Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Catt [2024] NSWCATOD 11 Hearing dates: 14 - 15 June 2023, 23 - 25 October 2023 Date of orders: 20 December 2023 Decision date: 22 January 2024 Jurisdiction: Occupational Division Before: The Hon Le Poer Trench ADCJ, Principal Member B Sheridan, Senior Member Dr A White, Senior Member M Maher, General Member Decision: 1. As and from the 22nd January 2024, the practitioner's registration as a psychologist is suspended for a period of 12 months. 2. Upon the completion of the period of suspension, the Respondent's registration is to be subject to the following conditions: 1) To practise under Category C Supervision in accordance with the Psychology Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a) The supervision sessions must be: i) a minimum of one hour in length. ii) the supervision sessions must be face to face iii) the supervision sessions must be conducted on a fortnightly basis iv) supervisor reports must be completed and submitted to the Council three monthly. b) to authorise the Psychology Council of NSW to provide proposed and approved Supervisors with a copy of this decision and any subsequent relevant reports or decisions. c) Not to practise until a supervisor has been approved by the Psychology Council of NSW. 2) At each supervision meeting, the supervisor is to review and discuss practitioner's practice and address any relevant work-related or professional matters with particular focus on: a) Knowledge of the Psychology Board's Code of Ethics and the Australian Psychological Society's ethical guidelines b) Ethical and boundary considerations c) Privacy and Confidentiality d) Record-keeping e) Treatment plans f) Practice management. 3) To practice only in a group practice approved by the Psychology Council of NSW where there is at least one other person physically present in the practice at all times. 4) To advise the Psychology Council of NSW in writing at least seven days prior to changing the nature or place of her practice. 5) To provide evidence to the Psychology Council of NSW within fourteen days of recommencing practice, that she has provided a copy of the conditions and Tribunal's decision to all persons employed at the practice, and any place that she works as a psychologist. 6) The respondent is to satisfactorily complete an ethics course focusing on ethical obligations, which is approved by the Psychology Council of New South Wales, within six (6) months of re-commencing work as a psychologist in Australia or as otherwise specified by the Council. a) Within two (2) weeks of being notified that the course is approved, the practitioner must provide evidence to the Council of enrolment in the specified or approved course. b) Within four (4) weeks of completing the specified or approved course, the practitioner is to provide documentary evidence of satisfactory completion to the Council. 7) The Psychology Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW). 8) Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Psychology Board of Australia. 3. The practitioner is to provide her submission, to the Tribunal and to the HCCC in relation to the application of the HCCC that the Respondent pay its' costs of the proceeding, within 14 days of the date of publication of this judgment. The HCCC is to provide the Tribunal and the Respondent with its' reply to that submission with 14 days of receipt of the Respondents submission. Catchwords: OCCUPATIONS – psychology practitioners – misconduct and discipline – Finding of unsatisfactory professional conduct and professional misconduct – appropriate protective orders – registration suspended – practice conditions imposed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 64, 49, 3(f) Health Care Complaints Act 1993, 39(2), 90B(3) Health Practitioner Regulation National Law (NSW), ss 3A, 3B, 139B, 139E, 145A,149C,149C(5), 150, 165, Clause 7(1)(b)(iii) of Schedule 5D Cases Cited: Cakan v Health Care Complaints Commission Complaints Commission [2020] NSWCATOD 116 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission Complaints Commission v Jason Vuong [2022] NSWCATOD 83 Health Care Complaints Commission v CSM [2016] NSWCATOD 125 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120 Health Care Complaints Commission v Firth (No 2) [2015] NSWCATOD 84 Health Care Complaints Commission v FTR [2023] NSWCATOD 46 Health Care Complaints Commission v Jamnagarwalla (No 2) [2023] NSWCATOD 1 Health Care Complaints Commission v Ledner [2017] NSWCATOD 90 Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172. Health Care Complaints Commission v Vo [2014] NSWCATOD 127 John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & Ors (1991-1992) 26 NSWLR 131 Medical Board of Australia and Stephens [2018] WASAT 13 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Julie Ann Catt (Respondent) Representation: Counsel: S Maybury (Applicant) M Hall (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Gardner Legal & Regulatory (Respondent) File Number(s): 2022/00313397 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of any patient referred to in the proceeding is prohibited. reasons for decision 1. In this case the Health Care Complaints Commission ("the HCCC") seek an order for the cancellation of the registration of Julie Ann Catt ("the Respondent" or "the practitioner") pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW), ("the National Law"). It also seeks an order for costs. The Respondent opposes the orders sought. 2. At the opening of the hearing the Respondent made application that this hearing be restricted to a "Stage One" hearing. The HCCC did not oppose that course. At the conclusion of the second day of hearing the parties agreed that the further hearing of the matter would address both Stage One and Stage Two evidence and submissions. Stage One is that portion of the hearing which requires the HCCC to establish the case it has brought against the Respondent in full or in part. Stage Two, if required, will address the requirement for the imposition of protective orders, should that be necessary. The Respondent in this matter admits she is guilty of both unsatisfactory professional conduct and professional misconduct. She denies the facts set out in Complaint One, Particular 6, sub-paragraphs (b), (c), (d) and (e), which are set out hereafter. The Respondent also denies she is guilty of unsatisfactory professional conduct as set out in Complaint Two. 3. The HCCC relied upon the following documentary evidence which was tendered in this hearing. * Exhibit A1. Two volumes of documents comprising 1,471 pages. * Exhibit A2. Supplementary report of Professor Keogh dated 14 March 2023. * Exhibit A3. Certificate of Registration Status. * Exhibit A4. AHPRA Evidentiary Certificate. * Exhibit A5. Selected Emails passing between the Respondent and Patient A. 383 (pages). * Exhibit A6. Copy letter sent to each of the persons from whom the Respondent was seeking a reference to provide to the Tribunal in this proceeding. 1. The HCCC provided documents which were in the nature of submission or aide memoir and were marked as MFI's as follows: * MFI 1. A list of portions of the Respondent's responses included in exhibit A1 (Volume 1), not pressed by the HCCC. Portions of the report of Professor Keogh's report not pressed by the HCCC and portions of the supplementary report of Professor Keogh not pressed by the HCCC. * MFI 2. HCCC outline of case document. The HCCC also provided an outline of submission document dated 18 October 2023 and signed by counsel for the HCCC. * MFI 5. The written submission of the HCCC dated 14 November 2023. 1. When the hearing opened before us the HCCC placed on the record the following: "The HCCC will not submit that Particulars 3 and 4 of Complaint One do not individually amount to professional misconduct pursuant to s 139E of the National Law." Upon making that statement, the Respondent informed the Tribunal that Professor Keogh will not be required by the Respondent for cross-examination. The parties left open whether the Tribunal members might require Professor Keogh to give oral evidence. 2. The Respondent identified the documents she relied upon in the hearing. Those documents were marked as exhibits in the evidence as follows: * Exhibit R1. Application for miscellaneous matters. This application sought an order that the name of the Respondent and her business not be disclosed. * Exhibit R2. Affidavit of the Respondent affirmed 12 June 2023 (supporting Application for Miscellaneous matters). * Exhibit R3. Reply document of the Respondent dated 20 February 2023. * Exhibit R4. Affidavit of the Respondent affirmed 20 February 2023 (Not including annexures). [We note. The annexures were read in Stage 2 of the hearing. The annexures are references supportive of the Respondent.] * Exhibit R5. Affidavit of the Respondent affirmed 12 June 2023. * Exhibit R6. Amended Reply. * Exhibit R7. Report of Dr Cal Paterson. * Exhibit R8. Bundle of emails passing between the Respondent and Patient A produced by the Respondent in October 2023 during the final days of the hearing. (255 pages). * Exhibit R9(1) and 9(2). Copy email from Respondent's solicitor to Dr Paterson and "Documentation and File Report" in relation to the Respondents records. 1. The Respondent also provided documents which contained her submission and were otherwise provided as an aide memoir as follows: * MFI 2. A document titled "Outline of submission on liability and protective Orders". * MFI 1. A document setting out the dates of relevant events in relation to the Respondent and Patient A and their therapeutic and other relationship. * MFI 3. Outline of submission on liability and Protective Order filed 20 October 2023. * MFI 4. Closing written submission on liability and protective orders. 1. In the Application for disciplinary findings and orders, filed on 20 October 2022, ("the Complaint") the HCCC stated that "having consulted with the Psychology Council of NSW in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the National Law" the following complaint is made. The Complaint then details the case brought against the Respondent. 2. Under the heading "Background to All Complaints" the HCCC stated that the Respondent gained her educational qualifications in the USA and in Australia. In 1996 she obtained a Master of Arts, Psychology, from the University of Sydney. In 2001 she obtained a Graduate Diploma Counselling from the Australian College of Applied Psychology. In 2001 she commenced working as a provisional psychologist in Sydney. From 2003 the Respondent practised as the principal psychologist in her own practice. 3. The HCCC alleges the Respondent provided treatment to Patient A between June 2009 and June 2015. 4. The HCCC alleges the Respondent is guilty of one count of unsatisfactory professional conduct under s 139B(1)(a) or (l) of the National Law, one count of unsatisfactory professional conduct under s 139B(1)(l) of the National Law and one count of professional misconduct under s 139E of the National Law, arising from the practitioner/patient relationship. Further detail of the particulars of the Complaints is set out hereafter. 5. On about 10 March 2023 the Respondent filed a Reply to application for disciplinary findings document ("the Reply"). In that document the Respondent admits she is guilty of "unprofessional conduct" (we assume this to be the unsatisfactory professional conduct as alleged) in Complaint One on the Complaint document. In relation to Complaint One, the Respondent addresses the Particulars stated as supporting that complaint. She admits some of the Particulars, she denies some of the Particulars and she provides explanations in relation to some of the stated Particulars. 6. In relation to Complaint Two in the Complaint document, the Respondent denies she is guilty of "unprofessional conduct with respect to Complaint Two". (We note the Complaint alleges unsatisfactory professional conduct under s 139B(1)(l) of the National Law). In relation to the Particulars to Complaint Two, the Respondent admits some of the Particulars, states some of the Particulars are repetitive of those set out in Complaint One, and denies intent to mislead the HCCC or AHPRA or other authorities. 7. With Complaint Three, a complaint the Respondent is guilty of professional misconduct, the Respondent stated she "admits that she is guilty of professional misconduct". In relation to the Particulars to Complaint Three, the Respondent stated: "12.1. Denies that each and every particular of Complaint One justifies a separate finding of professional misconduct; but 12.2. Admits that when taken as a whole, her admitted conduct with respect to Complaint One, justifies a finding of professional misconduct." 1. The Respondent opposes the order sought for cancellation of her registration. She agrees the costs order sought by the HCCC should be made, "only if the matters denied in this Reply are not pressed by the HCCC." She stated that if the denials are challenged by the HCCC and that challenge is unsuccessful, then the HCCC should be ordered to pay the Respondent's costs. 2. On 14 June 2023 the Respondent made an application to have the name of the Respondent and identifying information, not published by the Tribunal. That application was heard and determined with the following interim order being made. 1. Pursuant to clause 7 of Schedule 5D of the National Law and pending the publication of the Tribunal's decision in relation to the Stage 1 determination in this case, the following information is not to be published. (a) The name and address of the Respondent Julie Catt. (b) The name of the Respondent's business. (c) The name and address of individuals identified in the affidavit in support of the Respondent's Application for Miscellaneous Matters filed 9 June 2023. 2. The reasons for this order will be published in the Reasons of the Tribunal to be given in relation to this Stage I hearing. 3. Leave is granted to each party to apply to set this interim order aside upon giving 14 day's notice to the Tribunal and to the other party. 1. We note the HCCC did not oppose the order being made on an interim basis only. 2. On 14 June 2023 the Tribunal heard oral evidence from Patient A. That evidence was not concluded on that day. The matter was listed to continue on 15 June 2023. On that day the Tribunal was informed that Patient A was not able to continue to give her evidence on that day due to health issues. As a consequence, the matter could not continue further and the following order was made: 1. The Hearing in this matter is adjourned Part-heard to 23 October 2023 for 4 days in the Sydney Registry of the Tribunal. 2. The Tribunal notes that it has been agreed between the parties that the continued hearing in this matter will address both the Stage 1 and Stage 2 parts of this case, in a consolidated manner. 3. The Respondent is directed to file and serve any further affidavit evidence she wishes to rely upon in the continued hearing by the close of business on 14 August 2023. 4. Each party is to provide to the Tribunal, and each other, an outline submission of their case by 10 October 2023. 5. The parties are requested to notify the Registrar if they agree the further hearing will require less than the 4 days allocated. 6. The parties may order sound recordings of the hearing on 14 and 15 June 2023 in this matter. The party seeking a sound recording is to meet the cost of same as notified by the Registrar. The Evidence relied upon by the HCCC 1. As set out above, the HCCC relies upon its' Application for disciplinary findings and orders, filed on 20 October 2022. That document identifies that Complaint One seeks a finding of unsatisfactory professional conduct pursuant to s 139B(1)(a) or (l) of the National Law. It relies on the following particulars to support that complaint. Particulars to Complaint One: 1. The practitioner failed to maintain appropriate professional boundaries with Patient A in that between 8 November 2012 and on about 16 May 2015, the practitioner contacted Patient A by email on numerous occasions for non-clinical purposes. 2. The practitioner failed to maintain appropriate professional boundaries with Patient A in that on numerous occasions from 8 November 2012 to 16 May 2015, she made inappropriate comments to Patient A including that: a. On 8 November 2012, the practitioner sent an email to Patient A that included the words: "you blow my mind" and "There's a saying in the biz: "you do in the room what you do in the world." And that's why I have all kinds of complicated feelings about being flirtatious with you." b. On about 29 January 2013, the practitioner sent an email to Patient A that included the following words. "We have come to mean stuff to each other; just because it is in the therapeutic context doesn't make it any less "real" but obviously it does mean it can't exist outside the room." c. On 3 May 2013 the practitioner sent an email to Patient A which included the words: "I have had the most interesting ongoing dialogue with you that perhaps I've ever had with a client, or indeed with most people in my life, ever." d. On 7 May 2013 the practitioner sent an email to Patient A which included the words: "I know beggars can't be choosers, but I'd prefer someone femme and sweet to boss around, if you don't mind terribly much." 3. The practitioner failed to maintain appropriate professional boundaries with Patient A in that she inappropriately disclosed personal information to Patient A including that: a. On 23 September 2013 the practitioner sent an email to Patient A that included the words: "FYI I'm flying to the US today (sick mum), returning on the 2nd." b. On 28 October 2013 the practitioner sent an email to Patient A that included the words: "It's really helpful for me too…sometimes it's easy to lose my way, and forget what's important about the work I do, because I start focussing on whether therapy is working for someone." c. On 29 March 2014 the practitioner sent an email to Patient A that included the words: "I guess we all have our issues but trust isn't really one of mine. Tall mannish looking business women, on the other hand…" 4. Between 25 January 2013 and about May 2015, the practitioner failed to terminate the therapeutic relationship with Patient A in circumstances where: a. On 25 January 2013, Patient A had sent the practitioner an email where she expressed romantic feelings towards the practitioner; b. On 28 April 2013 Patient A had sent the practitioner an email where she asked to end the therapeutic relationship; c. On 18 October 2014, Patient A had sent the practitioner an email that included the words, "Please help me, I'll survive the rejection. But I won't survive you" and "shut my therapy with you down because I just can't. Refer me to somebody you trust and have trust in me I am no risk to you. Ever." 5. Between about May 2015 and May 2017, the practitioner engaged in an inappropriate relationship with Patient A, in that the practitioner continued to send emails to Patient A on numerous occasions for non-clinical purposes including: a. On 4 December 2015, the practitioner sent an email to Patient A which included the words: "I've fallen in love with you too. That is a very hard sentence for me to write, because it is laden with questions and ethical problems…" 6. Between about May 2015 and May 2017, the practitioner inappropriately engaged in sexual activity with Patient A, as define in the APS Ethical Guidelines for Managing Professional Boundaries and Multiple Relationships, including: a. On 30 December 2015 the practitioner sent an email to Patient A that included the words: "Removalists here. Now you will never be able to bend me over that lounge."; b. On one occasion while at 'ARQ' nightclub in Sydney, the practitioner touched Patient A on her breast and allowed Patient A to touch the practitioner's breast; c. On around 25 February 2016 while at 'Della Hyde' bar in Sydney, the practitioner touched Patient A on her breast and allowed Patient A to touch the practitioner's breast; d. On one occasion in around late 2015 or early 2016, the practitioner sent an email to Patient A that included words to the effect that the practitioner had masturbated while at home and had "climaxed whilst birds squawked and ate the pet food around [me]"; e. On one occasion in or around 2016 or 2017, the practitioner allowed Patient A into the Practice rooms and kissed Patient A; f. On 24 January 2016, the practitioner sent an email to Patient A that included the words: "Holy fuck I cannot believe how bad I want you. I like seeing your mind work too. I want to get in my car, drive to Sydney, and spend the next 18 hours in bed with you. Gah!"; g. On 4 February 2016, the practitioner sent an email to Patient A that included the words: "That was so so so lovely. I liked teasing you. Playing with you. And when I realised we weren't safe being really explicit with our desire it made me so keen to be in your queer space with you, where I could climb all up on you and you could paw me and I could ram my thigh between your led(sic)"; h. On 28 February 2016, the practitioner sent an email to Patient A that included the words: "What do I think about? How it feels to kiss you. What it would be like to fuck you. To sleep with you (or have insomnia with you)." 7. The practitioner's conduct in Particular [6] was inappropriate in circumstances where the practitioner had recently been in a therapeutic relationship with Patient A. 8. By her conduct in Particulars 1 to 7 the practitioner failed to comply with: a. APS Code of Ethics (Australian Psychology Society, April 2018); b. APS Ethical guidelines for managing professional boundaries and multiple relationships (Australian Psychology Society, March 2016); c. APS Ethical guidelines on the prohibition of sexual activity with clients (Australian Psychology Society, February 2017) The conduct in Particulars 1 to 7 of Complaint One is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct. Complaint Two 1. The practitioner is guilty of unsatisfactory professional conduct under 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. Particulars of Complaint Two 1. On 9 January 2016, the practitioner made inappropriate comments in an email to Patient A, including the following words: "HOWEVER we wouldn't be stretching the truth so much to say our therapeutic relationship changed when I referred you to Nick in early November. So that shaves 6 months off." 2. The practitioner's conduct in Particular 1 was inappropriate in circumstances where: a. The practitioner had recently been in a therapeutic relationship with Patient A; b. The practitioner's therapeutic relationship with Patient A ended in or around May 2015; c. On 11 December 2015 the practitioner had sent an email to Patient A that included the words: "AHPRA and APS requirements are that any therapeutic relationship must have been finished for 2 years before any personal relationship can commence"; d. The practitioner by her comments was suggesting that the practitioner and Patient A could agree on a false or misleading account of when their therapeutic relationship changed or ended in order to protect the practitioner from potential professional censure. The conduct in Particular 1 of Complaint Two is relied upon in combination with Particulars 1 to 7 of Complaint One, individually or cumulatively, as a course of conduct amounting to unsatisfactory professional conduct. Complaint Three The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: (a) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or (b) 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 suspension or cancellation of the practitioner's registration. Particulars to Complaint Three 1. Each Particular of Complaint One justifies a finding of professional misconduct. (We note the concession from the HCCC that it would not allege Particulars 3 and 4 to Complaint One, individually justify a finding of professional misconduct). 2. In the alternative, when two or more of the Particulars of Complaint One and Two are taken together, a finding of professional misconduct is justified. 1. The HCCC relies on the Statement of Patient A, signed by her on 26 November 2021. In that statement we have noted the following evidence: 1. Patient A, at the date of her statement, was 50 years of age. 2. In about 2009 Patient A commenced therapy with the Respondent. Thereafter, she attended upon the Respondent at frequencies of fortnightly or monthly. There were times when the therapy sessions did not occur. 3. The therapeutic relationship between Patient A and the Respondent ceased in June 2015. 4. Patient A first engaged in therapy with the Respondent at a time when she had recently commenced living in Sydney. At that time she felt she was suffering from depression. She was experiencing escalating night terrors and anger management problems. 5. I about 2013, whilst in therapy with the Respondent, Patient A described issues relating to her sexuality and gender identity. Patient A underwent hypnotherapy with the Respondent to manage her needle phobia. 6. During sessions of therapy with the Respondent, Patient A experienced anger, strong sexual urges and dissociation. She sometimes lost ability to speak. She also experienced those symptoms outside of therapy sessions. 7. When the therapy commenced between the Respondent and Patient A, appointments were made by Patient A via email directly with the Respondent or sometimes by phone or text. There was also email and text correspondence between them, outside of arranging appointments. 8. Patient A annexed to her statement a selection of email and social media messages between the Respondent and herself for the period 27 October 2011 and 12 March 2021. There are 221 of those communications. 9. When the Respondent employed administrative staff she told Patient A to label any personal emails as 'PERSONAL'. 10. In about August 2015 the Respondent contacted Patient A via the Respondents personal email account. 11. In paragraph 14 of her statement Patient A identifies emails she received from the Respondent which she considered were outside of any therapy work. Those emails supported some of the Particulars (2a and 2b) in Complaint One. 12. Patient A set out detail of conversations with the Respondent, during her first year of therapy, which conveyed personal detail of the Respondent. Patient A was shocked by that detail and interpreted it as the Respondent "sending signals to me on a personal level." After hearing that detail, Patient A viewed the Respondent "as somebody who may be sexually attracted" to her because she was a lesbian. 13. In about 2010 or 2011 Patient A said she became aware she was "experiencing attraction to and feelings for Julie". She told the Respondent of that attraction. At some point, Patient A said she was aware that the Respondent "reciprocated my feelings and there was mutual attraction." Patient A told the Respondent she believed her feelings and strong sexual arousal were linked to the intensity of the therapy". The Respondent replied "you do in the room what you do in the world". 14. In about September 2012 the Respondent suggested Patient A consult with a psychiatrist. Patient A said that she had told the Respondent at that time that she was thinking about self-harm. Patient A attended upon a psychiatrist for six months and continued therapy with the Respondent during that time. 15. On 7 November 2012 Patient A informed the Respondent that she had deleted all the emails which had passed between them. Patient A said that the emails contained statements which were flirtatious and contained a strong focus on sexualised conversations. Patient A deleted the emails to protect the Respondent "from a scenario where they could be used against her". Patient A stated that some of the emails which she sent to the Respondent provided explicit information about the sexual fantasies Patient A had which involved the Respondent. In one email Patient A stated that she had strong sexual urges towards the Respondent and that she wanted to "bend her over the couch in the therapy room and fuck her from behind." The Respondent would sometimes respond to Patient A's emails saying they made her swoon. 16. Between 2013 and 2017 Patient A regularly conducted searches of the emails passing between the Respondent and herself and delete any which Patient A thought could be used against the Respondent. 17. Shortly after Patient A ceased therapy with the Respondent she said she received sexually explicit emails and text's from the Respondent. 18. On 28 April 2013 Patient A sent an email to the Respondent asking if she could end her therapy. On 30 July 2013 Patient A emailed the Respondent and asked if she could resume therapy with her. The Respondent told her she wanted to "take it to supervision first". The Respondent told Patient A that throughout the course of the therapy the Respondent had conducted with Patient A she had spoken to a supervisor she had about her reciprocated feelings for Patient A. 19. In about April 2015 Patient A informed the Respondent in an email that she had feelings for her that weren't related to therapy. The therapy continued. 