Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Hoang [2023] NSWCATOD 158 Hearing dates: 26 September 2023 Date of orders: 09 November 2023 Decision date: 09 November 2023 Jurisdiction: Occupational Division Before: E Bishop SC, Senior Member T Hannan, Senior Member J Berg, Senior Member R Leontini, General Member Decision: 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (the National Law) the Tribunal determines that if Ms Mary Hoang was still registered it would have cancelled her registration. 2. Ms Mary Hoang is precluded under s 149C(4)(b) of the National Law from being registered as a psychologist for a period of two years from the date of these orders. 3. Pursuant to clause 13 of schedule 5D of the National Law, Ms Mary Hoang is to pay the Health Care Complaints Commission's costs on an ordinary basis as agreed or assessed. Catchwords: PROFESSION AND TRADES — health care professionals — psychologist — misuse of Medicare provider number— misleading and false information — application for and receipt of charitable grant from a fund partly owned or controlled by a patient —whether conduct improper or unethical — whether unsatisfactory professional conduct — whether professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993, s 99 Health Practitioner Regulation National Law (NSW) ss 3, 3A, 139B, 139E, 149A, 149B, 149C, Sch 5D, cl 13 Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 Health Care Complaints Commission v Han [2023] NSWCATOD 152 Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD 116 Health Care Complaints Commission v Knowles [2020] NSWCATOD 80 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Little [2016] NSWCATOD 146 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Reid [2018] NSWCATOD 162 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Health Care Complaints Commission v Sare [2018] NSWCATOD 190 Jung v The Queen [2017] NSWCCA 24 Lee v Health Care Complaints Commission [2012] NSWCA 80 Medical Council of NSW v Lee [2017] NSWCA 282 Office of Local Government v Toma [2016] NSWCATOD 21 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mary Hoang (Respondent) Representation: Counsel: K Sharma (Applicant) A Horvath SC and E Lovell-Jones (Respondent) Solicitors: Gardner Legal & Regulatory (Respondent) File Number(s): 2023/00013118 Publication restriction: The name and addresses of persons and/or witnesses listed in the Schedule to the Complaint is prohibited from disclosure under s 64 of the Civil and Administrative Tribunal Act 2013 and cl 7 of Sch 5D of the Health Practitioner Regulation National Law reasons for decision Introduction 1. This is an inquiry into a complaint made by the applicant (the Commission) to the Tribunal about the respondent (Ms Hoang) who, from 29 June 2010 until the date of the hearing on 26 September 2023, was a registered psychologist. 2. By application filed on 13 January 2023, the Commission sought protective orders under s 149C(1) of the Health Practitioner Regulation National Law (NSW) (the National Law) based on four complaints: three complaints of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law in that the practitioner engaged in improper or unethical conduct relating to the practice or purported practice of psychology; one complaint of professional misconduct under s 139E of the National law in that Ms Hoang: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, and/or 2. Engaged in 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 the suspension or cancellation of her registration. 1. On 23 September 2023, by an Amended Response, Ms Hoang admitted each of the complaints. 2. At the commencement of the hearing, the Tribunal was informed that Ms Hoang did not dispute that the protective orders sought by the Commissioner should be made but that Ms Hoang had already surrendered her registration. Ms Hoang also agreed to pay the Commission's costs as agreed or assessed. 3. The Tribunal does not infer that by reaching an agreed position on the orders the parties were suggesting that the Tribunal was obliged to make those orders. 4. As per the provisions of s 3A of the National Law, which mandate that the health and safety of the public is the "paramount consideration" when any "functions" are exercised pursuant to the National Law, the Tribunal considers that it must be satisfied that making the proposed consent orders adequately protects the health and safety of the public. That is particularly so having regard to the seriousness of the offending conduct of which Ms Hoang was found guilty. 5. For the reasons set out below, the Tribunal is satisfied that each of the Complaints are established on the evidence before the Tribunal. 