Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Cantali [2024] NSWCATOD 124 Hearing dates: 9 July 2024 Date of orders: 14 August 2024 Decision date: 14 August 2024 Jurisdiction: Occupational Division Before: H J Dixon SC, Senior Member M Stojanovska, Senior Member J Szyndler, Senior Member B Seth, General Member Decision: (1) The Respondent is guilty of unsatisfactory professional conduct. (2) The Respondent is guilty of professional misconduct. (3) Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) the Respondent's registration is cancelled with a non-review period of 12 months. (4) The Respondent is to pay the costs of the Commission pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), as agreed or assessed. Catchwords: OCCUPATIONS – psychology – misconduct and discipline – academic cheating – non-compliance with role of Supervisor of interns – improper and unethical conduct – unsatisfactory professional conduct – professional misconduct – cancellation of registration Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 3B, 139B, 139E, 149, 149C, 150, 150D, cl 13 of Sch 5D Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339; 106 NSWLR 383 Health Care Complaints Commission v Aref (2018) NSWCATOD 133 Health Care Complaints Commission v Bradley [2022] NSWCATOD 47 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Litchfield [1997] NSWSC 207; (1997) 41 NSWLR 630 Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105 Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 Health Care Complaints Commission v Tran [2021] NSWCATOD 82 R v Byrnes [1995] HCA 1; 183 CLR 501 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Texts Cited: None Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Rosaria Cantali (Respondent) Representation: Counsel: S Stanton (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Oxcom Legal (Respondent) File Number(s): 2024/00061341 Publication restriction: Pursuant to clause 7(1)(b) of Schedule 5D of the Health Practitioner Regulation National Law (NSW) it is directed that the names of the persons listed in the Schedule to the Amended Complaint dated 5 July 2024 are not to be published. reasons for decision 1. By amended application dated 9 July 2024 the Health Care Complaints Commission ("the Commission") applied for a disciplinary finding and orders under the Health Practitioner Regulation National Law (NSW) ("the National Law") against a registered psychologist practitioner Dr Rosaria Cantali ("the Respondent"). 2. The Commission relies on amended complaints dated 5 July 2024 in support of the application. There are two complaints: 1. Complaint 1 is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in that the Respondent has engaged in improper or unethical conduct relating to the practice or purported practice of psychology. "Particulars of Complaint One 1. Between October 2018 and July 2021, the practitioner engaged in academic misconduct by submitting work prepared by employees and interns, as part of her Master of Clinical Psychology coursework as follows: a. In around October 2018, the practitioner submitted the work prepared by Person C to Charles Sturt University ("CSU") as part of the practitioner's Master of Clinical Psychology coursework for the subject PSY535 Adult Assessment. b. In around April-May 2020, the practitioner submitted work prepared by Person A to CSU as part of the practitioner's Master of Clinical Psychology coursework for the subject PSY560 Masters Dissertation. c. In around July-August 2020, the practitioner submitted work prepared by Person A to CSU as part of the practitioner's Master of Clinical Psychology coursework for the subject PSY542 Child Interventions. d. In March 2021, the practitioner submitted work prepared by Person B to CSU as part of the practitioner's Master of Clinical Psychology coursework for the subject PSY541 Clinical Neuropsychology. e. In around March 2021, the practitioner submitted worked prepared by Person A and Person B to CSU as part of the practitioner's Master of Clinical Psychology coursework for the subject PSY564, Foundations of Professional Psychology. f. In around April-May 2021, the practitioner submitted work prepared by Person B to CSU as part of the practitioner's Master of Clinical Psychology coursework for the subject PSY562, Masters Dissertation. g. In around May-June 2021, the practitioner submitted work prepared by Person B to CSU as part of the practitioner's Master of Clinical Psychology coursework for the subject PSY541, Clinical Neuropsychology 2. On 10 August 2021, the practitioner inappropriately telephoned Person B, asking that he withdraw his complaint about the practitioner to CSU. 3. Between October 2018 and July 2021, the practitioner breached: a. The Psychology Board of Australia 'Guidelines for Supervisors' dated 1 August 2018 in relation to competency 2, competency 6 and general duty to "undertake supervision in good faith, in a financially responsible manner, and with a reasonable degree of care, diligence and skill. You must not use your position as Board approved supervisor, or the information that comes to you through this position, to gain an advantage for yourself or someone else", in her role as primary supervisor for Person A and Person B, for their respective 4+2 internship. b. The Australian Psychological Society 'Code of Ethics' version 2007 ("APS Code of Ethics (2007)"), in relation to A. 2.1, B.3, B.6, C. 1. C.2.1, C.2.2, C.4.2 and C.5.2." 1. Complaint 2 is that the Respondent is guilty of professional misconduct under s 139E of the National Law in that the Respondent has engaged in: 1. unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration; or 2. more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration. "Particulars of Complaint Two 1. Each particular of Complaint One justifies a finding of professional misconduct. 2. In the alternative, when two or more of the particulars of Complaint one are taken together, a finding of professional misconduct is justified." 1. The orders sought by the Commission in the event that the complaints are approved or admitted are as follows: 1. Cancellation of the Respondent's registration pursuant to s 149C(1)(b) of the National Law with a non-review period of 12 months. 2. An order that the Respondent pay the Commission's costs, as agreed or assessed, under clause 13 of Schedule 5D of the National Law. 1. The Respondent filed and served a Reply to the application. In that Reply the Respondent admits Complaint 1 save that she seeks to be heard on the penalty to be imposed in respect to the ultimate orders to be made for the protection of the public as provided by the National Law. We note that the Reply refers to admissions by the "Applicant" and not the Respondent. However, at the hearing Counsel for the Respondent affirmed that the Respondent was making all the admissions contained in that document in relation to the amended complaint dated 5 July 2024. 2. The Respondent also admits the content of Complaint 2 and Particulars, save that she seeks to be heard on the ultimate finding as to protective measures to be made in respect of the admission of the Complaints as made and to be enforced pursuant to the National Law. Background 1. The Respondent obtained a Bachelor of Arts in Special Education and Psychology in 1994, and a Master of Education (Counselling Psychology) in 1997. The Respondent was first registered as a psychologist in New South Wales on 1 June 1999. She holds a PhD from the University of Sydney (2013). 2. In 2003, the Respondent commenced as the principal practitioner and director of PSYCHmatters, a psychology practice in Concord. 3. From time to time the Respondent employed students and interns in her practice. The persons in those categories relevant to the application have been identified as Persons A, B, C and D. 4. Person A completed her Bachelor of Psychology Degree (Honours) in 2019. On 14 January 2020, Person A commenced the 4+2 internship ("the 4+2 internship") at PSYCHmatters. The 4+2 internship was an intensive supervised training program that offered a pathway to general registration as a psychologist. The Respondent was nominated as her primary supervisor for the 4+2 internship. In January 2021, Person A's 4+2 internship ceased. 5. Person B completed his Bachelor of Psychology Degree (Honours) in 2020. Person B commenced working for the Respondent in February 2020 in a paid capacity at PSYCHmatters. On 1 June 2021, Person B commenced a 4+2 internship, and the Respondent was nominated as his primary supervisor. In September 2021, Person B ceased his 4+2 internship. 6. In October 2018, Person C and Person D were working at PSYCHmatters as interns. 7. As is apparent from the Complaint and Particulars set out above, these proceedings are brought as a result of the Respondent's conduct over a period of some three and a half years in relation to her enrolment in 2018 as a Master of Clinical Psychology at CSU. In summary, the Respondent requested Persons A to D to do research for her which she then submitted as her own work to CSU for the various subjects she was enrolled in. 8. In or around July 2021, one of those persons found out that the Respondent was a current student in a Master of Clinical Psychology course having become suspicious of what was occurring. He challenged the Respondent as to whether the work he was doing at her request was for the stated purposes expressed by the Respondent unrelated to her studies when in fact the work was for the purposes of her university courses. The Respondent repeatedly denied the work was for her university studies and continued to submit work to CSU as if her own but prepared by others. 9. After some time, one of the persons whose research and other work was being used in this manner, who was then one of the Respondent's interns, made a complaint to CSU. An investigation ensued. The Respondent's misconduct over a considerable period was exposed and she was expelled from the university. 10. A complaint was then made to the Psychology Council which resulted in a hearing by delegates pursuant to s150 of the National Law on 16 September 2022. 11. As a result of those proceedings an order was made under s150(1)(b) of the National Law imposing various conditions on the Respondent's registration including that she practise under supervision of a Psychology Council approved supervisor and that she not provide supervision or peer consultation to any other health practitioner. 