20. Between June 2015 and December 2015 the Respondent and Patient A exchanged emails. In some of those emails the Respondent expressed her feelings for Patient A. In an email dated 4 December 2015 the Respondent stated: "I've fallen in love with you too. That is a very hard sentence for me to write, because it is laden with questions and ethical problems." 21. The Respondent informed Patient A she was concerned about the AHPRA and APS requirements that any therapeutic relationship must have been finished for two years before any personal relationship could start with a former client. On 9 January 2016 the Respondent sent Patient A an email which stated: "We wouldn't be stretching the truth so much to say our therapeutic relationship changed when I referred you to Nick in early November. So that shaves 6 months off." 22. Between January 2016 and March 2018 the Respondent and Patient A met on 21 occasions. Patient A set out a table detailing where and when she had met with the Respondent. On some of those occasions Patient A and the Respondent kissed and caressed each other "in a sexual manner." On two occasions the interaction between the Respondent and Patient A included touching each other's breasts. 23. On one occasion the Respondent visited Patient A in Patient A's apartment. 24. Between August 2016 and March 2017, Patient A did not meet with the Respondent although they exchanged some emails. 25. Following a meeting in March 2017 Patient A told the Respondent, in an email, that she wanted to have an affair with the Respondent. 26. On 11 July 2017 the Respondent visited Patient A in Patient A's house. 27. Shortly after Patient A ceased therapy with the Respondent in late 2015 or early 2016 she received an email or text from the Respondent which referred to the Respondent masturbating saying she had done it on the porch of her home and "climaxed whilst birds squawked and ate the pet food around her." 28. On 10 March 2018 the Respondent sent an email to Patient A which included the following words: "Yes, I feel like my decision to connect romantically with you, despite my best (and lame) efforts to manage the timing of it all, has been ethically dodgy…I should have waited until the two years was up before I allowed myself to enter into any dialogue with you." 29. On 31 March 2019 Patient A sent the Respondent an email ending their personal relationship. Patient A stated she would not report the Respondent. She asked the Respondent to stay away from her neighbourhood. 30. At the conclusion of her statement Patient A set out information on the impact upon herself of the relationship she had experienced with the Respondent. She said "I had no idea I was being retraumatised, rather than loved, and that my need to protect Julie was like my need to protect my childhood abuser due to fear of consequences and abandonment." "By 2021, I felt like I was drowning with the responsibility of protecting Julie and started to feel overwhelming guilt that I had threatened to report her in 2019. I felt equally guilty that I had not reported her and that she may do this to another. I feel trapped and that the attachment I have to Julie is not reversible. I can't form any romantic interest or emotional attachment to another person. I often recoil against sexual, physical or emotional advances from people. I am squeamish about being hugged or touched in a non-sexual way by friends. I have become cut off from intimacy and feel isolated from society". 1. Each of the emails which are set out in the evidence of Patient A have a number designated to it and that then has been indexed by the HCCC in Exhibit A1 to a page of that Exhibit. There is no issue raised by the Respondent that a quoted email is not set out in the attached copies of emails and texts which span pages 66 to 532 in Exhibit A1. 2. The HCCC relies upon the evidence of its' expert witness Dr Timothy Keogh. The report is contained in Exhibit A1 at page 554 and following. 3. In the report of Dr Keogh dated 4 April 2022 we note the following evidence. We also know from the Respondent that Dr Keogh was not required for cross-examination and therefore his evidence stands as unchallenged. 4. In the report, Dr Keogh identifies all of the material provided to him by the HCCC for the purpose of providing his opinion. 5. Dr Keogh addressed the specific questions he had been asked to provide his opinion on. The first question was: "Please provide your opinion of the appropriateness of Ms Catt's conduct in corresponding with Patient A via email outside of their face-to-face treatment sessions". Dr Keogh opined the following: * Communication by email is considered part of the therapeutic frame within which one operates with a client. Usually it is restricted to administrative issues such as appointments. If a patient uses it otherwise, it is normally agreed it will be discussed in session. Consequently, it is either not answered or answered by stating the issue will be addressed in the next session. * Ms Catt's communication with Patient A appeared to have no clear guidelines or boundaries prescribed. That suggests very poor management of therapeutic boundaries. * The increasing personal content of the emails (that does not appear to be therapeutically justified) given the severity of the client's mental health issues (and her related personal history) also suggests a serious lack of judgment. There seems to have been inadequate consideration and thought about what was increasingly the reasonably foreseeable consequences of the conduct. * The standard which would reasonably be expected of a practitioner in these circumstances is reflected in Section 2 B. 3 of the Code of the Australian Psychological Society (The Code). That states: * "Psychologists provide psychological services in a responsible manner. Having regard to the nature of the psychological services they are providing, psychologists: (a) act with the care and skill expected of a competent psychologist. (b) take responsibility for the reasonably foreseeable consequences of their conduct. (c) take reasonable steps to prevent harm occurring as a result of their conduct; and (g) are aware of and take steps to establish and maintain proper professional boundaries with clients and colleagues." * Dr Keogh opined that when the conduct of the Respondent in corresponding with Patient A outside of their face to face treatment sessions, was compared to a practitioner of an equivalent level of training and experience, it fell significantly below the expected standard and significantly below the standard required by the Code. 1. Dr Keogh addressed the question: "Please provide your opinion of the appropriateness of the content of the Ms Catt's emails to Patient A in the context of their therapeutic relationship." In answering that request we note the following from the report: * Dr Keogh restricted his opinion to those emails from Ms Catt generated during the currency of the therapy she was providing to Patient A, i.e. up to August 2015. In relation to that period Dr Keogh stated that the provisions of the Code recited above are applicable to the conduct. * Dr Keogh said he viewed the content of the emails as "overall inappropriate". That was especially so as the content referenced Ms Catt's personal feelings about her client. The content also fostered an extra-mural communication. * He opined that the majority of his peers would see the communication "as representing a potentially dangerous departure" from a therapeutic relationship. * The intense emotions expressed by Patient A in emails to Ms Catt were not responded to appropriately. Dr Keogh set out some of the responses of the Respondent which illustrated his point e.g. "You blow my mind"; "Have a good day gorgeous." * The conduct of the Respondent did not comply with the provisions of the Code already set out by Dr Keogh. Further it did not demonstrate consideration by the Respondent of Section 6.8.1. of the APS Ethical guidelines for managing professional boundaries and multiple relationships concerning self-disclosure which also points out: "While self-disclosure may be beneficial in some client relationships and in some cultural contexts, psychologists are aware of potential for self-disclosure to also lead to a compromising of professional boundaries. Self-disclosure can also draw the psychologist into a personal relationship with a client with whom the psychologist has, or is building, a professional relationship." * The conduct of the Respondent fell significantly below the standards in the Code and below the standard of a practitioner of an equivalent level of training and experience. 1. Dr Keogh was asked: "Assuming Patient A's version of events, please provide your opinion on the appropriateness of Ms Catt's conduct in divulging personal information to Patient A. Were the disclosures clinically justified or appropriate?" 2. Dr Keogh opined that in relation to the content of the personal disclosures Ms Catt's conduct was significantly below the standard of an equivalent practitioner with the same level of training and experience. Dr Keogh cited extracts from the emails of Ms Catt which demonstrated inappropriate disclosure of personal information. Dr Keogh opined that the disclosures were not clinically justified. Moreover, with reference to the Code which relates to professional responsibility and respect for the client. Dr Keogh stated: "My peers would also see the Respondent's statements as likely to excite an erotic transference rather than help to understand and deal with it." Dr Keogh also said: "It is hard to imagine how the psychologists comments as listed (by Dr Keogh in his report), could be seen to be in the interests of the client when they were made in the context of her being so apparently overwhelmed with her own difficulties and uncontained in responding to her client." 3. Some of the matters on which Dr Keogh was asked to provide his opinion on were not ultimately the subject of the Complaint brought by the HCCC, or have been "not pressed" by the HCCC in this hearing. We have therefore addressed those parts of the report which address matters before the Tribunal in this hearing as presented by the parties. 4. Dr Keogh was asked to opine upon the action of the Respondent in requesting a further meeting with the Respondent on the occasion of the Respondent asking for the therapeutic relationship to end. Dr Keogh opined that, taken overall, the Respondent's conduct in requesting a further meeting was not conduct one would expect of a practitioner of an equivalent level of training and experience and due to the context in which it occurred, it falls significantly below the expected standard and significantly below the standards in the Code. 5. The HCCC asked Dr Keogh to provide his opinion on the appropriateness of the Respondent continuing a therapeutic relationship with Patient A when Patient A had requested an end to therapy and expressed romantic feelings for the Respondent. Dr Keogh opined that such conduct was significantly below the expected standard and significantly below the standard set by the Code. He said that Section B.11 of the Code addressed Termination of psychological services. It notes: "Psychologists terminate their psychological services with a client if it is reasonably clear that the client is not benefiting from their services." 6. The HCCC asked Dr Keogh to give his opinion in relation to the conduct of the Respondent in continuing to correspond with Patient A after their therapeutic relationship had ceased. Dr Keogh stated there may be some circumstances, where there has been a successful conclusion to therapy where a psychologist may indicate an interest to hear from the client after a suitable period of absence following the termination to let the psychologist know how "things are going". However, in the case of the Respondent and the ongoing communication with Patient A, Dr Keogh opined that it did not appear to be client centred. At times it seemed to be motivated by the psychologists needs. He said: "This situation suggests a misuse of the residual power imbalance of the therapeutic relationship such that it can be viewed as not respecting the client's rights and not exercising appropriate judgment into the likely consequences of such conduct with the client who is vulnerable due to the nature of her presenting problems…Subsequent email self-disclosure of frank romantic and sexual feelings for the client represented an even more serious departure from expected standards of behaviour." 7. Dr Keogh opined that the Respondent "knowingly allowed the relationship with her client to become sexualised, which I believe is contrary to the standard expressed by section C.4.1 of the Code concerning exploitation". Dr Keogh concluded that in his opinion the described conduct was not conduct that one would expect from a practitioner of an equivalent level of training and experience and would fall significantly below the expected standard mentioned in the Code. 8. Dr Keogh was critical of the Respondent for having disclosed to Patient A that she had romantic feelings for her. The HCCC provided Dr Keogh with extracts from emails which the Respondent had sent to Patient A which evidenced such expressed romantic feelings. Dr Keogh's criticism of the conduct was made notwithstanding the emails were sent by the Respondent to Patient A after the therapeutic relationship had concluded. He said that there is a two year time specified as being required before a psychologist can commence a relationship with a former client. He said: If a relationship post termination is ever to be contemplated between therapist and client, at least two years' time might normally elapse to allow for the dissolution of the client's feelings towards their therapist. That is, a client needs to resolve her feelings about the therapist who has occupied an emotionally charged role with the client in a power-imbalanced relationship." 9. Dr Keogh stated: "It thus appears that Ms Catt did not facilitate any proper termination or resolution of her therapeutic relationship and knowing the client's vulnerabilities appears to have instead encouraged the relationship into a romantic and sexualised direction by seemingly putting her own needs in this way before her former client's". The content of her emails, "captures her complete loss of professional perspective and indicates that her judgment appears to have been dominated by her own emotions rather than a consideration of the needs of her patient." 10. Dr Keogh opined that in that manner the Respondent's conduct fell significantly below the expected standard including the standards in the Code. 11. The HCCC asked Dr Keogh to provide his opinion in relation to the conduct of the Respondent in conducting a physical relationship with Patient A (kissing and caressing) after their therapeutic relationship ended. Dr Keogh noted that the described conduct was said by Patient A to occur in Bars' and night spots within a two-year period of the therapeutic relationship concluding. In the lead up to the occasions spoken of by Patient A, Dr Keogh noted the content of the email communication had become increasingly sexualised with no apparent restraint by the Respondent. Dr Keogh restated the Code's provision in relation to the "Two-year rule". He saw the conduct of the Respondent in those circumstances as suggesting a poor appreciation of her responsibilities for her client's welfare. Dr Keogh opined that the conduct addressed fell significantly below the expected standards in the Code and the Ethical guidelines on the prohibition of sexual activity with clients. 12. The HCCC asked Dr Keogh for his opinion about the Respondent "engaging in masturbation and subsequently disclosing this to Patient A". Dr Keogh opined as follows: "I feel Ms Catt's conduct in this regard can be tested against the sections of the Code that deal with exploitation (Section C.4.1) and the Ethical guidelines on the prohibition of sexual activity with clients," and former clients. Dr Keogh opined that the conduct fell significantly below the expected standard in the Code and the Ethical guidelines on the prohibition of sexual activity with clients. Further, he opined, it falls below the standard expected from a practitioner of the equivalent level of training and experience as the Respondent. 13. Dr Keogh was asked to provide his opinion on the accuracy and adequacy of the Respondent's understanding and application of the requirements of the APS Code of Conduct in relation to romantic/sexual relationships with patients. Dr Keogh said: "Following termination of her therapeutic relationship with Patient A Ms Catt engaged in, and encouraged engagement with her former client, on a personal and ultimately more intimate and sexualised level of communication." He said that the Respondent seemed to have an understanding of the APS Code of Conduct that allowed all and any sexualised conduct with a former client provided it was not a direct physical sexual relationship. Such an understanding is a completely inadequate understanding. He opined that when compared to the understanding of the Code that a practitioner of an equal level of training and experience, the Respondent's conduct fell significantly below the expected standard in the Code and the Ethical guidelines on the prohibition of sexual activity with clients. 14. The HCCC asked Dr Keogh to provide his opinion on the adequacy and appropriateness of the Respondent's care and treatment of Patient A: (a) prior to Patient A disclosing romantic/sexual feelings for the Respondent and (b) after Patient A disclosed romantic/sexual feelings for the Respondent. 15. Dr Keogh stated: "Patient A was presented with a referral from a GP which indicated high levels of distress by the K10 diagnostic instrument. There was a documented history of depression. The client also revealed a history of trauma and gave evidence of emotional dysregulation and problematic drug use. In consultation with the Respondent she also advised that her mental state had worsened following a relationship breakup." 16. Dr Keogh stated further: "When reviewing the psychologist's clinical notes, I can see no evidence of: 1. An adequate assessment of her presenting problems; 2. Any tentative diagnostic formulation; 3. Any specific treatment plan." 17. He opined that based on the Respondent's clinical notes, it appears that the Respondent's intervention has been based on a very loose understanding of the client's difficulties and their seriousness. The notes suggest lack of competence for a client with such complex needs related to trauma, depression or adjustment disorder. Dr Keogh was highly critical of the Respondent's conduct with Patient A following Patient A disclosing romantic/sexual feelings for the Respondent. He said: "It appears from the clinical notes that Ms Catt was not aware of the seriousness of the client's psychopathology as reflected both in her expression of erotic feelings toward her therapist and the way the boundary around extra-mural communication was managed." He said the Respondent had not considered whether she had the competence to deal with such a complex presentation. 18. In terms of the appropriateness of her treatment of Patient A, the use of hypnosis and regression therapy to which Ms Catt refers, was not clearly documented or its' use clinically justified in relation to any particular diagnosis." He said she had not consulted with an appropriate supervisor in a timely manner. 19. Dr Keogh set out the provisions of the Code addressing record keeping. He opined that the appropriateness and treatment of Patient A by the Respondent, fell significantly below the expected standard of the Code and below the standard expected of a practitioner of an equivalent level of training and experience as that of the Respondent. 20. In relation to the question of the appropriateness of the Respondent's continued professional involvement with Patient A once she was aware that Patient A had sexual and/or romantic feelings for the Respondent, Dr Keogh was critical of that involvement. He referred to the Code which addressed a psychologists need to continuously monitor her own professional functioning, her compliance with the standards which refer to record keeping and, the standards which refer to competence. He expressed his opinion that the appropriateness of the Respondent's conduct in continuing professional involvement with Patient A, once she was aware that Patient A had sexual and/or romantic feelings for her and her decision not to refer to another therapist is that, compared to a practitioner of an equivalent level of training and experience, conduct which fell significantly below the expected standard. 21. Dr Keogh was equally as critical of the Respondent's continued professional involvement with Patient A following the Respondent forming sexual and/or romantic feelings for Patient A as he had expressed earlier in his report, as noted above. He opined her conduct fell significantly below the standard expected of a practitioner of equivalent training and experience. 22. In relation to the Respondent's failure to disclose her issues with alcohol to AHPRA Dr Keogh opined that: "failure to disclose that condition evidences an unwillingness to cooperate with an investigation in an open and honest way. As an attempt to misrepresent oneself and one's conduct, it also can be seen to speak to the professional integrity of the person in question. Moreover, it could be regarded as conduct indicative of someone who is willing to operate outside of prescribed codes of conduct and legal requirements. Conducting oneself in such a way also represents a willingness to engage in disreputable behaviour that reflects negatively on the professional discipline of psychology." 23. Considering the above expressed opinion, it must reasonably be characterised as a scathing indictment of the Respondents conduct. Needless to say, Dr Keogh opined that the Respondent's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training and experience. 24. The HCCC also relied upon the further report of Dr Keogh, which was contained in exhibit A2. Some of the content of that report was not read by the HCCC, however, the following was relied upon. 25. Dr Keogh was asked to consider the content of the Respondent's Reply document and her affidavit affirmed 20 February 2023. He said the content of those documents does not change the opinions expressed in his earlier report, in fact he said the documents strengthen his opinions. He considered the statements in the documents represented a further attempt to minimise inappropriate conduct. He stated: "In terms of minimising the seriousness of her inappropriate conduct, I also note that in all of the materials sent to me in relation to this case, there appears to have been indications of consistent and increasingly serious series of boundary transgressions which seem to have not been addressed by Ms Catt in a way that acknowledged the serious level of departure from acceptable standards that these represented. …. Her acknowledged inappropriate conduct was very dissonant to the high standards of work to which she alluded in her affidavit and to which her colleagues speak." Oral evidence of Patient A 1. The Respondent required Patient A to be available for cross-examination in the hearing. On 14 June 2023 Patient A attended before the Tribunal to give her evidence. 2. Patient A confirmed that the content of her statement dated 26 November 2021 (as set out in Exhibit A1 at p.43), was true and correct. She was asked in evidence-in-chief if she had ever been incarcerated. She said she had not, however, she had been detained by police in 2009 for approximately 36 hours. She was charged with assault. In court the case was dismissed. 3. Patient A was cross-examined by the Respondent's counsel. We have noted the following, in particular, in the evidence Patient A gave. 4. Patient A denied she had told her psychologist in August 2021 that the HCCC had "backflipped". She said she understood the HCCC were considering taking another path. She had no recollection of using that word, however, she conceded she may have. 5. Patient A was asked if in July 2021 she was feeling frustrated, angry and derailed by the process. She said she probably was. She agreed that in August 2021 she had written some of her statement. It is possible that there were drafts of Patient A's statement (of 26 November 2021) between August 2021 and November 2021, she could not recall. She admitted that during the time she was either writing drafts of her statement, or possibly doing so, she had feelings of anger and loathing for the Respondent. She said she had feelings of betrayal, rejection and possibly jealousy in relation to the Respondent at that time. 6. Patient A was asked if she understood the Respondent denied she and Patient A had touched each other's breasts, kissed in the Respondent's office, that she climaxed as birds sang around her, that she had sent a text saying she wanted to "put her whole hand inside" Patient A. Patient A told us that she had an actual memory of each of those events happening. 7. The Respondent asked Patient A if she had wanted to have the Respondent de-registered for a few years when she was preparing her statement. Patient A admitted that was so. 8. Patient A agreed that at the time she prepared her statement she had read the attached emails many times. It was put that in the process of preparing her statement Patient A had moved from thinking what had happened was a love story and that it had ended as a tragedy. Patient A denied that. She said she had come to that belief in about 2019 or 2020. By that time, she was reporting it to the HCCC as it was feeling like abuse to her. 9. Patient A was asked about the provision of the emails to the HCCC. She said she had deleted some emails earlier however, she endeavoured to provide the HCCC with every email she had retained which had passed between herself and the Respondent. She had conducted bulk searches of her emails 4 or 5 times. She had operated a "Hotmail" email account in 2012 and changed to a "gmail" account thereafter. Patient A said she had deleted her correspondence with the Respondent at a particular time, namely 2009 to 2012. She could not recall if she deleted the "sent" emails. In relation to the emails for the period 2013 to 2017 Patient A said that when she searched for emails at the time she was preparing her statement, she had concluded she had none from the inbox or the sent box. 10. In relation to paragraph 71 of her statement, Patient A was asked if she had any emails about the meeting between herself and the Respondent at an establishment named 121BC. Patient A said: "Not that I have found". She said however that she recalled the meeting. She said "We went for dinner. We ate, we drank wine, and we went home. We had light intimacy in the form of a kiss, on the mouth, that is all." 11. Patient A was shown a document in annexure JC5 to Exhibit R5. Having read that document Patient A agreed she met with the Respondent at 121BC on 16 March 2016. It was put that there was no kiss on the mouth on that occasion. Patient A said she believed it was. She denied it was a kiss on the cheek. Patient A said the kiss was not a passionate kiss. 12. Patient A was asked to look again at Exhibit JC5. She agreed that the meeting with the Respondent at 121BC was a month after she had a meeting at an establishment named Della Hyde on 25 February 2016. (Patient A had referred to that meeting in paragraph 71 of her statement). 13. Patient A was asked to consider her statement at paragraph 72. That set out an allegation that on 2 occasions she and the Respondent had touched each other's breasts. Patient A said: "I want to clarify that. At ARQ, Ms Catt touched my breast and at Della Hyde I touched hers." It was put to her that she did not touch Ms Catt's breast. Patient A said: I did. 14. The HCCC's counsel called for: "All emails and text messages or any written form of communication passing between Patient A and Ms Catt commencing in the year 2009 until present day." 15. The hearing concluded for the day (24 June 2023) at that point. The matter was adjourned until 10am the following day. The cross-examination of Patient A was to continue. 16. At 10am on 15 June 2023, the Tribunal was informed by the HCCC that Patient A had attended to give evidence however, she was not well enough to continue at that time. As there was no other witness to call, the case was adjourned to 23 to 26 October 2023 in the Sydney Registry of the Tribunal. The Tribunal made the following order and notation. Order 15 June 2023 1. The Hearing in this matter is adjourned Part-heard to 23 October 2023 for 4 days in the Sydney Registry of the Tribunal. 2. The Tribunal notes that it has been agreed between the parties that the continued hearing in this matter will address both the Stage 1 and Stage 2 parts of this case, in a consolidated manner. 