6. The Tribunal is also satisfied that each of the orders are appropriate in the circumstances as set out below. While the Commission had originally sought an order that Ms Hoang's registration be cancelled, her surrender makes that order no longer necessary and instead we consider an order under s 149C(4)(b) is more appropriate . Agreed facts 1. Before the Tribunal, Ms Hoang relied on a bundle of documents including her statement; 11 character references; a further bundle containing two character references; a confirmation of surrender of registration; and an Amended Reply to the application. The Commission relied on two volumes of documents; two statements from Patient A and written submissions. 2. The following facts presented by the parties as "Agreed Facts" to the Tribunal are accepted as established on the evidence before us. "The respondent 1. In March 2000, Mary Hoang ('the practitioner') commenced a Bachelor of Psychology (Honours) at University of New South Wales and completed the course in June 2004. 2. In October 2008, the practitioner commenced the NSW Psychologist Registration Program at the College of Applied Psychology and completed that program in June 2011. 3. In January 2008, the practitioner worked for McKesson Asia-Pacific in the mental health professional counselling team until November 2008. 4. In February 2008, the practitioner worked as a CHOICES counsellor for The Salvation Army until June 2010. 5. In March 2010, the practitioner worked as a Group Facilitator for Headspace until June 2010. 6. On 29 June 2010, the practitioner was first registered as a psychologist. 7. In June 2011, the practitioner completed her psychology supervision program. 8. In July 2011, the practitioner worked as a psychologist for Holistic Psychology Services until February 2012. 9. In November 2011, the practitioner worked as an Adult ADHD Specialist for the Sydney Cognitive Development Centre until November 2012. 10. In February 2012, the practitioner founded The Indigo Project ('TIP'). Misuse of Medicare Provider Number; Financial relationship with Person B 11. On 5 July 2016, the practitioner became Person A's principal supervisor until 20 July 2018. 12. On 7 July 2016, a mental health care plan for Person A was addressed to the practitioner. 13. Between 4 November 2016 to 16 December 2016, the practitioner permitted her Medicare provider number to be used seven (7) times to claim benefits for professional services rendered to Client A7 by Person A. 14. Between 9 November 2016 and 24 October 2017, the practitioner's Medicare provider number was used four (4) times to claim benefits for professional supervision of Person A by the practitioner. 15. Between 10 November 2016 to 10 April 2018, the practitioner's Medicare provider number was used 17 times to claim benefits for professional services rendered to Client B31 by Person A. 16. On 14 January 2017, the practitioner's Medicare provider number was used once to claim a benefit for professional services rendered to Client A7 in the form of "courses" also referred to as 'group sessions' at TIP. 17. Between 31 January 2017 to 23 March 2017, the practitioner's Medicare provider number was used six (6) times to claim benefits for professional services rendered to Client B18 in the form of 'courses' also referred to as 'group sessions' at TIP. 18. Between 4 February 2017 and 30 September 2017, the practitioner's Medicare provider number was used eight (8) times to claim benefits for professional services rendered to Client B9 by Person A. 19. Between 6 February 2017 to 1 May 2015, the practitioner permitted her Medicare provider number to be used 10 times to claim benefits for professional services rendered to Client A5 by Person A. 20. Between 7 February 2017 to 23 July 2018, the practitioner's Medicare provider number was used 14 times to claim benefits for professional services rendered to Client B19 by Person A. 21. Between 7 February 2017 to 20 February 2017, the practitioner's Medicare provider number was used three (3) times to claim benefits for professional services rendered to Client B29 by Person A. 22. Between 16 February 2017 and 21 May 2018, the practitioner's Medicare provider number was used 20 times to claim benefits for professional services rendered to Client B1 by Person A. 23. Between 20 February 2017, the practitioner's Medicare provider number was used 10 times to claim benefits for professional services rendered to Client B11 by Person A. 24. Between 1 March 2017 to 15 August 2017, the practitioner permitted her Medicare provider number to be used nine (9) times to claim benefits for professional services rendered to Client A2 by Person A. 25. Between 9 March 2017 to 4 May 2017, the respondent permitted her Medicare provider number to be used three (3) times to claim benefits for professional services rendered to Client B18 by person A. 26. Between 14 March 2017 to 20 March 2017, the practitioner's Medicare provider number was used two (2) times to claim benefits for professional services rendered to Client B20 by Person A. 27. Between 18 March 2017 to 6 July 2017, the practitioner's Medicare provider number was used nine (9) times to claim benefits for professional services rendered to Client B16 by Person A. 28. Between 20 March 2017 to 19 June 2017, the practitioner's Medicare provider number was used nine (9) times to claim benefits for professional services rendered to Client B26 by Person A. 29. Between 23 March 2017 to 1 May 2017, the practitioner's Medicare provider number was used five (5) times to claim benefits for professional services rendered to Client B22 by Person A. 30. On 4 April 2017, the practitioner began treating Person B and had 20 sessions with him between that date and 7 June 2019. 