, talk related to the trauma of past sexual abuse, related to sexual trauma or to her enjoying sexual activity, or was for another reason. He maintains that it was a professional consultation; Client A took the lead in the conversation, and he assumed a passive and encouraging role to encourage her to feel free to make disclosures. 2. The Tribunal does not accept that explanation, which was made for the first time in the practitioner's response on 1 December 2020 to the s 40 notification. The practitioner's statement of 18 October 2019, made after he had been provided with the audio recording and transcript, observes that the sexual discussion is led by Client A, and on occasions he appeared to call her bluff, for example, the reference to him nibbling her neck may have been a bluff response to Client A's uninvited hug at the end of his first visit. While that statement includes comments that keeping Client A focussed on the interview was difficult, there is no mention of testing hypotheses. 3. Having listened to the audio, the Tribunal accepts (and as Client A agreed) that because the practitioner did not know he was being recorded she had a degree of control over the discussion. However, while Client A, knowing that the interchange was being recorded, could choose how to respond to things the practitioner said, she was not controlling his responses to her. Nor was she directing the flow of the conversation, as demonstrated in the practitioner's questions at particular 5(c)(vii) and (viii) and his request at particular 5(c)(xvi), and his questions in the exchange extracted at [79] above. The Tribunal is satisfied that the recording reflects what can only be described as sexualised discussion and interaction between the practitioner and Client A on the occasion of the second visit, and with references to similar conduct on the previous visit. 4. What is apparent on listening to the recording and reading the transcript is that during the second visit there was physical contact of a sexual nature between the practitioner and Client A, including references by him of touching, references to "hooking up" and him having "bad thoughts" about Client A, a request for Client A to "go and put on something sexy", a suggestion by the practitioner that "we'll go and cuddle up and finish this", and a request for her to come back from the bathroom "with no knickers on". There are references to similar behaviour having occurred on the previous visit, including the references at particular 5(c)(vii) and (ix) of Complaint One. 5. The Tribunal does not accept that it is plausible that this could be considered a reasonable way for a psychologist to test whether a client is delusional or psychotic, or that there could be any place for what he described as "calling her bluff" in response to inappropriate sexual discussion. The Tribunal does not accept the proposition, as put by the practitioner in his letter of 1 December 2020, that his comments about "hooking up" and lack of "an opportunity" (at [81] above) were made to test her queried delusion by agreeing with Client A. In context that can only be understood as sexualised language and conduct which had no relevance to the professional purposes of the assessment, which was to express an expert opinion as to Client A's mental health in order to assist the court. Further, the Tribunal considers that to engage in such questioning would be potentially harmful to a client, in particular one who, as the practitioner knew, had a background of sexual abuse both in childhood and as an adult, mental health issues including hospital admissions and a diagnosis of BPAD and psychiatric treatment including anti-psychotic medication, and who consumed alcohol to cope. 6. That the practitioner was aware of that background is clear from the material provided on the referral by Client A's solicitor, acknowledged by the practitioner in his statement of 18 October 2019. That material, as recorded in the section 32 report (ex A1, tab 15A), included medical records from the Community Mental Health Emergency Team (COMHET), South Western Sydney Local Health District; the NSW Police Facts Sheet relating to the charges against Client A and a provisional ADVO against Client A; and Client A's Criminal History – Bail Report. In cross examination the practitioner acknowledged that he had seen the Police Facts Sheet and, while taking issue with its accuracy, was aware of the statement that Client A had been intoxicated at the time. The section 32 report records Client A's hospitalisations at Liverpool and Campbelltown Hospitals on two occasions following overdoses; diagnosis with BPAD and psychiatric medication; her recognition that she still had mental problems and that her consumption of alcohol was affecting that; and that she had obtained a referral to Dr Lim. The report also includes confirmation by Client A's sister of much of the detail provided by Client A. 7. The practitioner had extensive experience in providing expert evidence and reports, stating in his statement of 18 October 2019 that his practice primarily involved