3. The Respondent is directed to file and serve any further affidavit evidence she wishes to rely upon in the continued hearing by the close of business on 14 August 2023. 4. Each party is to provide to the Tribunal, and each other, an outline submission of their case by 10 October 2023. 5. The parties are requested to notify the Registrar if they agree the further hearing will require less than the 4 days allocated. 6. The parties may order sound recordings of the hearing on 14 and 15 June 2023 in this matter. The party seeking a sound recording is to meet the cost of same as notified by the Registrar. 1. Of particular note is the change of position of the parties in relation to the manner in which the hearing is to address the Stage 1 and Stage 2 determinations. The hearing will hereafter be conducted as a combined hearing of both stages. That being so, we note that the Psychology Council of NSW heard and determined Patient A's complaint against the Respondent, pursuant to s 150 of the National Law on 25 October 2021, publishing its' reasons on 16 November 2021. The order made by that Council on 27 October 2021 pursuant to s 150(1)(b) of the National Law was to impose conditions on the Respondent's registration. Those conditions included requirements that the Respondent practice under supervision at level "C" as prescribed by the Psychology Council of NSW Compliance Policy; that she practice only in a group practice approved by the Council; that she submit to audits by random selection of her records; and to provide copies of the conditions to all persons employed at the practice in which she works. 2. The Record shows that the Respondent applied under s 150A of the National Law to vary or discharge the conditions set by the Council. She made that application on 9 February 2022. The Council considered the application and declined to change the conditions. 3. When the hearing resumed on 23 October 2023 the Tribunal was informed that the Respondent would no longer require Patient A for further cross-examination. The parties' lawyers had reached an agreement that in relation to the evidence of Patient A the HCCC will take no Browne v Dunn point if the Respondent elected to not cross-examine Patient A so as to put to her that she is wrong in her evidence about any of the disputed factual matters. 4. The parties confirmed that the hearing would continue on the basis of considering both Stage One and Stage 2 evidence and considerations. 5. The documentary evidence relied upon by the Respondent in relation to the Complaint brought by the HCCC is contained in exhibits R3 to R9 inclusive. We now turn to consider that evidence and also the oral evidence of the Respondent and Dr Paterson. Exhibit R3 and R6 1. These exhibits contained the Reply documents of the Respondent. Exhibit R6 contained the Reply which the Respondent ultimately relied on. 2. Exhibit R6 sets out that the Respondent admits the matters set out in the "Background to all Complaints". The Respondent admits she is guilty of unsatisfactory professional conduct with respect to Complaint One. She admits paragraphs 1, 2, 4 and 5 of the Particulars. She provided some explanation which included statements such as "she did not intend to engage in non-clinical communications." "The emails were usually responses to emails from Patient A and stemmed from therapy sessions." "Expressions of romantic interest by a client does not, on its own, require that the client be referred elsewhere". The Respondent did admit the words in paragraph 3(c) of the Particulars did contain an inappropriate disclosure of personal information. 3. In relation to paragraph 6 the Respondent admitted the content of paragraphs 6(a), 6(f), 6(g) and 6(h). She denies paragraph's 6(b) to 6(e). 4. With respect to paragraph 3 of the Particulars the Respondent admitted that emails were sent which contained the stated words. She denied however that the words were "an inappropriate disclosure of personal information". In relation to paragraph 7 of the Particulars, the Respondent limits her admission to that consistent with her reply to paragraph 6. 5. The Respondent admits paragraph 8 of the Particulars that she failed to comply with the APS Code of Ethics and that her conduct was inconsistent with the two guidelines referred to in paragraphs 8(b) and 8(c). The Respondent then added: "The guidelines are a private guideline of the Australian Psychology Society ("APS"), are not publicly available, and are not a document promulgated by the Psychology Board of Australia as a code or guideline for the profession. A number of those assertions are incorrect. This assertion was not addressed by the Respondent in submission. We refer to the evidence of Dr Keogh which states the codes adopted by the APS are those which apply to registered psychologists. We also note the APS has a website which enables the viewing of the code of conduct. 6. In Relation to Complaint Two, the Respondent denied she is guilty of unsatisfactory professional conduct with respect to Complaint Two. The denial is said to arise because the facts have been relied upon in the earlier Complaint. However, Complaint Two is directed at unethical conduct whereas Complaint One largely focuses on boundary violations and inappropriate conduct. Complaint Two alleges that the Respondent was seeking to have Patient A join in a fabrication of fact in order to avoid a claim the Respondent was breaching ethical codes, or professional requirements. 7. In relation to Complaint Three, the Respondent admits she is guilty of professional misconduct. She admits that Particulars 1, 2 5 and 6 of Complaint One, on their own, constitute professional misconduct. She admits that when taken as a whole, her admitted conduct with respect to Complaint One, justifies a finding of professional misconduct. 8. Exhibit R4 contains the affidavit of the Respondent dated February 2023. In that affidavit we have noted the following evidence in particular. 1. The Respondent says she is one of only a few practitioners who have expertise in assisting trans, non-binary and gender-questioning adolescents and adults. She set out the nature of her work with that clientele. 2. Under the heading "Response to Allegations" the Respondent said she admitted the majority of the allegations made against her. She acknowledged she had departed from accepted standards. She accepted her conduct had caused harm to Patient A which she greatly regretted. She accepts she must be sanctioned for her conduct. 3. Under the heading "Reflection" the Respondent stated she had considered her statement set out at pages 765 to 777 of exhibit A1. That is a document authored by the Respondent and attached to a formal response provided by her solicitor to the HCCC. The document from the solicitor is dated 17 May 2022. The Respondent affirmed the "Reflection" statement, set out in exhibit A1, related to matters she sought to clarify. She said in relation to the contention she raised at point 2 on page 11 of her document (page 775 of exhibit A1), "It is unlikely that I told Patient A that I did not usually divulge personal information as I often "come out" to clients as a queer woman and have done so for many years. This is common amongst LGBTQ practitioners, for a number of reasons." The Respondent said she had disclosed to Patient A that she had undergone assisted fertilisation in a same sex relationship. She made that disclosure at a time Patient A had said she was investigating the possibility herself. In her affidavit (under consideration here) the Respondent also referred to the publication of a memoir, of her own, in 2009. That publication had set out significant personal information about the Respondent. The Respondent thought the point she made at paragraph 15 of her document (page 777 of exhibit A1), should have added the information that Patient A had learned of the engagement of the Respondent to her now wife. 4. The Respondent annexed to her affidavit 13 references from people named in the index set out at page 7 of the affidavit. These references are now read as part of Stage Two. The references are very supportive of the Respondent. They outline the important work the Respondent has involved herself in for the benefit of the community as a whole. She has had leadership roles in LGBTIQA+ groups and organisations. The references also opine that the offending conduct of the Respondent is out of character as she is known to the referees. One raised a concern for the clients the Respondent services should she be restricted or removed from practice. One referee raised a belief that this conduct is a "one-off". The referees are highly credentialed. They express a great deal of confidence in the Respondent and are sure there will be no repetition of misconduct. One referee raised a concern for the Respondent's clients should she be named as part of the publication of this judgment. One of her referees is a barrister who has worked with the Respondent on an organisation called Twenty10. It is a body which services needs of members of the LGBTIQ+ community. He was able to speak of her service and office holding in that organisation. He was supportive of the Respondent and was sure any professional misconduct was isolated to the one case and out of character for the person he knew. 1. Exhibit R5 is an affidavit of the Respondent of some 64 paragraphs. In this affidavit we particularly noted the following evidence. 1. The Respondent denied any alleged sexual touching took place between herself and Patient A. She admitted "that we kissed". 2. She denied sending an email as alleged in particular 6(d). She denied the events described in the email ever occurred and she denied she would have written an email to Patient A describing masturbating. 3. The Respondent had no recollection of kissing Patient A in her office on a stated occasion. She asserted she would not have done so. 4. The Respondent addressed "the meaning" of what she wrote in some emails. The Respondent then set out specific quotes from emails she wrote and attributed context and her intention to those words. She emphasised she was not seeking to defend clearly inappropriate conduct on her part. Some of the emails she referred to are addressed later in these reasons where we consider her evidence under cross-examination. 5. One email she referred to in her affidavit was in the chain 7 to 8 November 2012 (pages 71-74 of exhibit A1). Part of what the Respondent said in her affidavit addressed the words she had written "I have all kinds of complicated feelings about being flirtatious with you." The Respondent acknowledged she had been flirtatious with Patient A in emails however she denied that occurred in therapy sessions. She said she was not at that time "aware of any feelings of romantic or sexual attraction to the client". In the context of the evidence which is before us, we are surprised by that statement. As will be seen, the wording of emails created by the Respondent would suggest she did have romantic attraction to the patient at that time and later. 6. The Respondent referred to parts of many emails where particular words, on their face, may suggest she was expressing emotion directed in a romantic way to Patient A and where the Respondent explains no such meaning was intended. At the particular time the email was written the Respondent denied having any romantic or sexual attraction to Patient A. 7. In paragraph 36 of her affidavit the Respondent refers to a period of time in April 2015 when she was aware of her attraction to Patient A. She said she was challenged by her "countertransference". 8. In paragraph 43 of her affidavit the Respondent addressed the email which is the subject of Complaint Two. The Respondent had written in an email to Patient A the following: "HOWEVER we wouldn't be stretching the truth so much to say our therapeutic relationship changed when I referred you to Nick in early November. So that shaves 6 months off." The Respondent denied she was attempting to mislead anyone with those words. She denied her mind was on her professional requirements not to conduct a relationship with a former client within 2 years of ceasing a therapeutic relationship. 9. Some of the emails from Patient A refer to the use of drugs. The Respondent denied she ever received drugs from Patient A. 10. The Respondent addressed the Statement of Patient A. In response to paragraph 12 of the Statement the Respondent said the content and tone of the email exchanges between herself and Patient A and return, is completely different to the conversations whilst in therapy. 11. In relation to paragraph 16 of the Statement the Respondent said she was not attracted to Patient A at that time. The Respondent first became aware that Patient A was attracted to her when she received the email identified in paragraphs 32 and 33 of the Statement. (We note that Patient A identified that email as having been sent "prior to 2012"). The Respondent says that at the time she became aware of that attraction she identified that the email disclosed a problem which needed to be addressed. She said she raised it in the next session. The Respondent did not agree with the suggestion she had sent signals to Patient A prior to that email. She agrees that she did send inappropriate signals to Patient A, through emails, "later on". 12. In relation to paragraph 17 of the Statement the Respondent did not think she had ever said to Patient A "it took forever for you to see me". 13. In relation to paragraph 21 of the Statement, the Respondent said she did not recall ever indicating expressly she had reciprocated feelings for Patient A until an email the Respondent had initiated in December 2015. (We note that is contradicted by the Respondent's oral evidence. There she nominated the date as 2014. Other evidence of the Respondent given in her cross-examination, suggests a much earlier date.) 14. In relation to paragraphs 29 to 33 the Respondent denied she had ever asked Patient A to delete emails which had passed between them. She denied that between 2009 and 2012 the Respondent denied the content of emails between she and Patient A were strongly sexualised. After that date the Respondent agrees they were. 15. She denied she would have told Patient A in relation to the email identified in paragraph 33 of the statement, that she had been "strongly turned on" by the email. The Respondent said the email had made her feel embarrassed and degraded. 16. The Respondent denied the assertion that "sex was always in the room" when referring to therapy sessions with Patient A. 17. In relation to paragraph 71 the Respondent disagreed with assertions in relation to the parties meeting outside of therapy sessions. She set out those occasions where she agreed they did meet. 18. In relation to paragraph 72 of the Statement, the Respondent does agree she met in public with the Respondent. She agreed that when she went to dinner with Patient A at restaurants, "it was like a romantic date". The Respondent asserted that she met with Patient A in public places deliberately, on her part, "to avoid acts of physical intimacy". The Oral Evidence of the Respondent 1. The Respondent was required for cross-examination and was cross-examined, at length, by the HCCC's counsel. We noted the following, in particular, from that evidence. 2. The Respondent was asked about the production by her of emails which now form part of Exhibits A5 and R8. She agreed she was in attendance before the Tribunal during the first two days of the hearing which occurred on 14 and 15 June 2023. She agreed there was a call made for her to produce to the HCCC copies of any emails she had in her possession, which passed between Patient A and herself. She agreed the call was for copies of any email which was not included in exhibit A1 which had been tendered by the HCCC in the June hearing. She said she had produced some emails during that June hearing and then after the hearing she did search for further emails. She said she had two email accounts which she searched. She agreed she still has access to those email accounts. 3. The Respondent was asked when it was that she produced copies of emails she had found in that search following the June hearing. The Respondent thought she had done that "a few weeks later but not sure". She was asked how many emails she had searched for at that time. She said she thought it was 3 or 4. 4. The Respondent agreed that on the weekend, immediately before the resumed hearing on 23 October 2023, a number of emails had been provided to the HCCC by her solicitors. Those were emails she provided to her solicitor on the Sunday evening before the resumed hearing. She was asked to explain why it was that the call made at the last hearing had been answered with the production of documents on the Sunday evening before the resumed hearing the following day. The Respondent said that she had read the HCCC submission which had been provided to her and she saw the statement that there was a two-year gap in the dates of the emails before the Tribunal. She said she was surprised by that assertion and so she went back to her computer to conduct a further search. She said she had received an email from her solicitor on Sunday 22 October 2023 stating there was "a whole year missing." She then looked again. We note the emails provided on the day before the resumed hearing comprised numerous pages. 5. The Respondent's answers to further questions about whether she had found emails shortly following the first hearing which had not been provided to the HCCC at that time, were difficult to categorise as confirming or denying that she had found emails at that time and not sent them to her solicitors. She did say "there were Zip files which I had not attached to my initial email to solicitors within a few weeks of the last hearing." She denied she had deliberately not sent the files at that time. She did admit she had been careless about not sending the files containing the further emails which had been called for. 6. The Respondent agreed that when she first saw Patient A, she had been in practice for 6 years. She agreed at that time, through her studies and training she was familiar with the concept of transference and countertransference. The Respondent agreed that in practice transference and countertransference require very careful steps to manage. 7. In relation to transference and Patient A the Respondent said she first started to understand there was transference from Patient A towards her in 2010. She conceded the countertransference occurred in 2011 or 2012. In 2011 she had her own psychology practice. In 2011 she had supervision through a group and not personal supervision. 8. The Respondent was asked if Matthew Kalitowski was part of the Respondent's supervision group in 2011. She said: "No he was my therapist". She said that she did have a supervisor who was also her therapist. That person was Ms Troke. The Respondent said she now understands there is an important distinction between being a therapist and a supervisor. It only became important to her after "the proceedings". The Respondent described the role of the supervisor and stated supervision is recorded for CPD. (We note the Respondent's understanding of the inappropriateness of the dual roles of therapist and supervisor still appeared confused or being practised by the time of the resumed hearing, as the Respondent spoke of her continued therapeutical relationship with Mr Kalitowski.) 9. In relation to the role of supervisors the Respondent agreed there should not be a social relationship between a psychologist and their supervisor. She agreed it was not appropriate for a supervisor to be in a therapeutic relationship with a psychologist. She said Ms Troke was both to her when she was a "baby psychologist". She said: "That led me to a space where I didn't hold boundaries." The Respondent had met Ms Troke in 2001 and at that time Ms Troke became her therapist. In 2005 Ms Troke became her supervisor. The Respondent had only become aware of the problem in mixing those two roles into the same person during this hearing. She said she had a loose understanding that it was not appropriate before that. The Respondent also added that she had also had a social relationship with Ms Troke and had rented professional space from her. It was not until 2008 when she had rented rooms from Ms Troke that she ceased seeing her for personal therapy and for supervision. At that time, she had turned to a group supervision body to meet her CPD requirements. It was not until Dr Paterson was appointed by the Psychology Council as her supervisor, as required by conditions imposed under s 150 of the National Law, that she again had a personal supervisor. She agreed that was a period of 13 years. She conceded she does have a social relationship with some members of her group supervision body. 10. The Respondent was taken to the body of emails forming part of the documents admitted to evidence in Exhibit A1. Although the conduct specified in the Complaints (the HCCC Application for disciplinary findings and orders) was stated as having occurred between 8 November 2012 and 9 January 2016, the HCCC took the Respondent to emails which were authored by her in 2011. These disclosed there was conduct which the Respondent agreed was inappropriate on her part in her dealing with Patient A. Some examples of that conduct we refer to hereafter. It potentially has relevance to the seriousness of the Respondent's misconduct and the formulation of appropriate protective orders. 11. On page 67 of Exhibit A1, there is an email dated 14 October 2011 from the Respondent to Patient A. The Respondent was asked about her words: "Looking very much forward to seeing you in a few weeks, especially after that email" She was asked to read the email to which she was responding. That email from Patient A, also dated 14 October 2011 set out details of women she said had been in her life. She concluded with the last sentence being: "So, no, I don't have a 'girl' in my life as such. But I'm starting to want somebody that I can give my full attention to. Which is a good thing right?" The Respondent was asked if she saw anything in the email from Patient A and the Respondents response which is problematic, The Respondent said: "Yes. Because although I was responding to the last sentence the bulk of the email was explicit and my response to the whole of the email was problematic." The Respondent conceded it was a reasonable interpretation of her reply that she was referring to the whole of the email. In relation to the subject email the Respondent conceded she was addressing the same email in the evidence she set out in paragraph 21 of her affidavit of 12 June 2023. She agreed that what she had set out there about her own thoughts and views at the time she sent Patient A the email (as set out above), she had written as a reconstruction of her thoughts at that time. She did not have an actual recollection of those thoughts and views at the time she made the affidavit. 12. The Respondent said that it was 2014 when she identified she had an attraction to Patient A. There was no particular event to which to tie that realisation. 13. The Respondent was asked to look at an email dated 22 May 2011 she had written to Patient A in response to an email dated 20 May 2011 (Page 8 Exhibit A5). The Respondent wrote: "Further, who says you should not feel any of those things for your therapist? One of the old adages about therapy is that 'we do in the room what we do in the world'." 14. In the same email the Respondent had written: "I don't see you as having been a complete arsehole at all. And no matter what feelings you have for me and vice versa, I am holding still and staying." 15. The email of 20 May 2011, to which the Respondent was replying, contained the following words from Patient A: "Julie, I'm sorry I've been a complete arsehole to you…" "I feel a mix of things about you. Gratitude, friendship, resentment, a little anger, fleeting desire, that you own parts of me that don't belong to you, some love, some loss and so on and so on. The fact is I should not feel any of those things for my therapist." 16. The Respondent was asked what feelings she had for Patient A at the time those emails were written. She said: "Real affection". The Respondent was asked if it was appropriate for her to have communicated her feelings to Patient A. She replied: "Absolutely not. I feel I had lost my way at that time." She was asked what she had done about that circumstance at that time. She said she had talked about it "off and on" in group sessions (supervision group). She said she had not shown any of the members of the supervision group any of the emails she received from Patient A. 17. The Respondent was asked about an email she had written to Patient A on 17 May 2011 (page 10 Exhibit A5). The email read "I want to say thanks for your generous gift of wine." … "There was certainly a powerful energy between us…" The Respondent was asked whether that was a way to speak (communicate) with a patient. The Respondent said "It was contextual. What I was attempting to do, given the already sexualised emails from her, to contain the disclosure in a therapeutic frame helpful to her." It was put to the Respondent that: "The expression of that statement 'powerful energy' might continue the feelings in the client, which is not appropriate". The Respondent agreed that was so. She said: "The client clearly had attraction to me and I regret using those words to her." 18. The Respondent was asked: "Would you agree from the beginning, the patient had complex presentations and you had to be very careful about how you communicated with her?" The Respondent answered; "yes". It was put: "You needed to take great care about transference". The Respondent said: "Great care was required for her." She agreed she had to be careful not to encourage transference. 19. The next email exchange the Respondent was asked to consider was set out at page 71 of Exhibit A1. It is an email dated 8 November 2012 from the Respondent to Patient A. The Respondent agreed the email suggests flirtation by her to Patient A. She said that the flirtatious communication was restricted to emails. She denied the emails were reflective of what was happening in therapy sessions with Patient A. She conceded the emails did influence the therapy sessions. She agreed the emails were detrimental to the therapy. She said she could now see that was the case. 20. The Respondent was asked about her use of the words "have a good day gorgeous" in the email of 8 November 2012. It was put that the use of those words indicated she did have a sexual attraction to Patient A. The Respondent denied that. She agreed she did have an intellectual and emotional attraction to Patient A. 21. The Respondent was asked about the content of an email to her from Patient A of 7 November 2012 in which Patient A informed the Respondent she was deleting emails on her email account from the Respondent. The Respondent agreed that Patient A had written that as she believed the emails may have been problematic for the Respondent. She agreed she probably saw it the same way at that time. 22. The Respondent was asked about the use of the words: "You blow my mind" which the Respondent had written in an email to Patient A on 8 November 2012. She was asked if that was appropriate. She replied: "No. Absolutely not." She agreed that the language used by the Respondent in her emails to Patient A about that time were reflective of the fact that the therapeutic relationship had become a personal relationship. She agreed it should have been obvious to her at that time. When asked if she had reflected upon that at that time, the Respondent initially said: "No". She added: "I did reflect a lot. I felt confused. I reflect (now) as I read the emails at what point I should have referred her on." 23. It was put to the Respondent that the change in the therapeutic relationship should have been obvious to her at that time. She agreed. She was asked what prevented her from seeing that. She said: I think I was clouded by my own confusion." "I felt I could hang in there and do this." 24. In the email of 8 November 2012, the Respondent had written: "There's a saying in the biz: 'you do in the room what you do in the world.' And that's why I have all kinds of complicated feelings about being flirtatious with you." It was put those words should have been a giant sign for her to take action. The Respondent agreed. 25. The Respondent was cross-examined extensively about the content of emails which passed between she and Patient A, the time at which the correspondence occurred and its' relationship to the therapeutic relationship which she continued to conduct with Patient A. The cross-examination also extended to email correspondence after the therapeutic relationship had clearly ceased. Some of the cross-examination went to issues relevant to Stage 1 of the hearing and some addressed the seriousness of the conduct which was relevant to Stage 2. 26. The oral evidence of the Respondent is replete with acknowledgement by the Respondent of the inappropriateness of her conduct with Patient A and regret and remorse for her conduct. 