31. Between 18 April 2018 to 12 June 2018, the practitioner permitted her Medicare provider number to be used three (3) times to claim benefits for professional services rendered to Client A6 by Person A. 32. Between 25 May 2017 and 21 November 2017, the practitioner permitted her Medicare provider number to be used five (5) times to claim benefits for professional services rendered to Client A1 by Person A. 33. Between 27 May 2017 to 17 October 2017, the practitioner's Medicare provider number was used nine (9) times to claim benefits for professional services rendered to Client B27 by Person A. 34. Between 29 May 2017 to 3 March 2018, the practitioner's Medicare provider number was used eight (8) times to claim benefits for professional services rendered to Client B8 by Person A. 35. Between 17June 2017 to 23 September 2017, the practitioner's Medicare provider number was used six (6) times to claim benefits for professional services rendered to Client B6 by Person A. 36. Between 10 June 2017 to 16 January 2018, the practitioner's Medicare provider number was used nine (9) times to claim benefits for professional services rendered to Client B3 by Person A. 37. Between 15 June 2017 to 11 September 2017, the practitioner's Medicare provider number was used ten (10) times to claim benefits for professional services rendered to Client B21 by Person A. 38. Between 19 June 2017 to 5 June 2018, the practitioner's Medicare provider number was used 20 times to claim benefits for professional services rendered to Client B23 by Person A. 39. Between 1 July 2017 to 14 December 2017, the practitioner's Medicare provider number was used seven (7) times to claim benefits for professional services rendered to Client B15 by Person A. 40. Between 3 July 2017 to 15 August 2017, the practitioner's Medicare provider number was used five (5) times to claim benefits for professional services rendered to Client B24 in the form of ;courses; also referred to as 'group sessions' at TIP. 41. Between 10 July 2017 to 11 September 2017, the practitioner's Medicare provider number was used seven (7) times to claim benefits for professional services rendered to Client B34 by Person A. 42. Between 10 July 2017 to 13 February 2018, the practitioner's Medicare provider number was used 13 times to claim benefits for professional services rendered to Client B28 by Person A. 43. Between 15 June 2017 to 26 August 2017, the practitioner permitted her Medicare provider number to be used three (3) times to claim benefits for professional services rendered to Client A4 by Person A. 44. On 18 July 2017, a mental health plan for Person A was completed by [Dr X] and addressed to Person C. 45. On 25 July 2017, the practitioner's Medicare provider number was used to claim a benefit for a professional service rendered to Client B24 by Person A. 46. Between 22 August 2017 to 6 March 2018, the practitioner's Medicare provider number was used 11 times to claim benefits for professional services rendered to Client B7 by Person A. 47. Between 2 September 2017 to 28 October 2017, the practitioner's Medicare provider number was used seven (7) times to claim benefits for professional services rendered to Client B17 by Person A. 48. Between 12 September 2017 to 21 June 2018, the practitioner's Medicare provider number was used 13 times to claim benefits for professional services rendered to Client B2 by Person A. 49. On 19 September 2017, the practitioner's Medicare provider number was used to claim a benefit for professional services rendered to Client B5 by Person A. 50. Between 3 October 2017 to 30 October 2017, the practitioner permitted her Medicare provider number to be used three (3) times to claim benefits for professional services rendered to Client A3 by Person A. 51. Between 14 October 2017 to 13 June 2018, the practitioner's Medicare provider number was used seven (7) times to claim benefits for professional services rendered to Client B13 by Person A. 52. Between 28 November 2017 to 28 April 2018, the practitioner's Medicare provider number was used nine (9) times to claim benefits for professional services rendered to Client B33 by Person A. 53. On 2 December 2017, the practitioner's Medicare provider number was used to claim a benefit for professional services rendered to Client B4 by Person A. 54. Between 18 December 2017 to 3 May 2018, the practitioner's Medicare provider number was used four (4) times to claim benefits for professional services rendered to Client B32 by Person A. 55. On 11 January 2018, during a session with Person B, the practitioner told him that she intended to apply to the Fund and Person B encouraged her to do so. 56. On 15 January 2018, the practitioner applied for the grant from the Fund. The practitioner received a response from … Person B informing her that TIP has qualified for the grant. TIP was awarded bitcoins worth USD $51,233.23 but at the time of withdrawal, was worth USD $30,136.94. 