Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dawes [2015] NSWCATOD 8 Hearing dates: 12, 13 and 14 May 2014 Date of orders: 11 February 2015 Decision date: 25 February 2015 Jurisdiction: Occupational Division Before: J Muller, Principal Member Dr W Warren, Professional Member Prof A Blaszczynski, Professional Member F Taylor, Lay Member Decision: The Tribunal declared that if the Respondent were still registered as a health practitioner the Tribunal would have reprimanded him in the strongest terms and ordered the cancellation of his registration. The Tribunal ordered that the Respondent is disqualified from being registered as a psychologist for a period of 10 years commencing from the date of this decision. The Tribunal made a permanent Prohibition Order with respect to the provision of certain 'Health Services' defined in s4 Health Care Complaints Act 1993, namely Community health services, Counselling, Mental health services, Health education services, Welfare services necessary to implement the above services, and Services provided in other alternative health fields. The Tribunal further ordered that the Respondent pay the costs of the HCCC as agreed or assessed. The Tribunal also ordered that the appropriate review body for any application made by the Respondent is NCAT or any successor to it in time. The Tribunal also requested that the Psychology Board of Australia record in the National Register kept by that Board the fact that the Tribunal would have cancelled the Respondent's registration had he still been registered as at the date of this decision. Catchwords: Health Practitioner Regulation - psychologist - boundary violations - vulnerable client - sexual contact with a client - email correspondence with inappropriate and graphic content - sending pornographic material to client - requesting pornographic material be manufactured by client and transmitted - involvement with illegal sexual acts - failure to keep accurate records - failure to keep records of an appropriate quality - failure to appropriately terminate therapeutic relationship - failure to make referral – failure to seek advice of a senior colleague - unsatisfactory professional conduct - professional misconduct - breach of Code of Ethics – impairment of complex/multiple paraphilia - not competent to practise psychology – disqualification for 10 years – permanent prohibition order re provision of health services. Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW) No. 86a (National Law) Psychologists Act 2001 Civil and Administrative Rules 2014 Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 HCCC v Engel Jones [2011] NSWNMT 23 HCCC v Litchfield (1997) 41 NSWLR 630 HCCC v Scully [2011] NSWNMT 28 Jacobsen v Nurse Tribunal (unreported Dunford J BC9705032) NSW Bar Association v Meakes [2006] NSWCA 340 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Gareth Michael Dawes (Respondent) Representation: Counsel: W Hunt (Complainant) Solicitors: F Westwood (Legal Officer Health Care Complaints Commission) (Complainant) File Number(s): 1420010 Publication restriction: Non publication orders apply to a) the name and address of Client A and any information that may tend to identify her, b) the names and/or address of the Respondent's wife (may now be his ex-wife) and his two children, c) the images that were shared between the Respondent and Client A (whether or not they were shared with a third party or parties), d) descriptors of the images regarding bestiality that were shared between the Respondent and Client A (save for as detailed herein), e) any admissions made by Client A re conduct with potential criminal implications. Non-access orders in accordance with Rule 42 also made to any visual or computer evidence as well as any material that contains matters subject to the non-publication order. Reasons for decision The matter before the Tribunal 1. Complaints One and Two before the Tribunal involved the gross misconduct by the Respondent, then a registered psychologist, with a young female client between May 2011 and April 2012. The majority of the conduct related to sexual matters that the Tribunal considers to be at the very least "non-standard" in nature (that is, not normophilic) including some conduct relating to acts that are contrary to law. 2. Early boundary violations included encouraging the client (Client A) to engage in certain sexual acts, requesting that she electronically record them and then provide a copy of them to the Respondent. The Respondent also commenced revealing his own sexual fantasies to the client very early in the therapeutic relationship. The Respondent's fantasies focused on anal sexual activity and watching a woman having sex with a dog. 3. The boundary violations escalated to include oral, vaginal and anal sex between the Respondent and Client A both at his workplaces and in secluded public places, as well as the realisation of the Respondent's bestiality fantasy on two occasions at the home of a third party. 4. During this period of time (May 2011 - April 2012) about 3,000 emails passed between the Respondent and Client A. Many of these had images, video and links to Internet pornography attached or contained in them in addition to the very graphic content of the emails themselves. The conduct of the Respondent only ceased when the Respondent's wife discovered some of the emails. At this time the Respondent failed to appropriately terminate the therapeutic relationship (such that it was), failed to refer her on to another therapist and attempted to enlist her help to minimise the nature of the conduct that had come to be known by his wife by requesting Client A to lie to his wife. 5. Complaint Three before the Tribunal related to the Respondent's impairment as a result of suffering from complex/multiple paraphilia (which the Tribunal details later in this document). 6. Complaint Four relates to the competency of the Respondent to practise the profession of psychology under s 139 of the Health Practitioner Regulation National Law (NSW) No. 86a (National Law) on the basis of sufficiency of mental capacity. What the Tribunal Decided 1. The Tribunal found the Respondent guilty of unsatisfactory professional conduct and professional misconduct. 2. Further the Tribunal found that the Respondent suffers from an impairment, namely complex paraphilia (which is further described later in this document) characterised by periods of fetishism (non-living objects), zoophilia (animals) and an obsessive, compulsive pre-occupation with pornographic material that detrimentally affects his capacity to practise psychology. 3. The Tribunal also found that the Respondent is not competent to practise psychology under s139 of the National Law as he does not have sufficient mental capacity to do so. 4. Pursuant to s149C of the National Law the Tribunal determined that if the Respondent were still registered it would have cancelled his Registration and reprimanded him in the strongest possible terms. The Tribunal also determined to disqualify the Respondent from being a registered psychologist for a period of 10 years, to make a 'prohibition order' in accordance with s149C of the National Law and ordered costs in favour of the Health Care Complaints Commission (HCCC). 5. The prohibition order made by the Tribunal is a permanent prohibition order with respect to the provision of the following 'Health Services' as defined in s4 Health Care Complaints Act 1993: 1. Community health services; 2. Counselling; 3. Mental health services; 4. Health education services; 5. Welfare services necessary to implement the above services; and 6. Services provided in other alternative health fields. 1. The Tribunal declared that if the Respondent were still registered as a health practitioner an order cancelling his Registration would have been made. It ordered that the Respondent is disqualified from being registered as a psychologist for a period of 10 years from the date hereof. It further ordered that the only appropriate review body for any application made by the Respondent is NCAT or any successor to it in time. A costs order in favour of the HCCC was made in the usual terms. 2. The Tribunal also requests that the Psychology Board of Australia record in the National Register kept by that Board the fact that the Tribunal would have cancelled the Respondent's registration had he still been registered as at the date of this decision. Non-publication and Non-access Orders 1. Pursuant to s64 Civil and Administrative Tribunal Act 2013 (NCAT) and clause 7 of Schedule 5D of the National Law the Tribunal made a non-publication order to prevent the publication of the name of the Respondent's client or any information that might identify her. In these Reasons she is referred to as Client A. 2. The Tribunal also made a non-publication order with respect to the names and/or address of the Respondent's wife (possibly now his ex-wife) and his two children. The Tribunal appreciates that some identification may flow from the fact that the name of the Respondent is not subject to any suppression. 