27. We have set out specific examples of some of the oral evidence of the Respondent already in this judgment. Rather than continuing in that form of recording that evidence, we here set out extracts of the further evidence of the Respondent taken from her cross-examination, most of which was given in answer to questions about the content of emails passing between her and Patient A. We do so because the evidence is voluminous. The index in Exhibit A1, lists over 200 emails which passed between the Respondent and Patient A. Exhibit A5 lists another 146 emails passing between the Respondent and Patient A. In addition to the emails tendered by the Applicant, the Respondent tendered emails in exhibit R8. The index to Exhibit R8 identifies in excess of 160 emails. The Exhibit 8 emails were tendered during the hearing in October 2023. At the time of the tender, the Tribunal was told by the Respondent that the emails were in "electronic folders" which she thought she had sent to her solicitor following the first lot of hearing dates in June 2023 when a call was made for the Respondent to produce copies of all emails in her possession showing communication between the Respondent and Patient A. Although there is a possibility that some of the 160 emails in Exhibit R8 are duplicates of emails contained in Exhibit A1, it seems on our own random investigation mostly they are not duplicates. We were not informed in submission that there were duplicates of emails contained in Exhibit A1 and A5 which are included in exhibit R8. 28. We here set out evidence which the Respondent gave in relation to the emails passing between Patient A and her. 1. On 21 June 2011 her email contained a communication which was too casual in its form. 2. By 2011 the Respondent suspected (from her memory) that she had raised with her group supervision the circumstance of her relationship with Patient A. 3. By 8 November 2012 the Respondent was aware that Patient A was deleting correspondence between them because Patient A believed the content was inappropriate. The Respondent told the supervising group of that at the time. 4. The Respondent tried to manage the therapy with Patient A in a way which would help her. She agreed her effort was inadequate. 5. The Respondent made no note in her records following the 8 November 2012 email about discussing with Patient A her deleting of emails. 6. The Respondent did discuss with Patient A the inappropriate nature of Patient A's emails. She talked about her discomfort. She does not recall ever discussing with Patient A the inappropriate nature of the Respondent's emails to Patient A. She did concede there were times when both Patient A and the Respondent expressed concern about the inappropriate nature of written communications between them. The Respondent made no note of such conversations in her records. 7. The Respondent could not recall if she had considered referring Patient A on to another therapist after Patient A told her she was deleting the Respondents correspondence with her. 8. As best the Respondent could recall it was mid 2014 when she told Patient A she should see another therapist. 9. The Respondent agreed that with the benefit of hindsight it was "exceedingly obvious" that by the end of 2012 she should have referred Patient A to another therapist. The Respondent did not recognise that at the time. The Respondent said she clearly had a "blind spot" which led her not to be able to see what was very obvious. 10. Although the Respondent was aware that by mid 2014 she should have referred Patient A on to another therapist, she didn't stop seeing her. 11. In an email reply on 27 January 2013, the Respondent had told Patient A that she welcomed her correspondence. The Respondent in her evidence confirmed she did welcome the correspondence at that time. Although not seeing it at the time, the Respondent conceded she was putting her own needs above her patients welfare. 12. In an email to Patient A on 29 January 2013 the Respondent had said: "We have come to mean stuff to each other". The Respondent in her evidence said that at that time she was "interested in Patient A. I liked her a lot." The Respondent said in her evidence that the words "we have come to mean stuff to each other" were stated in the therapeutic context. However she conceded the emails suggested the relationship existed "outside the room". 13. The Respondent conceded what she was doing in her therapeutic relationship with Patient A was wrong, however, she did not see it as wrong at the time. 14. On 10 February 2013 the Respondent wrote: "But because of the chemistry that I feel when I allow you to be that close (I can't speak for you) sparks start to fly." She said in her evidence that at that time she was not attracted to Patient A in a sexual way. That occurred at a later date. 15. The Respondent was asked about an email from Patient A to her on 3 May 2013. Patient A had said "Could we just call it a day?". The Respondent agreed that was the patient saying it was time to terminate the therapeutic relationship. The Respondent conceded that in her response to that email she had injected a personal note. The Respondent agreed it was the perfect opportunity for her to have ended the therapy. The Respondent agreed that her response to Patient A of "I don't know how to say goodbye" was likely to engender a response of having her remain as a patient. The Respondent agreed that her response was emotionally manipulative. 16. On 7 May 2013 in email exchanges the Respondent referred to a choice of an employee (fictitious) as someone who was "femmie and sweet to boss around". In so doing the Respondent conceded in her evidence that she was joking with Patient A about sexualizing a future employee. She stated emphatically though that "there is no way I would ever treat an employee that way." 17. The Respondent said she recognised that the type of communication with Patient A (as set out in (p) above) may be damaging to Patient A. She said: "I was embarrassed and ashamed about it." The Respondent said she had raised her issues relating to Patient A with her supervision group however, she conceded, she was not completely open with her disclosures about her relationship with Patient A. 18. As at 29 May 2013 the Respondent said she was not sexually attracted to Patient A however, she said she described her relationship with Patient A as: "confronting, compelling, dangerous. It felt sometimes quite degrading and confusing." She conceded her response to Patient A's sexually aggressive emails may have conveyed a message to her that the Respondent enjoyed receiving those emails. 19. The Respondent conceded that her relationship with Patient A would have been outside of the applicable code of conduct for psychologists. 20. The Respondent stated that she understands now that undertaking a relationship with a prior client is contrary to the relevant code of conduct. It applies in perpetuity. It can never take place. 21. As at 2013 the Respondent agreed she had been in a therapeutic relationship with Patient A for 4 years. She agreed that Patient A was a highly vulnerable patient. She agreed it would never have been appropriate for her to enter into a personal relationship with Patient A. The Respondent said she had a different view of such a relationship in 2013. She now understands how important it is to have clear boundaries with patients. 22. At May 2013 the Respondent thought she could manage a level of personal relationship with Patient A following cessation of the therapeutic relationship. She did know however that conducting a personal relationship with a former patient or a patient, outside of therapy, was not appropriate. 23. At 30 July 2013 the Respondent knew she could not pursue a personal relationship with Patient A "because it would risk her reputation and career." 24. By the end of June 2013, the Respondent had an "actual perceived attraction" to Patient A. 25. The Respondent denied she ever encouraged aggressive sexual correspondence with Patient A. The Respondent said that type of communication from Patient A felt degrading and unempowering. She did concede that there were occasions when her language in an email exchange may have encouraged aggressive sexual language from Patient A, however, it was not an intended action. 26. The Respondent agreed that following the conclusion of therapy for Patient A she took a different view of the aggressive sexual emails from Patient A. 27. In November 2013 the Respondent recommended a therapist to Patient A. In her email exchanges with Patient A she described the therapist as "pretty cute". The Respondent conceded in her evidence that it was not appropriate to refer to another therapist in that way. 28. In an email exchange with Patient A on 21 February 2014 the Respondent stated her answer to the patient's question was a lie. Patient A had asked if her emails to the Respondent had been sexual harassment. The Respondent considered they had been, however, she told Patient A they were not sexual harassment. 29. In an email on 27 March 2014 the Respondent had said: "Tall mannish looking businesswomen, on the other hand…" in an email to Patient A. She agreed in her evidence that statements like that would encourage Patient A. 30. Sometime after 18 October 2014 the Respondent knew Patient A had commenced to see another practitioner. The Respondent continued to see Patient A even though she concedes that was possibly harmful to Patient A. She said she did not want to abandon Patient A. 31. On 11 June 2015, in an email to Patient A the Respondent agreed she was saying to Patient A that she received a pleasurable feeling seeing her. The Respondent agreed that was a grossly inappropriate thing to convey to Patient A. The Respondent denied that the use of those words was likely to perpetuate the personal relationship between the Respondent and Patient A. 32. By an email dated 3 August 2015 to Patient A, the Respondent agreed she was asking Patient A to partake in a further therapy session with her. The Respondent agreed that Patient A was seeking to disengage with the Respondent. She agreed she should have let Patient A go. Patient A was seeing another therapist at that time. 33. The Respondent said that for some months in 2014 she had an individual supervisor Mr Nick Cocco. She said she had spoken to him about Patient A. She could not recall if she had told Mr Cocco of the nature of her personal relationship with Patient A. 34. On 4 December 2015 the Respondent wrote to Patient A and told her: "I've fallen in love with you too. That is a very hard sentence for me to write because it is laden with questions and ethical problems…" The Respondent was asked what ethical problem she was referring to. She said: "power imbalance. Vulnerable and complex patient. Working with her for a lengthy time." 35. The Respondent asserted her therapy treatment of Patient A ended in May 2015. The Respondent agreed emails in June 2015 and August 2015 she had sent to Patient A continued the personal relationship. She said she saw her a month after ceasing therapy and then 2 months later. There were further email exchanges in September 2015. On 2 December 2015 the Respondent agreed she had initiated contact with Patient A after not having seen her for three months. She agreed she had written to Patient A because she missed her. The Respondent said she wanted to know how she was. She said she was clearly wanting a response. 36. On 11 December 2015 the Respondent wrote to Patient A and inter alia said: "AHPRA and APS requirements are that any therapeutic relationship must have been finished for 2 years before any personal relationship can commence. That is not something I will fuck around with." The Respondent agreed that she was at that time acutely aware of her professional obligations in relation to having a personal relationship with a former patient. She said she recognised at that time that the ongoing email exchange and personal disclosure was an ethical breach. 37. The Respondent agreed that she had failed to comply with relevant APS code of conduct requirements. She had failed to comply with that portion of the APS code which addresses sexual activity with clients. She did not mean to step away from her obligation to comply with the code by the use of the words in paragraph 7.2 of her Reply document (Exhibit R3). 38. The Respondent agreed she had written/texted Patient A on 18 December 2015 saying: "You are on my mind incessantly." 39. The respondent agreed she understood Patient A "deeply". She agreed with her knowledge of Patient A she was in a position to use or abuse the power she held in the relationship. She had turned her mind to the power imbalance in the relationship at that time. 40. In an email by the Respondent to Patient A dated 27 December 2015 the Respondent said: "Look I know the ethics of this are dodgy". The Respondent agreed in her evidence that at that time she was aware what she was doing with Patient A was unethical. 41. The Respondent admitted that her email to Patient A of 27 December 2015 was overtly sexual. She agreed that would encourage Patient A to respond in like fashion. 42. The Respondent agreed that the emails with Patient A did fall within the definition of sexual activity as addressed in the APS code of conduct. She said however, "it was not physical". 43. The Respondent acknowledged that her email exchanges with Patient A "crossed the boundary" of appropriate conduct. She acknowledged that she knew her communications with Patient A were inappropriate and she elected to continue anyway. 44. On 9 January 2016 the Respondent wrote an email to Patient A. In that she referred to the possibility of a "a stressful investigation and ultimately at least suspended." In that email she also said: "However, we would not be stretching the truth so much to say our therapeutic relationship changed when I referred you to Nick in early November. So that shaves 6 months off." The Respondent agreed in her evidence that she was referring to the period before which they could be together. The period which had to expire was two years from the cessation of therapy. The Respondent admitted she had seen Patient A 3 or 4 times after referral to Nick. The Respondent denied she was trying to encourage Patient A "to be dishonest about when therapy ceased, if the question came up". The Respondent agreed she knew her therapy with Patient A had continued until May 2015. She was asked: "Why suggest anything else?" She replied: "Because I was impatient". She conceded then that she was prepared to stretch the truth. 45. In relation to her evidence in paragraph 44 in Exhibit R5 (her affidavit) the Respondent was cross-examined. The evidence related to an email which the Respondent had written to Patient A in which she used the expression "I have had to fix myself up". In her affidavit the Respondent denied she was referring to masturbation. She agreed her email responded to that of Patient A which stated the same expression. Under cross-examination the Respondent conceded she had assumed that Patient A was referring to masturbation. The Respondent had stated in paragraph 44 of her affidavit that when she used those words she was referring to "fixing her attitude". It was put that statement was untrue. The Respondent replied that she was being playful. It was not something she did in her work environment. She denied she was trying to convey the meaning of masturbation to Patient A. When challenged by a Tribunal member about that answer, the Respondent agreed Patient A would have understood the Respondent was referring to masturbation by the use of the subject words. 46. In answer to questions about her email dated 4 February 2016, the Respondent agreed she had met with Patient A and engaged in mutual kissing. She thought it had occurred in 2 different places. She denied there had been any breast touching as Patient A had alleged in her evidence. 47. An email exchange dated 25 February 2016 used an expression in both the Respondents' email and that of Patient A. The words were: "Strapping it on". In the email from Patient A it was accompanied by the reference to a "dildo". It was put to the Respondent that this email exchange constituted sexual activity between she and Patient A. The Respondent said: "It is fantasy and not real life." 48. The Respondent acknowledged that she and her supervisor Ms Troke, who had been her psychiatrist (she referred to her as her shrink), had not exercised appropriate boundaries. That is because Ms Troke had been the Respondent's psychiatrist, supervisor and landlord. She said Ms Troke had been her therapist from 2001 to 2005. During part of that period Ms Troke had been the Respondents supervisor. The Respondent was invited to become a sub-tenant of Ms Troke, during the time Ms Troke was her supervisor. Thereafter the supervision ceased. The evidence also suggests the Respondent regarded Ms Troke as a friend. 49. On 6 March 2016 the Respondent had written an email to Patient A in which she referred to her own use of "too many drugs". The Respondent admitted that was an inappropriate communication. She conceded she had known Patient A had a problem with the use of drugs, in the past. That had been said in therapy. In March 2016 the Respondent agreed she was openly discussing drugs with Patient A. She conceded it had the potential to do really great harm to Patient A. 50. In an email written on 15 December 2017 the Respondent agreed she had asked Patient A to buy her some drugs in Byron Bay. She understood the drug was cannabis. She conceded it was a grossly inappropriate thing to request. The Respondent denied she ever received drugs from Patient A. 51. The Respondent conceded she had sent an email to Patient A on 21 February 2019 even though Patient A had said "don't write to me". The Respondent said she had written because it was Mardi Gras and she thought she might "run into" Patient A. 52. In February 2019 the Respondent had met her now wife. They commenced dating after that. 53. The Respondent denied she had taken Patient A to her rooms and kissed her there as Patient A alleged in her evidence and in her email to the Respondent of 11 March 2021. 54. The Respondent acknowledged that the document set out at page 626 of Exhibit A1 was created by her in answer to the complaint raised by the HCCC with her. In that document she set out that she had sought advice from her group supervisors about her client Patient A but did not follow that advice. She conceded there were inaccuracies in the document. In her document she asserted it was early 2015 that she was feeling challenged by her own countertransference. The Respondent conceded she was aware of the countertransference at a much earlier time. 55. The Respondent conceded it was 2011 when she was aware Patient A was attracted to her there was, thereby, a problem for her therapeutic relationship. The document she provided to the HCCC was provided in April 2021. She had looked at only a few emails before sending that document to the HCCC. She has now produced hundreds of pages of emails and, she agreed, she always had the ability to do so. 56. The Respondent agreed it was not useful to have a group supervision arrangement if she felt unable to raise all of her concerns about Patient A. She said she has now spoken openly to the group about her relationship with Patient A and these proceedings. 57. The Respondent gave evidence about the letter she had sent to her referees requesting references to provide to the Tribunal in this proceeding. She conceded she had not provided her referees with a copy of the complaint document. She agreed some of the stated facts were inaccurate. She agreed the letter does not present the seriousness of her conduct. She said she did not "go into the content of the emails". She had not stated the emails included reference to drug taking. She said she had a conversation with her referees (presumedly telling them of that subject). She did not say, in her letter, there was hand holding and kissing with Patient A. She denied the letter grossly underrepresents the nature of her conduct which she has admitted in this hearing. 58. The Respondent conceded she had been untruthful in her evidence in the Section 150 hearing where it related to her having deleted emails between Patient A and herself. She said she had not done so intentionally. She said it has only been recently that she became aware that emails were available to her which she had previously thought were not available. 59. Although it is unclear in relation to timing, the Respondent gave evidence about having engaged Matthew Kalitowski as her therapist. In one of her documents, she created, she said he was her supervisor (page 776 Exhibit A1). In her oral evidence she denied he had been her supervisor. She did concede she could not be open with Mr Kalitowski about her relationship with Patient A for fear he would be required to report her conduct. 60. The Respondent gave evidence about her work hours and circumstances. It was put that if her registration was cancelled she could still do counselling. She said she did not know if that was possible. 61. The Respondent was asked about the apparent contradiction in her evidence about whether Mr Kalitowski had been both her therapist and her supervisor. At page 776 of Exhibit A1 the Respondent described Mr Kalitowski as her supervisor. The Respondent was asked what the nature of her relationship with Mr Kalitowski was. She said she had worked with him and brought him both personal and work matters for consideration. He had acted as both her personal advisor and psychotherapist. She said she now understands how that looks. When asked if that relationship with Mr Kalitowski is now appropriate the Respondent said that is a question she had not considered before this proceeding. She agreed the matter of her relationship with Mr Kalitowski was raised in the Section 150 hearing where she described him as both her supervisor and psychologist. 62. The Respondent was asked about an email which she wrote on 3 February 2023 to one of the persons she was seeking to be a referee for her in this proceeding. The email forms part of Exhibit A6. In that email the Respondent wrote: "After nearly 2 years, the complaint made to AHPRA has progressed and I will be going to Tribunal in June. This is surprising and extremely disappointing but also I'm pleased it will finally be resolved, whatever that may be." The Respondent was asked why she used the words "surprising and deeply disappointing". She replied: "I was hoping for a different outcome. When I talk to peers about it, everyone I spoke to said it is going to be OK." 63. The Respondent said 60 to 70% of her clients are members of the LGBTQIA+ community and of those 50% are trans-gender or non-binary. 64. The Respondent, in answer to a question from the Tribunal about what she had learnt from the proceeding, said she needed to ensure she had rigorous personal supervision to ensure she is not pushing or infringing boundaries. She has been able to put this into action in relation to one of her current clients. She has been able to ensure therapy does not stray into the client asking her questions about her personal life. If she has any concerns about boundary infringement with a client she would take it to her supervisor. The Report of Dr Paterson Exhibit R7 and email Exhibit R9 1. This is a report commissioned by the Respondent's lawyer, Gardner Legal. 2. Dr Paterson has been the supervisor of the Respondent since the conditions were imposed on her registration following the Section 150 hearing on 27 October 2021. He has met with her fortnightly as her supervisor. 3. Dr Paterson opined that: "Given Ms Catts disclosure, reflections and ongoing presentation during supervision to date, I believe she has over the course of our work together developed a comprehensive insight into her wrongdoing and its antecedents." 4. Dr Paterson said he believed the misbehaviour of the Respondent occurred during a period of stress and instability in the Respondent's life. He said the Respondent was aware of the inappropriate nature of her interactions with Patient A. He thought she may have underestimated her own vulnerability in the situation. She had emotional needs that she allowed to leak into the therapeutic relationship with Patient A. He stated: "After our supervisory work, Ms Catt now demonstrates insight and altered practice around identifying her own emotional needs and acting to remove their influence from the therapeutic relationship at all times." 5. In his report Dr Paterson said: "Ms Catt arrived in supervision meetings with me lacking a robust understanding or insight regarding proper professional relationships." Dr Paterson was alarmed to hear from the Respondent that her current supervisor was previously her psychologist. He described the conduct of a prior supervisor and therapist of the Respondents as improper. Since Dr Paterson's supervision he believed the Respondent's understanding of the role of supervision and therapy has grown. He said: "I have since observed that the inappropriateness of contact with a patient outside of the therapy session, in any form, and the ongoing nature of the therapeutic relationship, even after sessions have ended, are now clearly established in Ms Catt's knowledge. I am also satisfied that Ms Catt understands the need to actively monitor and maintain the therapeutic 'frame', and to discontinue therapy with a patient where a professional frame cannot be adequately maintained." 6. Dr Paterson said: "What was not apparent on her commencing supervision was a sufficient understanding as to how these interactions (improper) developed, what the long-term impact of them could be, and how such behaviour could be prevented in future.…It has been important for Ms Catt to give renewed attention to her own vulnerability as well as the power she wields in the therapeutic relationship." 7. In relation to the changes, if any, he has observed in the Respondent over the two-year period he has supervised her, Dr Paterson said he had observed at least three changes. "Firstly, Ms Catt has gained a clearer understanding of the nature and effect of roles within psychology work, particularly in relation to professional boundaries and the impact of role confusion or dual roles. Secondly, Ms Catt has worked outside of supervision on personal therapy and reflection…Finally, on a subjective level, the incidents with Patient A and the subsequent conditions imposed by the Psychology Council appear to have had a meaningful impact on Ms Catt's general demeanour and confidence in her approach to psychological work and its effects and mechanisms." He said the Respondent had made comments which illustrate the disciplinary investigation has "been confronting and humbling for her." 8. Dr Paterson was condemning of the role a previous "supervisor" of the Respondent had taken in her life. He described that person as the Respondent's therapist/supervisor/landlord/friend. He said that person may have been potentially harmful to the Respondent. He said: "The nature of the admitted breaches by Ms Catt involved role confusion, overlapping emotional needs, and boundary violations akin to those that were minimised or ignored entirely by her previous supervisor….It is my opinion that the interactions Ms Catt had with this supervisor/therapist etc contributed to the admitted breaches now under examination." 9. In relation to the future conduct of the Respondent as a psychologist, Dr Paterson opined that: "It is my belief that Ms Catt will be extremely unlikely to engage in similar conduct in the future." That view was reinforced, Dr Paterson said: "By my knowledge that Ms Catt intends to continue both individual psychological therapy and psychological supervision into the future." 10. Dr Paterson was asked to provide his opinion on the impact on the community of Ms Catt being unable to practice psychology. He said he was aware she specialises in LGBTQIA+ work. He opined there was a specific shortage of psychologists who specialise in gender dysphoria and LGBTQIA+ work. If she is unable to practice, he opined that would add to the current shortage of those specialist services. Dr Paterson said he is aware that the Respondent has a number of vulnerable patients and he opined it would be unlikely that suitably experienced practitioners will be found for them if the Respondent is unable to continue practice. 11. In relation to the Respondent's psychology knowledge necessary to practice in the future, Dr Paterson opined that the conduct which led to the current notification stemmed not from a gap in knowledge regarding the AHPRA Code of conduct for Psychology. He said: "It is my opinion that the relevant conduct was the result of a combination of life stressors, poor self-care in the antecedent period, a lack of reflective practice, and confusion regarding dual relationships caused by inadequate and possibly unethical supervisory input over the preceding decade." 