57. Between 20 January 2018 to 21 April 2018, the practitioner's Medicare provider number was used nine (9) times to claim benefits for professional services rendered to Client B30 by Person A. 58. Between 24 January 2018 to 29 March 2018, the practitioner's Medicare provider number was used four (4) times to claim benefits for professional services rendered to Client B12 by Person A. 59. Between 31 January 2018 to 20 June 2018, the practitioner's Medicare provider number was used 10 times to claim benefits for professional services rendered to Client B25 by Person A. 60. Between 10 February 2018 and 17 February 2018, the practitioner's Medicare provider number was used twice to claim benefits for professional services rendered to Client B10 by Person A. 61. On 14 March 2018, as part of the process of winding down her client-facing practice, the practitioner closed the therapeutic relationship with Person B but encouraged him to make contact if he needed support. 62. Between 16 May 2018 to 20 June 2018, the practitioner's Medicare provider number was used three (3) times to claim benefits for professional services rendered to Client B14 by Person A. Further Complaints; Submissions by the Practitioner 63. On 10 December 2020, the practitioner made submissions to the Commission denying that Person A was using the respondent's Medicare provider number to claim a benefit for Person A's sessions with clients. 64. On 8 April 2021, the practitioner attended a performance interview with the Psychology Council of NSW. During the interview, the practitioner made submissions denying that Person A was using the respondent's Medicare provider number to claim a benefit for Person A's sessions with clients. 65. On 13 July 2021, the Psychology Council filed an own-motion complaint against the respondent regarding alleged Medicare fraud. 66. On 4 August 2021, the practitioner attended her first supervision appointment with a clinical psychologist … and had five subsequent sessions before stopping for a maternity leave break. 67. On 13 September 2021, the respondent submitted a Voluntary Acknowledgement of Incorrect Payments to Medicare. 68. On 15 September 2021, the respondent made submissions to the Commission that she had permitted Person A to bill under the respondent's Medicare provider number in exceptional circumstances if the client could not afford the $50.00 fee and did not want to be referred to another clinic. The respondent also made the submission that her provider number may have been used for payment of group sessions in exceptional circumstances if clients were unable to pay their course fee. 69. On 26 October 2021, the respondent made a voluntary acknowledgement to Medicare for payments received that she was not entitled to receive for the period of 4 February 2017 to 2 October 2018. 70. On 8 November 2021, the respondent provided Medicare with an updated 'Voluntary acknowledgement of incorrect payment' form listing 139 sessions with 26 clients where Person A had claimed for the service provided using her provider number. 71. On 16 November 2021, the respondent made a voluntary repayment to Medicare in the amount of $ 11,787.20. 72. On 7 December 2021, the respondent submitted a Voluntary Acknowledgement of Incorrect Payment to Medicare. 73. On 13 January 2022, a complaint was made about the respondent alleging that she had applied for a grant from a client who gave $50,000 in Bitcoin to fund TIP. 74. On 17 January 2022, the respondent made a voluntary payment to Medicare in the amount of $15,772.80. In doing so the practitioner repaid the entirety of the money owed to Medicare. 75. On 1 February 2022, the respondent was informed of the complaint made on 13 January 2022. 76. On 21 April 2022, the Commission sent the respondent a s 40 letter. 77. On 13 January 2023, the Commission filed an Application for Disciplinary Findings and Orders. 78. On 22 June 2023, the practitioner re-engaged in supervision sessions with [her clinical psychologist] following a maternity leave break, focusing on the matters that are the subject of the present proceedings. 