3. The Tribunal makes both a non-publication order pursuant to s64 NCAT and clause 7 of schedule 5D of National Law as well as a non-access order (to the effect that the following are not to be inspected or disclosed) in accordance with Rule 42 (Civil and Administrative Rules 2014) regarding the following matters: * all of the visual material and computer evidence in this matter including emails between the Respondent and Client A * any descriptors of images concerning Client A and bestiality (notwithstanding that some of this evidence is set out herein for the purpose of establishing a Particular) * the whole or part of the documents containing Client A's evidence regarding bestiality and/or any admission by her of that conduct (notwithstanding that some of this evidence is set out herein for the purpose of establishing a Particular) * any document that contains the names and/or address or other material that may tend to identify Client A, the Respondent's wife and the Respondent's children. The Complaint 1. The Complaint brought before the Tribunal by the HCCC, having consulted with the Psychology Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the National Law in relation to the Respondent, being a formerly registered psychologist alleges: COMPLAINT ONE Has been guilty of unsatisfactory professional conduct within the meaning of section 139B (a) and (l) of the National Law in that he has: engaged in conduct that demonstrates that the judgment possessed, or care exercised, by him in the practice of psychology is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; engaged in improper or unethical conduct relating to the practice or purported practice of psychology. Background The practitioner was provisionally registered as a psychologist on 6 April 2004, and fully registered as a psychologist on 7 February 2006. The practitioner commenced employment with [omitted by Tribunal] on 10 August 2009 on a fee-for-service basis. [Omitted] had premises at [omitted], Parramatta (the "Parramatta premises") and [omitted], Penrith (the "Penrith premises"). The practitioner provided psychological treatment to Client A from 6 January 2011 to 5 April 2012 at both the Parramatta and Penrith premises of [omitted]. PARTICULARS OF COMPLAINT ONE 1. Between May 2011 and April 2012, whilst providing psychological treatment to Client A, the practitioner failed to maintain proper professional boundaries with her, in that he: (i) Sent an inappropriate email to Client A on 13 May 2011 which included, "You shall never shock me. You could walk into my office with nothing on but a trenchcoat and FM boots, and I would still not betray your trust and judge you. You can sya (sic) and do whatever"; (ii) Sent Client A emails containing sexually explicit content and encouraging Client A to send him emails with sexually explicit content; (iii) Sent Client A email attachments with electronic images and videos depicting sexual acts including of himself engaging in sexual acts, and internet pornography, between June 2011 and April 2012; (iv) Sent Client A an email on 22 July 2011 whereby he encouraged her to engage in anal sex with her partner; (v) Encouraged Client A to email to him electronic images and videos depicting her engaging in sexual acts alone and with her partner; (vi) Exchanged in excess of 3,000 emails with Client A, a large proportion of which included sexual content; (vii) Requested and received a USB device from Client A which depicted Client A engaging in sexual acts. (viii) On 7 June 2011, sent Client A a song entitled "Daddy" in an email attachment. The song was about a parent raping his child, in circumstances here the practitioner was aware that Client A had suffered sexual abuse as a child. 2. Between September 2011 and April 2012, the practitioner engaged in physical sexual contact with Client A on approximately 14 occasions which included oral, anal and vaginal sex. This contact took place at the Penrith and Parramatta premises of [omitted], in the practitioner's motor vehicle, and in public parks and reserves. 3. The practitioner encouraged Client A to engage in bestiality by having sex with dogs by sending her emails, and images, about this topic from December 2011 onwards during their relationship. 4. The practitioner facilitated, participated and watched Client A taking part in an act of bestiality with a dog on 2 March 2012 and 12 April 2012, in the presence of a third male person; and (i) the practitioner had sex with Client A on these occasions whilst the other male watched; and (ii) the practitioner filmed the client having sex with a dog on one of these occasions. 5. By engaging in the conduct set out in Particulars 1 to 4, the practitioner breached general Principle A: Respect for the rights and dignity of people and peoples, and General Principle B: Propriety, and General Principle C: Integrity, of the Australian Psychological Society ("APS") Code of Ethics (the Code), including but not limited to, (i) by sending Client A the song referred to in particular 1(viii) did not comply with A.2 of the Code; (ii) by engaging in sexual activity with Client A did not comply with C.4.3 and B.3 of the Code; (iii) by engaging in the behaviour in Particular 4, did not comply with Sections A.2.1 (a) and (d) and Section C.4.3 and C.1.1 and C.1.2 of the Code. 6. Between 10 February 2011 and 22 April 2012, the practitioner and Client A exchanged a number of emails as part of Client A's treatment regime. In relation to these emails, the practitioner: (i) failed to set guidelines with Client A as to the frequency and content of the emails, particularly as she had been diagnosed with a personality disorder; (ii) failed to keep up to date with knowledge on the use of email in the provision of psychological services to clients; (iii) continued to send and encourage Client A to send emails when the content of those communications became inappropriate; (iv) did not facilitate Client A's informed consent about the nature and purpose of the communications or how the content would be used or stored, as required by Section A.3.3 of the Code; (v) failed to observe the requirements of Section A.2.1 of the Code; (vi) failed to ensure Privacy as required by Section A.4 of the Code; and (vii) failed to retain the emails as part of Client A's medical records, as required by Section B.2.1 of the Code. 7. Between January 2011 and April 2012, the practitioner failed to maintain accurate patient records in that: (i) the practitioner's handwritten records contained insufficient comprehensible detail about the therapy delivered to Client A and her response to it; (ii) contained insufficient detail of the practitioner's treatment plan for Client A's drug use; (iii) failed to adequately document how the practitioner was treating Client A's personality disorder; (iv) the practitioner's assessment notes do not include details of Client A's history of physical and sexual abuse; (v) the quality of the records did not comply with the requirement of Section B.2.1 of the Code. 8. (i) In May 2011, the practitioner failed to terminate the therapeutic relationship with Client A and to explain why this needed to be done, when the professional boundaries broke down; (ii) once the therapeutic relationship was terminated in April 2012, he failed to ensure Client A's continuity of care in that he did not make a formal referral of Client A to another practitioner; (iii) by omitting to do these things, the practitioner did not comply with the requirements of B.11.2, B11.5 and B.3 of the Code. 9. The practitioner failed to seek supervision or advice from a senior colleague when providing psychological services to Client A; and (i) by omitting to do this he did not comply with the requirement of B 1.4 of the Code. COMPLAINT TWO Is guilty of professional misconduct within the meaning of s139E of the National Law in that he has: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. PARTICULARS OF COMPLAINT TWO The particulars identified in Complaint One are repeated and rely upon individually and cumulatively. COMPLAINT THREE Suffers from an impairment. PARTICULARS OF COMPLAINT THREE 1. The practitioner has a physical and/or mental impairment or disorder, namely a complex paraphilia characterised by periods of fetishism (non-living objects), zoophilia (animals) and an obsessive, compulsive pre-occupation with pornographic material that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession. COMPLAINT FOUR Is not competent to practise the profession under section 139 of the National Law as the practitioner does not have sufficient mental capacity to practise the profession. PARTICULARS OF COMPLAINT FOUR The practitioner suffers from an impairment as particularised in Particular 1 of Complaint 3 above. The practitioner's impairment is of a sufficient nature and degree that it detrimentally affects or is likely to detrimentally affect the practitioner's mental capacity to practise the profession. Additionally, the Particulars for Complaints One and Two above are relied upon and repeated, both individually and cumulatively. Background information Background - The Respondent 1. The Respondent was born in 1980. He was first granted provisional registration on 6 April 2004. His Registration Number was PSY0001238472. He obtained general registration on 7 February 2006. The following qualifications were recorded on the Register: * Bachelor of Social Science – University of Western Sydney 2002 * Graduate Diploma of Psychology – University of Western Sydney 2002 * Postgraduate Diploma in Psychology – University of Western Sydney 2003 1. At the time of the conduct the subject of this complaint the Respondent was working part time within NSW Health and also working in private practice. He reported to Dr Westmore that he had worked in "Addiction Medicine" and a relatively large public hospital between 2005 and 2012. 2. The Respondent surrendered his registration on 7 November 2012. He held two Endorsements on his Registration - Clinical Psychology (from 1 July 2010) and Forensic Psychology (from 15 September 2011). 