12. Dr Paterson did not refer to any lack of expertise which the Respondent was able to provide in her work as a psychologist. Had there been any deficit in her knowledge, we are sure he would have stated so. The Oral evidence of Dr Paterson 1. Dr Paterson affirmed the content of his report (Exhibit R6) was to the best of his knowledge true and correct. He was then cross-examined by counsel for the HCCC. 2. We noted in particular the following evidence provided by Dr Paterson. 3. Dr Paterson was aware there were emails between the Respondent and Patient A however he had not seen any of those. He said he had heard detail of them and discussed that with the Respondent. 4. Dr Paterson was asked if he was aware of the length of time over which the Respondent accepts there were inappropriate emails with Patient A. He understood it was a period of years. He was not surprised to hear it was a seven-year period. 5. In relation to the inappropriate supervision which the Respondent had received from her therapist/landlord and friend, Dr Paterson said he understood that had ceased by the time the alleged misconduct with Patient A occurred. If that was not the case and the Respondent was continuing to receive therapy and supervision from that person at the same time as she was conducting herself inappropriately with Patient A, Dr Paterson opined that would be very concerning for the Respondent and for the inappropriate conduct of the therapist/supervisor. 6. Dr Paterson said that if the Respondent was still receiving therapy and peer support supervision from the same professional, that would be very concerning. 7. In response to a question as to whether it was a concern in relation to the professional understandings of the Respondent, that she continued to engage in therapy with a person who has been her professional supervisor, Dr Paterson said it was not a simple proposition to address. He said it is entirely possible for someone to have a good level of power gradients but find themselves a victim to the boundary violations described. He said it would be the primary responsibility of the therapist to address the situation. He considered it would currently be malpractice on the part of the therapist to continue in that role having been a professional supervisor for the Respondent. Although he considered the Respondent now has the capacity to recognise the dual role being practised by her therapist, he considered she may not feel able to set a boundary with her therapist. It is not the role of a patient to set boundaries for a therapist. The written submissions of the parties The HCCC Submission 1. The HCCC provided written submissions dated 18 October 2023 and 14 November 2023. 2. The submission of 18 October 2023 appears to have been largely overtaken by the final written submission dated 14 November 2023. However, the earlier submission addressed general matters of law which are applicable to the conduct and determination of this proceeding. We have noted the submission made by the HCCC under the heading Legal Principles and will refer to matters addressed in that submission, where necessary, as we move to a determination of the HCCC complaint. 3. In the submission of 14 November 2023, we have noted the following matters. 4. We note that the submission is stated to be in addition to the oral submission made by the HCCC and not in replacement of same. 5. The submission addressed the Respondents continuing application for there to be a non-publication order in relation to her name and identifying information. The HCCC opposes the continuation of the order made, by consent, and as an interim order only. The order was made to be operative only until this judgment is published. 6. The submission addressed the evidence relied upon by the Respondent to support the application. That evidence is contained in an affidavit of the Respondent affirmed 12 June 2023. 7. In that evidence the HCCC notes that the Respondent seeks the order not to hide her own misconduct but to protect others. In particular she refers to a male relative of her ex-husband, with whom she stated she has a close relationship. She stated a concern for the impact upon the mental health of that person were he to see the publication of this judgment. She also identified that the publication would likely impact her wife who she said would suffer embarrassment and distress and also possible financial harm to her business. 8. The concern of the Respondent is said to extend to the wellbeing of Patient A if she is identified by facts disclosed in the judgment. There is also her involvement on a community-based organisation. If her name is published she fears it may be detrimental to the continued financial support the organisation receives and to the LGBTQIA+ community. There is then a concern expressed as to the impact upon her own children, her personal reputation and the reputation and business income of her colleagues. 9. The HCCC submits that the applications evidence raises the case for such an order, no higher than an expression of the Respondents concerns. 10. The HCCC referred us to the decision in Cakan v Health Care Complaints Commission Complaints Commission [2020] NSWCATOD 116. The HCCC quoted the following passage at paragraph [18] from that decision. "In disciplinary proceedings, the overarching principle of open justice is only displaced in special or exceptional circumstances (see Health Care Complaints Commission v EDE [2019] NSWCATOD 184 at [28]). The principles are explained in detail with reference to authority in Health Care Complaints Commission v Vo [2014] NSWCATOD 127 at [181]-[185] as follows: "Both counsel assisted the Tribunal with provision of relevant authorities on this topic (Health Care Complaints Commission v Gow (NSWMT unreported 21 October 2008), Merrilyn Walton v Alexander Sergevich Momot & Anor (NSW Court of appeal 17 April 1997) and Health Care Complaints Commission v Dr A [2012] NSWMT 10). In Walton Handley JA, with whom Priestley JA and Grove AJA agreed, dismissed an appeal from the Chairperson of the then Chiropractors and Osteopaths Tribunal who had refused to make an order suppressing the name of a practitioner. The appeal was determined by reference to legislation which provided that proceedings should be open to the public. That is the case with proceedings in this Tribunal (see s 49 (2) of the Civil and Administrative Tribunal Act and s 165K of the National Law). Handley JA explained: The general principle provided for in s 46 (3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of the practitioner. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can made an order avoiding such result. His Honour went on to note that the Tribunal could have ordered that it sit in private (as now provided in s 165K of the National Law), or that the Tribunal could make a suppression order. His Honour concluded, by reference to authority, that the policy he had just explained "reflects the general principle that the administration of justice under our system is carried on in public". While noting that the object of disciplinary proceedings is not intended to be punitive to the practitioner, but protective of the public, the former Medical Tribunal in Health Care Complaints Commission v Gough determined the protective nature of the jurisdiction outweighed the adverse consequences which may be suffered by a former practitioner, who was terminally ill, if his name was published. Different considerations arose in Health Care Commission v Dr A. In that case there was expert evidence before the Tribunal. That Tribunal found special and exceptional circumstances, namely that one of the practitioner's teenage children, who had a history of an admission to a Psychiatric unit following a serious suicide attempt, could likely be very adversely affected by publicity about her father's conduct." 1. We note in that decision the reference to "expert evidence being before the Tribunal." There is no such evidence before us in relation to any of the matters cited as reasons for a non-publication or suppression order, in the Respondents evidence, in this proceeding. 2. The HCCC also referred us to the dissenting judgment of Kirby P in John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & Ors (1991-1992) 26 NSWLR 131. We have noted the content of the extract from that decision set out in the submission. 3. The HCCC submits that there is no sound reason to make the order sought because: - * The evidence in the Respondent's affidavit is now 5 months old. * There is no oral evidence from the Respondent which advances the case for the order sought further. * Although the Respondent has told the Tribunal that the male relative of her ex-husband has been under the care of treating health care professionals, there was no evidence from any such treating professional. * There is no evidence to support the Respondent's stated concerns for the business of her wife or other possible adverse impact upon her by the publication of this judgment. The concerns she has for the impact upon her children is no greater than any relative or child of a health practitioner who becomes the subject of adverse findings by this Tribunal or like body. * The potential loss of income by the business colleagues of the Respondent is also an unfortunate circumstance which faces any co-business associate of a health practitioner who is the subject of an adverse finding by the Tribunal. (We note the evidence of Dr Paterson given in this proceeding which emphasised the shortage of psychologists in the community at large and particularly so for members of the LGBTQIA+ community. As such the impact of publishing the decision in this matter upon co-workers in the same business in which the Respondent has practised, might reasonably be predicted to be minimal). * The stated concerns the Respondent has for the welfare of Patient A are speculative only. There is no evidence that Patient A supports the application. 1. After a review of the evidence said to be in support of the order being made, the HCCC submits it does not meet the requirement for such an order. 2. The HCCC then addressed the Respondents credibility. It submits the Respondents credit should be found to be poor. The HCCC referred to the manner in which the Respondent, on occasions, addressed questions or propositions put to her. It submits the Tribunal would not be impressed by discursive presentation. It then cited specific aspects of the evidence which we have noted and we do not repeat here. 3. The Complaint was then addressed by the HCCC. It submitted that most of the Complaint is admitted by the Respondent. The HCCC addressed the disputed portions of Complaint One, Particular 6. The disputed facts are whether breast touching took place between Patient A and the Respondent on two occasions. The evidence to support the Particular was given by Patient A both in her statement and in her oral evidence before she was excused from further attendance. The Respondent has said Patient A was mistaken about that matter. The HCCC submits that defies credibility. It submits Patient A would certainly have known if she had touched the Respondents breasts and/or had her own breasts touched in intimate circumstances. 4. In relation to Particular 6(e), the HCCC submits that particular alleges "a kiss" which Patient A said had occurred at the Respondents workplace. The Respondent admits she took Patient A to see her workplace at the time identified by Patient A. That it occurred after hours. It is submitted the Respondent's evidence about that occasion is a reconstructed memory rather than an actual recollection. It submits Patient A was very clear about when and where it occurred. 5. The HCCC also provided a submission about the Respondents evidence/submission in respect to Complaint Two, Particular 2(d) which alleged the Respondent had suggested to Patient A that they could agree on a false and misleading account as to when their therapeutic relationship ceased. The submission addresses the Respondents case that she did not intend to suggest she and Patient A should fabricate such an account as to that date. The HCCC submits the Tribunal needs to go no further than the email from the Respondent to Patient A which identifies the proposal. 6. The HCCC submission then addressed "factual matters and the gravamen of the overall admitted conduct". The HCCC submitted that "The gravamen of the overall conduct is that the Respondent failed to maintain proper boundaries and let that escalate to a full-blown emotional affair with the patient. The boundary violations, inappropriate communications and emotional affair lasted many years." The HCCC highlighted aspects of the Respondents conduct which it said demonstrated the extent and seriousness of the Respondents conduct with a patient she knew had very complex psychological problems and was vulnerable. It submitted the conduct had a high likelihood of causing harm to Patient A, and it did. 7. The HCCC submitted the Tribunal, when considering matters of insight and remorse in the Respondent would accept she is remorseful. It submits the level of insight the Respondent has demonstrated into her conduct with Patient A and the blurring of boundaries, is concerning. 8. The HCCC submits the Respondents conduct was egregious. It submits the Respondent has sought to downplay the seriousness of her misconduct. Her letters to the people from whom she sought support in the form of supplying references to the Tribunal were factually inaccurate in a manner which minimised rather than accurately reported the case made against her by the HCCC. The HCCC submits that the Respondent breached proper professional boundaries over more than six years, not two as represented in the letter. There was no indication of the high volume of email exchanges between the Respondent and Patient A. Nor does the letter address the intimate nature of the correspondence. The HCCC submitted: "The whole description (in the letter) is a careful (inaccurate) narrative aimed at sterilising the sordid and salacious events rather than openly admitting them and owning them". 9. The HCCC addressed the evidence given by the Respondents' witness Dr Paterson. It submitted the supportive statements made by Dr Paterson were made in a relative vacuum of evidence which was placed before the Tribunal. It submitted he had also not had the opportunity to see her give her evidence in this hearing. 10. In relation to the development of insight in the Respondent, the HCCC points to the oral evidence given by the Respondent late in the hearing in relation to her involvement with Mr Kalitowski. She had been seeing him as her psychologist until a few months before the last days of the hearing. That had ceased not because she had gained insight into the separation of relationships and the inappropriateness of him treating her as his patients when he had previously been her supervisor, as pointed out by Dr Paterson. It ceased because he had been away from Sydney and not available to her. 11. The submission of the HCCC is that the Tribunal would have grave doubts about the completeness of the Respondent's expressed insight. 12. The HCCC addressed the Protective orders which it submitted the Tribunal would consider making in this matter. 13. The HCCC referred the Tribunal to the decision in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [68] to [75] as per Payne JA (Basten and Leeming JJA agreeing) and submitted whether the Respondent is probably permanently unfit (or currently infit) to practise is not a requirement for cancelling a practitioner's registration. It submitted the Respondents conduct was of such an extent and nature that it requires the Tribunal to show such conduct is "powerfully denounced". Such conduct should not be visited with modest discipline. It submits that the fact the Respondents cohort of patients are vulnerable is a strong reason why specific and general deterrence is necessary, not the contrary. 14. The HCCC seeks an order which cancels the registration of the Respondent and sets a non-review period of two years. Additionally the Tribunal should prohibit the Respondent from providing mental health services for the same period as the non-review period. Such an order would prevent the Respondent from continuing to practice under the description of "Counsellor". The HCCC refers to the power in s 149C(5) to make such an order. The decision in Health Care Complaints Commission Complaints Commission v Jason Vuong [2022] NSWCATOD 83 at [84]–[90] is cited as assistance. 15. The HCCC helpfully provided the Tribunal with a draft set of conditions the Tribunal might consider imposing if it made a suspension order rather than a cancellation of registration order. The HCCC emphasised that it was not resiling from its primary submission that there needs to be a cancellation of the Respondent's registration in this matter. It provided the draft of the conditions because the Tribunal had requested it do so. 16. The HCCC then addressed a submission in support of a cost order. We have noted that submission and make no further comment on same at this point. The HCCC's oral submission 1. On the last day of the hearing in this matter the HCCC made an oral submission. In the written submission, above addressed, the HCCC made clear it was still relying on the oral submission it had made. 2. We note the following from that oral submission, where it is not duplicated by the HCCC's written submission. 3. The HCCC submitted the imposition of a fine as part of a protective order was not an appropriate protective order in this case. The HCCC referred the Tribunal to the decision in Health Care Complaints Commission v Do [2014] NSWCA 307 where the court addressed the role of general deterrence. 4. It was submitted that the concept of "moral turpitude" does not apply to this case. 5. The Tribunal was referred to the decision in Health Care Complaints Commission v Ledner [2017] NSWCATOD 90. The HCCC emphasised in that decision a psychologist had his registration cancelled and a non-review period set for 12 months following a 3.5 month relationship with a former patient. The HCCC submitted that the conduct of the Respondent in this case is far more serious than that illustrated by the above decision. The HCCC submitted that the decision in Ledner demonstrated an appropriate response to the misconduct in that case. Without specifically submitting so, the HCCC was suggesting that we should use the Ledner case as a "yard stick" against which to set the protective order in this case. We note the NSW Court of Appeal has addressed the inappropriateness of such an approach. 6. In relation to the order sought by the Respondent for non-publication of detail which might identify her, the HCCC referred us to the decision in Health Care Complaints Commission v CSM [2016] NSWCATOD 125. It also referred us to the decision in Vo which is referred to in the CSM decision at paragraph [82]. We will address the matter of the application for a non-publication order further, towards the end of this judgment. The Respondent's Submission 1. The Respondent provided both written and oral submissions. The first written submission was filed on 20 October 2023 and is dated 10 October 2023. It is a short and general submission which was surpassed by a very extensive written submission dated 24 October 2023. That submission is 48 pages in length and is very comprehensive. 2. The submission first addresses legal principle applicable to this determination. We have read that submission and noted its content. 3. In this case we have in mind that the Respondent agrees she is guilty of unsatisfactory professional conduct and professional misconduct. No submission was made that we should not make the findings of unsatisfactory professional conduct and professional misconduct as sought by the HCCC. We are conscious of the fact that the Respondent denied she is guilty of unsatisfactory professional conduct as described in Complaint Two. We will address that denial further in these reasons. 4. To the extent it is necessary to do so, we here state our conclusion that the HCCC has established the guilt of the Respondent to Complaint One and Three. The evidence satisfies us to the requisite standard that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct as alleged in those two Complaints. 5. The Respondent then addressed the appropriate protective order to be made by the Tribunal in this case. The Respondent submitted that "ordinarily cancellation or deregistration would not occur unless the practitioner was permanently unfit to practice". The Respondent relied upon the discussion in Jamieson extracted in Health Care Complaints Commission v Firth (No 2) [2015] NSWCATOD 84 at [16] – [28]. 6. The reference to the decision in Firth (No 2) is best illustrated by the following extract from that decision. 23. … However, as already indicated, the Tribunal is of the view that given the objective seriousness of the conduct and given the principles summarised in Jamieson and identified above, that the conduct, taken in its totality, requires, for the reasons expressed in Do and other cases therein mentioned, the cancellation of the registration of Mr Firth as a psychologist. 24. In so doing, we note that the respondent states in exhibit V that he does not believe he is permanently unfit to practice. Of course, those are terms that have been used by the Tribunal as a matter of consideration such as being undertaken here, namely it does not necessarily follow that just because a registered practitioner has been found guilty of professional misconduct, that registration must be either suspended or cancelled, as being the only protective order to make. That's clear enough from the decision in the Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. 25. However, as stated in Jamieson, it is clear that the definition of professional misconduct is focused on the nature of the conduct, which must have the capacity to justify an order of suspension or cancellation, whether or not such an order should be made in the particular circumstances. As further stated in Jamieson at 100: "That such an order need not be made is clear from the terms of ss 60 to 64, which are substantially the same as ss 149 to 149C of the National Law, which provide that a full range of disciplinary powers is available on the finding of professional misconduct. The statutory constraints operate differently. Thus a person may not be suspended or deregistered unless the Tribunal finds that the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1) [149C(1) of the National Law is to a similar effect]." 26. Thus it goes on: "The discretion of the Tribunal is at large and it will depend upon the circumstances of the individual case." 27. It goes on: "The authorities also establish that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit for a protective purpose, the Tribunal must find the practitioner is probably permanently unfit to practice." 28. As goes on at 102 in Jamieson: "This quotation should not, however, be taken to support the proposition that the Tribunal may order deregistration only if it finds the practitioner is permanently unfit to practice. The expression used by the High Court in Ex Parte Lenehan was "probable permanent unfitness" and referred to the finding which usually underlines an order striking off a solicitor. It serves to indicate that striking off a lawyer or deregistering a medical practitioner would generally only be appropriate if he or she is unfit to practice at the time of making the order and is likely to remain so for a significant or indefinite period." 1. The HCCC was confronted by the submission, made by the Respondent in relation to the requirement for the Tribunal to be satisfied the subject practitioner is permanently unfit to practice, before the Tribunal could make a cancellation order. It submits Firth (No2) does not stand for such a proposition and if it did then it is wrong and conflicts with decisions of the NSW Court of Appeal. 2. We are satisfied the National Law disciplinary provisions do not restrict the use of the cancellation of registration powers to cases where the Tribunal has been satisfied the practitioner is permanently unfit to practice. 3. The Respondent addressed the availability of a fine as a protective order or part thereof. She brought to the attention of the Tribunal the decision of Medical Board of Australia and Stephens [2018] WASAT 13. The Respondent submitted there were similarities in the circumstances of the practitioner in that case to that of the Respondent in this case. It was pointed out that the Tribunal in the Stephens case imposed the maximum fine available. 4. The NSW Court of Appeal has cautioned an approach which seeks to compare outcomes in different decisions of the Tribunal and use those decisions as a "yard stick" when assessing the appropriate protective order to impose. 5. We have considered the decision in Stephens and determine that even if it was appropriate to measure the outcome in this determination against earlier decisions, that decision ought not be seen as a comparable case. 6. The Respondent then addressed the witnesses who gave evidence in the hearing. We have read her submission in relation to Professor Keogh and Dr Paterson. We note the submission that the evidence of Dr Paterson should be afforded great weight and significance given his two weekly meetings with the Respondent for the last two years. Those meetings were required by the appointment of Dr Paterson as the Supervisor of the Respondent pursuant to conditions imposed on her registration by the determination of the Psychology Council delegates conducting the s 150 hearing. 7. The Respondent addressed across 13 pages of the written submission, the oral evidence given by the Respondent before this Tribunal. The submission addressed the HCCC's criticism of the Respondent as a witness of truth and perhaps perceived aspects of her evidence which it was considered might trouble the Tribunal. We have read that extensive submission and the summary, namely that we should accept the Respondent was a witness of truth who did her best to answer questions and propositions put to her in a candid and straight forward manner. The submission cautioned against the Tribunal losing sight of the time involved in the relationship between the Respondent and Patient A and the reasonableness of the Respondent having a complete recollection of each and every aspect of that relationship over that period of time. 8. The submission then addressed the evidence of Patient A. Again, this was an extensive written submission which was set out on six pages of the submission. 9. The submission is that: "Save where it accords with the practitioner's evidence, the Client's evidence should not be accepted by the Tribunal because in seven fundamental respects it is clear her evidence and recollection were mistaken." The submission then addressed each of those seven respects, which we have read. We note that none of the attacks on the reliability or veracity of the seven aspects of the evidence given by Patient A, is a submission made that any of those aspects should be seen as detracting from a finding being made by the Tribunal that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct. 10. The submission then addresses the issues of fact created by the Respondents denial of Particulars set out in Complaint One. The facts which are disputed are the alleged breast touching; an email described as the "pet food email"; a kiss in the practice rooms of the Respondent; And, whether the Respondent sought to have Patient A join in a distortion of the date when therapy for Patient A ceased with the Respondent. We have read that submission. 11. The submission then turned to consider a lengthy submission on the applicable law. That included the nature and form of an appropriate protective order. 12. Having read the entirety of the submission of the Respondent, the members of the Tribunal have found difficulty in identifying any relevant matter which they consider should have been addressed in the submission and was not. The Tribunal is grateful to the counsel for the Respondent for the effort which has clearly been applied to the submission. The Oral submission of the Respondent 1. The oral submission of the Respondent was limited by the time available at the conclusion of the last day of the hearing. We noted the following, omitting portions which were addressed in the written submission. 2. The Respondent pointed to the significant improvement in the note taking by the Respondent as reported in the audit report carried out of the Respondents records, as required by the conditions created by the Psychology Council. The records had been the subject of comment by Dr Keogh. 3. The Respondent submitted that this case did not require specific deterrence because of the matters set out in the Report and evidence of Dr Paterson. It was submitted the Tribunal would find that the Respondent has used the time since the imposition of the conditions on her registration to confront the conduct which brings her before the Tribunal. 