12. The matter was also referred under s150D of the National Law to be dealt with as a complaint for investigation. 13. Following that investigation these proceedings were brought against the Respondent. Tribunal's Task 1. The first step in the proceedings is to determine whether the Commission has established the facts alleged in support of its Complaints to the satisfaction of the Tribunal on the balance of probabilities (Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53. 2. In view of the nature of the allegations, we are required to apply the requirements set out in Briginshaw v Briginshaw (1938) 60 CLR 336, namely that we will find that a fact has been proven to the requisite standard only when we feel an actual persuasion of the existence of that fact because evidence of sufficient probative force has been adduced. 3. The next step is whether such facts as are found to have been proved establish unsatisfactory professional conduct pursuant to s139B of the National Law, and, if so, whether such conduct is sufficiently serious to justify suspension or cancellation so as to amount to professional misconduct pursuant to s139E of the National Law (Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [31] per Kirk JA). Accordingly, the Respondent's consent to the orders sought is not the end of the matter. The Tribunal is still required to be satisfied for itself that the facts proven establish the unsatisfactory professional conduct and professional misconduct. Evidence Tendered 1. The Commission tendered a volume of documents which included written statements by the interns the subject of the complaint, detailed analysis of the Respondent's conduct and the findings by the CSU. None of the evidence was objected to and as a result the statements by the interns were admitted without challenge. 2. The Respondent relied on four affidavits, and numerous supervision reports prepared by her supervisor appointed pursuant to the conditions imposed by the Psychology Council in the s150 proceedings referred to above. The evidence tendered by the Respondent included references from a number of persons. Improper or Unethical Conduct – s 139B(1)(l) 1. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as "not in accordance with propriety of behaviour, manners etc." or "abnormal or irregular" and "unethical" as 1. "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct". 2. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes [1995] HCA 1; 183 CLR 501. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper. 3. In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s139B(1)(l) stating at [47]-[48]: "The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited." 1. The meaning of the expression "improper or unethical conduct" in s139B(1)(l) of the National Law was also considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. The Tribunal stated at [25]-[26]: "25. The use of the word 'or' in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. 26. In our view, the test of 'unethical conduct' has both objective and subjective elements. The word 'unethical' connotes moral opprobrium. The term 'unethical conduct' implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances." (emphasis omitted). See also Health Care Complaints Commission v Matta [2024] NSWCATOD 33 [66]-[69]; and Health Care Complaints Commission v Sathiyapal [2024] NSWCATOD 14 at [119] to [121]." See, too: Health Care Complaints Commission v Aref (2018) NSWCATOD 133 at [18] – [20]; Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105 at [8] – [9] in respect of a recent summary accepted by the Tribunal as the relevant principles. Professional Misconduct 1. In relation to what constitutes professional misconduct, it was held in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20] by his Honour Justice Basten as follows: "20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1)." See, too: Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105 at [10]. 1. The determination of whether the conduct amounts to professional misconduct has, as its starting point, an objective assessment of the practitioner's conduct against the standard of conduct reasonably expected of an equivalent practitioner. 2. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment (Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82] per Sterling J). In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper or reasonably expected standards (Health Care Complaints Commission v Litchfield [1997] NSWSC 207; (1997) 41 NSWLR 630 at 638). 3. The seriousness of the conduct may take its colour not only from the acts or omissions in question but also from the circumstances in which they occurred. Such circumstances would relevantly include the practitioner's state of mind at the time of the conduct, risk of harm arising from the conduct and the practitioner's knowledge, skill and training (Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [35]-[37] per Kirk JA). Complaint 1 – Unsatisfactory Professional Conduct 1. The Respondent has admitted all the Particulars of Complaint 1. 2. We deal now with some of the most pertinent evidence in relation to each of the pleaded Particulars. 3. Particular 1.a concerns research work required of Person C by the Respondent. The evidence includes the fact that the Respondent was working as the principal practitioner and director of PSYCHmatters at the relevant time. In October 2018, Person C and Person D were at all relevant times working at PSYCHmatters as interns. 4. Person D was working as the Respondent's Personal Assistant while she was working as an intern supervised by another psychologist at PSYCHmatters. 5. In or about October 2018, the Respondent gave Person D a task to "finalise scoring and interpret" data as it would be a good opportunity for her to practise doing the task, she was told. Person D was busy and as a result the Respondent said words to the effect of "if you can't do it, can you find another intern to do it?". As a result, Person D asked Person C to score and interpret the relevant results for the Respondent. 6. On 5 October 2018, Person C carried out the task and emailed the analysis to Person D. Person D forwarded Person C's work to the Respondent. The Respondent then submitted the work to CSU for her assessment in a subject that she was enrolled in. The work submitted was significantly similar to the work prepared by Person C. The metadata on the Respondent's submitted assessment showed Person D was the original author of the document with a total edit time of one minute. The work completed by Person C was used in the Respondent's assessment submission to the university without reference to the actual author of that work. 7. In relation to Particular 1.b, and the requests by the Respondent for Person A to do work for her in or around April-May 2020 as part of the Respondent's Master of Clinical Psychology coursework, the evidence includes that in 2019 Person A completed her Bachelor of Psychology Degree (Honours). On 14 January 2020 Person A commenced the 4+2 internship at PSYCHmatters. The Respondent was nominated as her primary supervisor. 8. During the period April – May 2020 the Respondent asked Person A to do paid research work for her. She would be paid at $25 per hour. 9. At some time after Person A had started her internship, the Respondent said words to the effect to her of "I want to help you interns develop and grow professionally, I have your best interests in mind …". The Respondent then asked Person A to prepare a document providing a review of literature around screen addiction. The Respondent told Person A that she was working with a group of researchers at CSU and needed to contribute a literature review to a common project on screen addiction. 10. Person A carried out some initial work and put together dot points of the relevant literature and emailed it to the Respondent. On 20 May 2020, the Respondent emailed Person A asking her to add "more info" about the literature at the end of the week. 11. On 21 May 2020, Person A emailed the Respondent the updated literature review. Person A emailed the Respondent a document created by Person A titled "Research Proposal Emotional Support Draft 2.docx". 12. On 21 May 2020, the Respondent emailed Person A saying that the work was looking like real viable research that will "fit in beautifully in our literature CD backing the CB program". This was apparently a reference to PSYCHmatters work. 13. On 26 May 2020, the Respondent submitted a dissertation proposal to CSU for her degree. The document submitted by the Respondent to CSU showed that it contained similar content to the document prepared by Person A. Significant sections of Person A's work had been included and represented as if it were entirely the Respondent's own work. Person A was paid for this work. 14. In relation to Particular 1.c, a request in July-August 2020 for Person A to carry out certain tasks for the Respondent, the Respondent on 23 July 2020 emailed Person A asking her to prepare a case study which would be used for "a training program for the interns". The document provided to Person A in the request was almost identical to CSU's assessment criteria for the subject the Respondent was enrolled in. 15. On 1 August 2020, Person A emailed the Respondent the work she had completed which concerned a particular case study. The metadata on the file the Respondent submitted to CSU in her assessment for the subject on 10 August 2020 showed that Person A was the author of that file with some limited editing. Person A was paid for the work she had performed. The Respondent made no disclosure to CSU that the work was not her own. 16. Particular 1.d concerns a request in March 2021 by the Respondent for Person B to perform work for the Respondent's university course in Clinical Neuropsychology. 17. In 2020 Person B had completed his Bachelor of Psychology Degree (Honours) and in February 2020 commenced working for the Respondent in a paid capacity at PSYCHmatters. 18. On 18 February 2021, the Respondent emailed Person A's partner (who was working in a separate institution) with a request that the partner undertake a task stating that the Respondent was "putting together some information pack for training interns" which would be published internally for "our use". This was not the true purpose of the request. Person A's partner declined to undertake the task. 19. About four days later the Respondent asked Person A if she would complete the task but she, too, declined. 