3. The Respondent commenced receiving counselling on 1 May 2012. This counselling continued until at least 31 January 2013 (being the date of the report from the Counsellor). The case notes made by the Counsellor record that the Respondent attended a program at South Pacific Private Hospital, had taken work as a case manager for an insurance company and had enrolled in a Master of Finance degree course. 4. In a letter written by the Respondent to his insurance company he records that the hospital admission was for a period of four weeks due to "pervasive mood, suicidality, and behavioural issues relating to the offending behaviour". Background – admissions of the Respondent 1. The Psychology Council of NSW held proceedings under s150 of the National Law on 8 November 2012. The Respondent had cancelled his Registration the day before and did not attend the s150 hearing. The Respondent's legal representatives forwarded a letter to the Council indicating that the Respondent that "without any admissions" the Respondent would not be attending, he would not be placing any material before the Council and that he had surrendered his Registration. The Tribunal notes that the s150 proceedings concluded that had the Respondent not removed his name from the Register that an order suspending him would have been made. 2. When interviewed (in the presence of his legal representatives) by a HCCC investigator on 1 February 2013 the Respondent admitted that he had had an improper relationship with Client A - physically, sexually and emotionally. The Respondent claims he would not have encouraged Client A to engage in sex with the dog if he knew she was experiencing distress. 3. The Respondent's answers during the interview provide an account of his conduct that substantially accords with the details provided by Client A. 4. The Respondent's legal representatives provided a Section 40 response on his behalf. The reports of Dr Bruce Westmore dated 11 April 2013 and Dr Christopher Lennings dated 11 June 2013 were enclosed with this response. 5. The Section 40 response states that the Respondent concedes that the Respondent's conduct must amount to grave professional misconduct. It is further conceded that at the "material times" the Respondent was not a "fit and proper person" to discharge his role as a psychologist. 6. The conduct is characterised in the submission as a "grievous breach of trust". 7. It is submitted by the Respondent that the expert reports support him being a "good candidate for rehabilitation". The mitigating factors and explanations also contained in this submission are noted but not summarised herein. 8. As noted above, the Respondent's submission included the report of Dr Westmore dated 11 April 2013. The report was written at the request of the Respondent's legal representatives. The Respondent attended upon Dr Westmore on 9 April 2013. Dr Westmore records that he had not read all of the documents that had been forwarded to him in relation to this matter. 9. The Tribunal will not summarise the entirety of Dr Westmore's report herein - however there are a number of matters that require noting. The Tribunal notes: * The Respondent informed Dr Westmore that Client A started to email him and that over time the frequency increased. * The Respondent informed Dr Westmore "unfortunately I didn't refer her on. I should have, but I didn't. It developed into more sexualised talk about June 2011". * The Respondent informed Dr Westmore that he had suffered a "long standing sexual obsession, almost like an addiction and involved pornography". * The Respondent denied that he had groomed Client A, rather he was surprised when she responded positively to his long standing sexual fantasy regarding a woman having sex with a dog. * The Respondent stated that he considered Client A had multiple opportunities to "get out of it". * With hindsight the Respondent now feels that Client A might just have been trying to please him by participating in the sexual activity. * The Respondent admitted to continuing to treat Client A whilst having sexual activity with her. He stated that he was able to "compartmentalise" his conduct. * The Respondent first accessed pornography at 11 years of age. At 13 years of age he accessed Internet porn involving a dog which he found to be "exciting". His wife had discovered his use of porn and had asked him to stop. The Respondent had stopped for about six months "til he started hiding it better". * In around 2007/8 the Respondent's marriage became quite strained and he joined "sex dating sites" which he used to meet a number of women, he became "sexually adventurous" performing activities with these women that he could not with his wife. * The Respondent stopped accessing Internet pornography from April 2012 to January 2013 and then accessed it on two occasions before ceasing completely. * The Respondent stated that he considered that he was "not fit" to be a psychologist. * Dr Westmore asked him about some of the issues regarding the inappropriate sexual relationship that he had with Client A and he stated he understood "the betrayal of trust, I have been horribly abusive of her and its wrong what happened to my wife and kids (as well)". * The Respondent stated he took full responsibility for the breakdown of the therapeutic relationship with Client A and for introducing her to illegal sexual acts with an animal. 1. The AXIS 1 diagnosis made by Dr Westmore was: * Paraphilia – characterised by periods of fetishism (non-living objects), zoophilia (animals) and an obsessive, compulsive pre-occupation with pornographic material * Adjustment Disorder with depressed and anxious mood pertinent to the predicament in which he finds himself as a result of his behaviour with Client A. 1. Dr Westmore opined that the Respondent clearly could not continue to work as a psychologist "at this time". Dr Westmore also noted that the Respondent was motivated to consult a psychologist. Dr Westmore provided the Respondent with the name of a psychiatrist who had particular interest/expertise in the area of Internet pornography abuse. 2. Dr Westmore opined that there was no risk of him behaving inappropriately towards clients if he did not return to clinical practice. If he did consider re-applying then his history would need to be reviewed. Considering his commitment to seeking assistance and his recognition of his psychosexual problems in the context of having the support of his parents Dr Westmore considered there were extremely good prospects for rehabilitation. 3. The Respondent's lawyers also provided a report from Dr Lennings. In the report dated 11 June 2013 Dr Lennings noted the Respondent's lawyers had referred the Respondent to him for treatment and sought a report that covered the treatment plan, the findings made by the HCCC expert (in particular the provisional diagnosis made therein of impulsive sexual behaviour disorder), reference to the report of Dr Westmore and comment on the literature regarding the nexus between sexual deviancy and pornography. 4. The Report of Dr Lennings noted that he had met with the Respondent on three occasions (during April and May 2013) with a fourth appointment booked for June 2013. The focus of these sessions had been on planning treatment. Once the treatment commenced Dr Lennings was of the view that the Respondent should cease consulting his "current psychologist" whom he had consulted since August 2012. 5. Dr Lennings records a social history for the Respondent that accords with the report of Dr Westmore. The sexual history recorded by Dr Lennings largely accords with that set out in Dr Westmore's report, although Dr Lennings notes that the Respondent began hiding his interest and engagement with internet pornography from early adolescence and notes the history suggests a significant compulsive element to his behaviour. 6. Dr Lennings also noted that the Respondent reports that he had at that point installed "net nanny" on his computer to block his access to pornography sites. 7. Under the heading "Diagnostic Issues" the report states: Mr Dawes presents with a paraphilia in which his obsessional interest in pornography to the detriment of his ability to maintain intimacy with a loved partner has occurred. He presents with a zoophilia, voyeuristic and fetish like behaviour. He is highly anxious and quite distressed at the moment, although he is able to mostly go about his day-to-day life. The most likely Axis 1 diagnoses are of an adjustment disorder with anxious mood, and paraphilia. 1. The report further noted the Respondent did not present with an Axis 2 disorder "despite some alienation and compulsive features". Dr Lennings also noted the Respondent is capable of consequential thinking and is aware of the terrible consequences of his behaviour and is deeply remorseful. 2. Dr Lennings noted that the Respondent was somewhat defensive about "grooming" of his client. 3. Dr Lennings discusses the diagnoses of the HCCC expert witness and suggests that the more specific diagnosis of Paraphilia NOS (302.9) (the Tribunal notes that Dr Lennings clarified that he was using DSM IV). Dr Lennings expressed the view that the diagnosis made by Dr Westmore was the most encompassing. 4. Under the heading "Treatment Plan" Dr Lennings stated that the Respondent would expect to undertake a lengthy period of treatment - a minimum of 40 to 60 sessions on a more or less weekly regime and a likely time frame of two to three years. 