4. It was submitted the Tribunal would find there is no threat to the safety of the public as the Respondent is clearly competent as a psychologist. 5. In relation to the insight which the Respondent has into her misconduct it was submitted she clearly now has developed that insight as evidenced by Dr Paterson who has supervised her for two years. 6. It was submitted the Tribunal would be satisfied things have changed for the Respondent in relation to her sexual identity and the stressors in her life. The final written submission in reply to that of the HCCC, provided by the Respondent on 7 December 2023 with the leave of the Tribunal 1. As stated earlier the Respondent's counsel provided a very lengthy written submission for the final hearing. She also delivered oral submissions. 2. On 7 December 2023 the Respondent addressed the Non-Publication application she had made at the commencement of the hearing which was the subject of an interim order granting same pending the completion of the hearing. We have considered that submission later in these reasons when we addressed that application. 3. The Respondent also replied to the written submission of the HCCC provided following the completion of the hearing. We have addressed that submission earlier in these reasons and we now turn to consider the Respondent's submission in reply. 4. The Respondent firstly made a submission in relation to the credibility of the Respondent's evidence and case generally. We noted the following in particular: 1. The attack by the HCCC on the credit of the Respondent, as delivered in its' final submission should not be accepted. 2. The submission addressing the Respondent's credit has been address in the Respondent's earlier submission. 3. It is submitted the Respondent should be accepted when she speaks of recognising her use of language with Patient A was playful and should not have been. She recognised that was inappropriate. This demonstrates insight. Further she now appreciates it was open to Patient A to interpret her use of words in a way she did not intend. It is therefore recognition of the need to be very clear in communication with patients. 4. The respondent made many admissions against interest in. her oral evidence. She made most of those admissions instantly when matters were put to her. 5. In relation to the Complaint which alleges the Respondent attempted to have Patient A join in a deception as to the start time for the commencement of the two year period between the termination of a professional relationship with a client and the commencement of a different type of relationship with that client, such as an amorous or sexual relationship, the Respondent submitted: "it should not be simply assumed that the Practitioner carefully chose each individual word or phrase she used (as the HCCC Submissions implicitly contend). That does not excuse inappropriate language; it is the Practitioner's responsibility to ensure that her communications meet the requirements of the Code. However, breaching the Code by not being careful with language is very different to allegations of misleading the Tribunal in relation to what she meant in particular emails, and the evidence is simply not sufficient for the latter to be made out. That is particularly given the onus the HCCC bears." 6. The Respondent addressed the submission made by the HCCC that her evidence stating she found the sexually explicit emails from Patient A degrading and made her feel horrible, should be not accepted given her own emails which made sexually explicit statements to Patient A. The Respondent in reply said that the submission of the HCCC ignored the time difference between the early emails from Patient A containing sexually aggressive material, and the later emails from the Respondent to Patient A in the same vein (if not less aggressive). It is submitted the evidence of the Respondent should be accepted when it is understood what she was in fact saying. She ultimately did write emails with sexually explicit content, however that was a considerable time after the earlier emails from Patient A about which the Respondent said she was degraded and horrified. 7. The Respondent addressed the submission made by the HCCC which addressed different emails between the Respondent and Patient A about the purchase of "Byron lollies" a reference the Respondent said was to cannabis and also later reference to "Mandy" which the Respondent said was MDMA. The Respondent submitted they were different emails at different times and should not be conflated. 1. The Respondent addressed "The Complaint" referred to in paragraphs [28] to [41] of the HCCC submission. The Respondent denied the submission of the HCCC that she had only admitted conduct which was evidenced in the emails and text messages which had passed between them and where that evidence was before the Tribunal. The Respondent said she had admitted kissing Patient A at ARQ even though there was no email confirming that. She also pointed out she had denied the "Pet food" email even though at the time of the denial she did not know if Patient A had a copy of that email to produce. 2. The Respondent again addressed the denials of the Respondent to the allegations that she had touched Patient A's breasts and/or allowed her own breasts to be touched by Patient A. She relied on the extensive submission she made in the final hearing addressing the evidence which dealt with those allegations. 3. The Respondent addressed "Some Factual Matters" in the submission of the HCCC [42] to [46]. The Respondent referred to her submission delivered orally at the end of the hearing which addressed a number of the matters raised by the HCCC in the stated paragraphs. She relied on the evidence of Dr Paterson as to the origin of the misconduct which seemed to be flaws in education and knowledge. She denied the misconduct occurred because of flaws in character or lack of willpower. The Respondent reminded the Tribunal that this complaint arises against a history of many years of practice without any complaint. 4. The Respondent addressed "Insight and Remorse". 5. In relation to the attack by the HCCC on the content of the letters the Respondent had sent to each of her referees, the Respondent referred to the evidence of the Respondent that there was other detail given to the referees orally. That is, the letter was not meant to be the repository of the only information which she had provided to them. It was not put to her that she was lying (nor could it have been we note given there was apparently no evidence upon which the HCCC could properly suggest that.) 6. The Respondent submitted the Tribunal would have no doubt about the evidence of Dr Paterson and would give it full weight. 7. The Respondent then addressed "the Protective Orders". It addressed the submission of the HCCC under that heading. The Respondent submitted the Tribunal would accept the lengthy submission she provided in writing and also the oral submissions made at the conclusion of the trial. 8. The Respondent addressed the assessment of risk to the public. She referred the Tribunal to Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172, in particular at [19]. 9. We note the Tribunal in Menz (No 2) said at [18] and [19] the following: 18. Because of our decision to make an order under s 149C(4), the power to make a prohibition order under s 149C(5) can be exercised: s 149C(5A). That power can only be exercised if we are satisfied that Mr Menz poses a "substantial risk to the health of members of the public" (emphasis added). Neither party addressed in their respective submissions the meaning of the expression "substantial risk" as used in s 149C(5) of the National Law. The Macquarie Dictionary offers a number of definitions. These include "...material nature; real or actual; of ample or considerable amount, quantity...". In IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; 83 ALJR 585, Gummow, Hayne and Heydon JJ, commented at [154] that the word substantial has been said to be not only susceptible of ambiguity, but also to be a word calculated to conceal a lack of precision. Their Honours stated at [154] that which of the various possible shades of meaning the word bears is determined by the context. 19. Given the context in which it is used, the word "substantial" in our view should be interpreted to mean a risk that is real and material. It is implicit from the terms of s 149C(5) that the question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services." 1. The Respondent submitted that there was no real risk of the practitioner practicing "under an alternative title such as a 'counsellor'". She submitted that order should not be made. The Respondent submitted such an order could only be made if there was a "substantial risk" as is required by s 149C(5). 2. At the conclusion of her submission the Respondent addressed the possible applying of conditions to her registration. She advised she intends to continue with individual supervision in her practice. She said the draft conditions as provided by the HCCC would not be opposed in relation to conditions 1 and 6. Conclusion 1. In our assessment of the Respondent, both as a witness in this hearing and of her conduct in relation to Patient A, we are left with the clear impression that she was, over a period of years, unable to control that aspect of her relationship with the patient, which moved it beyond that which was appropriate. We find that she clearly knew, at all relevant times, when she was inappropriately communicating with Patient A, that she was practising unethically. Although she appeared to be holding an opinion that the relationship with Patient A only became unethical when it moved to a physical relationship, we find she cannot reasonably have believed that to be true. The Respondent's own witness, Dr Paterson, in his oral evidence, made clear that the reference to "sexual activity" in paragraph C.4.3 of the Australian Psychological Society Limited Code of Ethics document which is set out at page 535 and following in exhibit A1 (vol 2) (see particularly page 563) included flirting, kissing etc. The veracity of the Respondents evidence 1. Both parties addressed the subject of the credibility of the Respondent's evidence, both written and oral. The assessment of credibility impacts upon the weight the Tribunal can give to that evidence. 2. We have had the opportunity of observing the Respondent give her oral evidence and hearing the evidence she gave. We have considered all of the Respondent's written and documentary evidence. It is from that exposure we are able to form the following conclusions about her veracity. 3. Although there are significant portions of the Respondent's evidence which attract criticism by the HCCC, for good reasons, overall, we conclude that for most of the time the Respondent gave oral evidence, she was attempting to give her evidence honestly and in a manner which assisted the Tribunal in this determination. However, there were some topics which were covered in her evidence which we conclude defied credibility. On at least one occasion, when challenged about the credibility of a particular statement made by her in oral evidence, she did concede it was not credible and gave an appropriate concession. 4. The manner in which the Respondent gave her evidence, both written and oral was, we consider possibly affected by her general apparent lack of concern about specific detail. This led to her being uncertain about dates and durations of events. We acknowledge she was asked to recall events which occurred over at least a seven-year period. She also seemed to not be concerned, at the time of the events being addressed, about the requirements of the APS code of conduct applicable to registered psychologists. Examples of this can be seen in her lack of understanding of the different roles of therapists and professional supervisors. Although it was the responsibility of those therapists and supervisors not to fulfil both roles for the Respondent, the Respondent appeared to be unaware of those matters. 5. We formed the view that the Respondents lack of concern for detail and knowledge of codes of conduct may have been impacted by her own personal circumstances during the relevant period we have had to consider in this hearing. She had to face her own separation from her husband, her emerging sexual identity, her battle with alcoholism and possibly drug use. To her credit she has now conquered those debilitating challenges and now appears to have a settled life with her wife. 6. The ability to recognise when there is a breach of the code of conduct, which applies to practising psychologists in Australia, has in one circumstance, continued until the hearing before us. It relates to the Respondent not recognising the inappropriate boundary crossing by Mr Kalitowski, the Respondent's identified therapist. Mr Kalitowski has at some time been both a therapist and supervisor for the Respondent, a circumstance in which Dr Paterson described as inappropriate. Having been her supervisor at some point he should not have taken on the role of therapist, or vice versa. That is a circumstance which both Mr Kalitowski and the Respondent should have recognised, even as late as this year while the therapy continued. We accept that the only reason that therapy has not continued is that Mr Kalitowski is physically unavailable due to travel. 7. As has been seen in the evidence from Dr Paterson, Mr Kalitowski is not the first psychologist who has crossed appropriate boundaries with the Respondent. At an earlier time the Respondent was in a therapeutic and business and supervision relationship with the same person. Dr Paterson opined that circumstance could have been damaging to the Respondent. The Evidence of Patient A 1. Patient A gave evidence in both written and oral form. We assessed that evidence as having been given apparently honestly. Much of her evidence is not disputed by the Respondent. As pointed out by the HCCC the heavily disputed aspect of her evidence is that which is not corroborated by another source, such as by email exchanges. The disputed subjects of her evidence relate to the extent of the physical relationship between Patient A and the Respondent. Was there breast touching between the two as alleged by Patient A or not. There is also a dispute about whether the Respondent had told Patient A about an occasion when she was masturbating. 2. One of the aspects of the presentation of Patient A which the Respondent is able to rely upon is the mental health of Patient A. The evidence before us clearly establishes Patient A was a vulnerable person with complex psychological problems. This was related to the mental health of Patient A. Thus, the question is raised as to the reliability of the memory of Patient A, a person who was clearly very much in love with the Respondent over a lengthy period of time. 3. Another aspect of the evidence which would raise a doubt about the Respondents denial of the matters disputed in the evidence of Patient A is an apparent (to us) ambition on the part of the Respondent to assert there was never a physical sexual relationship between Patient A and the Respondent, beyond kissing and perhaps hugging. As it transpired, the evidence of the Respondent's own witness Dr Paterson clearly included kissing as a "sexual relationship" in the relevant code of conduct and thereby inappropriate. 4. As it transpires, it is for us not crucial or important to determine whether either parties evidence in the disputed fact area is to be accepted. To the extent that it may be important to do so, we are able to conclude that as defined by the relevant code of conduct, the Respondent did have a relevant sexual relationship with Patient A, albeit not to the physical extent described by Patient A. We note however, that whether or not there was a sexual relationship between Patient A and the Respondent is not important to establish in this case, as we have formed the conclusion that the admitted professional misconduct and unsatisfactory professional conduct by the Respondent is so serious that the existence of a transient physical sexual relationship between the two does not add further to that seriousness. 5. There is one aspect of the conduct of the Respondent which impacts upon the ability of the Tribunal to trust she is being completely truthful with us. That aspect is addressed by Complaint Two of the Application we are considering. That Complaint is denied by the Respondent. She states she did not intend to have Patient A join in a plan to fabricate the date on which their therapeutic relationship ceased. Evidence of Professor Keogh and Dr Paterson 1. No submission is made to attack the veracity of the evidence given both in writing and orally by these witnesses and we accept the evidence has been given honestly, and in a manner designed to assist the Tribunal. Is the Respondent guilty of unsatisfactory professional conduct as alleged in Complaint Two of the Application 1. The amended Reply document upon which the Respondent proceeded in this hearing is contained in Exhibit R6. In that document the Respondent admits she is guilty of unsatisfactory professional conduct as claimed in Complaint One of the complaint document, although she denies Particulars numbered 6(b) to 6(e) of that complaint. She also admits she is guilty of Complaint Three, that is, she is guilty of professional misconduct. In so admitting the Respondent stated: "Admits that when taken as a whole, her admitted conduct with respect to Complaint One justifies a finding of professional misconduct. 2. In relation to Complaint Two, alleging unsatisfactory professional conduct, the Respondent denies she is guilty. In relation to that complaint the Respondent stated she: "admits that she sent the email to Patient A but says that this conduct is already covered under Complaint One." 3. Complaint Two alleges unsatisfactory professional conduct on the part of the Respondent as defined in s 139B(1)(l) of the National Law. That section is infringed, the Complaint states, by the practitioner engaging in improper or unethical conduct relating to the practice or purported practice of psychology. 4. The words of the email which are at the heart of this Complaint are as follows: "However we wouldn't be stretching the truth so much to say our therapeutic relationship changed when I referred you to Nick in early November. So that shaves 6 months off." 5. The words of the offending email, as above set out, need to be seen in the light of an earlier email sent by the Respondent to Patient A on 11 December 2015. The words she used there are as follows: "AHPRA and APS requirements are that any therapeutic relationship must have been finished for 2 years before any personal relationship can commence." As will be seen hereafter, the words "personal relationship" misquote the relevant code. 6. The Respondent largely accepts the content of Particulars two in that she acknowledges she did send the emails to Patient A. However, she defends the complaint on the basis that it had already formed part of Complaint One. Further she stated: "That the comments in the email were fanciful, off-the-cuff statements, and that there was never any intent to mislead the HCCC, AHPRA or any other regulator". In support of that statement the Respondent added: "The HCCC cannot point to any evidence of any attempt to actually mislead the regulator, or conduct reflecting an intention to mislead." 7. In the submission provided by the Respondent (MFI4) this issue is address at paragraph 118 and following. There the Respondent submits that: "Critically, the email in question does talk of when the relationship changed not "ended" as is included in the HCCC's formulation of the particular. Once it is appreciated in its terms the email never encompassed changing when the therapeutic relationship ended, it is apparent that in the HCCC's theory, this was written with the intent to deceive to avoid censure is illogical." 1. We reject that submission and find that at the time the email was written by the Respondent she was referring to the two-year period following the cessation of a therapeutic relationship, during which it would breach the APS code of conduct to commence a sexual relationship with a former client. The earlier email from the Respondent which cited the APS code, used the term "personal relationship" not a "sexual relationship". On any reading of the emails which flowed between the Respondent and Patient A following May 2015, they were already conducting a "personal relationship". 2. The paragraph in the relevant email of 9 January 2016, which precedes the offending words, is instructive of the thinking and intent of the Respondent when she wrote the email. Those words are: "My panic-attack-inducing realisation the other night wasn't that far off the mark. I agree that it's one of several outcomes, but all it would take is for Paul to find out and tell his shrink (which he would, naturally), and I'm subject to a stressful investigation and ultimately at least suspended. That means probably selling my house and/or pulling my kid out of school." 1. The reference to "Paul" in the above email we understand to be a reference to the Respondent's then estranged husband. 2. At page 535 of Exhibit A1 volume 2, the APS Code of Ethics document. It states it was adopted by the Australian Psychological Society Limited at its general meeting on 27 September 2007. The relevant portion of the code which applies to a psychologist conducting a non-therapeutic relationship with a former client is found at C.4.3.(b). (page 563 of Exhibit A1 Vol 2.) It states: "Psychologists do not engage in sexual activity with a former client, or anybody who is closely related to one of their former clients, within two years after terminating the professional relationship with the former client." 1. We are well satisfied the Respondent was referring, in her email, the subject of the Complaint, to a date at which to say the therapeutic relationship between she and Patient A ceased so that the timing for the understood two-year period would commence. In so doing she was inviting Patient A to enter into a conspiracy/agreement which would be advanced by them should their relationship ever become the subject of an investigation by the Health Care Complaints Commission, or any other relevant body, such as the Psychology Council. Such an invitation was clearly unethical and thereby in breach of s 139B(1)(l) of the National Law and made her guilty of unsatisfactory professional conduct. The nature and seriousness of the Respondent's conduct 1. The Respondent admits she is guilty of both unsatisfactory professional conduct and professional misconduct. Although she did not admit she was guilty of unsatisfactory professional conduct in relation to Complaint Two, we are satisfied she is guilty of unsatisfactory professional conduct, as claimed in that Complaint. She accepts that protective orders should be made by the Tribunal arising from the findings that she is guilty of those offences. The Respondent opposes the Protective orders sought by the HCCC, she seeks an order which would not include cancellation of her registration or possible suspension. 2. The nature of an appropriate protective order for the Tribunal to make will, in part, be determined by the seriousness of the offending by the Respondent. We now turn to consider that matter. 3. The Respondent was in a therapeutic relationship with Patient A from June 2009 to June 2015. Thereafter and until about May 2017, the Respondent engaged in a personal relationship with Patient A. Her relationship with Patient A had changed from strictly therapeutic to therapeutic and personal prior to the formal cessation of therapy. 4. Between 8 November 2012 and 16 May 2015, the Respondent engaged in an inappropriate relationship with Patient A by engaging in email exchanges with her for non-clinical purposes. The nature and extent of that email correspondence we have addressed in these reasons earlier. This was not just an isolated event, the number of email exchanges for non-clinical purposes was voluminous. The HCCC extracted some of the words from those emails and included the words in the Particulars to Complaint One. 5. Between June 2015 and May 2017, following the cessation of therapy provided by the Respondent to Patient A, the Respondent engaged in email exchanges, on numerous occasions, with Patient A for non-therapeutic and non-clinical purposes. Patient A said that occurred on 21 occasions which she could recall. The Respondent, as we understand her evidence would put the number as considerably less. The relationship which the Respondent and Patient A had during that time was intimate and included at least hand holding and kissing. 6. In order to advance to the time at which the Respondent thought, under the APS code of conduct, she could have a personal relationship, of any nature, including a sexual relationship, with Patient A, we are satisfied that the email the Respondent sent to Patient A, was one which was intended to suggest to her that they could agree, on a knowingly false narrative, which would substantially pre-date the time at which the therapeutic relationship was actually terminated and state a significantly earlier date for that event. That was, we are satisfied, an egregious act to draw Patient A into. 7. The Respondent has admitted that she inappropriately enticed/invited Patient A to continue with therapy at times when Patient A was seeking to withdraw. The Respondent concedes it would have been the proper approach to have ended the therapy when Patient A sought that. 8. The Respondent acknowledges that Patient A presented with complex psychological problems and was a vulnerable patient. She clearly needed the very best of the psychological services which the Respondent was capable of giving. The continuation of the therapeutic relationship at a time when the Respondent began to experience countertransference had the potential to harm rather than to treat Patient A's mental health. Although there is no medical evidence to show that Patient A was actually harmed by the conduct of the Respondent, we have the evidence of Patient A which states how she was affected by her relationship with the Respondent. We also have the Respondent's admission that it would have damaged Patient A. We also have the evidence of Patient A not being able to continue giving her evidence on the second day of the hearing. We were told Patient A was unable to continue with her evidence on that second day. We had observed that Patient A was experiencing difficulty tolerating the experience of giving oral evidence. Subsequently she was excused from having to give further oral evidence, with the consent of the Respondent. We also noted in the evidence from Patient A that she had feelings of betrayal, rejection, and possibly jealousy, in relation to the Respondent at a time when she was preparing her statement for this hearing. 9. We also note the evidence of Dr Keogh who was critical of aspects of the Respondent's professional services she applied to Patient A. That treatment included hypnosis and regression therapy. He noted the inadequacy of the Respondents notes which she is required to keep in relation to the patients she treats. 10. Dr Keogh also described some of the Respondent's conduct as demonstrating an unwillingness to cooperate with an investigation in an open and honest way. He said it called into question her professional integrity. 11. We are satisfied the Respondent knew what the boundaries were in relation to psychologist/patient relationships throughout the entirety of her therapeutic and personal relationship with Patient A. She chose to ignore those boundaries notwithstanding she knew she would face punitive sanctions including investigation by the HCCC and or the Psychology Council. We are satisfied the Respondent infringed those ethical boundaries to satisfy her own needs. In doing so she was unable to place the needs of Patient A ahead of her own. Her conduct was shameful and unbecoming of her profession. 12. We have set out here merely the stand-out aspects of the Respondent's misconduct which continued over a period of years. A finding of professional misconduct itself speaks to the seriousness of the Respondent's conduct. We have assessed the seriousness of the Respondent's misconduct as very serious. The Protective Order which is appropriate for the Respondent 1. Given the nature, extent, and seriousness of the Respondent's misconduct, we are of the view that the appropriate protective order will be either cancellation of her registration with a one-year non-review period or suspension for a year, with conditions to be attached to her registration, at the conclusion of the suspension period. We now turn to consider which of those two alternatives is appropriate in the particular circumstances of this case. Assessment of current fitness to practice 1. One of the questions we need to consider is whether the Respondent is currently fit to continue practice. If she is not fit to practice at the date of this hearing, then her registration should be cancelled with a non-review period to be set. In that circumstance the Respondent would have an opportunity during the non-review period to attempt to remedy the inadequacies in her practise credentials and abilities. She would then have to again appear before the Tribunal and satisfy it that she is fit to practice. 