79. The practitioner has completed the following further training: a. Navigating Medicare and the Better Access Initiative Course …; b. Introduction Into Compliance Within Medicare – Australian Government Department of Health; and c. Better Access and Beyond: Private Essentials … 80. The practitioner has enrolled in, and partially completed, an ethics program run by The Ethics Centre called 'Ethics Counsel', focusing on professional ethics and ethical conduct to understand the ethical frameworks that influenced her decision making." The relevant law 1. As stated recently in Health Care Complaints Commission v Han [2023] NSWCATOD 152 at [10] the principles relevant to disciplinary proceedings under the Health Practitioner Regulation National Law are uncontroversial. The overarching principles are found in s 3 and s 3A of the National Law. Section 3A mandates that in determining proceedings the Tribunal has the protection of the health and safety of the public as its paramount consideration. 2. Unless a provision in the National Law is in conflict with, or repugnant to the practice and procedure provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) those provisions apply: see Medical Council of NSW v Lee [2017] NSWCA 282 at [7]. The guiding principle of the NCAT Act requires the just, quick and cheap resolution of the real issues in dispute between the parties. Each of the parties to the proceedings is under a duty to co-operate with the Tribunal to give effect to the guiding principle: see NCAT Act, s 36. 3. The primary purpose of protective orders made at the conclusion of proceedings is to protect the public, not to punish the practitioner: see Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202; [1960] HCA 40. 4. Consideration of what constitutes unsatisfactory conduct and professional misconduct for the purposes of the National Law is explained by Basten JA in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [18]-[21] as follows: "[18] The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration. [19] The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation. The phrase 'unsatisfactory professional conduct' is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, overservicing and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. [20] 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). [21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it." [footnotes omitted] 1. Under s 139B(1)(l), unsatisfactory professional conduct involves improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. The words "improper" and "unethical" are not defined in the National Law but have been considered in a number of Tribunal decisions and includes conduct which, viewed objectively, would be regarded by a reasonable person as falling below the standard of conduct expected of a practitioner in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession: see for example Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [30]-[31]; Health Care Complaints Commission v Knowles [2020] NSWCATOD 80 at [23]-[28]; Health Care Complaints Commission v Little [2016] NSWCATOD 146 at [68]-[69]; Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [55]-[56]; Office of Local Government v Toma [2016] NSWCATOD 21 at [15]-[25]. Complaint One, Two and Three: Unsatisfactory professional conduct under s 139B(1)(l) of the National Law 1. As noted above, Ms Hoang admits Complaints One, Two and Three. Complaint 1 1. The essence of this complaint is that on 40 occasions between 4 November 2016 and 2 October 2018 (see for reference Agreed Facts [13], [19], [24], [31], [32], [43] and [50]), Ms Hoang permitted her Medicare provider number to be used to claim benefits for professional services to seven clients in relation to consultations with Person A, a provisional psychologist, when such services were not claimable under the Medicare Benefits Schedule. We are satisfied on the evidence that this occurred. 2. Further, 271 claims were made using Ms Hoang's Medicare provider number for consultations with Person A (see Agreed Facts [15], [18], [20]- [23], [25]-[29], [33]-[39], [41]-[42], [45]-[49], [51]-[54], [57]-[60], [62]) and a further 12 claims for course or group sessions, which were not claimable under Medicare (see Agreed facts [16], [17] and [40]). We are satisfied on the evidence Ms Hoang knew or ought to have known that her Medicare provider number was being used to claim these benefits when they were not claimable. We are also satisfied that Ms Hoang failed to take reasonable steps to prevent her Medicare provider number being used to claim these services. 3. In this regard we note that Ms Hoang, who had responsibility for the practice, does not admit specific knowledge of each occasion her Medicare provider number was used but admits overall this occurred. She also acknowledges that she did not take any steps to prevent her provider number being used particularly after having allowed it to be used previously. 