Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Patrech v Psychology Board of Australia [2022] NSWCATOD 117 Hearing dates: 15, 16, 17 August 2022, 20 September 2022 (final submissions) Date of orders: 17 October 2022 Decision date: 17 October 2022 Jurisdiction: Occupational Division Before: A Britton, Deputy President J Berg, Senior Member T Hannan, Senior Member R Kusuma, General Member Decision: (1) The decision under appeal is confirmed. (2) Within 10 days of the date of this decision, Mr Patrech is to give to the Tribunal and the Board written submissions replying to the Board's application for costs. (3) Within 17 days of the date of this decision, the Board is to give to Mr Patrech and the Tribunal any submissions in reply. (4) Within 20 days of this decision, each party must notify the Tribunal and each other whether the issues to be determined in the Board's application for costs can adequately be determined without a hearing by considering the parties' written submissions. Catchwords: APPEALS — appeal from decision of Psychology Board of Australia under s 175(1)(a) of the Health Practitioner Regulation National Law (NSW) — nature of appeal de novo HEALTH — whether appellant met a requirement for registration stated in an approved registration standard for the profession HEALTH — meaning of "impairment" in s 5 of the Health Practitioner Regulation National Law (NSW) – whether appellant has an impairment HEALTH — whether appellant is not a fit or proper person to hold registration: National Law, s 55(1)(h)(i) CRIME — whether orders made under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) constitute a finding of guilt HEALTH — having regard to appellant's criminal history whether it is not in the public interest for him to practise the profession of psychology: National Law, s 55(1)(b) PROFESSIONS AND TRADES — whether eligibility for registration can be achieved by the imposition of conditions under s 52(2) of the Health Practitioner Regulation National Law (NSW) PRACTICE AND PROCEDURE – material filed without leave Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1990 (NSW) Costs in Criminal Cases Act 1967 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Cases Cited: McMahon v The Nursing and Midwifery Board of Australia [2013] NSWNMT 4 Allesch v Munch [2000] HCA 40; 203 CLR 172 Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD 116 Caladine v Health Care Complaints Commission [2007] NSWCA Jung v R [2017] NSWCCA 24 Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Grant v Health Care Complaints Commission [2003] NSWCA 73 Ghosh v Medical Council of New South Wales [2020] NSWCA 122 Chinese Medicine Board of Australia v Lee [2014] QCA 149 NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 [2004] HCA 48 Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 R v Adam Scott Patrech (District Court (NSW), 9 February 2022, unrep Texts Cited: Psychology Board of Australia, "Registration standard: recency of practice", 1 June 2016 Australian Health Practitioner Regulation Authority, Registration Standard: Criminal History", 1 July 2015 Australian Psychological Society, Code of Ethics, 2003 Category: Principal judgment Parties: Adam Patrech (Appelant) Psychology Board of Australia (Respondent) Representation: Appellant (self-represented) Counsel: M Minucci (Respondent) Solicitors: MinterEllison (Respondent) File Number(s): 2022/00020563 Publication restriction: Nil REASONS FOR DECISION 1. Mr Adam Patrech appeals against a decision made by the Psychology Board of Australia (the Board) to refuse his application for general registration as a psychologist (the decision under appeal). The Board found that Mr Patrech was not a suitable person to hold registration as a psychologist. 2. Mr Patrech was admitted to practise as a psychologist in 1999 and practised until 15 December 2015 when he voluntarily surrendered his registration following complaints made about him to the Psychology Council of NSW. 3. Mr Patrech holds a master's degree in psychology. Between 2015 and 2020 he studied towards, but did not complete, a Doctor of Philosophy in psychology. 4. For the reasons that follow, we have decided to confirm the decision under appeal. Psychology Council of NSW considers complaint about Mr Patrech 1. In 2015, a former employee of Mr Patrech made a complaint to the Psychology Council of NSW (the Council), alleging that Mr Patrech had engaged in "significant boundary violations" with clients. 2. On 3 July 2015, the Council held proceedings under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law) to consider that complaint. Section 150 provides that if satisfied that "it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest", the Council must suspend, or impose conditions on the health practitioner's registration. 3. The Council decided to impose several conditions on Mr Patrech's registration. The following summary of the conduct the subject of the complaint, is taken from the Council's reasons for decision. In 2014, on two occasions Mr Patrech treated the mother of a 14-year-old boy who had been in his care since 2013. In addition, Mr Patrech befriended the mother and offered to provide her with tuition to assist in her studies. Mr Patrech communicated with the mother via Facebook, SMS and telephone to discuss her son's progress. 4. In the section 150 proceedings, in which Mr Patrech was legally represented, Mr Patrech acknowledged, and the Council found that his conduct amounted to a "boundary violation". In addition, the Council found that the conduct placed the health and safety of the public (presumably the boy and the mother) at "significant risk". 5. Mr Patrech admitted that after the complaint was lodged, he communicated with people involved in the complaint by Facebook, and that was "inappropriate and intimidatory". The Council found that conduct constituted "a serious breach of professional standards" and had caused the mother distress and placed her health and safety at "significant risk". 6. The Council imposed the following conditions on Mr Patrech's registration: Information to be recorded on the Public National Register: 1. That the practitioner removes from social media any contact with or links to current or past clients. 2. That the practitioner direct all contact regarding appointments or other non-clinical matters through the practice manager. 3. That the practitioner not use email for therapeutic interventions unless responding to an indication of immediate risk to the client. 4. That the practitioner ceases all contact with the complainant and any other persons associated with the complaint. Information to be recorded on the AHPRA Pivotal system (not publicly available): 5. To attend for assessment by the Council Appointed Practitioner as directed by the Council, at the Council 's expense. 1. The Council was of the opinion that Mr Patrech may suffer from an "impairment" and referred the complaint to an impaired registrant's panel under s 150F of the National Law. Mr Patrech is assessed by psychiatrist Dr Samuels 1. At the request of the Council, consultant psychiatrist, Dr Anthony Samuels, assessed Mr Patrech. In a report prepared on the day of that assessment, 30 July 2015, Dr Samuels: 1. Noted that since May 2014 Mr Patrech had consulted psychiatrist, Dr Doug Andrews, on a regular basis. 2. Noted that Dr Andrews had made a diagnosis of ADHD and in May 2015 commenced Mr Patrech on Methylphenidate. 3. Noted that Mr Patrech "absolutely refutes" the complaints considered by the Council and believes that those complaints were "vexatious and malicious". 4. Stated that in his opinion, Mr Patrech has a recurrent mood disorder which "seems to be reasonably well-controlled on his current Pristiq [an antidepressant] dose". 5. Noted that Mr Patrech had described "some early developmental traumas" but found no evidence of post-traumatic stress disorder. Dr Samuels considered that that trauma might have "some impact on his personality development" but found "no clear evidence". 6. Concluded that Mr Patrech suffers from an "impairment" within the meaning of the National Law, namely "a fluctuating mood Disorder, attentional problems and possible alcohol use disorder". 7. Expressed the opinion that Mr Patrech may also have "some underlying personality vulnerability as evidenced by some problems with setting boundaries and previous complaints that he has been 'insensitive' in his interactions with patient". 8. Expressed the opinion that if Mr Patrech became depressed or was having significant concentration problems and drinking at higher levels than he is currently recording, this could have significant impacts upon his capacity to practise psychology. 1. Dr Samuels recommended that Mr Patrech be subject to a period of monitoring and overview by the Council's impairment panel. In addition, Dr Samuels recommended that Mr Patrech continues to see his psychiatrist and his general practitioner on a regular basis; have psychological counselling to address "some of the traumatic events in his early life which may be impacting upon his ability to set boundaries and limitations with patients and, at times, impact upon his interaction with patients"; have regular clinical supervision; and, in six to 12 months, be reviewed by a Council-appointed psychiatrist. 2. Mr Patrech surrendered his registration on 15 December 2015. Decision under appeal 1. On 9 January 2020, Mr Patrech applied to the Australian Health Practitioner Regulation Authority (AHPRA) for "non-practicing registration" as a psychologist. [1] 2. In support of his application for registration, Mr Patrech provided the Board with numerous documents. [2] In addition, at the direction of the Board, Mr Patrech attended an assessment conducted by psychiatrist, Dr Michael Evenhuis. Mr Patrech made verbal submissions to the Board on 1 June 2021, 2 November 2021, and 7 December 2021. 3. On 21 December 2021, the Board decided to refuse Mr Patrech's application for registration as a psychologist. In its reasons for that decision the Board stated that Mr Patrech was ineligible for registration because he is not a suitable person to hold registration on account of: 1. the nature and recency of his professional practice 2. his health impairment 3. his criminal history (including his failure to satisfy the suitability criteria set out in the criminal history registration standard), and 4. his fitness and propriety. Statutory framework 1. The National Law governs the regulation of individuals who practise one or more of the 14 health professions listed in s 5 of that Act. Those professions include psychology. 