20. On 23 February 2021, the Respondent emailed Person B asking him to do "some literature review stuff about 2000 words" and then emailed Person B attaching the task which essentially was what was required of the Respondent for assessment by the university in this course subject. 21. On 27 February 2021, the Respondent texted Person B a message including "please do a first class job as I may want to publish it later in a handbook". 22. On 12 March 2021, Person B emailed the Respondent the literature review he had prepared. The work Person B sent to the Respondent was almost identical to the work she submitted to CSU in the assessment for the subject. The Respondent paid Person B for this work. 23. In relation to Particular 1.e, a request by the Respondent to Person A and Person B in around March 2021, and which concerned the Respondent's university course in "Foundations of Professional Psychology", the Respondent on 21 March 2021 emailed Person B with a request which included a statement that "I need to present a paper at a professional development event next Sunday. It's on ethical dilemmas. I need it by Friday evening … 2000-2250 words …". The stated purpose of this request was not true. 24. The Respondent attached four documents to this request. One of the documents emailed was entitled "Practice Case for Ethical Problem Solving". It was identical to a university document distributed to students to help them prepare for this assessment. 25. Other documents attached to the Respondent's email request to Person B matched strongly the task that was set for her by the university as part of the assessment for this course. 26. The Respondent asked Person B to work on the same ethical assignment that she also asked Person A to carry out. 27. On 22 March 2021, the Respondent texted Person A asking her to complete some research on "ethical stuff" and "writing something for a presentation I'm doing on Sunday that needs to be published" including "I'm happy for you to cancel any PSYCHmatters stuff you have to do this". This was not the true purpose of the work requested. Person A initially declined but later agreed to undertake the task. 28. On 22 March 2021, the Respondent emailed Person A the task and her request to prepare a paper of 2000-2250 words on ethical dilemmas and stated "I need to present a paper at a professional development event next Sunday" and attached the ethical guidelines, the university's practice case for ethical problem solving, the example of ethical decision making framework and the ethical decision making practise scenario all of which were relevant to the task set by CSU. 29. On 25 March 2021, Person A emailed the Respondent the paper about ethics which she had prepared. The Respondent then submitted her assessment to CSU for this subject which contained many similarities to Person A's work and submitted it as if it were her own work with no disclosure of Person A's work or contribution. Person A was not, however, paid by the Respondent for the work. 30. On 26 March 2021, Person B emailed the Respondent the paper about ethics which he had prepared. Person B's email included "just sending through the ethics task. Good luck presenting at the professional development conference". 31. The Respondent's assessment submitted to CSU for the subject also contained similarities to Person B's work. Person B was paid for this work. There was no disclosure by the Respondent that her assignment contained work or a contribution by Person B. 32. In relation to Particular 1.f, namely, the request by the Respondent to Person B in or around April-May 2021 to perform work for her university assignment in course PSY562, the Respondent on 6 April 2021 texted Person B asking him to work on some statistics relating to a novel research study she was conducting. The stated purpose was not the true purpose of what the Respondent intended. 33. On 10 May 2021, the Respondent signed Person B's Internship Program plan which was intended to commence on 20 May 2021 and a declaration required by the Psychology Council by Supervisors. 34. On 28 May 2021, Person B emailed the Respondent attaching a file with the results of his work for the task required by the Respondent. 35. On 29 May 2021, the Respondent submitted work to her dissertation supervisor at CSU which contained very similar content to the document prepared by Person B. There was no disclosure by the Respondent as to Person B's contribution to the work submitted. 36. In relation to Particular 1.g, the request by the Respondent to Person B in or around May-June 2021 to prepare work which concerned her course in Clinical Neuropsychology, the Respondent on 6 May 2021 emailed Person B a document asking him to check the data attached. The request to Person B was a direct replication of material from CSU's subject outline for the course she was enrolled in. 37. On 11 May 2021, Person B provided material to the Respondent in relation to this request. The Respondent responded asking Person B to continue working on the work as she needed him to work on the data ready to put into "the research paper". The work was in fact to be used by the Respondent for her degree course. 38. On 28 May 2021, the Respondent emailed Person B attaching a document which was almost identical to the CSU assessment task for the subject she was enrolled in. 39. On 28 May 2021, Person B emailed the Respondent with a summary of the tests used relevant to the subject. 40. On 1 June 2021, Person B obtained provisional registration and started his 4+2 internship at PSYCHmatters with the Respondent as primary Supervisor. On that day the Respondent texted Person B for him to do more work on the subject matter with a request that he respond by the following day, if he could. 41. On 1 June 2021, Person B emailed the Respondent an updated document. The material that he provided contained a number of similarities to the work the Respondent then submitted for her CSU assessment in this subject. Person B was ultimately paid for this work. The Respondent failed to disclose to CSU that the work was not her own. 42. Particular 2 concerns a request by the Respondent to Person B on 10 August 2021 asking that he withdraw his complaint about the Respondent which he had made to CSU. 43. The background to this complaint as set out in the statement of Person B is that early in his employment with the Respondent he developed a suspicion that the research she was requesting of him related to university studies. He had recently finished university and some of the tasks she sent him presented as university tasks. However, he did not have concrete proof. In addition, the Respondent appeared to be a well-established psychologist and it was hard for him to understand why she would be completing university assignments and potentially giving them to him to do. 44. In June 2021, he became aware that the Respondent was a student and he subsequently became aware that she was completing a Master of Clinical Psychology at CSU. 45. Person B stated that on two occasions between 9 July 2021 and 23 July 2021 he spoke to the Respondent to clarify the purpose of some of the research tasks she requested that he complete and she provided him with explanations as to their purpose that differed from what she had originally told him. On one occasion in the Respondent's office he explicitly told her that the tasks presented as university tasks and he was worried about it. He asked whether the work the Respondent was requesting him to complete was for her university coursework. The Respondent assured him they were not university tasks and she did so, he said, in a condescending tone speaking as if it would be ridiculous for that to be taking place. Person B asked for further information about what the tasks were, to which the Respondent gave vague and variable answers. 46. On 9 July 2021, Person B told the Respondent of his suspicion that research tasks he had been completing related to her university studies. He says that the Respondent then admitted that one of the research tasks he had completed for her was for coursework but that her supervisor had knowledge of that involvement. The Respondent denied that other research tasks he had completed were for university work. The task which the Respondent told him was for her coursework was one she had initially told Person B related to a research project she was running. 47. Person B was not satisfied with the position and undertook to follow it up with the Respondent. On 13 July 2021, he sent an email to the Respondent seeking clarification about the purpose of two pieces of work he had prepared at the Respondent's request, as she had given him inconsistent answers when he had spoken about it earlier. 48. In this email Person B noted that the Respondent had originally told him the literature review on mild traumatic brain injury was for a textbook chapter, but subsequently was told that it was for a conference. Person B also noted that the Respondent had told him that an ethics paper he prepared was probably for the NDIS but had first been told it was for a conference presentation. 49. On 13 July 2021, the Respondent responded to this email and stated that the two pieces of work he had prepared for her were for a tender to a State Government organisation for a series of tertiary training modules on mental health. The Respondent also said that material from the training modules will be part of professional development for PSYCHmatters. The Respondent asked him to keep those two projects confidential. 50. On 23 July 2021, Person B sent a further email to the Respondent in which he wrote that he found it hard to believe that the two pieces of work he had prepared were for the tender and sought further information. The Respondent replied on the same day and again asserted that the two pieces of work he had prepared for her were for the tender. 51. Person B was not content to accept these answers. On the same day he sent a further email to the Respondent in which he raised his concern that the work he had completed was for university coursework and informed the Respondent that one of the tasks she sent him had marking criteria and task guidelines indicating it was for university work. The Respondent responded that "it's not uni work". 52. Person B then replied that he understood and thanked the Respondent for explaining it to him but he did not believe the assertions that it was not university work. At the time he did not see the benefit of pressing her further. 