5. Paragraph 20 of Dr Lennings report reads: Mr Dawes has an entrenched behavioural disturbance. For the moment his urge is low as the full horror of his situation is expected to deplete his libido and punish inappropriate urges. However, over time the urges will return and treatment will need to take time to work with the natural fluctuations that occur in such presentation. Mr Dawes has to learn to recognise triggers for deviancy, and manage these triggers. He has to identify and practice compensatory behaviours to deflect the urges. He has to gain a good understanding of his modus operandi, including his approach and grooming behaviours, behaviours that maintain both his own and his victim's behaviour, and identify possible slips and triggers that could initiate such a sequence in the future. All of this will take time. As such the treatment plan that is emerging is a comprehensive plan with multiple targets. In addition to offence specific treatment he will need to learn other (non sexualised) ways of managing his emotions, dealing with psychological crises and refocusing his identity away from sexually deviant themes. 1. Dr Lennings provides a comprehensive review and explanation of the current studies that provide understanding the link between compulsive pornographic interest, deviancy and bestiality. The Tribunal will not reproduce or summarise this material. 2. The oral evidence of Dr Lennings is set out below. 3. Other attempts to obtain specific admissions of Particulars were undertaken after the Respondent did not attend the Directions Hearing. By this time the Respondent was no longer legally represented. 4. In a letter to the Tribunal dated 18 December 2013 (Exhibit 18B) the Respondent stated he was not submitting "any defense in terms of complaints made", that he understood that the documents he had provided previously would be used and he had no further evidence to submit. The Respondent also stated that he had no intention of ever re-engaging with the profession of psychology. The Respondent also stated that he was extremely remorseful for his actions and the harms caused. 5. After further correspondence regarding admissions the Respondent authorised contact with Dr Westmore, Dr Lennings and Mr Harley Conyer (therapist). The Respondent stated that he was "pleading guilty to the matters before the HCCC". Further, he supported the imposition on a life time ban on registration as a psychologist or identification as a psychologist. The Respondent also stated he confirmed that he had impairment and that he remained under the care of his "therapist". The Respondent also indicated that he was not in a financial position to pay any fines that may be imposed upon him. Background – Client A 1. Client A was born in 1988. She first consulted a psychologist when she was 16 years old at the urging of her adoptive mother to seek help for psychological issues arising from sexual and physical abuse and neglect as well as an eating disorder. 2. At the time she sought assistance from the Respondent Client A was a university student (in addition to working part time) although she frequently required medical certificates from her treating doctor to excuse her from university. 3. Her treating doctor provided a Mental Health Care Plan and suggested to Client A that she came under the care of an outpatient mental health service. Client A preferred to see a private psychologist. Client A records in her statement (Exhibit 5) that she was apprehensive when she was unable to secure an appointment with a female psychologist and accepted the appointment with the Respondent because she "was pretty desperate to get some help" and was using methamphetamine. 4. Client A describes her psychological symptoms as including a tendency to disassociation. This manifests as fleeting loss of eye sight or a momentary lack of concentration or more extremely as a shift into "different personas". Whilst in a different persona Client A would dress and act out the characteristics of that persona. Client A states that the Respondent asked her to take photographs of herself when she had slipped into one of these persona (paragraph 18 - Exhibit 5). 5. Client A had informed the Respondent that she had been sexually assaulted by her brother and physically abused by her biological mother. 6. Client A reported that on one occasion she was "high" on methamphetamine and feeling hypersexual. She took photos of herself naked, one with a book and another with a teddy bear covering her lower body and sent these to the Respondent. Client A reports she was surprised and offended when the Respondent replied to the photos with complimentary remarks about her body. 7. In his interview with the HCCC investigator the Respondent described Client A as follows: She was a fairly typical - I'll use the term, borderline presentation. She was a young woman with some emotional issues, fairly scattered, fairly - not bound to sort of hold on to one particular track, one thing at a time, whether it be job, relationship et cetera. So she might be quite inconsistent. Her eating disorders and self-harming behaviours, including drug use was sporadic, so very up and down, based on her emotional states, which were variable, that she had been battling this for some time and seen a therapist for some time well before me. She was fairly passive but she could get aggressive or more assertive at times, but I think that was due to the influence of methamphetamine. Background – the Complaint 1. The complaint arose from a mandatory notification made by Client A's subsequent treating psychologist. In a letter dated 27 August 2012 the subsequent treating psychologist reported that Client A had been referred to her by a general practitioner (GP) for ongoing psychological management for depression. The history provided by the GP in a letter dated 16 May 2012 included Client A having had a "labile mood" since 2011 and had been feeling depressed over the previous couple of weeks. Client A first consulted this psychologist on 26 July 2012 and on 16 August 2012 she disclosed that she had had a sexual relationship with her previous psychologist (the Respondent). 2. The letter from the subsequent treating psychologist recorded that Client A had informed her that the relationship had ended when the Respondent's wife became aware of it and it was at this point that the Respondent wanted nothing more to do with her. The letter also records that Client A informed the subsequent treating psychologist that both the Respondent and his wife had asked her not to report the misconduct for the sake of his family and to protect his career. Client A stated that she had also been reluctant to report the misconduct as she believed that the Respondent was "unwell" and he had told her that he had an addiction to pornography - for which he was receiving treatment. 3. Client A described to the subsequent treating psychologist that she was "feeling rejected, used and abused". 4. Client A also made a notification. In that notification she recorded that the Respondent "… assured me he would never harm anyone in this manner again and pleaded that I never tell" (Exhibit 3). In a letter dated 22 August 2012 attached to the Notification. Client A expresses the view that at the time she had consulted the Respondent her complex issues with attachment trauma resulted in her not responding with more definitive judgment to interactions with the Respondent. Client A stated that her first concern was when the Respondent asked her to write emails or "journal entries" expressing her thoughts and feelings and to email them to him. Client A reports that she was "cryptic" with her comments and that the Respondent encouraged her to be "uncensored", assuring her that she could trust him and that there was nothing that could shock him, nor would he judge her. 5. Client A stated that eventually she trusted the Respondent more and commenced to divulge personal thoughts and feelings and she found this to be a therapeutic and "safer" way to vent her emotions as opposed to physically purging food. It is Client A's view that through this regular email correspondence a "friendship" of sorts developed and the Respondent "became willing to share his personal life to a certain degree". 6. When the Respondent shared music with her it made her feel "special". The emails from the Respondent then started to come from both his work and personal email addresses and would also be out of working hours. Client A states that eventually she felt comfortable enough to trust the Respondent with an issue that related to her personal sex life (her interest in bondage and "s&m"). It was at this point that Client A noticed there was a change in the Respondent's manner as it appeared to her that he found it harder and harder to maintain a professional response. When she initially expressed disapproval of his responses and manner he apologised. Eventually the continued discussion regarding her sexual issue lead to the Respondent sharing a video depicting him undertaking a sexual act. 7. Client A recounts that whilst she was confused and concerned about this occurrence she had grown "fond" of the Respondent and had formed a "bond or attachment to him as a result of the level of emotional support he had extended to me and the personal interest it seemed he had in me". 8. Client A stated that although she felt "shy and naïve in ways as well as shocked" that she also felt a strong drive to "go along" with what had become a type of "flirting" and exploring of one another. This eventually became a type of competition whereby they sent each other videos of themselves doing various sexual acts. She states that she provided some of these videos on a USB as it would not load via email. 