2. The Psychology Board of Australia is one of 14 National Health Practitioners Boards (the National Boards) established by the National Law. The functions of these Boards include registering suitably qualified and competent persons in the health profession and, if necessary, imposing conditions on the registration of persons in the profession: National Law, s 35(1)(a). 3. Contained in Div 1 (General Registration) of Pt 7 (Registration of Health Practitioners), s 52 of the National Law states: 52 Eligibility for general registration (1) An individual is eligible for general registration in a health profession if— (a) the individual is qualified for general registration in the health profession; and (b) the individual has successfully completed-- (i) any period of supervised practice in the health profession required by an approved registration standard for the health profession; or (ii) any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the profession; and (c) the individual is a suitable person to hold general registration in the health profession; and (d) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and (e) the individual meets any other requirements for registration stated in an approved registration standard for the health profession. (2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83. 1. A National Board may decide an individual "is not a suitable person to hold general registration" if they fail to meet any of the criteria listed in s 55(1) of the National Law: 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if-- (a) in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or … (f) the nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession; or (g) the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession; or (h) in the Board's opinion, the individual is for any other reason-- (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely. 1. Where, as here, an individual has made an application for registration under s 77 of the National Law, the National Board must: grant the type of registration for which the applicant has applied; or, if not eligible for that type of registration, a type of registration for which the applicant is eligible; or refuse to grant the applicant registration in the health profession if the applicant is ineligible for registration: National Law, s 82. 2. The Board must refuse to grant registration if the applicant is ineligible for registration because they do not satisfy the five criteria listed in s 82(1)(c)(i) of the National Law. Section 82(1) of the National Law provides: 82 Decision about application (1) After considering an application for registration and any submissions made in accordance with a notice under section 81, a National Board established for a health profession must-- … (c) decide to refuse to grant the applicant registration in the health profession if-- (i) the applicant is ineligible for registration in the profession under a relevant section because the applicant-- (A) is not qualified for registration; or (B) has not completed a period of supervised practice in the health profession, or an examination or assessment required by the Board to assess the individual's ability to practise the profession; or (C) is not a suitable person to hold registration; or (D) is disqualified under this Law from applying for registration, or being registered, in the health profession; or (E) does not meet a requirement for registration stated in an approved registration standard for the profession; or … 1. While expressed in the negative, the five criteria listed in s 82(1)(c)(i) correspond to the eligibility requirements for registration listed in s 52(1) of the National Law. Right of appeal 1. Section 175(1)(a) of the National Law states that a person who is the subject of a decision by a National Board "to refuse to register the person" may appeal that decision to the "appropriate responsible tribunal". Where, as here, the applicant lives in NSW, the NSW Civil and Administrative Tribunal (NCAT) is the appropriate responsible tribunal: National Law, s 175(2)(c)(i). 2. After hearing the appeal, the Tribunal may confirm, amend or substitute another decision for the appealable decision: National Law, s 175C. If the Tribunal decides to substitute another decision for the decision under appeal, the Tribunal can exercise the same powers as the National Board: National Law, s 175C(2). 3. An appeal brought against a decision by a National Board to refuse to register a person is an "external appeal": s 175 of the National Law and s 31(4) of the Civil and Administrative Tribunal Act 2013 (NSW). Such appeal is in the nature of an appeal de novo: McMahon v The Nursing and Midwifery Board of Australia [2013] NSWNMT 4 at [68]. In Allesch v Munch [2000] HCA 40; 203 CLR 172 the High Court explained at [23], the difference between an appeal by way of rehearing and a hearing de novo: "In [an appeal by way of rehearing], the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error." Key issues in the appeal 1. Our task in determining this appeal is to consider afresh Mr Patrech's application for registration. 2. In deciding whether to confirm, amend or substitute another decision for the decision under appeal, we will consider the following questions: 1. Whether Mr Patrech meets the Board's Recency of Practice Registration standard 2. Whether Mr Patrech meets the Board's Criminal History Registration Standard 3. Whether Mr Patrech is a fit and proper person for registration in the profession of psychology 4. Whether Mr Patrech has a "mental impairment, disability, condition or disorder … that detrimentally affects or is likely to detrimentally affect [his] capacity to practise the profession [of psychology]". Does Mr Patrech meet the Recency of Practice Registration Standard? 1. A National Board must decide to refuse to grant an applicant registration in the health profession applied for if the applicant "does not meet a requirement for registration stated in an approved registration standard for the profession": National Law, s 82(1)(c)(i)(E). 2. Issued by the Board on 1 June 2016, the "Registration standard: recency of practice" (the RP Standard) is an "approved registration standard" for the purposes of the National Law. [3] 3. The RP Standard sets out requirements for recency of practice. That Standard states that an applicant will fulfil those requirements if they can demonstrate at the time that they apply for registration they have one of the following: a) completed a minimum of 250 hours of practice as a registered psychologist or provisional psychologist (or equivalent for overseas practice) within the previous five years, or b) successfully completed a Board-approved program of study within the past five years, or c) successfully completed a Board-approved internship or other period of Board-approved supervised practice within the past five years. 1. The RP Standard goes on to state: "Meeting the Board's minimum requirements for recency of practice does not automatically satisfy your professional and ethical responsibilities to ensure that you recognise and work within the limits of your competence, and maintain adequate knowledge and skills to provide safe and effective care." The decision under appeal 1. In its reasons for refusing to grant Mr Patrech registration, the Board noted that when Mr Patrech applied for registration in January 2020, he met the "minimum requirements" of the RP Standard. However, the Board was not satisfied that Mr Patrech would meet his "professional and ethical responsibility to ensure that he work[s] within the limits of his competence and maintains adequate knowledge and skills to provide safe and effective care" given the time that had elapsed since Mr Patrech last practised, together with the fact that he was then subject to conditions. Consideration 1. The parties agree that in the five years before he applied for registration (9 January 2015 to 9 January 2020), Mr Patrech practised as a psychologist for at least 250 hours. 2. Whether, as found by the Board, Mr Patrech would not meet his "professional and ethical responsibility to ensure that he works within the limits of his competence, and maintains adequate knowledge and skills to provide safe and effective care", is a separate and distinct question to whether Mr Patrech fulfils a requirement stipulated by the RP Standard. We respectfully disagree with the conclusion reached by the Board that Mr Patrech does not meet the requirements of that Standard. 3. Mr Patrech meets the requirements for recency of practice stipulated by the RP Standard. Does Mr Patrech meet the Criminal History Registration Standard registration standard? 1. On 1 July 2015, AHPRA issued "Registration Standard: Criminal History" (the CH Standard). That Standard applies to all health professions regulated by the National Law. Like the RP Standard, the standard is an approved registration standard. 2. The Board found that Mr Patrech failed to "satisfy the suitability criteria set out in the [CH Standard]". 3. In our view, it is a misnomer to speak of an applicant meeting or not meeting a "requirement for registration" stated in the CH Standard, because that Standard does not contain any "requirement for registration". Rather, the CH Standard sets out factors the Board will consider in deciding whether "a health practitioner's criminal history is relevant to the practice of their profession". While not expressly stated, it is apparent that the purpose of the CH Standard is to assist a National Board when considering whether an applicant is not a suitable person to hold registration "having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession…": National Law, s 55(1)(b). 