53. The Respondent also then wrote back telling him that she had "no doubt" that he would be a "great, great psychologist". She further wrote "don't doubt my morals" and set out a number of positions she had held including board and ministerial committee appointments and that as a result "I don't need you to do what you're [sic] think is uni work". Person B states that he felt that the email was designed to intimidate him. He felt it referenced her power and establishment in the psychology community in order to both make him afraid to cross her and suggest it ludicrous for her to ask him to do her university work. 54. Person B, however, then decided to report the matter to CSU. On 27 July 2021, he sent an email to CSU informing the university of a concern that the Respondent may have engaged in "contract cheating" by paying him to complete tasks that she submitted for university coursework. 55. Having done so, Person B felt anxious attending PSYCHmatters as the Respondent was not yet aware that he had made the complaint against her. 56. On 6 August 2021, during a client appointment at PSYCHmatters, the Respondent without prior notice entered the room and asked to speak with Person B after the appointment. For the remainder of the appointment Person B felt unsettled, he said, and felt nervous about what the proceeding conversation would involve. 57. After the appointment he spoke with the Respondent in her office. She told him that CSU had notified her of an investigation and asked him directly if he had reported her to the university. At the time Person B denied having done so as "I was feeling taken off guard and stressed about the situation". 58. On 10 August 2021, after having sought some advice, Person B contacted the Respondent to inform her that he had reported her to the university and asked if she would be able to call. Later that day, the Respondent phoned Person B about his report to the university. The Respondent said words to the effect of "is there anything you can do to take it back?", "if you retract it, we could work things out between us", and "look at what I've done for you, I've really helped you out with the position. Can you retract the accusation?". 59. Person B says that he felt pressured by the Respondent to withdraw his complaint and that she was trying to emotionally manipulate him. Person B says that once he had submitted his report to CSU he had largely accepted that it would not be tenable for him to continue his internship with the Respondent and this conversation confirmed that position for him. He left PSYCHmatters towards the end of September 2021. 60. It is clear and we find that the Respondent: 1. repeatedly lied to Person B about the true purpose of her requests that he perform work for her and about the use she had made of his work; and 2. sought to apply pressure on Person B to withdraw his complaint to CSU. 1. Particular 3 is concerned with the Respondent's breach of various codes and guidelines. The first complaint is that the Respondent breached the Psychology Board of Australia "Guidelines for Supervisors" dated 1 August 2018 in relation to competency 2, competency 6 and general duty to "undertake supervision in good faith, in a financially responsible manner, and with a reasonable degree of care, diligence and skill. You must not use your position as Board approved supervisor, or the information that comes to you through this position, to gain an advantage for yourself or someone else". The breach is said to arise in respect of the role as primary supervisor for Person A and Person B for their respective 4+2 internships. 2. In addition, it is said that the Respondent breached the APS Code of Ethics (2007) in various respects. 3. The Commission argues that the evidence demonstrates that the Respondent breached the Supervision Guidelines because she used her position as Board-approved Supervisor to gain an advantage for herself by furthering her own university studies. 4. The breaches of the APS Code of Ethics (2007) arises from the Respondent: 1. breaching her obligations in clause A.2.1. because she did not communicate respect for the interns through her actions and language; 2. breaching clause B.3. because she did not take steps to maintain proper professional boundaries with the interns; 3. breaching clause B.6. because she inappropriately delegated personal tasks to the interns; 4. breaching clause C.1.1. and C.1.2. because she engaged in disreputable conduct that reflects on her ability to practise as a psychologist and that reflects negatively on the profession or discipline of psychology; 5. breaching clause C.2.1. and C.2.2. as she did not communicate honestly with the interns in the context of assigning psychological work and did not correct misrepresentations about the purpose of the tasks; 6. breaching clause C.4.2 because she exploited her relationship with her supervisees; and 7. finally, breaching clause C.5.2 because she did not assign authorship to the interns in a manner that reflects the work that they actually performed. 1. In respect of this admitted offending conduct the Respondent in her affidavit evidence stated that she sincerely regrets what was undertaken by her and the behaviour her interns were exposed to by her. She apologises to the interns for the hurt and the concern that they have been under leading to the reporting of her conduct. She regrets and sincerely apologises for attempting to have the complaint "made to the Psychology Council" withdrawn as it was inexcusable and unforgiveable and deeply regrettable. 2. The Respondent, of course, has admitted all the alleged breaches. Respondent's Oral Evidence 1. In cross examination the Respondent admitted that in October 2018 she knew that the conduct complained of was wrong. She did not think of other options like seeking an extension to submit her class assignments and was embarrassed to seek help. She stated that, at the time, she was very vulnerable because of various family illnesses and that she could not control the situation which led her to be very disappointed in herself. 2. The Respondent admitted that the reasons that she gave the interns for doing work for her were so that they would not realise that it was for university work. 3. In relation to Person B, she was aware that before he became a registered intern he had moved out of home, needed financial assistance and knew that he was vulnerable because of his youth and would look up to her eventually as a mentor. 4. The Respondent admitted in cross examination that requesting Person B to do work as she did was not ethical and making minor amendments to the university requirements and then asking Person B to do the same work was done with the express desire to ensure that it did not look like university work. 5. The Respondent frankly admitted that statement to the effect of "honestly [Person B] this is not university work" was a lie and said that she had a lot of issues on at the time. She acknowledged that she did harm "those kids", she could not make an excuse for her conduct and it was not right. Unsatisfactory Professional Conduct 1. The Commission argues for a finding that the conduct outlined above amounts to unsatisfactory professional conduct because the Respondent has engaged in improper or unethical conduct relating to the practice or purported practice of psychology. In that regard, and in summary, the Commission submitted that: 1. trust is vital for psychologists and their knowledge of the discipline of psychology, their professional standing and information they gather places them in a position of power and trust. Psychologists are to act with probity and honesty in their conduct as required by the APS Code of Ethics (2007) and it is quite clear that the Respondent's conduct was improper because she was dishonest and abused the trust of her interns, and was unethical because it was contrary to the guidelines of supervisors and the APS Code of Ethics (2007); 2. secondly, the Commission argues that supervision is fundamental to psychology particularly in relation to the 4+2 internship program which is the pathway for the intern to general registration as a psychologist. The supervisor has a key role in designing an integrated program that supports the progressive development of the intern and the program extends to the intern's skills and knowledge of a Board-approved practical setting so that the intern can demonstrate the ethical and professional standards of conduct and practice needed of psychologists clearly set out in the guidelines; 3. supervisors have an important role in providing continuous oversight, review and assessment of the intern's program and progress towards achieving the core competencies and in relation to this particular complaint it was relevant that the Respondent signed the supervisor's declaration acknowledging that she had read, understood and agreed to comply with the requirements for supervisors and accepted that she was entrusted with the professional training of the provisional psychologist to enable him or her to become eligible to apply for general registration as a psychologist; 4. the Commission emphasised that supervision is a special relationship. It is an interactive process between provisional psychologists and a supervisor and it provides the provisional psychologist with a professionally stimulating and supportive opportunity for growth. It involves a special type of mentoring relationship in which the supervisor provides supportive direction, facilitative activities, and instructive critique to help provisional psychologists to achieve their professional goals. It was therefore improper and unethical for the Respondent to jeopardise that relationship by exploiting her interns and then suggesting to Person B that he should retract his valid complaint. 1. In the circumstances, it was improper and unethical for the Respondent to allocate work for the interns for her own studies and, we may add, in a deceptive manner. 2. The Commission also argued that ethics is a critical component of supervision and interns are governed by the APS Code of Ethics (2007) which outlines ethical principles and standards to guide psychologists to a clear understanding of what is considered ethical professional conduct. It was improper and unethical for the Respondent to use her interns to cheat on her ethics assignment. 