9. Client A states that the sexual contact between them started as "anal play" in the consultation room and escalated to sexual encounters in secluded public places and at a home in a distant suburb. Client A stated that she took cues from the way the Respondent spoke about specific sex acts as well as the interest he showed in them. She considered his encouragement was direct and indirect with respect to both the acts they performed together and the acts that she performed alone and filmed for him to watch. Eventually she began to take on the explicit and intense way he described and conceptualised the act of sex in order to please him. 10. Client A states she had come to rely upon the Respondent emotionally as he had taken an interest in "helping her" and that this emotional attachment resulted in her feeling driven to maintain the relationship and the Respondent's interest in her as well as to please him. 11. The level of trust reposed in the Respondent by Client A allowed her to believe that he was in control, that he knew what he was doing and that he would protect her despite her concerns for him professionally and in his personal life. Client A states that she held in on such a "high pedestal and trusted him almost completely at times". The Respondent made her feel "accepted, valued and validated". Client A also felt she had to maintain the Respondent's interest in her in order that she not be "abandoned" by him. 12. Client A records that looking retrospectively at her interactions with the Respondent that he "preened" her to perform sexual acts that she previously had no inclination to carry out. 1. Client A records that her university studies were "heavily impacted upon as [she] battled depressive states, anxiety and tormenting thoughts of suicide". Her letter continued: It got to the point I had an ultimatum of choosing to make a daily decision that despite how inferior, worthless and hopeless I felt that I would get up and endeavour to be strong. …… Becoming strong or committing suicide were the only two options in my world. ….. Life is difficult, I admit, and the pain and hurt of the abuse of power and the way Gareth has victimized me will remain a scar on my life. 1. Client A states that she does not wish for the Respondent to be punished but rather to be "appropriately reprimanded and rehabilitated". She considers him to be a "brilliant professional in terms of his experience and insights into personality disorders and abnormal psychology". She did however wish to prevent the Respondent from victimizing any other clients. 2. Client A also apologized for the delay in providing print outs of emails. She stated that the process had been painful as it was "like re-experiencing it all in a new light and seeing his sexual agenda more clearly" and it had caused her to have "intrusive and tormenting flashbacks, thoughts of suicide and terrible nightmares" as well as causing her past abuse to come to the fore. Evidence 1. This matter involves evidence of a most unpalatable nature. There is little utility in recounting it all in detail, indeed much of it would be categorised by right minded people as hard pornography that has no place in a public arena. Nevertheless, this Tribunal is charged with the responsibility of maintaining standards within the profession of psychology and public safety therefore some degree of recounting of the facts and circumstances is required to fulfil the obligations imposed by the National Law in particular providing reasons to support its findings and characterising the evidence so as to support the Orders made. The unfortunate result will be the risk of offending public decency. 2. The Tribunal had the benefit of a significant summary of the evidence prepared by Mr Timothy Rochford, an investigator with the HCCC. The Tribunal used his statement dated 4 April 2014 (Exhibit 2) as an aid memoir that assisted in the location of evidence within the various volumes of documents. Whilst reference may be made in the findings to paragraphs of Mr Rochford's statement, it is the primary evidence that the Tribunal has relied upon in reaching those findings. There is a significant amount of evidence in the form of emails that passed between the Respondent and Client A. The Respondent has not at any stage suggested that these emails were not sent by him (as recorded in the emails) or that they have in some way been "doctored", altered or manufactured. 3. Mr Rochford gave evidence before the Tribunal that took the form of explaining the methodology of the HCCC investigation and taking the Tribunal to some of the more significant evidence. 4. In light of the "general admissions" made by the Respondent in various pieces of correspondence the Tribunal proceeded without calling Patient A to give evidence. This step was not taken lightly by the Tribunal and regard was given to the evidence regarding the significant stress caused to her by virtue of the original conduct of the Respondent, the recounting to another psychologist of this conduct and the subsequent HCCC investigation as being indicative of the stress she would likely suffer should she be called before the Tribunal. Weighing all of the evidence, particularly in light of the Respondent's indication that he did not resist findings being made against him, the Tribunal considered there was sufficient evidence without calling Client A to proceed with the hearing at least in the first instance. Had the Tribunal not ultimately had sufficient evidence to be reasonably satisfied with respect to each of the matters established it remained open to discuss calling Client A with the HCCC. This did not eventuate. 5. Rather than set out all of the evidence before the Tribunal relevant to the Particulars of Complaints One and Two, the Tribunal will limit reference to the evidence that supports each of the Particulars of Complaint under the heading "Findings of the Tribunal". 6. The Tribunal also had the benefit of hearing oral evidence from Mr Conyer (the Respondent's therapist) and Dr Lennings (the Respondent's treating practitioner). 7. In light of the nature of Complaints Three and Four (impairment and competence) the Tribunal will record some of the highlights of the evidence of these treating practitioners. 8. Mr Conyer gave evidence that he had not seen the reports of Dr Westmore or Dr Lennings. The Respondent had sought "supportive counselling" from him commencing on 1 May 2012. The last occasion on which he had seen the Respondent was a few weeks before Mr Conyer gave evidence before the Tribunal, this contact being initialled by Mr Conyer. 9. Mr Conyer agreed that he was not qualified to make a formal diagnosis under DSM IV or DSM V. He understood from the Respondent that the Respondent had been abstaining from accessing pornography and also relying upon his own training as a psychologist to assist him. 10. Initially the Respondent had told him that the extra-marital relationship was all "online". Eventually he understood it was something more than just "online". When asked by the Tribunal whether he was aware that the woman was a client being treated by the Respondent Mr Conyer stated that this was a "surprise" and it added a "completely different dimension" to the conduct. This was particularly so as Mr Conyer was of the view that the Respondent's demeanour/approach had been "to get everything out on the table" as he was trying to "get help for himself". Mr Conyer expressed the view that the Respondent had not told him a "deliberate lie" regarding the nature of his conduct rather it would be part of the pattern of incremental disclosure he had observed the Respondent engaged in during the sessions. 11. The Tribunal also notes Mr Conyer's evidence that the only mention made by the Respondent of Client A during the therapy sessions was to express "surprise" that she had reported his conduct. Mr Conyer was not able to point to any expressions of concern or remorse for the impact of the conduct on Client A made by the Respondent. 12. Mr Conyer expressed the view that the Respondent was not "in a stable part of his life at the moment". 13. Mr Conyer had a record that the Respondent had been living with a flat mate (and not with his parents) at least for some of the time after he separated from his wife. 14. Mr Conyer agreed that the Respondent was vulnerable to relapse unless he was formally engaged in a therapeutic process. 15. Dr Lennings also gave evidence on the second day of the hearing. The Tribunal notes details of the written report of Dr Lennings are set out above. In his oral evidence Dr Lennings confirmed that there had been a time appointed for a fourth appointment. Whilst it is not clear whether the Respondent advised he would not attend and just failed to attend, the Tribunal notes Dr Lennings' evidence that there was subsequent email contact with him. The Respondent replied to the first email by indicating her would be "in touch". A subsequent email reported that the Respondent was moving out of his parent's home that Dr Lennings saw as a negative factor as his parents had been providing him with support. 16. Dr Lennings stated that he thought the Respondent understood that he (as in Dr Lennings) offered the "offence specific treatment" that the Respondent required whereas Mr Conyer was providing "supportive counselling" which would not address the issues that had been identified in the initial sessions with Dr Lennings. Dr Lennings further noted that supportive counselling was not focused on a goal or outcome for the client as opposed to the type of treatment planned by Dr Lennings. 