4. The question of whether Mr Patrech fails to meet a requirement stated in the CH Standard, does not arise. Is Mr Patrech "not a suitable person to hold registration" 1. The Board found that Mr Patrech was not a suitable person to hold registration because: 1. he has an impairment: National Law, s 55(1)(a) 2. having regard to his criminal history, he is not an appropriate person to practise the profession or it is not in the public interest for him to practise the profession: National Law, s 55(1)(b) 3. he is not a fit or proper person to hold registration: National Law, s 55(1)(h)(i) 4. he is unable to practise the profession of psychology competently and safely: National Law, s 55(1)(h)(ii). 1. There is considerable overlap between these grounds. Is Mr Patrech not an appropriate person to practise the profession having regard to his criminal history? Accuracy of the records of Mr Patrech's criminal history 1. An issue raised by Mr Patrech in this appeal is the accuracy of the records setting out his criminal history, which were tendered in these proceedings. Mr Patrech repeated the submission he made to the Board that many of his convictions were quashed on appeal and those records which suggested otherwise were inaccurate. In addition, he repeated the submission that the offences for which he was convicted were based on "manufactured and corrupted evidence". Further, he claimed that he had been "set up" by his former wife, her solicitor, officers of the NSW Police, including an "infamous child-abuser", and others. 2. The Board tendered in this appeal: 1. A report of Mr Patrech's criminal history issued on 4 March 2020, by the Australian Criminal Intelligence Commission (ACIC). 2. An updated report issued by ACIC on 31 July 2020. AHPRA requested ACIC to provide an updated report in response to Mr Patrech's claim that the original ACIC report was inaccurate. 3. A "Criminal History - Bail Report" produced to the Tribunal by NSW Police in answer to a summons issued by the Board (Exhibit 4) (the Bail report). 1. The first ACIC report records that on 7 June 2019, Mr Patrech was convicted for breaching an Apprehended Violence Order (AVO) and stalking. The second ACIC reports records that on 26 June 2020, the NSW District Court quashed Mr Patrech's conviction for breaching an AVO but affirmed Mr Patrech's conviction for stalking. Self-evidently, the first ACIC report did not record the District Court's decision to quash Mr Patrech's conviction for breaching an AVO because that decision was made after the first report was issued. 2. The parties agree that these is no material difference between the second ACIC report and the Bail report. It is unclear to us the basis for Mr Patrech's submission that those reports are inaccurate. NSW District Court costs decision 1. In the appeal, Mr Patrech submitted that the costs decision made by the NSW District Court in early 2022 (the costs decision), supported his claim that he had been "set up", and many of his convictions were quashed on appeal. 2. Before the hearing of the appeal Mr Patrech failed to file a copy of the costs decision and claimed that he had been unable to obtain a copy. On the final day of the hearing of the appeal, Mr Patrech said that he understood that a copy of the costs decision was contained in the material produced to the Tribunal under summons. Mr Patrech said he had been unable to access those documents. At Mr Patrech's request, we gave him leave to file and serve a copy of the costs decision within seven days of the hearing (the Summons order). 3. Four weeks after the hearing and while the decision was reserved, Mr Patrech sought, among other things, further time to file the costs decision. We granted that request and extended the time for Mr Patrech to comply with the Summons order to 26 September 2022. 4. On 26 September 2022 Mr Partrech filed a copy of the costs decision: R v Adam Scott Patrech (District Court (NSW), 9 February 2022, unrep). The copy of that decision filed by Mr Patrech contained handwritten comments apparently made by Mr Partrech which were largely incomprehensible and of no apparent relevance. We did not have regard to those comments. 5. In the costs decision, Judge Jeffreys considered Mr Patrech's application for costs under the Costs in Criminal Cases Act 1967 (NSW) and the Crimes (Appeal and Review) Act 2001 (NSW). Judge Jeffreys refused each application. 6. The Costs in Criminal Cases Act permits a judge to issue a certificate to the defendant where, on appeal, the conviction of the defendant is quashed. If granted a certificate, the defendant may apply to the Director-General of the Attorney General's Department for payment of costs incurred in the proceedings to which the certificate relates. To issue a certificate under the Costs in Criminal Cases Act, the judge must be satisfied that, it would not have been reasonable for the prosecution to institute the proceedings if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts: s 3(1)(a). Judge Jeffreys was not so satisfied and refused to issue a certificate to Mr Patrech under the Costs in Criminal Cases Act. 7. Section 70(1) of the Crimes (Appeal and Review) Act permits the appeal court to award costs in favour of an appellant whose conviction is set aside, if the appeal court is satisfied of one of the following matters: 70 Limit on costs awarded against public prosecutor … (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or (b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter-- (i) that the prosecutor was or ought reasonably to have been aware of, and (ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant. 1. Judge Jeffreys was not satisfied of any of the above matters and refused Mr Patrech's application for costs under the Crimes (Appeal and Review) Act. Consideration: costs decision 1. The costs decision does not as Mr Patrech contends establish that he had been "set up" by the Police, the prosecution, his former wife or her solicitor in relation to the original offence for which he was ultimately acquitted. 2. The costs decision merely confirms as recorded in Mr Patrech's criminal history (see below) that on 12 December 2017, Judge Jeffreys acquitted Mr Patrech of the offence on "contravene AVO". Mr Patrech's criminal history 1. The Bail report reveals that between 1992 and 2019, Mr Patrech was charged with multiple offences, largely assault and breach of Apprehended Violence Orders. Many of these charges were either withdrawn by the Police or dismissed by the NSW Local Court. The following is a summary of Mr Patrech's criminal history, including where the matter was dealt with by way of orders made under the Mental Health (Forensic Provisions) Act 1990 (NSW), where the conviction was set aside, or where the sentence was varied on appeal. The summary does not include the numerous references in the Bail report to the offence of "breach bail". February 1997 offences 1. In 1997, the NSW Local Court convicted Mr Patrech of three counts of assault, one of malicious damage and one of unlawful entry. He was fined $100 on each of the assault matters. In respect of the malicious damage charge, Mr Patrech was fined $300 and in respect of the unlawful entry charge, a fine of $150 was imposed. On appeal, the District Court found each of the assault offences proven and dismissed them without convictions pursuant to s 556A of the Crimes Act 1990 (NSW). Mr Patrech did not appeal the offences of malicious damage and unlawful entry. From the small fines imposed by the Local Court and the dismissal without conviction of all three matters, we infer that the assaults were only of a minor character. 9 December 2015 offences 1. In 2016, the Local Court convicted Mr Patrech of the following offences committed on 9 December 2015: 1. use intimidation/violence to unlawfully influence person (Offence 1) 2. common assault (DV) – T2 (Offence 2) 3. contravene prohibition/restriction in AVO (domestic) (Offence 3) 4. steal from person (Offence 4) 5. resist officer in execution of duty (DV) (Offence 5). 1. With respect to Offences 1, 3 and 5, under the now repealed s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Local Court imposed suspended sentences of imprisonment for 12 months. These sentences resulted in Mr Patrech being placed on bonds subject to conditions, including that he submit to the supervision of Dr Andrews, apparently Mr Patrech's then treating psychiatrist. 2. With respect to Offences 2 and 4, the Local Court convicted Mr Patrech without imposing a penalty. 3. Mr Patrech appealed to the District Court against each sentence on grounds of severity. The District Court upheld all the appeals. 1. in relation to Offence 1 (intimidation), it upheld the conviction but imposed no penalty 2. in relation to Offence 2 (common assault), the District Court substituted a fine of $1000 for the suspended sentence imposed by the Local Court 3. in relation to Offence 3 (contravene AVO), the District Court upheld the conviction but quashed the suspended sentence of imprisonment and substituted for it a conditional s 9 bond to be of good behaviour for a period of 2 years. The conditions imposed included requirements that Mr Patrech continue treatment with his treating psychiatrists, follow a mental health plan, and complete a domestic violence or related treatment program within 12 months of being resentenced 4. in relation to Offence 4 (steal from person) and Offence 5 (resist arrest), Mr Patrech was convicted but no penalty was imposed. 12 December 2015 offences 1. Mr Patrech was also charged with two counts of 'Contravene AVO', those offences alleged to have occurred on 12 December 2015. They were dealt with in the Grafton Local Court on 20 December 2016. One charge was withdrawn. On the other, Mr Patrech was convicted and placed on a bond to be of good behaviour for three years with conditions that he "obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation". 2. On that charge, Mr Patrech appealed on all grounds to the District Court. His appeal was heard on 12 December 2017 at the Downing Centre by Judge Jeffreys. He was acquitted. This is the decision to which the costs application relates. October 2016 offences 1. In December 2016, Mr Patrech was convicted in the Local Court of the offence of "contravene prohibition/restriction in AVO (Domestic)", which was committed on 10 October 2016. The Court imposed a bond under s 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for three years and the further condition that he undertake drug and alcohol rehabilitation and be considered by the Probation Service for a domestic violence program. 