3. We accept the submissions of the Commission as set out above. Academic Misconduct 1. The essence of the allegations raised by CSU against the Respondent after a complaint was made about her conduct was that she had plagiarised, colluded and contract cheated in respect of the various subjects that she was enrolled in and also that there was an allegation of general misconduct contrary to the university's rules. 2. Following an investigation, it was concluded that misconduct had been established in respect of contract cheating and plagiarism in respect of six subjects. 3. In addition, CSU concluded that the Respondent had caused harm to an employee, Person B, through her deceptive behaviour and that she had bullied that person through intimidating emails. Further, in her dealings with her supervising academic she made a dishonest and deceptive claim in stating that the work that she had submitted was her own. 4. As a result, the Respondent received a fail for six of the subjects and was expelled from CSU. 5. Correspondence from CSU indicates that the Respondent requested an informal review of the outcome which was considered and refused. 6. There was no argument before us that we should not accept and adopt the findings made by CSU in respect of the Respondent's conduct. We, accordingly, find that the Respondent engaged in the conduct as found by CSU in respect of the matters outlined above. At the core of that conduct was the Respondent's breach of her duties towards her employees and interns. She used them and abused their trust in furtherance of her deceit on CSU. 7. The Respondent must have been fully cognisant of the serious deception she was engaged in in respect of her enrolment for a Master's Degree at CSU. She had obtained a PhD, she had held a casual teaching position lecturing in a Master's Degree as lecturer and tutor at the University of Western Sydney and must have known that the conduct was unethical and completely unacceptable. 8. On the evidence we also find that in her dealings with the interns, or an employee about to be an intern, the Respondent's conduct: 1. was dishonest and deceptive; 2. was not a one-off event but was engaged in over a significant period, the Respondent having arrived at, it appears, a winning formula for her, namely, continuing with courses despite her inability or unwillingness to do the work by improperly, unethically, misleadingly and deceptively obtaining other persons to do the work for her, whilst paying for the work on many occasions; 3. involved the Respondent being not content to cease the dishonest conduct when asked or confronted about what she was doing and: 1. when first questioned by Person B the Respondent denied the conduct and dismissed Person B's concerns; 2. when questioned a second time, the Respondent did not accept responsibility and again deflected Person B's concerns; 3. when questioned a third time, the Respondent gave a false justification about tender projects, emphasised her seniority and attempted to stifle Person B's concerns; 4. when questioned a fourth time, the Respondent again attempted to justify her conduct, praised Person B and offered him more work; 5. when questioned a fifth time, the Respondent again blatantly dismissed Person B's concerns; 1. included her seeking to bully the intern, Person B, to withdraw the complaint that he had raised with the university; 2. further involved her in seeking to justify her conduct by minimising Person A's authorship of the work undertaken; 3. extended to attempt to excuse her conduct due to workload issues or due to university/stress issues and to minimise the impact of her cheating on her role as a supervisor, claiming there was a distinction between Person B being initially employed as a graduate researcher by her, in her capacity as a Master's student and private researcher, and when Person B was later employed as an intern by her – a position now accepted by the Respondent as totally untenable. 1. It is also apparent that the Respondent showed limited insight into her behaviour when exposed even though, as we find, at all times she knew that her conduct in relation to the university was wrong, her conduct in relation to her interns was wrong and she could not under any circumstances justify what she was doing. 2. In our view, and we find, on the evidence that we have outlined above, which we accept, that the conduct of the Respondent, the subject of Complaint 1, was both improper and unethical and was serious misconduct. The conduct clearly amounted to unsatisfactory professional conduct and we so find. The Respondent did not seek to argue against such a finding. Professional Misconduct 1. The Commission submits that the Respondent's conduct was sufficiently serious to amount to professional misconduct including for the following reasons: 1. the Respondent knew that submitting work prepared by another person as her own was wrong; 2. the Respondent knew that submitting work prepared by her interns to CSU was wrong; 3. the Respondent's conduct was manipulative as she asked her interns to do work for her while concealing the real purpose of the work and hid the fact that the tasks were for her own university purposes; 4. the Respondent's conduct was deceptive in that she submitted the work prepared by the interns as her own to CSU; 5. the Respondent showed blatant disregard for her ethical obligations when she cheated on her ethics assignment and misled both Person A and Person B about the purpose of the ethics task; 6. the Respondent's conduct was extensive in that she cheated on seven occasions over 2 years and 8 months; 7. the Respondent took advantage of her interns and must have known that it was wrong and knew that the interns were vulnerable due to their youth and that they looked up to her; 8. the Respondent must have known that neither Person A, nor Person B consented to her submitting their work to CSU as part of the Respondent's studies; 9. the Respondent was familiar with the Board's guidelines for supervisors and had signed the relevant declaration that she would comply with the guidelines which she obviously did not; 10. the Respondent was already familiar with the APS Code of Ethics (2007) which was applicable and she had signed a declaration on 10 May 2021 acknowledging that she had read, understood and agreed to comply with the APS Code of Ethics (2007); 11. the Respondent must have known that her conduct posed a risk of adversely impacting her interns since she breached the trust required in any supervisee/supervisor relationship particularly as the interns were vulnerable by reason of their youth and their probationary status and considered the Respondent as a mentor; 12. the Respondent's conduct jeopardises standards in the psychology profession in that she exploited the power imbalance inherent in the intern/psychologist relationship for her personal benefit. 1. The Commission also submitted that the Respondent demonstrated limited insight into her serious misconduct when initially confronted about her conduct. The Commission highlighted that there were at least five occasions, as outlined in the evidence above, that the Respondent was questioned or confronted about what she was asking of her interns, she continued to provide inconsistent and false and misleading answers to genuine questions of concern and blatantly dismissed Person B's concerns and continued to try and deceive him. 2. The Commission further submitted that there is additional conduct on the part of the Respondent which demonstrates limited insight into her serious offending when she subsequently sought to explain her conduct. For example, the Respondent in responding to requests from the Commission sought to minimise Person B's authorship, deflected responsibility by emphasising her greater experience than Person B, sought to deflect responsibility by making strong personal adverse criticisms of Person B, sought to deflect responsibility by emphasising her greater experience than Person A; attempted to minimise the impact of her cheating on her role as supervisor, claiming that there was a distinction between when Person B was initially employed as a graduate researcher by her, in a capacity as a Master's student and private researcher, and when Person B was later employed as an intern by her in a capacity as a psychologist and supervisor of interns. 3. We accept these submissions. In our view, and we find, on the conduct the subject of Complaint 1 which we found to be unsatisfactory professional conduct was of a sufficiently serious nature to justify the suspension or cancellation of the Respondent's registration. It was, accordingly, professional misconduct and the Respondent did not seek to argue against that conclusion. Protective Orders 1. Accordingly, the Tribunal's jurisdiction to make protective orders as provided in s149 of the National Law is enlivened. 2. In exercising its powers, the Tribunal must observe the objectives and guiding principles of the National Law, the paramount consideration being to ensure the protection of the health and safety of the public (s3B, formerly s3A). 3. In Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do"), Meagher JA (with whom Basten and Emmett JJA agreed, held: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 1. The protective objectives under the National Law thus encompass considerations of specific and general deterrence, as well as upholding public confidence in the standards of the profession, including by denouncing misconduct as unacceptable (Do at [35] and [39]). 2. The Tribunal has given effect to the principles formulated in Do in numerous decisions, for example, in Health Care Complaints Commission v Duggan [2015] NSWCATOD 142, the Tribunal approached the issue as follows at [42]-[43]: "The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions. In Re Parajuli [2010] NSWMT 3 the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection": (a) Any need to protect the public against further misconduct by the practitioner; (b) The need to protect the public through general deterrence (of other practitioners); (c) The need to protect the public by reinforcing high professional standard and denouncing transgressions; (d) The maintenance of public confidence in the profession; (e) The desirability of making available to the public any special skills possessed by the practitioner." 