4. There are an additional four occasions that relate to the use of Ms Hoang's Medicare provider number in relation to claims made in respect of Person A. In July 2016, Ms Hoang had instructed Person A to obtain a mental health care plan (MHCP) which could be used towards payments for formal supervision. Person A obtained the MHCP but did not receive any therapy from Ms Hoang or any other psychologist at the practice. We are satisfied that the four claims made using Ms Hoang's provider number were improperly used towards supervision of Person A. We are also satisfied that Ms Hoang ought to have known that her Medicare provider number was being used improperly with respect to these claims and/or that she failed to take reasonable steps to prevent the use of her provider number in relation to the supervision of Person A. 5. We consider that Ms Hoang's conduct in respect of these matters failed to meet the standards of propriety and ethics expected of her. We agree with the Commission submission that the integrity of the Medicare system is critical to the proper functioning of the healthcare system. Conduct which actively interferes with that integrity falls short of the standards expected of healthcare professionals and has the potential to bring the profession into disrepute. Ms Hoang's conduct was also contrary to her obligation not to engage in disreputable conduct that reflects negatively on the profession of psychology and to be honest in her financial dealings, as required under the Australian Psychology Society's Code of Ethics. 6. We are of the view that Ms Hoang's conduct in Complaint 1 was unethical and improper and amounts to unsatisfactory professional conduct under s 138B(1)(l) of the National Law. Complaint 2 1. The substance of this complaint is that Ms Hoang provided false and misleading information to the Commission and Psychology Council in response to allegations concerning the improper use of her Medicare provider number. 2. Ms Hoang does not dispute that she dishonestly denied the allegations against her. She has expressed remorse and shame in respect of her conduct. While not trying to minimise the gravity of her dishonesty, we note that Ms Hoang contends this behaviour was out of character for her and that she was under severe stress including as a result of the financial impact of COVID-19 on her business. Some of her character referees have also provided references to the effect that this behaviour was out of character. That may be so, but in our view Ms Hoang's conduct was blatantly dishonest and fell considerably short of the standards of propriety, including honesty, expected of her. Further, furnishing false and misleading information to the Commission knowing it to be false or misleading in a material particular, is in breach of s 99 of the Health Care Complaints Act 1993 (NSW). 3. We are satisfied that Ms Hoang's conduct with respect to Complaint 2 was unethical and improper and amounts to unsatisfactory professional conduct under s 139B(1)(l) of the National Law. Complaint 3 1. This complaint concerns an application made by Ms Hoang for a grant from a charitable fund (the Fund) controlled by Person B who had attended 20 sessions as a client of Ms Hoang in the period 4 April 2017 and 7 June 2019. The Commission particularised the complaint as follows: 1. On 15 January 2018, on behalf of TIP, the practitioner applied for a grant of money from a charitable fund owned or controlled by Person B, in circumstances where: (a) the practitioner knew the fund was at least partly owned and controlled by Person B, (b) Person B was a client of the practitioner, 2. On or around 15 January 2018, TIP was granted, and accepted, a sum equivalent to USD$51,233.23 in the form of Bitcoin (BTC) from the fund. 3. By her conduct … the practitioner breached cl C.3.1(a) of the Code of Ethics in that she engaged in multiple relationships, namely a financial grantee/grantor relationship with Person B, which may have: (a) impaired her objectivity to render a psychological service to Person B, (b) led to, or risked exploitation of Person B at some point, whether or not actual exploitation in fact occurred at the time of the conduct. 1. After the grant was provided, Ms Hoang continued her therapeutic relationship with Person B. 2. Ms Hoang has reflected on her conduct with respect to the Fund and acknowledges that she breached the Code of Ethics by engaging in multiple relationships and admits the complaint. Ms Hoang also acknowledges that she was aware that Person B had a concern that she would cease seeing him if he didn't give her the money. 3. We are satisfied on the evidence that the conduct complained of occurred. Seeking and accepting a substantial sum of money from a client is contrary to clause C3.1 of the Code of Ethics which provides that psychologists must refrain from engaging in multiple relationships that may, among other things, impair their objectivity, or lead to the exploitation of a client. In this case, Ms Hoang was aware that Person B was at least in part responsible for the Fund and that he was her client. In that circumstance it was not appropriate for her to apply for the grant. As Ms Hoang acknowledges, her conduct had the potential to exploit Person B and breached clause C3.1 of the Code of Ethics. 