2. Following an appeal to the District Court, the sentence was reduced to a fine of $500. As the offence took place while Mr Patrech was already on a bond, he could have been called up and resentenced in respect of the Offence 3 of the December 2015 matters. It appears that no action was taken on that breach of bond. April-May 2017 offences 1. Between 10 April and 1 May 2017, Mr Patrech was charged with four offences: common assault (DV) - T2 (Offence 1), Assault occasioning actual bodily harm (DV) (Offence 2), stalk/intimidate fear physical etc harm (Domestic) – T2) (Offence 3), and resist officer in execution of duty – T2 (Offence 4). 2. In May 2017, the Local Court ordered Mr Patrech to undergo a mental health assessment under the now repealed s 35(2)(a) of the Mental Health (Forensic Provisions) Act. In July 2017, the matters returned to the Local Court, and the Court made orders under s 32(3)(a) of the Mental Health (Forensic Provisions) Act, dismissing the charges and discharging Mr Patrech into the care of a "responsible person". 3. Where the presiding magistrate exercises the discretion to make orders under s 32 of Mental Health (Forensic Provisions) Act, a summary trial is not conducted. The presiding magistrate takes account of the evidence alleged by the prosecution against the accused person, usually in a statement of alleged facts which is tendered to the court. Other evidence may be given orally or in documentary form. A decision to discharge the person under these provisions of the Mental Health (Forensic Provisions) Act does not constitute a finding that the relevant charges are proven: s 32(4). (See, Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360 at [48].) This is because no trial has taken place and no plea of guilty has been entered. 4. It means that the magistrate is satisfied that the accused person, either at the time of the alleged offence or at the time of the hearing before the magistrate, was cognitively impaired, suffering from a mental illness or suffering from a mental condition and that, if the alleged facts were hypothetically to be proven it would be more appropriate to deal with the accused and their conduct in the mental health system than the criminal justice system. 5. Orders under s 32 of the Mental Health (Forensic Provisions) Act are not sentences. Despite this, Mr Patrech appealed on grounds of severity to the District Court. The District Court found it had no jurisdiction and dismissed the appeal. January 2019 offences 1. In January 2019, Mr Patrech was charged with the offences of "stalk/intimidate intend fear physical harm etc (Domestic) – T2" and "contravene prohibition/restriction in AVO (domestic)". 2. On 28 February 2019, under s 33(1A) of the Mental Health (Forensic Provisions) Act [4] , the Local Court made a community treatment order. The Bail report records Mr Patrech was "taken to hospital". 3. In June 2019, those charges were relisted before the Local Court. In relation to the offence of "stalk/intimidate intend fear physical harm etc (Domestic) – T2" the Court sentenced Mr Patrech to 12 months imprisonment (commencing 15 January 2019), with a seven-month non-parole period. In relation to the offence of "contravene prohibition/restriction in AVO (domestic)", the Court sentenced Mr Patrech to six months imprisonment, to be served concurrently. 4. On appeal the District Court: 1. in relation to the offence of "stalk/intimidate intend fear physical harm etc (Domestic) – T2", varied the orders made by the Local Court and made orders under s 10A of the Crimes (Sentencing Procedure) Act, convicting Mr Patrech without imposing a penalty 2. in relation to the offence of "contravene prohibition/restriction in AVO (domestic)", the Court quashed the conviction. 1. We understand Mr Patrech to claim that the costs decision related to the proceedings relating to January 2019 offences. Consideration 1. Section 55(1)(b) of the National Law states a National Board may decide an individual is not a suitable person to hold general registration in a health profession if " having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession". 2. At [16] of its reasons for the decision under appeal, the Board stated that it was of the opinion that Mr Patrech "is not an appropriate person to practice the profession and it is not in the public interest for the applicant to practice the profession, pursuant to s.55(1)(b)". 3. Mr Patrech is correct in asserting that many of the charges laid against him were withdrawn. In addition, he is correct in asserting that the District Court quashed the conviction for one of the January 2019 offences, "contravene prohibition/restriction in AVO (domestic)" and the conviction for the offence of "contravene AVO" alleged to have been committed on 12 December 2015. While not put in these terms, he is also correct in asserting that those offences dealt with by way of orders under the Mental Health (Forensic Provisions) Act, did not result in convictions. Nonetheless, as the summary set out above reveals, he was convicted of multiple offences, namely the February 1997, December 2015 and October 2016 offences and the January 2019 offence of stalk/intimidate intend fear physical harm. 4. None of the offences with which Mr Patrech was convicted related to Mr Patrech's practice as a psychologist. To the extent it can be gleaned from the limited available material, most of the offences appear to relate to the family law proceedings involving Mr Patrech and his former wife. While not offences of the most serious nature, domestic violence offences, especially where there is a repeated pattern, are nonetheless serious. 5. In Mr Patrech's case, his conduct did not consist of catastrophic physical violence towards the victim. It was, however, a pattern of threatening conduct. It is well-known that the threat of violence can be highly distressing and traumatising for victims, especially when it forms a pattern of behaviour over a lengthy period as was case here. 6. Mr Patrech has claimed that most of the charges were withdrawn or that, on appeal, they were regarded as relatively minor offences. He refused to accept the inherent seriousness of the conduct found proven against him. He diminished his responsibility for his repeated misconduct and his obvious lack of emotional regulation in relation to the victim(s). He did not acknowledge that he had demonstrated repeated disregard for laws intended to protect the vulnerable from violence and intimidation. 7. It is clear that Mr Patrech was able, on several occasions, to attract sympathetic treatment from the courts, notwithstanding his pattern of breaches of conditions of his bonds and threatening behaviour towards his victim(s). That sympathetic treatment, we infer, arose from a perception that he is a person with significant psychological or mental health issues that require treatment and that his capacity to control his emotions was diminished. Among the purposes of sentencing are both personal deterrence and rehabilitation. In Mr Patrech's case, it appears that much emphasis was placed by the courts on the rehabilitation and less on deterrence or incapacitation. 8. That Mr Patrech was treated with considerable leniency by the criminal courts implies that his need for supervision and treatment was great. And so it was because, despite the chances he was given, his misconduct continued, on and off, over a lengthy period. This volatility speaks volumes about his demonstrable incapacity to regulate his emotions and exercise sufficient self-discipline to retain himself within socially and legally acceptable bounds. 9. If his offence(s) had been confined to a single instance of undisciplined behaviour, and he had demonstrated that he had learned from that experience and shown genuine remorse for his misconduct, that would be a very different case from the one before us. But Mr Patrech has shown no remorse for his offences. He has revealed no real insight into his conduct and the reasons for it. He has presented us, in fact, with no convincing evidence that his conduct in the period 2015-2019 was an aberration. His frequent court appearances and multitude of convictions, as well as several breaches of bail, suggest an ingrained incapacity or refusal to accept the limitations that legal rules and norms impose on citizens in society where they conflict with his fixed ideas or feelings. He has been given several opportunities to undergo treatment directed towards tempering this tendency but with only limited success. 10. It is important that members of the public be able to approach and work with registered health practitioners confident that those practitioners are people who are not only skillful, knowledgeable and competent in practising their professions but whose standards of personal behaviour and professionalism are universally high. Public confidence in the health professions can only be maintained by an insistence by the professions themselves on their members upholding their standards of professionalism. 11. Where a person, such as Mr Patrech, has disregarded important community norms and committed criminal offences over an extended period, his commitment to upholding professional standards must be questioned. So must his capacity to. Although Mr Patrech's misconduct was apparently focused on his personal relationships, so egregious was that conduct that it cannot be quarantined from, and must necessarily adversely affect, consideration of his professional qualifications and capacity to practice his profession. But the public interest is the more significant issue. 12. While there may be no bright line dividing the personal from the professional in such cases, and there is room for argument about the extent to which convictions for criminal offences affect the assessment of a person's professionalism, our view, taking all the evidence before us into account, is that public confidence in the profession would be undermined were a person with Mr Patrech's criminal history be permitted to practise. That is not in the public interest. 