17. Some of the evidence of the Respondent's frankness with Mr Conyer was put to Dr Lennings. Dr Lennings expressed the view that denial/minimisation or a lack of frankness does not advance treatment. 18. Dr Lennings confirmed his opinion that given the compulsive nature and longevity of the Respondent's behaviour he would expect the condition of the Respondent would be very hard to remit without treatment. In Dr Lennings opinion severe paraphilic deviance would not "go away" by itself and was quite debilitating in a psychological sense. 19. When asked to assume that the only treatment had been some supportive counselling (December 2013 and April/May 2014) Dr Lennings opined that the underlying pathology and compulsions would likely continue and the risk of boundary violations would be great. Even if the Respondent defended against his compulsions Dr Lennings considered that the Respondent would still be impaired as he would be too busy guarding against his compulsions so as not be able to practise appropriately in clinical settings as he would not be able to fully enter into a therapeutic relationship. 20. Dr Lennings expanded upon paragraph 45 of his report wherein he was discussing "crossing-over" research. A person "crosses-over" when they put their fantasy into actions and usually results from a process of giving yourself permission for "little" transgressions that escalates. In the case of the Respondent the crossing over offends moral boundaries in two ways. First the fantasy involved bestiality and secondly the involvement of a client. Dr Lennings noted that the client/practitioner relationship provided the Respondent with the opportunity to engage in deviant behaviour and to escalate that behaviour. This indicates the need for extensive treatment. 21. In the absence of undertaking the treatment prescribed, Dr Lennings expressed the view that it would be difficult to provide a prognosis or opinion regarding the Respondent's prospects of returning to be fit to be a psychologist. At this point Dr Lennings noted the Respondent's resistance/defensiveness to the idea that he had groomed Client A and his lack of insight into allowing small boundary violations as a feature he had identified, that would be relevant to the question of rehabilitation. Dr Lennings considered the Respondent lacked insight into some aspects of his behaviour. 22. Dr Lennings also noted that the Respondent was so completely absorbed in his "fantasy world" that nothing would deter him, even the knowledge that he was transgressing the Code of Ethics. Other areas where there was evidence of the compulsive nature of the Respondent's conduct was evidence was his inability to stop accessing Internet pornography even though it was putting the relationship with his wife in peril. 23. Dr Lennings also expressed concern that the sheer reputational issues associated with the Respondent's conduct being public would result in making a return to the profession too difficult. 24. Dr Lennings also expressed the view that irrespective of the fact that the Respondent is no longer practicing as a psychologist the risk of him taking advantage of a vulnerable people exists. Submissions of the HCCC 1. The HCCC submitted that all of the Particulars of Complaints and all the Complaints were established. A written outline of submissions was provided to the Tribunal. The Tribunal will not detail these submissions as the Findings and Orders made herein accord in all material aspects. Findings of the Tribunal Findings re Particulars of Complaints One and Two 1. For the purpose of Complaint One (i) the Tribunal is required to consider whether the Respondent's behaviour was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The Tribunal notes that the Respondent held qualifications that entitled him to hold registration as a psychologist. Further, the Respondent had acquired further qualifications that have satisfied the requirements for two Area of Practice endorsements on his Registration. The fact that the Respondent held two Area of Practice endorsements is not insignificant. Less than four per cent of psychologists hold two or more endorsements. Further, the Respondent held endorsements in the areas of Clinical Psychology and Forensic Psychology - both of which should have provided him with the knowledge and skill to enhance the professional services he was providing to Client A. The experience of the Respondent was also not insignificant. Particular 1 1. The Tribunal is satisfied that the Respondent provided psychological treatment to Client A between 6 January 2011 and 5 April 2012, noting the Medicare records in the evidence (Exhibit 22). Particular 1(i) 1. The email that establishes this Particular formed E13. It is seen by the Tribunal in the context of the email from Client A the previous evening when she wrote: I really don't remember or wish to recall how the whole s&m thing came out in the open … but I must say it was amusing to watch you try to contain your interest I was surprised by how comfortable you were about openly discussing it with me and asking specifics Particular 1(ii) 1. Various emails establish this Particular. Not all are detailed below. Some of the emails detailed with respect to other Particulars overlap with this Particular. 2. In E17, an email sent on 3 June 2011, the Respondent encourages Client A to send him emails "before you can revise or retract" and encouraged the inclusion of "pics, videos, artworks, sound bites - whatever you can muster". 3. On 22 July 2011 there is an email exchange wherein anal sex was the main topic of conversation (E27). The Respondent states: In your case, I suppose it can easily be associated with violation, not only due to past experience, but also it's a place that the body (I suppose) doesn't expect - so the shock of it can put people off. 1. On 26 July 2011 the Respondent sent a video showing him inserting a pen into his urethra (E29). The Respondent commences the email message by telling Client A that he is in a "sharing" mood". Client A states that when she replied that she was impressed by the video she "felt like I had dug myself a hole". At paragraph 27 of her statement Client A records that she did not feel she could tell the Respondent that she thought it was "gross" she felt confused as she had formed a bond or attachment with the Respondent as a result of the growing level of emotional support he had extended to her and the personal interest he seemed to have in her. In another email on the same day the Respondent asks Client A to keep the video confidential and not to share it. 2. E33a is an email from the Respondent to Client A dated 29 July 2011 to which is attached a video titled "prostrate milking" which depicts him inserting his fingers into his anus. The email from the Respondent to Client A to which the video was attached read in part: You are not bad for liking naughty things. Life is for living so enjoy it! :) If you want to become a hardcore anal minx (which you are rapidly becoming!), you can and so long as others enjoy it, do it I'll help you out to achieve it! :) Oh, by the way: I made that prostate milking vid for you :) It's a first, but I intend to make more, and be more close up, better lighting and to show you more :) I hope you like! :) Let me know what you thank, K :) 1. Later the same day the Respondent sent Client A a further email, E33(b), which attached another video (V3), this time depicting the Respondent inserting a mandarin into his rectum. 2. In an email exchange on 6 and 7 August 2011 (E37) Client A describes in detail an anal sex session with her partner to the Respondent. The Respondent replies: Wow!!! You did it! :) Have fun??? You go girl! Yes there can be collateral impact of anal. Easily cleaned. Is the anal training paying off? … P.S. Id love to see you squirt while riding that new dildo of yours (grins) 1. On 22 August 2011 the Respondent sent two videos attached to E40 depicting the rectal insertion of a long carrot and the attempted insertion of a bottle. The email issued the following invitation to Client A: Wanna have our anal playdate onSaturday 17/9, 10am? Here at Penrith office? (grinning widely). Please let me know k….;) [As written] 1. The statement of Client A records she received a request from the Respondent that she send live webcam footage of her "soaped up" and inserting a "bouncy ball" into her anus. When Patient A indicated reluctance to do this the Respondent advised her on how to make excuses to excuse herself to go into the bathroom to conduct this act. Client A states that she did comply as she was afraid he would reject her if she did not "keep him happy". 2. The Tribunal notes on 20 July 2011 (that is, prior to the conduct detailed in this Particular) Client A had told the Respondent in an email that she was "offended" that he had made complimentary comments regarding her body (Client A having just sent the Respondent photos of herself naked) (E23). The email from Client A is quite lengthy and its content should have alerted the Respondent to the harm caused by this boundary violation. At the very least there was a failure on the part of the Respondent to recognise the distress he had caused to Client A by commenting on the photos. His request for further photos should be viewed in the context of this earlier reaction of Client A. 3. The Tribunal is satisfied that Particular 1(ii) is established. Particular 1(iii) 1. The Tribunal has already referenced E33 (a) and (b) in the above Particular. Another video (V1) was attached to an email (E30) sent by the Respondent to Client A on 26 July 2011. This was a 90 second video depicting him inserting a pen into the urethra of his erect penis. The email from the Respondent describes the act depicted in the video, describing it as "urethral play". When Client A responded positively, the Respondent invited Client A to send something in return, adding "you can be as bold or shocking as you like ;) Maybe of you with either trying to fist yourself, or your disappearing vibrator trick, or anything else youd like to share? :)" [as written]. 