undertaking such assessments and he had provided more than 100 court reports a year since 1999. Had he regarded his interaction with Client A as it appears in the recording as an appropriate method of assessment, it would be expected that he would refer in the section 32 report to his purported hypotheses to explain that his approach to the assessment was framed in those terms and to support his conclusions. There is no such reference. The only comment about any "delusional" belief was in reference to Client A's concern that if she used cannabis DOCs would take her son away. While the practitioner stated that he had assessed Client A "in accordance with the standard psychiatric/psychological clinical assessment procedure as detailed in the Diagnostic and Statistical Manual of Mental Disorders 5th edition", including "a Mental Status Examination of the client over two periods totalling five hours", there is no reference to what that had entailed or the conclusions drawn. 8. The only conclusion expressed by the practitioner in his report about Client A is that she had suffered a traumatic life including domestic and sexual abuse and dysfunctional methods of surviving, in addition to which she was suffering BPAD although not at that time in the acute stages. The practitioner confirmed in oral evidence that the diagnosis of BPAD was based on the history rather than his assessment. There is no reference in the report to his conclusion as stated in his evidence to the Tribunal that Client A was exaggerating or making things up, rather a comment that she was "very genuine in the interviews" and was seeking to improve herself. The Tribunal does not accept the practitioner's evidence that what he said and did had a professional purpose. Complaint One 1. For the reasons above, in those instances in which Client A's evidence was detailed and internally consistent, and consistent with the evidence independent of the parties, the Tribunal accepts that evidence in preference to the practitioner's contrary account and denials. 2. In addressing each of the particulars, the Tribunal notes that particular 2 refers to a "sexual relationship"; particular 4 to "sexualised contact"; and particulars 6 and 7 to "sexual contact". The HCCC submissions do not address the difference in wording; however, those submissions make it clear that the HCCC alleges that on 28 October 2017 the practitioner engaged in sexual activity, but not intercourse, with Client A; and that on 31 October 2017 and in March 2018 he engaged in sexual activity including intercourse. 3. The Tribunal's findings on each of the particulars of Complaint One are as follows. Particular 1 1. Particular 1 of Complaint One relates to telephone and text message contact between the practitioner and Client A during the period 28 October 2017 to 27 September 2018. 2. In his section 32 report the practitioner noted that Client A had been advised by the COMHET team to consult a private psychiatrist; that she had obtained from a GP a referral to Dr Lim and had an appointment to see him on 22 January 2018; and that following that consultation and the advice of Dr Lim he proposed that Client A engage in psychological treatment with a therapist specialising in assisting women who have suffered domestic and sexual violence (naming Ms Ardren) who would work closely with Dr Lim. The practitioner stated that he had agreed to manage Client A until she consulted Dr Lim. It is not clear on the evidence whether the practitioner's involvement in that capacity was formalised in the court order made on 19 December 2017; in any event, it is not in dispute that he was case managing Client A until she could see Dr Lim in late January 2018. 3. The text messages in evidence (ex A2, tab 3) for the period 9 December 2017 to 10 August 2018 include communication relevant to the preparation of the section 32 report and the outcome of that application on 19 December 2017. Before the court hearing Client A and the practitioner exchanged texts, including a message from Client A on 12 December 2017 saying "wanna party lol", to which he responded reminding her of the court hearing, and responding to her reply "…there always time for a party", with "Absolutely be good Oh well back to the reports". The messages continue after the court hearing with Client A passing on to the practitioner confirmation of the offer of a university place and a scholarship. Those messages are during the period in which the practitioner was case managing Client A before her first appointment with Dr Lim on 22 January 2018. 4. That there was contact after that date is apparent from messages from Client A on 23 January 2018 and 22 February 2018 explaining why she had not called the practitioner back. Messages on 8 May 2018 and 6 July 2018 suggest that Client A was trying to contact the practitioner, and that he was not responding; and on 10 August 2018 she messaged him to say "I hate u. You gave me shit advice and u don't give a fuck about me". The copy provided by the practitioner (ex A1, tab 33) includes those messages, and the further message of 27 September 2018. 