1. In Health Care Complaints Commission v Bradley [2022] NSWCATOD 47, the relevant principles, as stated on many occasions by earlier decisions of the Tribunal considering the making of protective orders, were stated to include the following (at [101]): "The relevant principles in determining a protective order have been stated on many occasions and include the following: (1) the protection of public safety and health is paramount; National Law, s 3A; (2) public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a); (3) the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; (4) protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]; (5) the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Wales Bar Association v Meakes [2006] NSWCA 340; (6) whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; (7) the protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; New South Wales Bar Association v Meakes [2006] NSWCA 340 at [113]-[114];" 1. We bear in mind in this case the principles set out at (7) that no order should be made which has more serious consequences for the practitioner than is reasonably necessary for the protective purpose of the Tribunal's jurisdiction: see also Health Care Complaints Commission v Tran [2021] NSWCATOD 82 at [123]; Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 at [82] (and the cases there referred to). 2. The finding of professional misconduct exposes the Respondent to the possibility of her registration being suspended or cancelled, but that outcome is not automatic: Chen v Health Care Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 at [14] per Basten JA. The Tribunal's choice of appropriate order following a finding of professional misconduct involves a "matter of degree and judgment" of seriousness sufficient to warrant deregistration (see, e.g. Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]). 3. In Health Care Complains Commission v Robinson [2022] NSWCA 164 it was held at [31] (per Kirk JA): "The question is whether or not the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. The conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances": Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. Thus the Tribunal can make an order less severe than suspension or cancellation even though it has previously found that the conduct was sufficiently serious to justify such a remedy: Karalasingham at [67]; Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [65]; note similarly EFA at [163]-[164]. For example, it may be that the subjective circumstances of the practitioner militate against such an order: note EFA at [171]-[172]." 1. The reference to EFA in that passage is a reference to the decision of the Court of Appeal in Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339; 106 NSWLR 383. 2. In her evidence the Respondent emphasises: 1. that she had since 2003 supervised many interns and developed an intern program prior to the inception of such programs being implemented by AHPRA; 2. that PSYCHmatters offers multi-disciplinary support in terms of mental health issues. PSYCHmatters currently houses numerous self-employed professionals, including seven psychologists, three behaviour therapists, one art therapist, two counsellors, one psychotherapist, one mentor/coach, a speech therapist, an occupational therapist, a neurosurgeon together with a child and adolescent psychologist and three administration staff; 3. since completing her PhD, she has continuously worked taking on clients who have been referred to her by a special task force within the Police Investigation Team because they found these young at risk of radicalisation through their associations. She is currently working with two high risk clients who have been referred and are affected by such issues. She believes their treatment is progressing well and she is anxious to see that she can, if at all possible, be permitted to continue to treat their condition to a suitable stage where they can be confidently rehabilitated; 4. that she provides bulk billing services to people in need, as she is committed to provide what she believes to be a professional quality of service to families who are struggling in managing their children and unable to afford access to professional support. She does not seek to, in any way, be immodest but she has always considered herself to have provided high quality psychological services and rely upon any absence of complaint as to her provision of such services in her time as a qualified psychologist; 5. that she is committed to the competent treatment of all who are affected in areas of challenging behaviour that she has, in the main, experienced what she believes to be positive results with those clients and she wishes to continue to treat those clients across a lifespan including in one particular instance, three of their own children; she is currently working with complex cases where children are not verbal and have externalising behaviours and persistent aggressive behaviours and whilst she readily acknowledges that these can be transferred to other psychologists, it nevertheless remains for her a commitment from her personal and professional work in their treatment plans; and 6. that she has been recognised for her contribution to the community in providing mental health services through her work, programs and lectures. 1. In relation to any protective orders which may be made the Respondent in her affidavit evidence stated that: 1. since the s150 proceedings, she has had the benefit of supervision by Ms Guzel. "Since attending weekly supervision with the Board approved supervisor, Ms Derya Guzel, I have in my own self, both understood my behaviour objectively and subjectively and have gained insight into it. In my mind, I have undergone a significant change in my mindset with respect to my clinical practice, realising critically, my own professional limitations but becoming acutely aware of my failure to adhere to the ethical procedures and their application to psychological practice for the maintenance of professional integrity which I sadly departed from in the circumstances"; 2. "Prior to the time of my offending and it being detected, I have never had any problems with interns and more importantly, have never even considered undertaking what I did with these particular interns which was an act of utter selfishness and an arrogance that I, upon reflection, am totally ashamed of as to how | exploited these young people. I had considered myself to be an ethical practitioner taking careful note of the APS ethical principles when working with my clients in my clinical practice in general"; 3. "Nevertheless, I readily admit that I was negligent in failing to consider my own vulnerability when challenged with issues around my physical and mental wellbeing. I was derelict in my conduct in that I did not consider my limitations and focused on achieving a positive outcome for myself at whatever cost to myself and in complete disregard and the abrogation of all that was necessary to maintain and perform my profession but more importantly, to treat my specific staff members who were both vulnerable by reason of their youth and their probationary status who in turn, considered me as a mentor. It was a position of trust which I both abused and let them down utterly without disregard for what I was doing but more importantly, for the abuse that I was engaged in by failing to service and treat their vulnerability with the respect and the due regard it deserved. I understand the detrimental impact of my actions which has been exacted on their own experience and as provisional psychologists, it was unforgivable on my part"; 4. at the time of her offending conduct it was underpinned by high stress triggered by her health and ill health of family members and fear that her health could be compromised on account of the loss of significant loved ones and that "those dysfunctional beliefs allowed me, but more importantly, enabled me, to ignore what was the reality which was that I had no right to exploit these interns in the manner that I did and equally, to engage in the dishonesty that I did with the University. I was attempting to normalise the situation and continue with my work undertaking it but not considering the boundaries and the limitations that the imposition of this tertiary education placed upon me and attempting to deflect what were my responsibilities, onerous though they may be, onto the shoulders of other who were neither deserving of nor should have been reposed with that consideration and responsibility. I was oblivious to the harm it has caused them and again, I deeply regret what I have done." Cancellation 1. The Commission submitted that cancellation of the Respondent's registration is required in this case in order to: 1. denounce the Respondent's conduct; 2. deter other practitioners from similar misconduct; and 3. uphold high professional standards of the psychology profession, the public having the right to expect that registered psychologists have ethically and honestly conducted themselves and acquire their qualifications in and honest and acceptable manner and contrary to those standards the Respondent took the work of three interns, lied to them, lied to the university, lied to the profession and would have lied to the public if she had ultimately graduated with a Master's qualification undetected. 1. In written submissions filed and served in accordance with a post hearing timetable the Respondent argued in summary that: 1. she has clearly exhibited objective and subjective insight into her offending and the admissions made by her were significant; 2. she takes issue with the Commission's submission that she has demonstrated limited insight when initially confronted about her conduct on the basis that whilst initially it may have been the case that position changed over time; 3. she has shown genuine remorse and contrition in particular in undertaking and submitting to the supervision required by the Psychology Council over a lengthy period; 4. the task of the Tribunal does not centre on punishment as such but on the protection of the public and the maintenance of professional standards; 5. the findings and harrowing experience of disciplinary proceedings, together with the real threat of loss of livelihood may open the eyes of the practitioner concerned so as to diminish the likelihood of repetition; 6. she was not seeking to in any way have a reprimand and/or caution issued "as it would be offensive to the notions of not only the conduct admitted, but equally the protective orders required"; 7. general deterrence will be adequately addressed if a misconduct is denounced by it being openly reprimanded (a submission at odds with the earlier submission); 8. on the totality of the evidence the imposition of sufficient but lengthy supervisory conditions are within the ambit of what is both just and reflective of both specific and general deterrence, denunciation of the admitted conduct and meet the public confidence required of practitioners; 9. the Tribunal should give consideration to the desirability of making available to the public any special skills possessed by the practitioner and her practice is a vital service to her communities; 10. the Tribunal should not make any order that exceeds the serious consequences for the practitioner that is reasonably necessary; 11. her practice since the imposition of the conditions has not repeated the offending conduct and she has fundamentally changed her practice and now complies behaviourally to the precepts of the obligations required of a psychologist. 