2. On 27 July 2011 the Respondent sent Client A an email (E32) to which was attached a 40 second video (V2) showing a close up of his erect penis while he masturbated and then ejaculated. 3. On 1 August 2011 the Respondent sent an email (E34) to Client A with the subject line "2 spoons vid" and the attachments described as "Urethra (2 spoons)" being a video (V5.4) depicting him inserting a spoon down his urethra while his penis was erect. 4. The Respondent sent four videos to Client A on 4 August 2011 which depicted acts such as the Respondent inserting various inanimate objects into his rectum (V5, V5.1, V5.2 and V5.3). 5. In an email dated 16 April 2012 the Respondent advised Client A that he had "registered" them for access to a particular social network site used for introductions of people to dog owners for the purpose of bestiality. He provided her with the user name and password and bookmarked a video that involved a horse (see E 101). In her statement Client A expressed the shock she felt when she found that the Respondent had not only advertised on this website, but had included her in the "advertisement" and depicted them as a couple (paragraph 65). 6. In her statement (Exhibit 5) Client A stated that the she considered that the Respondent "distracted from the inappropriate nature of the videos by introducing this material under the guise of sexual empowerment and sexual control". Client A also acknowledged that her emails reflected that she was encouraging the Respondent to send more images and states that this was driven by her "need for him to accept me". Further Client A states "I was confused by the explicit nature of the videos but I trusted him implicitly so I took my cues on how I should respond from the messages he sent". (paragraph 32). 7. The Tribunal is satisfied that Particular 1(iii) is established. Particular 1(iv) 1. On 22 July 2011 numerous emails pass between the Respondent and Client A (E25-E27). The Respondent encourages Client A to engage in her fetishes with her boyfriend, including "anal play" and "s&m". The Respondent wrote "But you go girl. Become an anal sex princess and show him how its done"! 2. Other parts of the email exchange contain advice from the Respondent to Client A on how to gain the cooperation of her boyfriend to engage in the anal sex. 3. In E79, an email sent by the Respondent to Client A on 25 January 2012, he states that he "knows" Client A is aware he is "keen on seeing a vid" of her and her boyfriend engaging in anal sex and other related activities. The email goes on to describe in graphic and specific details of the activities that should be included. He also asked Client A to pretend to turn off the video at a certain point but to continue filming various other specified actions. The Tribunal will not recount the exact requests made by the Respondent, considering it sufficient to note that the request went well beyond a single act of anal sex. 4. The Tribunal is satisfied that Particular 1(iv) is established. Particular 1(v) 1. There is overlap between this Particular and others. The Tribunal relies on other evidence detailed elsewhere. 2. On 26 July 2011 after sending Client A a video depicting him engaging in sexual activity (the insertion of the pen into the urethra of his erect penis) the Respondent asks Client A to send something "in return". Client A responded later that day with a video of her naked in the bathroom exposing her anus. When she was unable to transmit further videos the Respondent suggested that she transfer the files to a USB and bring it to the next appointment (28 July 2011). 3. At paragraphs 34 and 35 of her statement Client A recounts how the Respondent had sent her instructions on how and what to insert into her anus and how she should film herself. Numerous videos were provided to the Respondent who referred to the acts depicted as her "training". 4. As the electronic size of the videos increased the Respondent opened a Yahoo account so Client A could send these larger files to him. When the file size became too large he suggested to Client A that she place them onto a USB. During the consultation the Respondent downloaded the material from the USB onto his laptop and then erased the USB (paragraph 36 - Exhibit 5). 5. At paragraph 41 of her statement Client A recounts a request made by the Respondent made at a time his wife was in hospital following the birth of his child. The Respondent requested live footage via webcam of her engaging in "anal play". Client A reports that she was reluctant to comply as her boyfriend was at home with her but was also afraid of the Respondent rejecting her if she did not keep him "happy". She expressed the view that her fear of rejection was magnified because of her history of attachment trauma and abuse. She also felt that the Respondent would protect her if anything "happened". The Respondent gave her instructions on how to excuse herself from her boyfriend's presence and go into the bathroom to produce the images he requested. 6. The Tribunal is satisfied that Particular 1(v) is established. Particular 1(vi) 1. Exhibit 2 provides a summary undertaken by Mr Rochford (HCCC Investigator) of many of the thousands of emails that passed between the Respondent and Client A. Volume 3 of the HCCC documents contains many of these emails. A large proportion of these emails include sexual content, many with very graphic detail. 2. The Tribunal is satisfied that Particular 1(vi) is established. Particular 1(vii) 1. On 27 July 2011 the Respondent requested Client A bring a USB of the images she was unable transmit by email to their next appointment. 2. A USB containing pornographic images of the Respondent and Client A was obtained by the HCCC when it executed a search warrant on the Respondent's premises. 3. The Respondent sent an email to Client A on 20 January 2012 thanking her for the USB and the "vids". The balance of the email alludes to the contents of the videos. In the context of the evidence the Tribunal is satisfied to the requite standard that the videos depicted Client A undertaking sexual acts. 4. The Tribunal is satisfied that Particular 1(vii) is established. Particular 1(viii) 1. On 7 June 2011 at 3.19 pm the Respondent sent some "mp3'S" attached to an email. The email reads (E20): :) P.S. Watch out with the Korn one… 1. The warning regarding the Korn song was repeated by the Respondent in a further email at 3.49 pm. 2. Korn is a musical group and the song sent by the Respondent to Client A was titled "Daddy". The lyrics of "Daddy" refer to child sexual abuse. 3. Client A's evidence is that she had informed the Respondent of her own history of child sexual abuse during the treatment sessions. 4. The Tribunal notes that the Respondent's clinical notes, such that they are does contain a reference to abuse having been suffered by Client A - both physical abuse and sexual abuse. 5. On the night of 7 June 2011 Client A responds to this email. The content of the email from Client A reveals she was extremely distressed and confused after listening to the songs provided to her by the Respondent. 6. The Tribunal notes that the email from Client A to the Respondent clearly indicates that she was very distressed by receiving this music. She states that she was angry and confused. There is nothing in the evidence to indicate to the Tribunal that this message resulted in the Respondent adjusting his interactions with Client A. 7. The Tribunal is satisfied that Particular 1(viii) is established. Particular 2 1. The Respondent does not deny sexual contact with Client A. Various emails provide a record of arrangements being made between the Respondent and Client A for physical sexual contact. These email records accord with the details of such contact set out in Client A's statement (see for example E66). 2. At around paragraph 44 (and following) Client A recounts how she had deliberately dressed in a short skirt and heels to show the Respondent her "sexual persona". Shortly after this consultation the Respondent sent her an email suggesting that they attend a certain secluded public place for the purpose of anal play. Client A reports that this meeting took place within about two weeks. When the anal intercourse was happening Client A recalls that the Respondent commented that it was "so naughty" (paragraph 47). 3. In E57 there is an email exchange on 25 July 2011 between the Respondent and Client A wherein the Respondent thanked Client A "for meeting up today at the River!". In this email there is reference to a "double sided friend" that is referred to in other emails. From the content of the emails it is clear that this is a reference to a "sex toy". 4. Another email from the Respondent to Client A, this one dated 21 December 2011 thanks her for meeting "at the River" noting that "As always I enjoyed it immensely! :)" (E66). 5. Client A states that each of these sexual encounters (in the public areas as well as in the Respondent's offices) involved anal sex, the Respondent attempting to "fist" her or inserting sex toys or other objects into her anus and frequently involved her performing oral sex on the Respondent (paragraphs 48-51). Client A states that she has not sought medical attention for the discomfort she suffers with bowel motions as she has been too embarrassed. 