5. The practitioner's notes for telephone conversations with Client A on 20 November 2017, 9 December 2017, 23 December 2017, 4 December 2018, 18 January 2018 and 24 January 2018 (ex A1, tab 29) also occur during the period when he was case managing Client A; those notes do not record any discussion other than what would be appropriate for that purpose. However, the dates of those notes are not consistent with the telephone records in evidence (ex A2, tab 6) which include for calls initiated by him, a 73 minute conversation on 9 January 2018; 5 minutes on 10 January 2018; 16 minutes on 16 January 2018; and 29 minutes on 23 January 2018. The practitioner accepted in oral evidence that the date on the notes may not reflect the actual date of a telephone conversation he may have had in his car. None of the notes reflect conversations of the length that might explain a 73 minute conversation on 9 January 2018, or a 29 minute conversation on 23 January 2018. 6. The absence of text messages from the practitioner to Client A after 19 December 2017, and the record of lengthy phone calls from his telephone number to her, supports Client A's evidence that the practitioner would not respond to her text messages by text and would call her instead. That is also consistent with the practitioner's evidence to the s 150 hearing on 24 April 2019 (ex A1, tab 5) and in his statement dated 1 December 2020 (ex A1, tab 38) that while managing Client A as requested by the court until she saw Dr Lim, he managed her by telephone calls. That the contact continued after Client A began seeing Dr Lim is evidenced by a text from Client A on 22 February 2018 explaining why she had not called the practitioner back (ex A2, tab 3). 7. The Tribunal accepts that telephone and text contact between the practitioner and Client A during the period he was case managing her was appropriate. He had, as included in his notes, encouraged her to ring him if she had problems; and the telephone records confirm that she did so on three occasions, and sent three text messages, before her first appointment with Dr Lim. Having regard to the length of some of the practitioner's calls to Client A and the brevity of the written notes, however, the Tribunal is not persuaded that all the telephone or text message contact between Client A and the practitioner was related solely to his case management of her. Client A attempted to contact the practitioner in May and July 2018, and he acknowledges that he responded to her request on 6 July 2018 that he phone her. 8. The Tribunal finds that the practitioner contacted Client A by telephone and text message beyond the period when such contact was appropriate, that is after the end of January 2018, until July 2018. Particular 1 is proven in part. Particular 2 1. Particular 2 also relates to the period 28 October 2017 to 27 September 2018, and alleges that the practitioner engaged in an inappropriate personal and sexual relationship with Client A. 2. The Tribunal has, as discussed above, accepted Client A's evidence that during the visits to her home on 28 October and 31 October 2017 the practitioner engaged in physical and sexual conduct with Client A, and that that conduct was not justified by any professional purpose related to his assessment for the section 32 application. The Tribunal accepts that after her initial reservations which prompted her to record part of the second visit, Client A regarded the relationship from that time as a personal, trusting relationship. The text messages in evidence confirm that the practitioner contacted Client A by telephone after his formal involvement in case managing Client A had ceased once she began seeing Dr Lim. The text messages also confirm that while Client A was contacting the practitioner to seek his help in May and July 2018, by August 2018 she no longer regarded him has someone who cared about her. That this was at a time when she had been having "meltdowns", but still managing her university studies, is consistent with Dr Lim's notes for June and September 2018. Those notes also record on 5 June 2018 that Client A "has stopped seeing psychologist". 3. The practitioner submits that Client A does not allege that anything that took place was other than consensual. Whether or not that is so, is not to the point. The practitioner was engaged to carry out an important task in providing an assessment to assist the court in determining whether the serious charges against Client A should be dismissed on the basis of her mental health. The article by Prof Alfred Allen on which the practitioner relied (Annexure G to his affidavit 21 October 2021), which refers to complaints lodged against psychologists providing expert evidence, also cautions that the only way that psychologists can minimise the risk of becoming respondents in disciplinary proceedings "is by practising in a legally and ethically appropriate manner at all times, and being extraordinarily vigilant when they do court related work"; and that to achieve that they should "be guided by the ethical principles". In that context, any physical or sexual contact with Client A was inappropriate. 