2. We have accepted the evidence of Dr Paterson in this hearing. He was clearly of the opinion that the Respondent is fit to practice. He said he thought it was an "extremely unlikely" risk of her re-offending in the manner in which she did with Patient A. There is no suggestion her skill as a therapist/psychologist, at the date of this hearing, is not at an acceptable standard. 3. The fact that the Respondent is currently fit to practice psychology would not preclude the Tribunal imposing a cancellation of her registration. Deterrence 1. We are satisfied that the Respondent has suffered significantly as a result of this proceeding itself. She has had to write to colleagues to seek references for the Tribunal, and in doing so, provide some detail of her misconduct. She has also been the subject of conditions imposed upon her registration by the delegates of the Psychology Council of NSW, which included supervision by an approved supervisor. That condition has been in place now for two years. We are satisfied the Respondent has suffered shame, anxiety and loss of reputation, arising from this proceeding. We are satisfied these proceedings alone will operate as a personal deterrent for her. 2. We are also satisfied that, although not intended, there will be a punitive effect of the protective orders we set and that will reinforce the stated intention of the Respondent not again to come to the notice of the regulators of her profession. 3. One of the matters to be considered in formulating a protective order is the deterrent effect the order might create for other registered psychologists. It will be important for the psychology profession, as a whole, to know the regulators of the profession will act where contraventions of the code of conduct, set by the Australian Psychology Society and required by the Psychology Council of NSW, are reported, investigated and established. In this case there is a need to send a strong message of deterrence. Public safety and confidence 1. It is also important for the public to have confidence in the profession. That is highly important, in our view, where, as in this case, the psychologist in question has a specialty practice with very vulnerable patients, who have complex psychological presentation. The public will have confidence in the provision of psychological services, where they see, in a case such as this, the setting of a protective order of significance. Insight and remorse 1. We are satisfied that the Respondent has expressed genuine remorse for her misconduct with Patient A. She has also developed, we accept, greater insight into her psychology skills and abilities. She has recognised that her skills and experience as a psychologist were probably not sufficient to deal with the complexities which were apparent in Patient A, when they first commenced a therapeutic relationship. 2. In her oral evidence the Respondent was asked to explain a phrase she had used in a document sent to the friends and colleagues seeking support in the form of a reference to provide to the HCCC, the Psychology Council and then to the Tribunal. The Respondent had used the words "surprising and extremely disappointing" when referring to the complaint progressing to an action before the Tribunal. When asked why it was surprising, she said that friends and colleagues had suggested to her that "it would be alright" when she told them of the complaint. She took that to mean there would not be any proceeding before the Tribunal. That view, at one level, may have indicated the Respondent did not understand the seriousness of her misconduct with Patient A. We now accept she does understand how serious it was. 3. We are satisfied the Respondent has developed a clear understanding of boundaries with patients, however her awareness of "multiple relationships" had not developed to an acceptable level until the advent of this hearing. That can be seen through her lack of awareness of the inappropriateness of Mr Kalitowski continuing as her therapist in circumstances where he had been her professional supervisor. 4. We note the ASP code at C.3.1 addresses psychologists who engage in multiple relationships with clients. It states: "Psychologists refrain from engaging in multiple relationships that may: (a) impair their competence, effectiveness, objectivity, or ability to render a psychological service; (b) harm clients or other parties to a psychological service; or (c) lead to the exploitation of clients or other parties to a psychological service." 1. Although it is the primary responsibility of the therapist and not his/her patient to ensure the Psychologist is not crossing boundaries by taking multiple roles with the patient, it none the less was surprising to us that the Respondent did not recognise that circumstance in the relationship she had with Mr Kalitowski. We think it would be a benefit to the community, and the Respondent, if we were able to make conditions, as part of a protective order, for her to continue under formal supervision, of the nature she has participated in with Dr Paterson. Will there be any adverse impact on the public if the Respondent's registration is cancelled or suspended 1. We are aware that the Respondent has a high profile in the LGBTQIA+ community. We accept the evidence of Dr Paterson that there is a general shortage of psychologists in the community and an even greater shortage of psychologists who practice with and have specialist skills in treating and assisting with members of the LGBTQIA+ community. If the Respondent is unable to practice then that shortage will be greater and her patients/clients will need to find and develop a therapeutic relationship anew with another psychologist. We accept that will visit great hardship upon at least some of those people. Any other relevant matter 1. The evidence suggests that the Respondent was, during the majority of the time she was treating and in a personal relationship with Patient A, struggling with her own problems. She was experiencing alcoholism, which she has now, we accept, addressed. She was using non-prescribed drugs. Again, we accept that is probably not the case now. She was dealing with the breakdown of her own marriage, which we accept, would have been very stressful for her. She was dealing with the emergence of her own sexuality, in the sense of understanding she was desiring an intimate and secure relationship with a female. 2. We accept the circumstances which were clearly troubling the Respondent during the period 2009 and 2017, and probably until she met and formed a long- term relationship with her wife, are no longer affecting her. However, it must be realistically accepted that some of those aspects of her former lifestyle could return if she is not committed to ensuring they do not. The protective order which will meet the circumstances of this case 1. We have considered the possible cancellation of the Respondents registration, with a non-review period of about one year. We have also considered the possibility of imposing an order which suspends the Respondents registration for a period of 12 months with conditions then to operate on the expiration of that period. If a suspension order was made there would also be the opportunity for the Tribunal to impose a restriction upon the Respondent's ability to practice in any other mental health service, of like nature, such as working as a counsellor of any nature. We consider that either of those protective orders would achieve the result of being an appropriate deterrent to the profession and satisfy the ability of the public to have confidence in the profession and their safety when undertaking therapy with a member of that profession. 2. Each of the parties has referred us to decisions of this Tribunal and other State equivalents in relation to disciplinary proceedings taken against registered psychologists. Those decisions illustrate the exercise of discretion in the making of protective orders. The range of available protective orders is widely divergent. Nonetheless, each case needs to be decided on its' own facts and by the Tribunal hearing that case exercising its' discretion. Different minds will likely apply the discretion in different ways. 3. We are cognisant that Dr Paterson is of the view that the Respondent is fit to practice and that it is extremely unlikely she will again offend in the manner seen in this case. He is satisfied she knows the boundaries which apply and can manage those boundaries. She has demonstrated that to him, during the two year period of his supervision. 4. We have concluded that there are advantages for the public, and the profession if we can impose conditions on the registration of the Respondent when she returns to practice. We can only achieve that if we proceed with a suspension of her registration as opposed to a cancellation. 5. We are conscious of the provisions of s 3A (2)(c) of the National Law which provides as a guiding principle for NSW, that "restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality." That provision is also subject to s 3B of the National Law which requires that "In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration." That provision uses similar words to that found in s 3A(1) of the Guiding Principles for NSW. 6. The condition which we consider would continue to satisfy the need of public safety, is the continuation of the supervision the Respondent has been subject to pursuant to the orders made at the time of the s 150 hearing. 7. On the final day of the hearing, we asked the HCCC to provide us with draft conditions it would recommend the Tribunal make should it decline to cancel the Respondent's registration. The HCCC helpfully provided the following suggested conditions: Draft Conditions 1) To practise under Category C Supervision in accordance with the Psychology Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a) The supervision sessions must be: v) a minimum of one hour in length. vi) the supervision sessions must be face to face vii) the supervision sessions must be conducted on a fortnightly basis viii) supervisor reports must be completed and submitted to the Council three monthly. b) to authorise the Psychology Council of NSW to provide proposed and approved Supervisors with a copy of this decision and any subsequent relevant reports or decisions. c) Not to practise until a supervisor has been approved by the Psychology Council of NSW. 2) At each supervision meeting, the supervisor is to review and discuss practitioner's practice and address any relevant work-related or professional matters with particular focus on: g) Knowledge of the Psychology Board's Code of Ethics and the Australian Psychological Society's ethical guidelines h) Ethical and boundary considerations i) Privacy and Confidentiality j) Record-keeping k) Treatment plans l) Practice management. 3) To practice only in a group practice approved by the Psychology Council of NSW where there is at least one other person physically present in the practice at all times. 4) To advise the Psychology Council of NSW in writing at least seven days prior to changing the nature or place of her practice. 5) To provide evidence to the Psychology Council of NSW within fourteen days of recommencing practice, that she has provided a copy of the conditions and Tribunal's decision to all persons employed at the practice, and any place that she works as a psychologist. 6) The respondent is satisfactorily to complete an ethics course focusing on ethical obligations approved by the Psychology Council of New South Wales within six (6) months of commencing work as a psychologist in Australia or as specified by the Council. c) Within two (2) weeks of being notified that the course is approved, the practitioner must provide evidence to the Council of enrolment in the specified or approved course. d) Within four (4) weeks of completing the specified or approved course, the practitioner is to provide documentary evidence of satisfactory completion to the Council. 7) The Psychology Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW). 8) Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Psychology Board of Australia. 1. We have considered those conditions and conclude they are appropriate to come into operation at the conclusion of the suspension period. 2. In the submission of the HCCC it addressed a restriction being placed upon the Respondent providing mental health services during any period of cancellation. Clearly that was also intended to apply equally should the Respondent have her registration suspended. 3. The power to make such an order is found in s 149C(5). It is restricted to a circumstance where the Tribunal "is satisfied the person poses a substantial risk to the health of members of the public." 4. The Respondent submits the Tribunal will not be satisfied the Respondent does pose a substantial risk to the health of members of the public and as such the power is not available. We accept that submission and will decline to make the order under s 149C(5) as sought. The Respondent must understand however, that such a decline on our part is not a form of permission to practice by the provision of any health services during a period of suspension. 5. Having so decided, we do not intend that the Respondent be restricted from carrying out some administrative or teaching roles in a mental health service. The Respondent should obtain permission from the Psychology Council of NSW in relation to any employment she may be offered or intending to undertake during the period of suspension. 6. The Tribunal does not intend to deprive the Respondent from earning an income if that is available to her outside of engaging in the practice of psychology or a health service. 7. The conclusion we have reached and which we propose to make, as a protective order, is the suspension of the Respondent's registration for a period of 12 months. 8. We are conscious that the Respondent has a number of complex and vulnerable patients who need to be passed on/referred to other psychologists where that can be done. We propose to have the Respondent's period of suspension commence 14 days after the date of the order we will make so that she can attend to that task where possible. The Application by the Respondent for the continuation of the order made 14 June 2023 1. On 14 June 2023 the Tribunal made the following interim order: 1. Pursuant to clause 7 of Schedule 5D of the National Law and pending the publication of the Tribunal's decision in relation to the Stage 1 determination in this case, the following information is not to be published. (a) The name and address of the Respondent Julie Catt. (b) The name of the Respondent's business. (c) The name and address of individuals identified in the affidavit in support of the Respondent's Application for Miscellaneous Matters filed 9 June 2023. 2. The reasons for this order will be published in the Reasons of the Tribunal to be given in relation to this Stage I hearing. 3. Leave is granted to each party to apply to set this interim order aside upon giving 14 days' notice to the Tribunal and to the other party. 1. Although the order was made in the hearing before the Tribunal on 14 June 2023, the published order was dated 15 June 2023. It is that order which the Respondent seeks to be extended and apply to the publication of this judgment. 2. We note however, that the submission of the Respondent provided on 7 December 2023 seems to press for the extension of the non-publication order to any statement or portion of this judgment which might have the possibility of identifying her to a member of the public. That is not the application we are asked to determine. 3. Following the making of the order on 14 June 2023 the parties in the proceedings, on all published documents, were named Health Care Complaints Commission v FWH. 4. Order 2 made 14 June 2023 provided that the Tribunal would provide reasons for the interim decision made that day when publishing its' final decision for the Stage 1 hearing. As can be seen above the parties abandoned the two-stage approach to the hearing when the hearing resumed in October this year. 5. The decision in relation to the Application for Miscellaneous Matters, filed by the Respondent on 9 June 2023 is now addressed. The reasons for granting the interim order are subsumed into these reasons. 6. The application filed on 9 June 2023 sought an order in the terms as granted on 14 June 2023. On an interim basis the HCCC did not oppose the making of the order. It does now oppose that application. 7. In support of her application the Respondent filed an affidavit which she affirmed on 12 June 2023. The reasons for seeking the order were particularised in that affidavit and can be summarised as follows: 1. The publication of specific detail of the offending by the Respondent may cause harm, embarrassment, shame, stress and economic loss to various individuals. 2. A member of the Respondent's extended and step-family, who is in his late 20's, has been diagnosed with mental health conditions which the Respondent either believes or has been told, are depression and anxiety. He is a relative of her former husband. He was hospitalised after an attempted suicide in 2019. This person had been a child in the house in which the Respondent resided for many years and a person for whom the Respondent shared parental responsibility. The Respondent regards herself as the primary source of support for that person. The Respondent visits him fortnightly, and he is frequently a visitor to her home on weekends. The Respondent is concerned that publication of her name in this judgment will give rise to gossip in the circles in which this person moves. He lives with his partner independently from the Respondent or any of his family. The Respondent has not told this person of her hearing before this Tribunal. If the person learns of the details of the Respondent's offending, she is concerned it will distress him and exacerbate his medical condition. She also believes it will cause him embarrassment and he will possibly withdraw from his circles of friends and associates. The person is currently not working. The Respondent believes because of his mental health issues. 3. In support of her application, the respondent annexed a copy of a letter signed by a person who we accept is the biological mother of the person referred to in (b) above. She said the person is a high functioning and intelligent autistic and also lives with depression and anxiety. There was a suicide attempt in 2019 which led to his hospitalisation. He is now experiencing low mood and is unable to work or study (February 2023). She believed information published about the Respondent's misconduct could "precipitate extreme distress" in the person. Gossip relating to the Respondent's misconduct, in the circles in which the person lives and moves could cause the breakdown of his relationship with the Respondent. 4. The Respondent says that the person's mother will be leaving Australia for 2 years in October 2023. 5. The Respondent is concerned for her wife. Her wife is well known in the Sydney lesbian community. She is also known through her food business. Her wife's brother is a well-known actor. The Respondent is concerned the detail of her misconduct when published, will cause her wife embarrassment and distress. She is also concerned that her wife's customers may no longer buy from her following the publication of the judgment. 6. The Respondent says she is concerned the publication of the judgment will disclose to the LGBTQI+ community the identity of Patient A. The Respondent sets out her leadership roles in the LGBTQI+ community, over many years. She has been practicing with members of that community since 2003 and is well known in that role. News circulates around that community largely through social media. The Respondent has no doubt that news of her misconduct will spread quickly through the LGBTQI+ community. Patient A has already indicated she will share the story of the Respondent's misconduct. 7. Twenty10 is an organisation of which the Respondent was Chair until recently. This organisation advocates for gender affirming health care for young people. This has been very controversial in recent times and the subject of press reports. If the Respondent is named in this judgment she is concerned "right wing media and politicians" would use the publication to discredit or attack the Twenty10 organisation. The funding of the organisation could also be at risk. 8. The Respondent is concerned for the impact upon her children of the publication of the judgment. Although being adults, they work in industries in which they will be easily identified because they share the same surname as the Respondent. Only one of her children (now all adults) has been informed of the Respondent's attendance before the Tribunal. There will be anticipated embarrassment and distress once they learn of the outcome and the detail of the misconduct. 9. The Respondent is concerned for the wellbeing of her work colleagues. There are two psychologists and two counsellors who work with her. She anticipates that the publication of her name will cause them reputational damage. That has the potential to affect them financially. All her work colleagues are aware of the proceedings before the Tribunal and have been supportive of the Respondent. 1. We firstly note the evidence in relation to the health and medical condition of the person referred to in (b) above, is strictly hearsay, with no corroborative reliable medical evidence. The evidence also, in many important respects lacks detail. However, if we assume it is all correctly reported, there is no evidence from the Respondent as to what she could do to assist the person to deal with the news of the Respondent's misconduct. All of the concerns for this person are speculative, but we acknowledge serious, if they were to manifest. She has chosen not to prepare this person for the publication or the gossip which may move about his friendship group once the judgment is published. We are not told if this person is currently receiving treatment from a psychiatrist or a psychologist with whom the Respondent could work to help alleviate any embarrassment or stress or anxiety which this person could occasion once he becomes aware of the Respondent's misconduct. 2. The next matter to consider is the utility and effectiveness of the order sought by the Respondent. She has emphasised a number of times in the evidence before the Tribunal, how small and collegiate the LGBTQI+ community in Sydney is. Dr Paterson also confirmed that was the case. Given that circumstance coupled with the high profile and respect which the Respondent holds in that community, it is fanciful to believe that if the Respondent was referred to as FWH in the published judgment of the Tribunal, the members of the Sydney LGBTQI+ community, would not quickly work out who that is. It must be plainly obvious that in a judgment of the nature of that contained herein there are many identifying pieces of text which would not escape identifying the Respondent. As the person referred to above socialises within the LGBTQI+ community in Sydney, again it seems unrealistic to conclude he would not learn that the judgment was about the Respondent. That fact has either not moved the Respondent to take any precautionary action to be ready for that outcome, or she has failed to tell us what she has done. The Respondent's submission addressing the Non-Publication order she seeks. 1. The Respondent provided a supplementary submission which addressed this application. That submission was permitted by the Tribunal although it was well outside the orders which had been made on the last day of the hearing, providing for the parties to provide their further written submission. 2. We have had the advantage or reading that submission and note in particular the following: 1. The Respondent seeks the Non-Publication order be extended to cover "any information, picture or other material that identifies the person or is likely to lead to the identification of the person". 2. The Respondent submits that if the judgment is published without a non-publication order as sought "it will cause harm to individuals which, in the circumstances renders the public interest in favour of the non-publication order". 3. It is submitted "the non-publication order of the Practitioner's name is pressed. An alternative would be to name the Practitioner but to anonymise the subject matter of "specified evidence" and the "subject matter of a complaint" (5D(1)(b)(iv) or (v)). In the circumstances it is submitted the non-publication of the Practitioner's name is the best way (between the two options) to balance the principle of open justice with the public interest of harm to specified individuals evidenced in Exhibit R2." 4. The Respondent points out that even were it the case that the victim of the Respondent's misconduct (Patient A) sought to identify both herself and the Respondent, in the face of a non-publication order, that would be a breach of the protective order. Without saying so, there is inherent in that submission, that a prosecution of Patient A, for identifying the Respondent contrary to the non-publication order, would then be available. The Respondent submits that possible circumstance should not deter the Tribunal making the order sought. 5. The Respondent then addressed her submission to the reason why the order should be made. The Respondent identified the range of persons who she says would be affected should the Respondent be named in this judgment. She submitted: "The range of people are: the Practitioner's family member, (name removed), (the harm being potentially to his life and certainly his well-being), her wife who has a public profile, her two other daughters that work in the mental health space, the psychologists and other health care practitioners trading under her name, potentially her clients who are in the LGBTQI space, organisation Twenty10 and its work (she is no longer on the board but is associated with it by reason of her previous tenure) and last but by no means least, the Client herself. The latter is at risk because there is a risk of identification of her if there is no non-publication order". 6. The Respondent submitted: "To address the first proposition, in all probability if the specifics of the Practitioner's offending are not anonymised, it will become a matter of public comment. That is because of the nature of the misconduct in question, the work the Practitioner does in the space of LGBTQI, the size of that community and by reason of being married to someone who has a public profile." She submitted further: "In relation to the second proposition, the evidence in Exhibit R2 does establish a material risk of harm that tilts the public interest in favour of a non-publication order. As submitted on the last occasion, the evidence need not be from medical practitioners or establish things to a degree of exactitudes or of a real likelihood. For example, the evidence accepted in the case of HCCC v CSM [2016] NSWCATOD 125 was of less probative weight than that presented before the Tribunal here." 7. The Respondent emphasised the potential harm which could flow to the relative of her former husband, which she addressed in her evidence. She submitted the potential for harm to him across a number of levels was sufficient, really on its own, to outweigh the public interest which required the publication of the Respondent's name, at the very least. 8. The Respondent submitted that although the other harms which might flow to specific persons would not be seen as significant as that possibly being raised in relation to the relative of the Respondent's former husband, it does not mean they should not be seen as carrying weight to support the argument for the order sought. 9. The Respondent referred us to the decisions in Health Care Complaints Commission V CSM [2016] NSWCATOD 125 and Health Care Complaints Commission v Firth (No 2) [2015] NSWCATOD 8. 10. The Respondent concluded her submission on this matter with the following: "For the reasons advanced on the interim application, there is a material risk the Client's identity will be revealed if the Practitioner's misconduct is not anonymised. In short, this is because of: i. the size of the LGBTQI community; ii. the public scrutiny that would be brought to bear on the specifics of misconduct because of the Practitioner's position in that community and the public profile of her wife; iii. the peculiar, and specific nature of the misconduct (disputed and admitted); and iv. the fact that the Practitioner treated the Client is a matter the Client has already spoken of with individuals within the community. The material risk of harm to multiple individuals should not be dismissed by this Tribunal but accepted as over-riding the open justice principle in this particular case. The non-publication order should be made on a permanent basis." The Law affecting this application 1. The HCCC provided a written submission in relation to this application by the respondent. We have detailed that submission earlier in this judgment. 