13. We find that Mr Patrech is not a suitable person to hold general registration in the profession of psychology, because having regard to his criminal history it is not in the public interest for him to practise the profession. Is Mr Patrech a fit and proper person to hold registration? 1. The meaning of the expression "not a suitable person to hold registration" in s 144(e) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [72]-[73]: "[I]n considering whether [the practitioner] 'is a suitable person to hold registration', it is useful to have regard to the expression 'fit and proper person'. The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3(1) and 3(2)(a) of the National Law). While some overlap between the concepts of 'good character' and 'being a suitable person to hold registration' / 'fit and proper person' they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills." 1. That interpretation was cited with approval by the Tribunal (Boland ADCJ presiding) in Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD 116 at [116]-[118] and by the Court of Criminal Appeal (Hoeben CJ, Johnson J and Latham J) in Jung v R [2017] NSWCCA 24 at [56]. Mr Patrech's dealings with AHPRA and others 1. The Board contends that since making his application for registration, Mr Patrech has repeatedly been aggressive, abusive and threatening in his dealings with AHPRA's staff and its legal representatives. In addition, the Board points to correspondence of a similar nature sent to the former husband of a former patient and later partner of Mr Patrech (the former husband). The Board contends that this conduct demonstrates that Mr Patrech is not a fit and proper person to hold registration. 2. In addition, the Board contends that the Tribunal could not be satisfied that Mr Patrech would comply with the Australian Psychological Society's Code of Ethics, which has been adopted by the Board. That Code relevantly states: "A.2.1 In the course of their conduct, psychologists: (a) communicate respect for other people through their actions and language; (b) do not behave in a manner that, having regard to the context, may reasonably be perceived as coercive or demeaning; … (d) do not denigrate the character of people by engaging in conduct that demeans them as persons, or defames, or harasses them. A.2.3 When psychologists have cause to disagree with a colleague in psychology or another profession on professional issues they refrain from making intemperate criticism. … C.1.1 Psychologists avoid engaging in disreputable conduct that reflects on their ability to practise as a psychologist. C.1.2 Psychologists avoid engaging in disreputable conduct that reflects negatively on the profession or discipline of psychology." Mr Patrech's dealings with AHPRA 1. In support of the contention that Mr Patrech's dealings with AHPRA demonstrate that he is not a fit and proper person to hold registration, the Board points to: 1. An email sent by Mr Patrech on 23 September 2020 copied to AHPRA staff, calling a NSW Police officer a "gutless lying copper cunt". 2. A voice message left by Mr Patrech on 23 September 2020 for Mr Danielle Hillary, a senior AHPRA manager: "…I just wanna (sic) let you know you're a fucking piece of shit, cunt. You're a piece of shit, cunt. Fuck you, fuck Ahpra, fuck you all you cunts, right?" 1. An email sent by Mr Patrech on 1 October 2020 to NSW Police and copied to Legal Aid and AHPRA about a female Police Officer which contained the following "poem": "Hey bitchtits … I know who you are and I know how you lie. You do your detectin', and I just ask, 'Why?' It's bigger than you, it's bigger than me … Let's go to Ahpra and LECC! Better now, like an earthquake what shook, Let's publish this shit onto The Facebook! And if I've done wrong, as you cops always say, Then I guess I have made your Big D Big Day. But remember and heed this honest warning, When you read this trite poem tomorrow morning, I'll call you Wall, and you call me Jamie, But when you're destroyed, please do not blame me. If there's one thing I hate even more than a paedo, And a breed that I'd like to leave out in the meadow, At the wrong end of a one-way tightenin' top-pulley, It's a lying Police Officer who's a frightening cop bully. So please take me on, as you threatened with Court. But just understand how battles are fought. While corruptors like you threaten the weak, Warriors like me are not who you seek. We'll accept your challenge and the offer you dangle, But we also can see what you think is your angle. You hide behind blue, the gun and a badge … You're ultimate construct - both Dick and a vag! Regardless of gender, or all of those labels, I'm a one who knocks on all of your tables. I welcome this war, I relish this hunt, I see what you are – a prick and a cunt!" 1. An email sent on 23 December 2020 by Mr Patrech to Mr Hillary containing a screenshot of a Facebook comment posted by Mr Patrech. That comment contained a copy of a draft email drafted to Mr Hillary: "Dear Daniel, You and all your Ahpra paedo-protecting cant's can go and get well and truly forked! If I had my time again, I would kill the paedos twice – you let a paedo slip through and he touched and harmed children who were referred to my business – to my care. If you can't do your job, I will do it for you. You had one job. You are CANT's I can! Adam Patrech" 1. A voice message left for AHPRA's solicitor on 30 July 2022: "Jacob the White, Jacob, it's Adam the Black, Black Adam. Adam Patrech. You f**king, lying piece of sh*t c**t. Sorry, was that on clearance? Hi, Jacob, it's Adam Patrech here. I feel like I must have called you.. Come on, Jacob. Come on Jakey. What about [incoherent]. Every single time you lie and obfuscate and do this sh*t you f**king hurt my daughters Jacob. Jacob f**king White, you wanna play that f**king game c**t, I f**king told.. c**t, c**t, sorry, sorry, Jacob White, look, um, your honour, if you want to play that game we could, we could, come on.. I can look at me, there's a little hillbilly on the hill, and he does stand still [starts singing] oh, f**k, f**k, f**k oh my god, hey Jacob, you misrepresented yourself, your firm, your profession, right, you want to f**king go against Adam Patrech, let us, let us, let us, [laughs]. Hey Jacob, we're f**king going man, you want to f**king, you want to f**king attack me, motherf**ker? Hey hey, your mother's pretty f**king hot though, you know. And stepsister, you know I like that [incoherent] Come on Jakey, come on. Jacob White, you are right, I have no.. I'm not very good at this am I? Hey Jakey, let us proceed. Come on. Don't put that f**king bulls**t in, don't put all this stuff about me in and then go [incoherent screeching] and then pull it out. Hey, have you ever pulled out of my wife? You f**king pulled out sperm all over her [end]" Mr Patrech's dealings with the former husband 1. In 2020 and 2021 Mr Patrech sent a series of emails to, and posted on comments on Facebook about the former husband, who was then involved in acrimonious family law proceedings with a former client. Mr Patrech copied those emails to AHPRA and various third parties, including the NSW Police, NSW Legal Aid and politicians. Mr Patrech claimed that the client had been assaulted by her former husband. 2. We have decided not to set out the contents of those emails because to do so is likely to disclose the identity of the former husband and his children. Suffice to say that the emails contained content which was highly offensive, obscene and menacing. 3. In an affidavit sworn in February 2021, the former husband stated that Mr Patrech left a voice message for him, which was menacing and contained a barely veiled death threat. Mr Patrech's belief that AHPRA subjected him to a significant injustice 1. To put the submissions made by the parties in context, it is necessary to attempt to summarise the stated basis for Mr Patrech's stated belief that AHPRA subjected him to a significant injustice, an issue consistently raised by Mr Patrech in this appeal and in the proceedings before the Board. 2. A psychologist in Mr Patrech's employ was charged with and ultimately convicted of multiple child sex abuse offences (the employee): According to Mr Patrech as a result: 1. media reports insinuated that Mr Patrech was associated with the employee 2. since then, Mr Patrech has been repeatedly arrested and assaulted by Police 3. when he was incarcerated in 2019, corrupt police officers tipped off Corrective Services officers, who in turn told inmates that he was a paedophile 4. this resulted in inmates labelling him a paedophile, assaulting him and breaking his jaw 5. AHPRA is to blame for this chain of events because it granted the employee registration as a psychologist. Mr Patrech contends that had AHPRA properly assessed the employee's application it would have found that he had been convicted of child sex abuse offences in the USA. Consideration 1. In these proceedings, Mr Patrech was either unwilling or unable to engage with the self-evident proposition that the conduct described above was improper. 2. As best we can understand, Mr Patrech appears to submit that his conduct was justified given the conduct of AHPRA and the former husband. For example, when asked in these proceedings whether he agreed with the proposition that the voice message left for AHPRA's solicitor on 30 July 2022 constituted bullying, he replied that he "met bullying with bullying". 3. As Mr Patrech correctly points out, his dealings with APHRA were in the main appropriate. Nonetheless, as the examples set out above reveal, on occasion his communications were inflammatory, obscene and menacing, as was his communications with the former husband was. That renders Mr Patrech not a fit and proper person to practice as a psychologist, because that conduct: 1. demonstrates a lack of insight and an ability to self-regulate, essential requirements for the safe practice of psychology 2. demonstrates lack of good character 3. the communication with the former husband, demonstrates a disturbing vigilante-type attitude and disrespect for the rule of the law 4. has the capacity to bring the profession of psychology into disrepute. 