4. The Tribunal concludes that the practitioner engaged in a personal relationship with Client A which, once his involvement in her case management ceased in late January 2018, was inappropriate, until August 2018. The Tribunal is satisfied that that relationship included sexual contact on the occasions of the practitioner's first and second visits to Client A's home. Whether or not on the second occasion or later the relationship extended to sexual intercourse, it involved sexual contact. Particular 2 is proven. Particular 3 1. Particular 3 alleges that during the consultation for assessment on 28 October 2017 the practitioner breached proper professional boundaries with Client A in five respects. 2. The Tribunal has, as discussed at [130] above, found that the practitioner was at Client A's home into the evening on that occasion, and does not accept his evidence that he left around 5.00pm and did not return later that day. The Tribunal is unable to make a positive finding that that visit extended to 3.00am as alleged in particular 3(a), but is satisfied that it was much later in the evening than the practitioner has admitted. 3. The practitioner stated in his affidavit (at [27]) that he "had no idea that Client A had a documented history of alcohol abuse" and that he was aware that she drank. However, his handwritten notes for that date (ex A2, tab 4) and his section 32 report (ex A1, tab 31) confirm that he was aware that Client A had been using alcohol to cope for some years; and the referral by her GP to Dr Lim, which was included in the material provided to the practitioner, noted alcohol abuse from the age of 13 (ex A1, tab 15A, p 31). The practitioner's oral evidence was evasive: initially responding to a question whether he was aware of Client A's alcohol problem by stating that she was not an alcoholic according to DSM or WHO criteria, and eventually accepting, taken to his notes, that by the end of the first interview he was aware she drank alcohol to cope; and by casting doubt on the Police Facts Sheet record that Client A had been intoxicated at the time of the offences in July 2017. The Tribunal accepts the evidence of Client A and finds that the practitioner encouraged her to drink alcohol, despite knowing of that history; that he went to the bottle shop to purchase alcohol; and that he consumed it with her. The conduct alleged in particular 3(b), (c) and (d) is proven. 4. As discussed above, the Tribunal prefers the evidence of Client A over that of the practitioner as to what occurred at the end of the first visit, and finds the conduct alleged in particular 3(e) proven. 5. The Tribunal regards that conduct as demonstrating a disregard for both his and Client A's safety, and a disregard for proper professional boundaries in the circumstances of the task on which the practitioner was engaged. Particular 3 is proven. Particular 4 1. Particular 4 alleges that during the first consultation for assessment on 28 October 2017, the practitioner engaged in inappropriate physical and sexualised contact with Client A. The Tribunal is satisfied that the recording made on the second occasion confirms that there was physical and sexualised contact on the first visit, including cuddles, nibbling on Client A's neck and kissing; and that that contact was not related to any proper professional purpose, and accordingly was inappropriate. Particular 4 is proven. Particular 5 1. Particular 5 relates to the second visit, which the Tribunal has, for the reasons above, found occurred on 31 October 2017. The Tribunal accepts the evidence of Client A that she accompanied the practitioner to the bottle shop on that occasion to purchase alcohol. The audio recording confirms that two cans were opened, and Client A asked if the practitioner was going to "Cheers" her. The Tribunal does not accept that the practitioner was drinking coffee, as he stated in his s 40 response of 1 December 2020, or that it was a soft drink as stated in oral evidence. The Tribunal finds it more likely than not that he was drinking one of the mixed drink cans that he had purchased at the bottle shop with Client A. Particular 5(a) and (b) is proven. 2. Particular 5(c) alleges that the practitioner made inappropriate comments to Client A, in saying words to the effect of the statements and questions recorded at (i)-(xvii). As noted above at [23], the recording and transcript confirm that those comments were made. All were personal comments, unrelated to the professional assessment being conducted, and all were inappropriate as alleged. Particular 5(c) is proven. Particular 6 1. Particular 6 alleges that on the occasion of the second visit to Client A's home on 31 October 2017, the practitioner engaged in inappropriate physical and sexual contact with Client A. 2. The transcript records the following exchange: Practitioner: You're a silencer. Client A: M'mm. Practitioner: Naughty. Client A: You're naughty. Practitioner: I'm naughty. Client A: You're (indistinct) you should know that (indistinct). Practitioner: Is that nice; can you feel that? Client A: I can't really feel it. I can feel it a little bit. Practitioner: Is that better? Client A: Yeah, but that's not (indistinct). Practitioner: Have you got a nice sexy (indistinct)? Client A: Not really, nothing too fancy. Practitioner: Have you got something that's sexy? Client A: I don't really know. What do you think? What are you suggesting? Practitioner: I want you to go and put on something sexy. Like (indistinct) we'll do some more work. 1. Towards the end of the recording, after Client A has referred to sitting "like this in my undies", and says that she needs to go to the bathroom, the practitioner says "Come back with no knickers on". 