1. In addressing the Commission's claims for a non-review period the Respondent first argued in the alternative that there should not be cancellation but supervision for a period of 6 months. 2. The Respondent argued that to a great extent the issue of dishonesty has been resolved by the expulsion from CSU and no finding of dishonesty should be made as there has been full disclosure both to the university and the Tribunal as it would be "further unwarranted denunciation and would in any event be concomitant with a finding of professional misconduct". Commission's Reply 1. In respect of the question of the Respondent's insight into her conduct the Commission submitted that the Respondent's oral evidence showed that she had not yet demonstrated full insight into her conduct and pointed to the following evidence by way of example. 2. When taken to her emails on 23 July 2023 which blatantly dismiss Person B's concerns and obviously emphasise her seniority, the Respondent maintained that she was not trying to intimidate him and had "no intentions of harming those kids". When taken to her response to the university which included unnecessary, intemperate personal criticisms of Person B, the Respondent maintained "even though I was critical I was telling the truth". When taken to her response to the Commission which included more intemperate criticisms of Person B and claimed that his complaint was unrelated to her work as a psychologist or her capacity as a supervisor, the Respondent maintained "I don't know where my head was at the time". When taken to her response to the Council making a serious (wholly unfounded) allegation that Person B sought payment for work he knew was academic misconduct, the Respondent claimed that he had access to her university library log in (but rightly conceded that she modified tasks so he would not realise it was university work, submitted his work to the university as her own and lied to him about it). 3. The Commission also argued that a dishonesty finding is unavoidable particularly in light of the Respondent's submissions which acknowledge that the Respondent "cheated, lied and engaged in deceptive conduct". 4. This evidence reveals a significant absence of appreciation on the part of the Respondent to actually address and show insight and actual acknowledgement of her obligations towards those she undertook to supervise and mentor. 5. The Commission also took issue with whether the Respondent had established with sufficient evidence that she has any particular specialised skills which would warrant a lesser protective order and whether other practitioners could not provide the same services if she was unable to do so. 6. Finally, in relation to the question of cancellation the Commission acknowledged that the direct risk posed by the Respondent of repeating her conduct as against employees and interns could be mitigated by a condition restricting her from providing supervision. The Commission argued, however, that the protective nature of the Tribunal's jurisdiction includes protection of the public from similar misconduct on the part of other practitioners and upholding public confidence in the standards of the profession. 7. The Commission argued that the imposition of conditions would be an inadequate protective measure in response to the Respondent's serious misconduct particularly as the efficacy of supervision is dependent on the practitioner being candid and open about her conduct, which in this case she has failed to do. Supervisor 1. As we point out above, conditions were imposed on the registration of the Respondent by the Psychology Council on 26 September 2022 including that she practise under the supervision of a Psychology Council approved Supervisor. In that regard, the conditions required the Psychology Council to provide to the Respondent's proposed and approved supervisor: 1. a copy of any relevant decision, which must have incorporated any s150 proceedings under the National Law; 2. a copy of the university's investigation. 1. Ms Derya Guzel was appointed as the Respondent's approved Supervisor. Ms Guzel is a registered psychologist with a Master of Psychology from the University of Western Sydney and practises as what she describes as a Wellbeing Specialist. 2. Ms Guzel undertook the supervision required over a period of approximately 2 years. 3. It transpires that the Psychology Council did not provide to Ms Guzel the materials referred to above (and neither did the Respondent). After the hearing, we were requested to admit into evidence copies of emails from the Health Professional Councils Authority concerning Ms Guzel's appointment. The Applicant did not oppose the admission of this material which we admit into evidence and mark as Post Hearing Exhibit 1. This material further shows that the materials referred to above were not provided to Ms Guzel. 4. In our view, that material which should have been made available was detailed and laid bare the extent of the Respondent's misconduct, the dishonesty involved, the nature of the deceptive conduct and the failures over a considerable period of time in the Respondent's obligations as a supervisor of interns. 5. Ms Guzel was therefore unfortunately deprived of material which would have assisted her in great detail in performing the role as Supervisor and mentor to the Respondent. 6. The Respondent did provide Ms Guzel some details of her prior misconduct. We are satisfied, however, and find that it was not as detailed as appears in the material which ought to have been supplied to Ms Guzel. 7. The Commission pointed to the oral evidence of Ms Guzel, her Supervisor. She testified that the Respondent told her that she worked with interns on university assignments, that the Respondent told her that she was "quite open with the interns with the tasks that were being done" but "wasn't completely forthcoming" to the interns as to what it was for. Ms Guzel could not recall any discussion where the Respondent reflected on her communications with her interns or mentioned lying when confronted: "I'm not sure if I've got the full details". The Respondent told Ms Guzel that the situation with Person B could have been handled differently on both sides (which unfairly suggests he was somehow responsible for the Respondent's misconduct). The Respondent told Ms Guzel that she would have preferred for Person B to come to her directly (which is inconsistent with the evidence that he confronted her directly). The Respondent told Ms Guzel that she felt "backstabbed" (which is inconsistent with the evidence that she emailed him modified tasks so he would not realise it was university work, submitted his work as her own, dismissed his concerns and asked him to withdraw his complaint). 8. Ms Guzel provided Supervision reports on her supervision. 9. The Supervision Report of 20 November 2022 records that the Respondent expressed a good understanding of the Code of Conduct. It records that the Respondent admitted knowing that her actions were unprofessional in the use and allocation of university assessments to an intern. This Supervision Report does not contain any greater detail of discussions of the Respondent's conduct and precisely what motivated her in engaging in the conduct the subject of the complaints over a period of time. 10. The Supervision Reports, in our view, concentrate to a significant degree on lifestyle changes that the Respondent stated that she may need to make in order to achieve her "professional goals". The Respondent has, it seems, been able to establish her healthy work boundaries that are sustainable, while not being overloaded. 11. The Supervision Report of 19 December 2022 prepared by Ms Guzel indicates that the Respondent had demonstrated a "good understanding of the factors that led to the complaint, however, at times has been left feeling like she committed a serious offence, notwithstanding she accepts that she did the wrong thing – not with the intention to cause harm (as has been reported) but to meet her professional deadline in a very challenging time of her life". Although this was early on in the process of supervision, it does not demonstrate significant insights into the conduct complained of and, of course, does not provide any particular detail of how the understanding was demonstrated to Ms Guzel. 12. In the same Supervision Report the Respondent reflected that her new mindset and practice developed through a supervision session included setting limitations around her workload, balancing her personal and professional life and being aware of her new life balance and that she had since noticed a reduction in her stress levels. Those are admirable changes but do not, in our view, actually address the core issues involved in her role as supervisor to interns who were very poorly treated and exploited. 13. Ms Guzel did conduct a number of sessions in which she addressed ethical dilemmas or issues. For example, in the report of 20 February 2023 the Respondent recorded that to keep track of her ethical obligations, she has included in her work plan a stringent process which includes setting up a team of professionals including a psychiatrist and other psychologists to discuss complex cases and ensure any recommendations, course of action or diagnosis formulated as valid and appropriate. This is admirable but does not ethically address her misconduct. 