1. The integrity of the national registration and accreditation scheme for the regulation of health practitioners established by the National Law requires that people seeking to obtain and maintain registration, cooperate with and are respectful in their dealings with relevant regulatory bodies. Mr Patrech's conduct demonstrates that at times he is either unable or unwilling to do so. 2. We find that Mr Patrech is not a fit and proper person for registration in the profession of psychology. Does Mr Patrech have an impairment? Opinion of Mr Patrech's treating psychiatrist 1. Since August 2016, Mr Patrech has been under the care of psychiatrist Dr Denis Shum. Except for the six-month period when he was incarcerated (January 2019 to June 2019), Mr Patrech has consulted Dr Shum every one or two weeks. 2. Three reports prepared by Dr Shum dated 25 February 2020, 28 February 2021 and 15 August 2022 were tendered in this appeal. In addition, Dr Shum gave oral evidence. Dr Shum's first report 1. Dated 25 February 2020, Dr Shum prepared this report at the request of the solicitors who were representing Mr Patrech in criminal proceedings, apparently related to the offence of "contravening a prohibition or restriction in an apprehended domestic violence order". 2. Dr Shum recorded that Mr Patrech first attended his care on 11 August 2016 for symptoms of "severe stress, anxiety and depression" and since that time has consulted him on about 60 occasions. 3. After setting out Mr Patrech's personal and professional history, under the heading "mental health history" Dr Shum wrote: 1. Mr Patrech became distressed after a relationship break-up when he was 27 and took an overdose of sleeping tablets 2. after that incident Mr Patrech was depressed from workplace stresses and was prescribed anti-depressants for six months 3. in 2006, Mr Patrech was depressed due to a "situation involving injustice" and again he was prescribed anti-depressants 4. in 2008, Mr Patrech was affected by the death of a close family member and was prescribed anti-depressants 5. each of the above episodes were due to "situational stresses" and during those periods, Mr Patrech consumed excessive amounts of alcohol to control his distress 6. in 2015, Mr Patrech was diagnosed with ADHD and was treated with Ritalin with "instant and major benefit". Mr Patrech reported that Ritalin made him calmer, less reactive to stress and more able to focus on paperwork. 7. in addition, Mr Patrech was prescribed the anti-depressant Pristiq to reduce stress. 1. Under the heading "Legal Difficulties", Dr Shum wrote that according to Mr Patrech, after separating from his wife in October 2015, "a complex set of events followed": 1. he was charged by his wife and his mother on "false grounds" 2. he was arrested by Police 13 times and released on each occasion 3. he was forcibly arrested by Police, pinned down to the ground and screamed at with a gun to his head because he was frightened and attempted to run off 4. he was labelled by Police as a "dangerous criminal" (he was never aggressive) 5. as a result, Mr Patrech could not return to his hometown [in regional NSW] for fear of arrest 6. Mr Patrech was then faced with false complaints made to the Psychologists Board. Because of that he voluntarily withdrew his registration to have his "name cleared". 1. Dr Shum wrote that, in his opinion, Mr Patrech has both ADHD and Post-Traumatic Stress Disorder (PTSD). Dr Shum stated that the PTSD was caused by "adverse life events" over the past several years. According to Dr Shum, as a consequence of those "major and disruptive" events, Mr Patrech went from being a "top performing professional in psychology and law" to being "branded a criminal, a violent offender to be arrested again should any new allegation against him arise and from a family man to being excluded from seeing his two daughters". 2. Dr Shum stated: 1. given Mr Patrech's high-level of distress, regular psychiatric consultation and maintenance of medication is recommended 2. he found no evidence of psychosis, delusional beliefs, personality disorder (including anti-social personality disorder) or major depressive disorder 3. Mr Patrech does not need hospital care 4. Mr Patrech is "no danger to other people" and is not suicidal 5. Mr Patrech is fit to represent himself in court. 1. Referring to s 32 of Mental Health (Forensic Provision) Act Dr Shum stated that at the time of the subject offence, Mr Patrech was suffering from a "mental health condition", namely "significant symptoms of PTSD and, in addition, some symptoms of ADHD". Dr Shum stated that he was not sure whether Mr Patrech had Ritalin available to him at the time of the offence, and if he had not, Mr Patrech would have been affected by the symptoms of his condition, "distress, short attention span, impatience and restlessness". 2. In Dr Shum's opinion: 1. the prognosis for the ADHD is good 2. the PTSD is still active but is "stable through continual counselling". In a "severe and complex case" like this it will be many more years before the PTSD symptoms fully subside 3. "Full recovery is not possible" until Mr Patrech is able to see his daughters. Apparently, Mr Patrech has not seen his daughters since late 2015. Report to AHPRA 28 February 2021 1. At the request of AHPRA, Dr Shum provided a further report dated 28 February 2021. 2. Dr Shum repeated the opinion expressed in his first report that Mr Patrech had a diagnosis of ADHD and PTSD. 3. In Dr Shum's opinion the prognosis for the ADHD is "excellent" and Mr Patrech has responded well to Ritalin. Dr Shum stated that the prognosis for PTSD is also good and Mr Patrech's symptoms had improved significantly through counselling, and he does not currently require medication for PTSD. Dr Shum stated, "with the complexity of his circumstance, it will likely be several or more years before all the PTSD symptoms subside". 4. In Dr Shum's opinion, Mr Patrech is a man of "intelligence and high-moral and ethical standards". Mr Patrech's thinking behaviour and emotional responses are "understandable consequences of the events he has experienced". 5. Dr Shum went on to note that Mr Patrech has "succeeded in having nearly all past convictions against him overturned" and that he is working to clear his record to: 1. disprove his ex-wife's wrongful allegations against him 2. prove the unprofessional behaviour of Police against him 3. prove the inaccuracy of a past forensic psychology report about him. 1. In Dr Shum's opinion, Mr Patrech is now fit to resume work as a psychologist and a lawyer. He recommended a graduated return to work. Dr Shum's final report 1. In a short report dated 15 August 2022, prepared at the request of Mr Patrech, Dr Shum stated that Mr Patrech continued to attend for regular consultations. 2. Dr Shum wrote that throughout the period Mr Patrech has been in his care, his mental well-being and personal functioning had been "steadily improving". He has adhered to the treatment plan very well and has continued to improve. 3. Dr Shum wrote: 1. Mr Patrech has "experienced further setbacks in life but was able to recover from them 2. Mr Patrech has "steadfastly tried to restore his reputation and trustworthiness previously damaged by groundless legal convictions and false allegations against him, towards regaining his professional standing" 3. he stood by the opinions and recommendations set out in his February 2021 report. Oral evidence 1. In oral evidence given in these proceedings, Dr Shum said: 1. in his 40-years' experience as a psychiatrist, he has not seen a case as complex as that of Mr Patrech's 2. part of Mr Patrech's frustration was that he had been given "insufficient time to put his case" 3. he accepted the history given to him by Mr Patrech and noted that it had been internally consistent over a long period 4. in addition, he accepted Mr Patrech's claim that he had been successful in getting most of his convictions overturned. 1. When asked whether he stood by the opinion expressed in his 2021 report that Mr Patrech was "a person of high-moral standards" when taken to evidence of Mr Patrech sending offensive emails to staff of AHPRA and others, Dr Shum said that if Mr Patrech had done so in his professional capacity, he would accept that that behaviour was inappropriate. However, at the time that behaviour occurred, Mr Patrech was not registered. In Dr Shum's opinion, that behaviour was a consequence of Mr Patrech's view that he had been victimised. 2. In answer to questions from the Tribunal, Dr Shum said the above conduct was triggered by Mr Patrech's "perceived sense of injustice". He agreed with the proposition that Mr Patrech could have chosen not to respond, or to respond in a more proportionate manner. In Dr Shum's opinion, Mr Patrech had the capacity to regulate some but not all of his offensive communications with AHPRA. Some of those responses were "emotional", others were "calculated". 3. Dr Shum stated that while he did not "recommend" the approach taken by Mr Patrech, he understood the reason for his approach. With respect to those responses which were calculated, Mr Patrech wanted to ensure that he was not ignored, and as he saw it, he had been unfairly dealt with over an extended period. 4. Dr Shum said he was confident that Mr Patrech would be able to regulate his behaviour with patients although he recommended that he not deal with patients who might be "triggering" such as police officers, whom he held in poor regard. He stated that a person with Mr Patrech's background of trauma and sense of injustice could be triggered by certain conduct. He agreed with the proposition that any sense of injustice might trigger Mr Patrech's conduct. 5. Dr Shum emphasised that Mr Patrech's interactions with himself have at all times been appropriate and, as far as he was aware, so too were his interactions with other health practitioners. Opinion of Dr Evenhuis 1. At the request of AHPRA, consultant psychiatrist, Dr Michael Evenhuis, assessed Mr Patrech and prepared a report dated 28 November 2020 and a supplementary report dated 15 August 2022. In addition, Dr Evenhuis gave oral evidence. 2. Dr Evenhuis agreed with Dr Shum's opinion that Mr Patrech had Attention Deficit Disorder (ADD) [5] . With respect to the diagnosis of PTSD, Dr Evenhuis stated that it was unclear whether at any stage Mr Patrech "met full criteria for PTSD" and considered that "complex post-traumatic stress disorder" could be used to describe Mr Patrech's situation, noting that that diagnosis is "sometimes used to describe the types of symptoms experienced by individuals with Cluster B Personality Disorder who have significant trauma histories". 