2. That there was physical contact on the occasion of the practitioner's second visit is established by the audio recording, including in the references to touching. That there was sexual contact is established by the audio recording, in Client A's response to touching in the passage at [79] above, and in his question, after acknowledging that he is "naughty", "Is that nice; can you feel that?" (at [166] above). The Tribunal has not accepted the practitioner's claim that he was incapable of sexual intercourse at the time of his visits to Client A's home. The Tribunal is satisfied that the exchange recorded by Client A supports her evidence that while it took the practitioner some time to get an erection, he could do so. The Tribunal finds that the allegation of sexual contact on the second visit is established. Particular 6 is proven. Particular 7 1. Particular 7 alleges that in March 2018 the practitioner visited Client A at her home and engaged in inappropriate physical and sexual contact with her. This allegation is based on that part of Client A's April 2019 notes that refers to the practitioner staying overnight, and them engaging in naked massages and foreplay, and sex; and the inclusion in her witness statement at [57] that they were catching up and talking about stuff and having drinks, and had foreplay and sex. Client A's oral evidence was that she and the practitioner had sex more than one time. As discussed above, the Tribunal does not accept the practitioner's evidence that he was incapable of sexual intercourse. 2. The Tribunal has difficulty in making a finding on this particular, which is expressed by reference to a date some months after the assessment visits. The telephone records in evidence do not include any records for March 2018 that might confirm contact by the practitioner at that time; and there are no text messages in evidence for March 2018. Client A was not questioned as to the alleged events in March 2018 in oral evidence. Given the acknowledged gaps in Client A's recall of dates and the absence of any independent evidence that might also support the alleged date, the Tribunal cannot be satisfied that this particular is proven to the requisite standard. That does not involve a finding that the practitioner is to be believed rather than Client A, rather that there is insufficient evidence to support a preference for one account over the other. Particular 7 is not established. Particular 8 1. The Tribunal is satisfied that the conduct in particulars 1, 2, 3, 4, 5 and 6 is proven. Particular 8 is that by that conduct, the practitioner breached the Australian Psychological Society Code of Ethics (September 2007, reprinted April 2018) (the APS Code of Ethics). 2. The APS Code of Ethics is expressed to apply to the conduct of psychologists in providing a psychological service, which is defined to mean any service provided by a psychologist to a client, including professional activities and professional practice. 3. The Code states that psychologists "recognise the importance of people's privacy and confidentiality, and physical and personal integrity, and recognise the power they hold over people when practising as psychologists". At A.2.1 the Code states that in the course of their conduct, psychologists "(b) do not behave in a manner that, having regard to the context, may reasonably be perceived as coercive or demeaning", and "(c) respect the legal rights and moral rights of others". Part C of the Code provides Ethical Standards, including at C.4 Non-exploitation. At C.4.1 the Code states that psychologists "do not exploit people with whom they have or have had a professional relationship". The term "professional relationship" is defined as the relationship between a psychologist and a client that involves the delivery of a psychological service, which would include the assessment undertaken by a psychologist in preparation of expert evidence. At C.4.3 the Code states that psychologists "(a) do not engage in sexual activity with a client or anybody who is closely related to one of their clients". The term "sexual activity" is not defined, and would include a range of sexual contact, including but not limited to, sexual intercourse. 