14. In the March 2023 Report, the Respondent records that in the second to the fourth week of March 2023 she and Ms Guzel focussed on discussions of current cases, incorporating appropriate APS ethical principles to each of the cases presented. 15. In the April 2023 Report, there is concentration on the challenges and best practice in writing reports and awareness of those ethical dilemmas and principles that protect professionals in the delivery of their report to clients. The Respondent recorded that ethical dilemmas can be challenging when preparing reports for a Legal Aid client and that it was important to ensure that reports met the ethical standards of the profession. 16. In her Supervision Report of 20 August 2023, the focus was on reviewing and identifying ethical principles within "my clinical case load". In September 2023, the concentration was on developing reports for legal situations working with radicalised youth. 17. The November 2023 reflections by the Respondent recorded that the focus was on specific clinical presentations of clients where their situations demonstrate ethical dilemmas. The same was the case for December 2023. 18. In January 2024, the Respondent's reflections were that in the sessions during that month there were discussions around ethical best practice in regard to her new "business plan" and her 2024 goals, for example, ensuring confidentiality of case files and computer content when sharing offices with other health professionals. 19. In February 2024, the reflections record that the APS Code of Ethics (2007) were continued to be reviewed and perused to ensure that the Respondent's treatment plans for each of the cases presented were in accordance with those ethical principles. In March 2024, the supervision continued with case reviews focussing on ethical dilemmas "especially when my values and beliefs are challenged". 20. In April 2024, the Respondent and her supervisor discussed APS authorship guidelines and the Respondent recorded that she has endeavoured to meet the requirements even more recently than in the past five years. Discussions were around ensuring that fair credit was attributed to all contributors around the newly produced manuals (and worksheets used in therapy). 21. There is then recorded that "whilst supervision has been understanding the ethical guidelines and moving forward in a positive way, I am and continue to reflect on the ethical guidelines which I breached around exploitation. Understanding the ethical misconduct around it at this time after 17 months of supervision has been extremely helpful and enlightening moving forward in my career". We note that there is no detail about what these discussions entailed but it seems unlikely that in the absence of the materials which were to be provided to Ms Guzel and in light of her oral evidence referred to above the real issues the subject of the complaints were adequately addressed. 22. The Supervision Reports do not provide us with any confidence that the Respondent has engaged sufficiently with the obligations of a Supervisor vis a vis interns or with the level and extent of the Respondent's dishonesty and conduct the subject of the Complaint. 23. We accept that in her evidence outlined at [132] above the Respondent acknowledges her failures in respect of the treatment of specific staff members who were vulnerable and considered her to be their mentor. However, the Respondent's explanations as to her "dysfunctional beliefs" and her attempts to "normalise the situation" do not persuade us that she fully comprehends that underlying the treatment of the staff was repeated dishonesty and deception. The Respondent also does not address any appreciation of the obligations arising under the APS Code of Ethics (2007) or its importance. 24. Apart from her dishonesty, at the core of the misconduct was the betrayal of the Respondent's role as supervisor and mentor of the interns. Neither the Supervision Reports nor the oral evidence of Ms Guzel provide any significant detail of how those issues were satisfactorily addressed in the supervision which has been afforded the Respondent over a period of time. 25. In our view, the Respondent has not yet developed adequate and complete insight into her misconduct, and the extent of that misconduct as it related to, and adversely affected her interns who trusted her, felt taken advantage of and sought approval and guidance from her. The power imbalance was exploited and junior practitioners were, as they described in evidence, manipulated. 26. Because of this the Respondent has not yet demonstrated to our satisfaction that she is capable of conducting her practice without the risk of conduct of this kind being repeated. 27. The Respondent's conduct needs to be strongly denounced and, at the same time, there needs to be both specific and general deterrence in respect of conduct of the kind engaged in. The profession must be clearly put on notice that the treatment of interns by a supervisor of interns of the kind engaged in by the Respondent is completely unacceptable and is more than likely to result in the type of protective orders reflected in these reasons. Consideration 1. We have come to the conclusion that cancellation of the Respondent's registration is appropriate. We do so as we are satisfied that the professional misconduct on the part of the Respondent calls for that outcome 2. In our view, the Respondent's conduct was of such a nature that the protective nature of our jurisdiction will only appropriately be met with an order cancelling her registration. 3. The Respondent has not demonstrated adequate objective and subjective insight into her breach of obligations and treatment of her employees and interns in her capacity as Supervisor. 4. The Respondent has not adequately addressed the numerous breaches of the APS Code of Ethics (2007) binding on her as detailed above. 5. For the reasons set out above the Respondent's Supervisor has not been able to fully address the Respondent's misconduct with her and thus cannot provide evidence assuring the Tribunal that the Respondent has adequately acquired the ethical and practical insight and skills to deal with the extent of her misconduct. The Respondent's conduct fell far short of the standards reasonably expected of an equivalent practitioner. 6. The Respondent's conduct was harmful to the interns. A practitioner whose occupation is to care for the psychological wellbeing of patients had no regard at all for the potential psychological harm which she was inflicting on three interns over a period of time for her own benefit. 7. Her misconduct has a real adverse impact on the standing of the profession and confidence which the public can repose on practitioners. We emphasise that conduct which has that affect is to be strongly denounced. 8. We reject the Respondent's arguments concerning her dishonesty. The issue is not simply that the Respondent was untruthful and failed in her obligations to CSU. The core of the complaint as found in that she used, and as she now recognises abused, her interns in seeking to deceive the university and did so whilst repeatedly lying to them. 9. We do not accept that a reprimand is an adequate protective measure. We recognise that a finding of professional misconduct is a denunciation of the Respondent's conduct and that a reprimand would add to that outcome. However, more is necessary to deter the Respondent from future dishonest and unethical conduct in circumstances where she has not displayed adequate insight into her conduct. 10. In addition, general deterrence must play a role so as to signal to the profession and the public that improper and unethical conduct by an experienced practitioner towards junior practitioners, particularly those looking up to the supervisor, as here, will result in the cancellation of registration. 11. We do not consider that the imposition of conditions as argued for by the Respondent will be sufficient to meet the protective purposes of our jurisdiction. As pointed out by the Commission, supervision required full and frank disclosure by the practitioner which has not been present in this case concerning the Respondent's misconduct and the extent of the conduct over a period of time. 12. We accept that the Respondent has particular patients under her care and that in some cases she freely offers her services on a bulk billed basis for patients requiring it. We are not satisfied that the Respondent has such specialised skills that cannot be met by other practitioners. 13. We consider that there should also be ordered a non-review period of 12 months. That period should allow the Respondent to address the inadequate supervision resulting from the non-disclosure of critical information to her Supervisor and to develop appropriate insight into her role and failings as a supervisor. Although a condition could be imposed that the Respondent not supervise interns it is, in our view, not an appropriate outcome. It is insufficient to address the unethical and improper conduct to simply preclude supervision. In addition, it would not cater for the interactions which may occur with interns of other practitioners with whom the Respondent has contact. Costs 1. The Commissions seeks an order that the Respondent pay its costs as agreed or assessed pursuant to clause 13 of Schedule 5D of the National Law. 2. The power to award costs is discretionary and as a general rule, costs will follow the event. 3. There are, however, circumstances where disentitling conduct on the part of a party might be a factor militating against the usual order as to costs (see Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] – [46]). 4. The Commission has been wholly successful in its application. 5. There is, in our view, no disentitling conduct requiring us to depart from what is regarded as the general rule that costs should follow the event and the Respondent should pay the Commission's costs. 6. The Respondent did not argue against such an order. Conclusion 1. Accordingly, we are satisfied that the following orders should be made. 1. The Respondent is guilty of unsatisfactory professional conduct. 2. The Respondent is guilty of professional misconduct. 3. Pursuant to s149C(1)(b) of the Health Practitioner Regulation National Law (NSW) the Respondent's registration is cancelled with a non-review period of 12 months. 4. The Respondent is to pay the costs of the Commission pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 15 August 2024 - identification amended 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: 15 August 2024