3. Dr Evenhuis noted that when under stress, Mr Patrech "may decompensate and either experience symptoms of low mood or become disorganised and fragmented to an extent that it would impair his capacity to practice". In Dr Evenhuis' opinion, this is partly a reflection of Mr Patrech's personality style, but it could also be attributable to the presence of a chronic and complex PTSD. He noted that Mr Patrech reported that his impulsivity fluctuated, "I'm either very impulsive or insanely impulsive". 4. Commenting on Mr Patrech's correspondence with AHPRA, Dr Evenhuis stated that it raised concerns about Mr Patrech's judgement and suggested that he can become "disorganised and scattered under stress". Noting Mr Patrech's claim that he "knew exactly what he was doing" when he sent that correspondence, Dr Evenhuis observed that it was difficult to explain why a person seeking registration would "publicly criticise and also make inflammatory and obscene remarks to that organisation". In Dr Evenhuis' opinion there were three possible explanations for Mr Patrech's conduct, namely that at the time: 1. Mr Patrech was in the midst of a hypomanic episode. 2. Mr Patrech was intoxicated, either because of his "flexible approach" to treating his ADHD or to his consumption of alcohol. 3. When he becomes sufficiently stressed and deregulated, Mr Patrech becomes more impulsive, and his judgement suffers. There is also some sense of grandiosity to Mr Patrech's comments posted on Facebook. Dr Evenhuis was uncertain whether this represented actual evidence of narcissistic personality traits or instead some form of defence mechanism. 1. Of the above, Dr Evenhuis favoured the third hypothesis, that is, when under stress Mr Patrech becomes dysregulated and disorganised. 2. Under the heading, "Is Mr Patrech impaired?", Dr Evenhuis wrote: 1. Mr Patrech appears to have issues with impulsivity which could impact on his ability to practise as a psychologist. 2. Mr Patrech's "impulsivity and somewhat idiosyncratic way of viewing the world could lead to disjunctions with clients. Dr Evenhuis noted that "knowing what not to say and when not to say it is an important part of therapy". 3. Mr Patrech has significant trauma history and attempting to counsel people who have been through similar experiences could be triggering. 4. When under stress Mr Patrech may decompensate and either experience symptoms of low mood or become disorganised and fragmented to an extent that it would impair capacity to practise. In Dr Evenhuis' view this could be partly a reflection of his personality style but could also be attributed to the presence of a complex PTSD. 1. Under the heading, "Is Mr Patrech safe to practise?", Dr Evenhuis wrote: 1. he had concerns about Mr Patrech's ability to focus on treatment while Mr Patrech remained embroiled in a complex legal situation that was taking so much of his time and energy 2. Mr Patrech's experience with the Family Court/family violence system appears to have "embittered" Mr Patrech to some degree 3. Mr Patrech's correspondence with AHPRA indicated that Mr Patrech had a tendency to decompensate when under stress with impairment of his judgement and increased impulsivity 4. it would be difficult for Mr Patrech not to let his own experience influence the way he counsels clients in a similar situation. 1. In Dr Evenhuis' opinion, to be able to practise safely as a psychologist, Mr Patrech would need to be "in stable circumstances with good access to support and regular monitoring of his emotional state achieved by ongoing psychological or psychiatric follow up". He noted that in the past Mr Patrech apparently had been able to practise safely despite his underlying ADHD, his personality style and issues with complex trauma. In Dr Evenhuis' opinion, providing that Mr Patrech is again able to achieve that level of stability, safe practice is possible. However, he recommended clinical supervision given that Mr Patrech's "judgment is at times questionable". 2. Dr Evenhuis recommended that if he returned to practice: 1. Mr Patrech be subject to ongoing clinical supervision given that at times Mr Patrech's judgement is questionable 2. Mr Patrech continue to work under supervision until he had demonstrated he has "the psychological resilience, judgment and emotional stability to be able to work effectively as a counselling psychologist" 3. Mr Patrech not work in sole practice. 1. In his supplementary report, Dr Evenhuis answered a series of questions posed by the Board, the effect of which was that if Mr Patrech were to practise subject to the above conditions, whether there was a risk that Mr Patrech might communicate with a client, or a third party associated with a client, in a manner which was inappropriate, harassing and/or offensive. 2. Dr Evenhuis stated that if Mr Patrech were to assume an advocacy role on behalf of a client, a situation could arise where his communications became inappropriate. As to whether Mr Patrech might in the future communicate inappropriately with a client, Dr Evenhuis stated that this was a more difficult question to answer because there is "less relevant previous behaviour" from which to make predictions about Mr Patrech's future behaviour. Dr Evenhuis noted that some professionals are more measured in their responses to their clients than third parties. In Dr Evenhuis' opinion, Mr Patrech is "less likely to be persistently inappropriate in his interactions with clients than with third parties". However, if he felt wronged by a client there is a risk that he could express himself inappropriately. Dr Evenhuis noted that in the past Mr Patrech appears to have exercised questionable judgement in some of his interactions with clients, including contacting clients who had made complaints about him, despite receiving legal advice not to do so. Oral evidence 1. Dr Evenhuis agreed with Dr Shum's opinion that the offensive correspondence sent by Mr Patrech could be either an emotional response to stresses or a calculated response. In Dr Evenhuis' view, these were not the only possible explanations for that conduct, and it could be the result of a combination of both, or some other cause. 2. Dr Evenhuis repeated the view expressed in his first report that if Mr Patrech were able to achieve stability in his life, he may be able to practise safely. However, in his opinion, while ever the family law proceedings and Mr Patrech's "quest to clear his name" continues, Mr Patrech will be unable to practise in a safe manner. 3. In answer to a question from Mr Patrech, Dr Evenhuis said there is no easy answer to the question of whether Mr Patrech will be "embittered forever". However, this was a possibility if his registration was not granted and or he did not gain access to his children. 4. Dr Evenhuis stated that in reaching his opinion, he had accepted that Mr Patrech held the genuine view that people in authority, including members of the NSW Police and staff of AHPRA, had been acting in a corrupt fashion. He also said he accepted that Mr Patrech believed that Police thought he was "a crook" and when in prison, he was labelled a paedophile. In Dr Evenhuis's view, Mr Patrech's quest to clear his name is understandable but the way he targeted others was disproportionate. Legislative framework 1. Section 5 of the National Law defines impairment to include: "[A] ... mental impairment, disability, condition or disorder ... that detrimentally affects or is likely to detrimentally affect ... a registered health practitioner['s] ... capacity to practise the profession..." 1. In determining whether Mr Patrech has an impairment within the meaning of s 5 of the National Law, it is necessary to consider whether he is currently impaired: Caladine v Health Care Complaints Commission [2007] NSWCA at [11] (Beazley JA). Currency of impairment may be demonstrated by evidence of deficiency at a particular time combined with the absence of any evidence of any improvement since that time: Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73 at [43]. A finding of impairment does not require the Tribunal to make a finding as to a particular diagnosis. In particular, it is unnecessary to make a diagnosis fitting a practitioner within the categories outlined in the DSM-IV/V: Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [64] (Meagher JA). Rather, the question to be determined is whether the evidence demonstrates that a practitioner is afflicted by a condition that is detrimental or prejudicial to the orderly conduct of his or her mental or physical duties as a health practitioner: Grant v Health Care Complaints Commission [2003] NSWCA 73 at [12] (Meagher JA). 2. Section 55(1)(a) of the National Law provides that a National Board may decide that an individual is not a suitable person to hold general registration in a health profession if in the Board's opinion, "the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk". Consideration 1. To find that Mr Patrech is not a suitable person to practise for the purpose of s 55(1)(a) of the National Law, we must be satisfied that: 1. Mr Patrech currently suffers from a mental impairment, condition, disability or disorder, and 2. if so, that mental impairment, condition, disability or disorder does or is likely to detrimentally affect Mr Patrech's capacity to practise the profession of psychology to such an extent that it would or may place the safety of the public at risk. 1. Mr Patrech accepts that he currently suffers from ADHD and PTSD. In addition, we understand that he accepts that each condition can be characterised as a mental impairment, condition, disability and/or disorder. However, he disputes that those conditions, separately or in combination, detrimentally affect, or are likely to detrimentally affect his capacity to practise psychology. In support, he points to the opinion expressed by Dr Shum, in particular that both conditions are now effectively managed with treatment. In addition, he asserts that he practised safely without complaint between 1999 and 2015. 