4. The Tribunal concludes that the practitioner's conduct failed to recognise the power imbalance between client and psychologist in any professional engagement whether for therapeutic or assessment purposes. In encouraging a vulnerable client to consume alcohol, his conduct was demeaning, in breach of part A.2.1 of the Code. In engaging in physical and sexual contact his conduct was exploitative, in breach of part C.4.1 of the Code. And his conduct was in breach of the prohibition on sexual activity provided in C.4.3 of the Code. Particular 8 is proven. Whether the practitioner's conduct was unsatisfactory professional conduct 1. The Tribunal has found the conduct as alleged in particulars 1, 2, 3, 4, 5, 6 and 8 of Complaint One proven. The complaint alleges that that was unsatisfactory professional conduct, as defined in s 139B(1)(l) of the National Law: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. The terms "improper" and "unethical" are not defined in the National Law, and so their ordinary meaning applies. In Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 the Tribunal stated: 41. "Improper" and "unethical" are not defined in the National Law and should be given their ordinary meaning. The word "improper" means, relevantly, "not proper," and "not in accordance with propriety of behaviour, manners, etc.: improper conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]). "Unethical" means, relevantly, "contrary to moral precept; immoral" or "in contravention of some code of professional conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [52]). In this disciplinary context, impropriety may refer to a breach of the standards of conduct that would be expected of a person in the position of the respondent (see Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]). 1. The practitioner's conduct involved a fundamental breach of the trust inherent in the relationship between psychologist and client, and was in contravention of the code of professional conduct as stated in the APS Code of Ethics. That conduct was both improper and unethical, and was unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law. Whether the practitioner is guilty of professional misconduct 1. "Professional misconduct" is defined in s 139E of the National Law: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. The HCCC relies on Complaint One and the particulars of that complaint individually and cumulatively. 2. The term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [19], Basten JA. At [20] his Honour continued: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). 1. The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264. 2. The practitioner concedes that if he had sex with Client A, such conduct would be both improper or unethical conduct, and would amount to professional misconduct; and he denies that he ever had sex with Client A. 3. The Tribunal has found, for the reasons above, that in the course of his assessment visits to Client A for preparation of the section 32 application the practitioner engaged in inappropriate physical and sexual contact with Client A. The Tribunal has found that the practitioner breached proper professional boundaries in his conduct at the assessment visits on 28 and 31 October 2017, his conduct on those occasions involving inappropriate physical and sexual contact with Client A. 4. The Tribunal is of the view that the practitioner's conduct on 28 and 31 October 2017 was conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. His behaviour was an abuse of the trust and power imbalance inherent in the relationship between psychologist and client, and a breach of his professional obligations to Client A as reflected in the APS Code of Ethics. That conduct demonstrates a fundamental defect of character, in the terms expressed in Chen, and a comprehensive failure to maintain professional standards and obligations. The Tribunal finds that the practitioner is guilty of professional misconduct. Conclusion 1. The Tribunal finds that the practitioner is guilty of unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law, and guilty of professional misconduct as defined in s 139E of the National Law. 2. The matter is to be listed for hearing as to what, if any, protective orders should be made as a consequence of the Tribunal's findings, on a date to be fixed by the Registrar taking into account the availability of the parties and their representatives. 3. The following directions are made: 1. The parties are to advise the Tribunal by 21 March 2022 of their available dates in May and June 2022, including whether the matter will require more than one day; 2. The HCCC is to provide to the Tribunal and the respondent notice of any protective orders sought as a consequence of the Tribunal's findings, and any further evidence and submissions, on or before 4 April 2022; 3. The respondent is to provide to the Tribunal and the HCCC any further evidence and submissions in response, on or before 26 April 2022; 4. The HCCC is to provide to the Tribunal and the respondent any further material in reply, on or before 3 May 2022; 5. The proceeding will be listed for a stage 2 hearing on a date after 3 May 2022. ********** 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: 16 March 2022