2. The HCCC referred us to the decision in Cakan v Health Care Complaints Commission [2020] NSWCATOD 116. In particular, paragraph [18] of that decision. The extract emphasises the overarching principle of open justice and the fact that it is only displaced in special or exceptional circumstances. The decision drew on the principle set out in Health Care Complaints Commission v Vo [2014] NSWCATOD 127 [181] to [185]. That decision referred to the requirement of the Civil and Administrative Tribunal Act 2013 No 2 (NSW). In section 49 the Tribunal hearing is required to be open to the public unless the Tribunal orders otherwise. In this case no order to the contrary was made. 3. When the Tribunal sits in public it publishes the name of each party as a function of its ordinary procedure. The Court room is open to the public unless formally closed by order of the Tribunal for a particular hearing. Thus, as stated in Vo there needs to be "something special, exceptional, or out of the ordinary, before the Tribunal will make an order avoiding that result." 4. In Vo there is reference to a decision where a non-publication order was refused even in circumstances where the practitioner, the subject of the proceeding was terminally ill. There is reference to another decision where an order was made after expert evidence was provided to the Tribunal in relation to the mental health of the practitioner's daughter who had a history of admission to a psychiatric unit following a serious suicide attempt. 5. In Health Care Complaints Commission v CSM [2016] NSWCATOD 125 the Tribunal did make a non-publication order of the nature sought by the Respondent in this hearing. At paragraph [84]- [87] of the decision the following was said by the Tribunal. Statutory framework 84. The combined effect of s 49(1) of the Civil and Administrative Tribunal Act 2013 (the Tribunal Act) and s 165K of the National Law is that proceedings before NCAT brought under the National Law are open to the public unless otherwise ordered. The power to order that a hearing be held in private can only be exercised if the Tribunal is satisfied that it is "desirable to do so in the public interest for reasons connected with the subject-matter of the proceedings or the nature of the evidence to be given": s 165K of the National Law. 85. Clause 7(1)(b)(iii) of Schedule 5D to the National Law provides that the person presiding in proceedings before the Tribunal may, if they think it is appropriate "in the particular circumstances of the case", direct that the name of nominated persons involved in the proceedings, including a registered health practitioner, not be published. The power to make an order under this provision vests in the presiding member of the Tribunal. Accordingly, the decision to make a non-publication order in this case was made by the presiding member, Principal Member Britton. In the interests of consistency, in these reasons the maker of the decision will be referred to in the plural. 86. In exercising the power to make an order under cl 7(1)(b)(iii) of Schedule 5D to the National Law, the presiding member must have regard to the norm of open justice established by ss 49(1) of the Tribunal Act and 165K of the National Law, together with the objects of the Tribunal Act, which include ensuring that the Tribunal is accountable and has processes that are open and transparent: s 3(f). The authorities have consistently emphasised that the power to depart from that norm must be exercised sparingly. 87. As noted by the Tribunal (Acting Judge K P O'Connor) in Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [16], it is an "unavoidable incident" that a health practitioner the subject of proceedings brought under the National Law will often suffer a deep sense of shame and embarrassment and will be concerned about the impact of the proceedings on other members of their family. His Honour explained at [25] the rationale for disclosing the health practitioner's identity: Disciplinary proceedings and disciplinary orders have as their ultimate purpose the protection of the public. The public has an interest in knowing whether a practitioner has been charged with a disciplinary offence, and of the outcome especially where it is adverse. The public has an interest in satisfying itself as to the integrity and fairness of decision making in relation to the conduct of professional persons. Publicity also serves that end. Other members of the profession have an interest in knowing whether a colleague has been disciplined, and the nature of the offence. Decisions also provide a marker of what is unacceptable to other members of the profession. 1. The Tribunal did make a non-publication order in CSM because of two substantial reasons. The first was that the disclosure of the Respondent's name would potentially identify the patient with whom he had conducted a relationship. She had a significant psychiatric disorder and was well known in the psychiatric wards of the hospital in which the offending conduct took place. The second reason related to the mental health of CSM himself. It had deteriorated significantly after he was discovered having the relationship with the victim patient. It was submitted that it was likely that his mental health would deteriorate further should his identity be published in the decision of the Tribunal. He had informed the Tribunal he did not propose to return to the health industry again. Although he did not present independent expert evidence about his mental health, the Tribunal member considered there was sufficient other evidence the enable them to accept his evidence about his health. The practitioner was no longer registered at the time of the hearing before the Tribunal and in any event, it determined that had he been registered they would have made an order cancelling same. 2. In concluding their decision on the issue of non-publication, the Tribunal stated: "94. Even though publicity generally disadvantages the subject health practitioners and their families, non-publication orders are seldom made in this jurisdiction. This is because of the overriding importance of justice being administered openly and in public and the recognition that disclosing the identity of health practitioners in this class of matters has a deterrent effect amongst their peers. We accept that a cautious approach should be taken in this jurisdiction to the making of a non-publication order in respect of health practitioners. Nonetheless, we have decided that, in the circumstances of this case, the risk of disclosing Patient A's identity, and the risk of a further deterioration in CSM's mental health, represent special circumstances that warrants the making of a non-publication order in respect of CSM." 1. In Health Care Complaints Commission v FTR [2023] NSWCATOD 46, the Tribunal determined an application for non-publication. In that decision, the Tribunal set out the following (at [66]-[75]): "Application for non-publication 66. On 16 January 2023, the Practitioner made an application that 'Non-publication or non-disclosure orders re Respondent's name – [FTR]'. The ground in the application stated the Practitioner's mother was very unwell, physically and mentally, and that the disclosure of the Practitioner's name could be detrimental for her health and/or fatal. The Practitioner's 76 year old mother is a retired school teacher and he is her only child. She lives with her frail husband. 67. The Applicant opposes this application. Relevant principles 68. As this Application seeks an ancillary decision, the Tribunal is constituted by the presiding member: see National Law, ss 165(b), 165B(5A); definition of "ancillary decision" in CAT Act, s 4. Clause 7(1)(b)(iv) of Schedule 5D of the National Law provides that the Tribunal may, if the person presiding thinks it is appropriate in the particular circumstances of the case, direct that any specific evidence not be published. Section 64(1)(c) of the CAT Act provides a similar power with a slightly different test, namely '[i]f the Tribunal is satisfied that it is desirable to do so'. 69. In Walton v Momot [1997] NSWCA 334, Handley JA (with whom Priestly JA and Grove AJA agreed) said at p 3: 'The general principal provided for in s 46(3) is that the Tribunal will sit in public [now see s 65K of the National Law and s 49(2) of the CAT Act]. If the Tribunal sits in public the details of the proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exception, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. … This of course reflects the general principle that the administration of justice under our system is carried on in public. This has been repeatedly emphasised by the courts. … (authorities omitted; emphasis added)' 70. Whether the facts of a particular case constitute something special, exception, or out of the ordinary which displaces the general principle is a discretionary decision. 71. Cases in which something special, exceptional, or out of the ordinary has been found to exist include cases where there has been a finding of a real risk that publication could lead to the practitioner's suicide: Health Care Complaints Commission v XC [2015] NSWCATOD 9; Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120; Health Care Complaints Commission v FTE [2023] NSWCATOD 30. In other cases, risk of mental harm to, or the fragile mental health of, a practitioner has been a factor weighed in favour of making a non-publication order: Health Care Complaints Commission v CSM [2016] NSWCATOD 125; Health Care Complaints Commission v ZXY [2021] NSWCATOD 136. 72. In contrast, general anxiety, depression, embarrassment or even a complex bereavement disorder was insufficient: Cakan v Health Care Complaints Commission [2020] NSWCATOD 116; Health Care Complaints Commission v Rickard [2017] NSWCATOD 120. In HCCC v Dr Gow (Suppression order) [2008] NSWMT 3, the practitioner, who had been found guilty of professional misconduct, developed a terminal illness. Expert opinion said that any disruption to his immune response that might flow as a consequence of the psychological stress resulting from publication may lead to severe and potentially fatal infection. The Tribunal found that was insufficient when balanced against the protective function of publication and refused to make a non-publication order. 73. Less common are cases where the alleged risk is not to the Practitioner but to a third party, usually a close relative(s). A case analogous to the present is Health Care Complaints Commission v Dr A [2012] NSWMT 10, where the Tribunal found, at [28], 'the prospect of a renewal of the trauma associated with repeat publicity, which trauma led to a most serious life threatening circumstance for one child and psychological damage to the doctor's other children, is such as to demonstrate the 'serious and exceptional circumstances' that justify a temporary extension of the current interim order to be in the form of a non-publication order to continue until the youngest children attain 18 years of age.' In contrast, in Health Care Complaints Commission v Vo [2014] NSWCATOD 127 there was insufficient evidence to establish any psychological effect publication would have upon the practitioner's children who were completing their Higher School Examinations, and in Health Care Complaints Commission v FDE [2021] NSWCATOD 215 there was insufficient evidence to support a contention that the practitioner's children would be psychologically affected by publication, although a limited non-publication order was made because of the serious risks publication posed to the practitioner whilst he was incarcerated. 74. It may be difficult to set a time limit on a non-publication order but it should not be assumed to be permanent and such an order is irregular: Walton v Momot; Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [37]-[39]. 75. A non-publication order may be unnecessary where the matter over which it is sought is already public: Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 at [42]; Health Care Complaints Commission v Quan [2019] NSWCATOD 160 at [19]." 1. In Health Care Complaints Commission v Jamnagarwalla (No 2) [2023] NSWCATOD 1, the Tribunal determined an application for non-disclosure of the practitioner's name. The Tribunal set out the following (at [81]-[91]): "Application for non-publication order Basis for the application 81. Dr Jamnagarwalla applied for an order that disclosure of his name is prohibited except to the parties, their legal representatives and to any other person where disclosure is necessary for the effective implementation and administration of the orders made in the proceedings. After applying for this order at the beginning of the Stage 2 hearing, Dr Jamnagarwalla amended the application so that it also applied to the Stage 1 proceedings. A decision in those proceedings was published, without restriction, on 15 June 2022. The Commission opposed the application both in its original and in its amended form. 82. Dr Jamnagarwalla set out the reason for the application in his statement of 23 November 2022. Those reasons relate to the effect of the publication of the Stage 1 decision on members of Dr Jamnagarwalla's immediate family, especially his wife and his youngest child. Dr Jamnagarwalla noticed the demeanour of his wife and children changing around the time of the Stage 1 decision. His wife told him she felt ashamed and embarrassed by the case. His youngest child heard about the case from friends at school and when she accessed the internet, she saw reports of the case. She was reluctant to attend social gatherings or see her friends for several weeks after publication of the Stage 1 decision. Dr Jamnagarwalla is concerned that publication of the Stage 2 decision will cause further shame, embarrassment and upset. It may even mean that they need to move from the area in which they are currently living. The legal test 83. The Tribunal is generally obliged to publish decisions about complaints which have been proved or admitted in whole or in part. That is done via the NSW Caselaw website: National Law, s 165M(4) and Health Care Complaints Commission v Rickard [2017] NSWCATOD 120 at [71]. However, the Tribunal does have power under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to make an order prohibiting the disclosure of Dr Jamnagarwalla's name. There is a similar provision in cl 7 Schedule 5D of the Health Practitioner Regulation National Law (the National Law). The test under that provision is whether it is 'appropriate in the particular circumstances of the case'. 84. Dr Jamnagarwalla accepts that the principles of 'open justice apply to proceedings under the NCAT Act and the National Law': Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203 at [9]. Consistent with that principle, the name of a person who is the subject of disciplinary proceedings is expected to be disclosed unless there is good reason for making a non-publication order. 85. When considering whether to make a non-publication order, the health and safety of the public must be the paramount consideration: National Law, s 3A; Health Care Complaints Commission v Rickard [2017] NSWCATOD 120 at [91]. The public has a right to know whether a practitioner has been charged with a disciplinary offence and the outcome of the proceedings: Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [25]. It is inherent in the protection of the public that information is available to a potential patient who wishes to enquire whether a health practitioner has been the subject of disciplinary proceedings: HCCC v Simring (Suppression Order) [2010] NSWMT 6 at [8]. Conclusion 86. I have decided not to make a non-publication order for three reasons. Firstly, Dr Jamnagarwalla's name was disclosed in an adjournment decision published on 10 September 2021 and in the Stage 1 decision on 15 June 2022: Health Care Complaints Commission v Jamnagarwalla [2021] NSWCATOD 149; Health Care Complaints Commission v Jamnagarwalla [2022] NSWCATOD 61. The Stage 1 decision has been available on several websites including the Commission's website: Health Care Complaints Act 1993 (NSW), s 94B. Even if Dr Jamnagarwalla's name is anonymised now his identity is already publicly known and could easily be detected by anyone sufficiently interested in the case: Cakan v Health Care Complaints Commission [2020] NSWCATOD 116 at [54]. 87. The risk that publication will have further negative impacts on Dr Jamnagarwalla's family members is unfortunate and concerning. But it is unavoidable that disciplinary proceedings may cause practitioners shame and embarrassment and impact on their family relationships: Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [16]. Publication of the practitioner's name may also cause embarrassment and upset to their immediate family. We accept that that has happened in this case and that Dr Jamnagarwalla wishes to protect his family, as best he can, from further distress. 88. As the Tribunal held in a similar legislative context in Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 at [45]: 'The risk of reasonably foreseeable negative impacts upon the Respondent's family from disclosure, such as embarrassment, and negative social impacts, would not, by themselves, be sufficient reason to make a non-disclosure order. They are factors to be weighed in consideration of the issue, but they do not weigh heavily.' 89. Expert evidence of much more serious effects on mental health, including risk of suicide for the practitioner or a family member, have been held to justify a non-publication order: Health Care Complaints Commission v Dr A [2012] NSWMT 10 at [28] and Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120 at [104]. 90. As to Dr Jamnagarwalla's evidence that the family may move to another area, that evidence falls short of any serious risk to physical or mental health which might justify a non-publication order. 91. Thirdly, but less significantly, there was no evidence that Dr Jamnagarwalla had told his children about these proceedings or offered them any assistance such as professional counselling. Those kinds of steps may have helped lessen the embarrassment and upset they have undoubtedly felt. (See Health Care Complaints Commission v Vo [2014] NSWCATOD 127 at [186])." 1. In Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120, the Tribunal having considered the applicable law, determined to anonymise the medical practitioner's name for the following reason (at [104]): "Discussion and conclusions 104. The expert retained by the Medical Council, Dr Fisher, has highlighted the risk of suicide in a patient such as the practitioner who suffers from Bipolar Disorder if depressed. Dr Florida's [sic] brief statement is explicit. It must be read in context of her other reports and the evidence before us including the practitioner's previous serious suicide attempts when depressed. We are satisfied exceptional circumstances exist in this case and that we should make the non-publication orders sought." 1. When we heard this application on 14 June 2023, we determined that the application was not one without apparent merit. We determined to make the order sought on an interim basis and thereby have the opportunity to consider it with the benefit of all available evidence which the Respondent may wish to rely upon. Further, the HCCC took the appropriate pathway of not opposing the order on an interim basis. 2. We have now before us all the evidence which the Respondent has sought to rely upon and regretfully, we conclude the application has not met the required standard for such an order to be made. 3. The evidence which we considered had the potential to satisfy us that the order should be made was that which addressed the mental health of the Respondent's former husband's relative. However, no expert evidence has been given in relation to the mental health of that person and the potential risk which the expert considers could or would be visited upon that person should the Respondent's name be published. Thus we have been unable to assess the potential impact upon him by the publication of information which would identify the Respondent in a formal manner. 4. We know nothing of the qualification of the persons mother, upon whose evidence the Respondent also relies to support her application. 5. We had anticipated the Respondent might have informed us if she had taken any steps to prepare the subject person for the possible publication of her name. The same is true in relation to her children. However, on the evidence before us, the Respondent has done nothing. She has either anticipated her application would be successful or she has not considered it necessary to put in place any supports or plans to address her stated concern should her application not be successful. Alternatively, if she has so acted, she has not provided evidence of that fact. 6. As we have stated above, the utility of a non-publication order in this case must be seen as very limited. The evidence before us has demonstrated to our satisfaction that the community in which the Respondent and the subject relative of her former husband, live and work, is small and supportive of its members. It uses social media extensively for communication. The Respondent holds a position of trust and respect in that community, and we accept, is very well known. She is clearly a leader in the community. In such a circumstance we cannot see how the use of a description in the title of the judgment, and throughout, which is clearly not the name of the person who the judgment is about, would shield the person of concern to the Respondent, from learning the case was about the Respondent. 7. The Tribunal would never intend the publication of its' judgments to harm any person in the community, who may be shocked or severely mentally impacted by the content of, or the knowledge of the outcome stated in a judgment. However, it is clearly a primary obligation of the Tribunal to ensure it practices open justice as the legislation, which governs the operation of the Tribunal and gives it jurisdiction, requires. The importance of that provision has been emphasised in the decisions we have set out above. 8. The other concerns the Respondent has about people in her family, her colleagues and associations with which she has held high office, are no greater than face all members of a health profession who feel disgraced by the potential outcome of a proceeding before the Tribunal. To have the Tribunal anonymise the name of a practitioner on those grounds would see many of the Tribunal's decisions anonymised and it would also conceivably lessen the deterrent role of the judgment itself. It also would have the effect of limiting the requirement of open justice. The public has the right to know the identity of the Respondent so that it can make its' own decision as to whether to use her services when she returns to practice. This has greater application to the members of the LGBTQI+ community. 9. In light of the above, we have reached the decision that the Respondent's application is to be refused. 10. During the last days of the hearing the Respondent informed the Tribunal she has adopted a surname which includes her wife's maiden name. In the giving of her evidence the HCCC counsel addressed her by that name. In order not to make the identity of her wife immediately recognised, we propose to name the proceeding using Ms Catts maiden name only. Costs 1. The HCCC seeks its' costs be paid by the Respondent. It submitted the power to make such an order is found in Schedule 5D clause 13 of the National Law. 2. It submitted that commonly costs will follow the event. (HCCC v Dinakar [2009] NSWMT 8; HCCC v Dr Mazzaferro [2011] NSWMT 9 at [67]) 3. The awarding of costs to compensate the successful party will only be displaced where there has been disentitling conduct on the part of that successful party. The HCCC submits there is no such disentitling conduct in this case. 4. The Respondent agreed, in her amended Reply, that the costs order sought by the HCCC should be made, "if the matters denied in this Reply are not pressed by the HCCC." She stated that if the denials are challenged by the HCCC and that challenge is unsuccessful, then the HCCC should be ordered to pay the Respondent's costs. 5. In the normal course we would deal with an application for costs which accompanies a Complaint. However, in her final supplementary submission, provided 7 December 2023, the Respondent submitted the following: "The Practitioner seeks the opportunity to address on costs following judgment. That is the usual procedural course which should be followed here for the usual reasons that the Tribunal is understandably not yet privy to all matters and communications pertaining to questions of costs. The Practitioner is content for any question of costs to be dealt with on the papers, with the usual regime for staggered submissions." 1. In our experience, such a request is unusual in this Tribunal. As such we assume there has been some communication between the Respondent and the HCCC prior to the hearing commencing, or during the hearing, the content of which has a real and relevant connection to whether a costs order, as sought by the HCCC, ought be made. We really have to rely on counsel for the Respondent, seeking a postponement of that determination, because she is privy to relevant communications being available to put before us. 2. We will order that the Respondent provide her submission in relation to the HCCC cost application within 14 days of the date of publication of this judgment. 3. The Orders to be made: 1. As and from the 22nd January 2024, the practitioner's registration as a psychologist is suspended for a period of 12 months. 2. Upon the completion of the period of suspension, the Respondent's registration is to be subject to the following conditions: 1) To practise under Category C Supervision in accordance with the Psychology Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a) The supervision sessions must be: i) a minimum of one hour in length. ii) the supervision sessions must be face to face iii) the supervision sessions must be conducted on a fortnightly basis iv) supervisor reports must be completed and submitted to the Council three monthly. b) to authorise the Psychology Council of NSW to provide proposed and approved Supervisors with a copy of this decision and any subsequent relevant reports or decisions. c) Not to practise until a supervisor has been approved by the Psychology Council of NSW. 2) At each supervision meeting, the supervisor is to review and discuss practitioner's practice and address any relevant work-related or professional matters with particular focus on: a) Knowledge of the Psychology Board's Code of Ethics and the Australian Psychological Society's ethical guidelines b) Ethical and boundary considerations c) Privacy and Confidentiality d) Record-keeping e) Treatment plans f) Practice management. 3) To practice only in a group practice approved by the Psychology Council of NSW where there is at least one other person physically present in the practice at all times. 4) To advise the Psychology Council of NSW in writing at least seven days prior to changing the nature or place of her practice. 5) To provide evidence to the Psychology Council of NSW within fourteen days of recommencing practice, that she has provided a copy of the conditions and Tribunal's decision to all persons employed at the practice, and any place that she works as a psychologist. 6) The respondent is to satisfactorily complete an ethics course focusing on ethical obligations, which is approved by the Psychology Council of New South Wales, within six (6) months of re-commencing work as a psychologist in Australia or as otherwise specified by the Council. a) Within two (2) weeks of being notified that the course is approved, the practitioner must provide evidence to the Council of enrolment in the specified or approved course. b) Within four (4) weeks of completing the specified or approved course, the practitioner is to provide documentary evidence of satisfactory completion to the Council. 7) The Psychology Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW). 8) Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Psychology Board of Australia. 3. The practitioner is to provide her submission, to the Tribunal and to the HCCC in relation to the application of the HCCC that the Respondent pay its' costs of the proceeding, within 14 days of the date of publication of this judgment. The HCCC is to provide the Tribunal and the Respondent with its' reply to that submission with 14 days of receipt of the Respondents submission. ********** 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: 22 January 2024