2. In oral submissions, Mr Patrech agreed that at times he can be distracted and argued that he had "the right to decompensate". 3. Dr Shum has had the advantage of having assessed and treated Mr Patrech for close to eight years. He is a senior and experienced psychiatrist. He is familiar with the work of psychologists and is well placed to give an opinion about Mr Patrech's capacity to return to work. Nonetheless, for the reasons below we are not persuaded by Dr Shum's ultimate opinion that neither ADHD and/or PTSD detrimentally affect, or are likely to detrimentally affect Mr Patrech's capacity to practise the profession of psychology: 1. Dr Shum's opinion assumes that the history he was given by Mr Patrech is reliable. The objective evidence is that that history is unreliable, at least in part. For example, as his criminal record reveals Mr Patrech has not, as he reported to Dr Shum, been successful in "having nearly all past convictions against him overturned". In addition, Dr Shum does not appear to have countenanced the possibility that, for example, Mr Patrech's account of being repeatedly charged by police on "false grounds", being set up by his former wife and her solicitor, may not be correct. 2. Dr Shum has failed to explain or to adequately explain the basis for his opinion that Mr Patrech's demonstrated inability to self-regulate in his dealings with AHPRA and others is unlikely to extend into his dealings with clients. Over an extended period, in dealing with AHPRA and others, Mr Patrech has repeatedly acted in a way that can only be described as offensive, menacing, and inflammatory. Notably, Mr Patrech's actions were not minor transgressions or the occasional use of intemperate language. 3. There is an apparent inconsistency between Dr Shum's view that Mr Patrech is safe to return to practice and his acknowledgement that the type of conduct described above could be triggered by Mr Patrech's sense of injustice. Dr Shum appears not to have considered or adequately considered the possibility that Mr Patrech might form the view that he has been subjected to an injustice by a client who, for example, complains about him to a regulator, gives an unfavourable report to a potential client, or fails to pay an account. 4. The objective evidence is that for some time Mr Patrech has been embroiled in an all-consuming legal dispute to clear his name. Dr Shum appears not to have considered or adequately considered whether, as Dr Evenhuis considered to be a real possibility, that this is likely to detrimentally affect Mr Patrech's ability to practise. 1. Dr Evenhuis' opinion that while ever Mr Patrech remained embroiled in the complex legal situation in which he finds himself and his all-consuming quest to clear his name, he will be unable to practise safely as a psychologist, is plausible, cogent and well-reasoned. So too, in our opinion, is Dr Evenhuis' opinion that when under stress, Mr Patrech can become decompensated, disorganised and fragmented to an extent that would impair his capacity to practise. Dr Evenhuis was of the opinion that there was less of a risk that Mr Patrech might decompensate in his dealings with patients, as compared with his dealings with organisations or people whom he believed had subjected him to an injustice. Nonetheless, the effect of his evidence was that there was a material risk that this could occur. In reaching that opinion, Dr Evenhuis assumed, favourably to Mr Patrech, that in the past he had been able to practise safely despite his "underlying ADD, his personality style and issues with complex trauma". 2. We agree with Dr Evenhuis' view, that the most likely explanation for Mr Patrech's tendency to decompensate and either experience symptoms of low mood or become disorganised and fragmented is partly a reflection of Mr Patrech's personality style and the presence of a chronic and complex PTSD. We note that Dr Samuels reached much the same conclusion albeit using the label "recurrent mood disorder". 3. In addition, we agree with Dr Evenhuis' opinion that unless and until Mr Patrech achieves a level of stability in his life, his mental health is likely to detrimentally affect Mr Patrech's capacity to practise psychology. 4. We find Mr Patrech has an impairment within the meaning of the National Law. In our opinion that impairment affects Mr Patrech's capacity to practise the profession of psychology to such an extent that it may place the safety of the public at risk. It follows that we may decide that Mr Patrech is not a suitable person to hold general registration: National Law, s 55(1)(a). Conditions 1. In this appeal, Mr Patrech requested the Tribunal to consider imposing a condition on his registration that he not practise as a psychologist (a non-practising condition). He submitted that, if contrary to his submission, the Tribunal found he had an impairment, such condition would alleviate any concerns that he would be unable to practise safely. 2. In the alternative, Mr Patrech submitted that if the Tribunal was satisfied that he was fit to practise with conditions, he was willing to submit to "stringent conditions". 3. The Tribunal has power to grant registration subject to a condition that the health practitioner not practise their profession: Ghosh v Medical Council of New South Wales [2020] NSWCA 122 at [35]-[42]. Arguably, the imposition of such a condition would make Mr Patrech eligible for registration, with respect to our conclusion that he is a not a suitable person to hold registration on account of having an impairment: Chinese Medicine Board of Australia v Lee [2014] QCA 149 at [53]-[55]. However, such condition would not address our finding that Mr Patrech is not a suitable person to practise on account of his criminal history (s 55(1)(b) of the National Law) and is not a fit and proper person (s 55(1)(h)(i) of the National Law). 4. It follows that even with the proposed non-practising condition, Mr Patrech is ineligible for registration. Summary 1. We have decided that Mr Patrech is not a suitable person to hold registration because he has an impairment, is not an appropriate person to practise psychology on account of his criminal history and is not a fit and proper person to practise. It follows he is ineligible for registration and his application must be refused: National Law, s 82(1)(c)(i)(C). 2. The decision under appeal must be confirmed. Out-of-time submissions 1. While our decision was reserved, Mr Patrech filed additional material and submissions and made multiple requests to the Tribunal seeking leave to obtain and file further material. Except in relation to the request relating to the District Court costs decision, we refused those requests. In refusing to accede to those requests, we took into account that: prior to the hearing Mr Patrech was given ample opportunity to file material in support of his appeal, and, the hearing of the appeal had previously been adjourned to give Mr Patrech a further opportunity to obtain and to file material. 2. We did not consider the additional material filed without leave by Mr Patrech after the decision was reserved. The authorities have consistently stated that the practice of filing material without, or outside, leave "undermines and derogates from the principle of the open administration of justice". A court or tribunal is entitled to, and generally will ignore that material: NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 [2004] HCA 48, [191]-[192]; and Bale v Mills [2011] NSWCA 226; 81 NSWLR 498, [57]-[59]. 3. In addition, we refused Mr Patrech's request made on 26 September 2022 to file further evidence and make submission in relation to the costs decision. We concluded that no useful purpose would be served by receiving submissions on that decision. Costs 1. The Board seeks an order for costs on an ordinary basis and made oral submissions in support of that application. The Board submits that there is no basis to depart from the general "rule" that costs follow the event. 2. Mr Patrech did not make any submissions about costs and we have decided to give him a further opportunity to do so. 3. The parties are invited to comment on our preliminary view that the Board's application for costs can be determined "on the papers" as permitted by s 50 of the Civil and Administrative Tribunal Act. Orders 1. The decision under appeal is confirmed. 2. Within 10 days of the date of this decision, Mr Patrech is to give to the Tribunal and the Board written submissions replying to the Board's application for costs. 3. Within 17 days of the date of this decision, the Board is to give to Mr Patrech and the Tribunal any submissions in reply. 4. Within 20 days of this decision, each party must notify the Tribunal and each other whether the issues to be determined in the Board's application for costs can adequately be determined without a hearing by considering the parties' written submissions. ********** Endnotes 1. Established by the National Law, AHPRA provides administrative support to the Psychology Board of Australia and the other National Boards established by the National Law. See, National Law ss 23, 25(a), 31 2. The Board tendered those documents in this appeal, together with the documents collected by AHPRA in the course of considering Mr Patrech's application for registration. (Exhibit R1) Mr Patrech filed additional documents in this appeal. 3. National Law, s 12(1). 4. The Mental Health (Forensic Provisions) Act 1990 (NSW) was repealed and replaced by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which commenced in June 2020. Section 32 of the Mental Health (Forensic Provision) Act 1990 (NSW), permitted a Magistrate, if it appears that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate): cognitively impaired, suffering from mental illness, or suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, to make orders under s 32. Those orders include to adjourn the proceedings, to grant the defendant bail to dismiss the charge and discharge the defendant into the care of a responsible person, unconditionally or subject to conditions: ss 32(2), 32(3). 5. Dr Shum termed Mr Patrech's condition "ADHD". Dr Evenhuis used the term "ADD". Neither party suggested anything turned on this. 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: 17 October 2022