4. We find Ms Hoang's conduct was unethical and improper and amounted to unsatisfactory professional conduct under s 138B(1)(l) of the National Law. Complaint Three is established. Complaint Four: professional misconduct under s 139E of the National Law 1. Complaint Four alleges that Ms Hoang is guilty of professional misconduct by reason of the conduct alleged in Complaints One, Two and Three considered individually or together. Ms Hoang admits Complaint Four. 2. Section 139E of the National Law provides that professional misconduct means: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or 2. 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. When considering whether the conduct amounts to professional misconduct, it may be relevant to consider the circumstances in which the conduct occurred, including the practitioner's motivation and the state of mind, as well as the risk of harm that the conduct was apt to create: Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [30]-[37] (Kirk JA). 2. On the evidence before us, we consider that each of the Complaints One, Two and Three of themselves constitute professional misconduct and that considered cumulatively, also comfortably satisfy the threshold for professional misconduct: 1. Ms Hoang dishonestly and inappropriately claiming Medicare benefits on hundreds of occasions is of a sufficiently serious nature as to constitute professional misconduct. 2. Ms Hoang denying (when questioned by the Commission and the Psychology Council) the misuse of her Medicare number, despite her knowledge that such misuse had occurred (at least in respect of some of the instances), is also sufficiently serious to amount to professional misconduct. 3. Finally, Ms Hoang's conduct in applying for, and accepting, a financial grant from Person B demonstrated a failure by Ms Hoang to recognise and observe professional boundaries with a client and had the potential to exploit Person B. This conduct also is sufficiently serious as to constitute professional misconduct. 1. Consequently, Complaint 4 is established. Principles regarding protective orders 1. The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdiv 6 of Div 3 of Pt 8 of the National Law in relation to proven claims against registered health practitioners: see ss 149A, 149B and 149C of the National Law. 2. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s 3A of the National Law. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) National Law. 3. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34]. 4. In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see for example, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. 5. As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards. Consideration of appropriate protective orders 1. As noted above, we are satisfied that the four complaints as advanced by the Commission are proved. We also note that Ms Hoang has surrendered her registration. 2. In Health Care Complaints Commission v Reid [2018] NSWCATOD 162, after making a finding of professional misconduct, the Tribunal stated at [657]: "The conduct we have found established is of such a serious nature that we are satisfied if the practitioner was still registered, we would have cancelled his registration. We are satisfied that it is appropriate in these circumstances to make an order under s 149C(4) of the National Law." 1. In the present case, even though Ms Hoang has acknowledged her wrongdoing and repaid Medicare, we are satisfied on the evidence that Ms Hoang's dishonest conduct is of a sufficiently serious nature that if she had been registered, we would have cancelled her registration. We therefore consider an order under s 149C(4) of the National Law to be appropriate. 2. We also consider that disqualifying Ms Hoang from being registered for a period of two years is appropriate having regard to the need to protect the community. Costs 1. The Commission seeks its costs. In exercising the power to award costs conferred by cl 13, Sch 5D of the National Law, the general rule is that costs follow the event unless there has been some disentitling conduct of the successful party. There has been no such conduct here and, in any event, Ms Hoang has agreed to pay the costs as agreed or assessed. Orders 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (the National Law) the Tribunal determines that if Ms Mary Hoang was still registered it would have cancelled her registration. 2. Ms Mary Hoang is precluded under s 149C(4)(b) of the National Law from being registered as a psychologist for a period of two years from the date of these orders. 3. Pursuant to clause 13 of Schedule 5D of the National Law, Ms Mary Hoang is to pay the Health Care Complaints Commission's costs on an ordinary basis as agreed or assessed. ********** 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: 09 November 2023