6. The Tribunal accepts the unchallenged evidence of Client A regarding various physical sexual encounters she had with the Respondent. 7. The Tribunal is satisfied that Particular 2 is established. Particular 3 1. From an exchange of emails on 20 July 2011 between the Respondent and Client A it is clear that during a treatment session the Respondent had discussed with Client A having treated clients that had engaged in bestiality (E68). From Client A's statement it appears the Respondent had discussed two previous clients with her - one that involved sexual activity with ponies and another with dogs. These conversations had occurred before he had commenced engaging in physical sexual activity with Client A. 2. There are numerous email exchanges commencing on about 5 or 6 December 2011 wherein the Respondent details his intense interest in observing Client A engaging in sexual intercourse with a "huge dog". 3. In an email sent at 12.15 pm on 5 December 2011 the Respondent asks Client A if there was "Anything else REALLY kinky youd like me to help you try? Anything at all? There is no taboo between us now, you know. Would love to know something really depraved that you have fantasised about …". Client A responded about 20 minutes later with an email stating, she has already revealed everything other than those things she felt were inappropriate "given certain boundaries". Client A then invites the Respondent to share or request anything he would like played out and how long he had fantasised about it (E62). The Respondent replied five minutes later with an email that stated that it was "pretty kinky" and he understood if she recoiled from the idea. The Respondent asked Client A not to "judge" him too hastily. He then went on to state: My longstanding fantasy has been to watch and participate in a woman being fucked by a dog. Its been very longstanding, and only recently extended to me wanting to try it myself. Im not gay, by a long shot, but the thoughts of doing that is a real turn on. I would love to have a woman who equally really gets into sucking and penetration by a good size dog, and letting it pump her full of cum… Freaked out yet? Im sorry it that was too intense. Its something I don't expect from you, but felt right to share. No one knows this, by the way … Please don't freak … - G- (holding breath) 1. Later on 5 December 2011 the Respondent forwarded an email to Client A that attached a mpg file titled "xxx animal Dog sex Beastiality - Amy gets dogged by dog 5 dif. Times". The message with the file read "As discussed, a little dog porn for you. Hope its not too risque for you! Let me know what you think….. –G- Prepare for it!". (E63). 2. The encouragement of the Respondent is illustrated, as an example, by his comments in an email at 3.14 pm on 6 December 2011 wherein the Respondent wrote: Can I just say OMG to our conversations! I don't think you know how much of a turn on it is knowing that you might potentially act out on the dog fantasy. Oh wow it has made me sooooooooo turned on. You have no idea … To think that you get aroused with the prospect of being penetrated by a huge dog excites me beyond all belief… Wow and to think that we could play together, making you cum your brains out - it does it for me. But I understand you might not want to try. Thats ok. For now, let me imagine it … I didn't expect you would like the idea.. Such a turn on. You think you might like to fuck a dog with me then? ;) 1. On 7 December 2011 the Respondent sent an email to Client A that included three http Internet addresses linking to instructional sites regarding bestiality (E64). Client A responded to this email stating "That tutorial style vid was great … quelled a lot of my apprehension by answering a lot of questions I had". 2. On 16 December 2011 the Respondent sent an email to Client A providing her with details of his enquiries regarding a women willing to have sex with Client A, with the possibility of the involvement of the Respondent. The Respondent provided reassurance that the woman's male partner would not be involved. The Respondent also reported that he had sourced "a willing owner … who would be willing to let us play with his dog. He is a big black one, and he said he can mount you and will stay hard for a long time and cum a lot …". (E65). 3. In an email to the Respondent dated 20 December 2011 Client A recounts a conversation she had with him regarding "the whole canine thing". Client A states that she was not so "keen" to pursue the "exploring of canine sex with you" although she appreciated that he wanted it "sooo bad" that "really gets me hot". In another email the same day Client A states that she was finding the "prospect of canine sex with you … more exciting and something I'm more "comfortable" with than being with another woman". Client A explains that the reasons for this include: * The whole "stranger danger" thing associated with the interaction with the involvement of other people * She appreciates that the Respondent really wants to enact this fantasy and that it was something he had not engaged in before (whereas he had engaged in sexual activity involving another woman) and as a result this "really gets me hot". 1. On 23 December 2011 the Respondent sent an email message advising Client A that the owner of the dog was interested in meeting them soon and had provided various photos of the dog that the Respondent attached to the email (E67). 2. Further images/videos of women engaging in sex with dogs were sent to Client A by the Respondent on 4 January 2012 (E73). The email exchange that accompanied the links to these images/videos confirmed the excitement of the Respondent at the prospect of Client A engaging in sexual activity with a dog with the Respondent's involvement. 3. On 14 and 16 February 2012 the Respondent sent Client A videos and or images of women having oral and vaginal sex with dogs. The Respondent's emails include the following comments: * Oh I cant wait to watch you get penetrated by a dog over and over :) * I cant wait for our play with the dog in Sydney - I really cant :) * I have some pics that I found that Id LOVE to see you do - love the looks and poses. Would you be willing? Its such a turn on to think of you doing these poses, etc, :) 1. On 29 February 2012 the Respondent informed Client A in an email that he had made arrangements to meet with the owner of a Labrador dog on 2 March 2012 so she could engage in sex with the dog at the owners home (E91). The email to Client A included the following: You'll be safe with me. The guy [name omitted] knows you are not willing to have sex with him, only his dog. I believe he just wants to watch us together while we foreplay, and for him to cum before we begin with his dog, and then it's a free-for-all :) You can dictate what happens, as I will not permit you being forced into anything you do not want to do. Also [name omitted] has agreed to use my camera for pics. He will not take any, and will let us use our camera. So this would allow for some 'happy snaps' (grinning). … It is going to be SO hot watching you getting mated by a horny dog. Wow. And for him to do you repeatedly. OMG I cant wait. 1. The statement of Mr Rochford records that there were emails between the Respondent and Client A from 7 to 19 March 2012 which not only detailed sexual contact between them but also sexual contact with dogs. The Tribunal was only provided with one email exchange that occurred on 7 March 2012. The emails referred to photos the Respondent had taken of Client A engaging in sexual intercourse with a dog. The Respondent stated that he would put the photos onto a USB rather than attaching them to the email. The emails also detail plans for a further encounter to occur with another dog (a husky), contact with the owner having been made. 2. Paragraph 4.188 of Mr Rochford's statement (Exhibit 2) record that there was an email from the Respondent to Client A on 2 April 2012 that attached three videos of women engaging in sex with dogs. The Tribunal was not provided with this email. 3. The Tribunal is satisfied that Particular 1(iii) is established. Particular 4 1. The Tribunal notes that some of the evidence referred to in Particular 3 above also relates to this Particular. 2. E65 records the Respondent informing Client A on 16 December 2011 that he had "sourced a willing dog owner". 3. The statement of Mr Rochford refers to another email sent on 1 February 2012 wherein the Respondent records that he had made arrangements for Client A to have sex with a German shepherd dog owned by a particular person and attached a copy of a another woman having sex with this dog. This email was not in evidence before the Tribunal. 4. At 10.45 am on 4 January 2012 the Respondent informed Client A that he had "discovered a couple of options for us in the coming weeks" and then detailed contact with three different dog owners willing to allow them to engage in sexual activity with their dogs. The Respondent also advised Client A that one of the owners had indicated that he was willing to allow the dog to "mount" the Respondent as well as Client A. The Respondent repeats this information in another email later that day (E72). 5. Later on 4 January 2012 the Respondent advised Client A by email that he had made arrangements with the owner of a black Labrador dog for her to have sex with the dog (E71). The email attaches four pictures. The statement of Mr Rochford records that the images include the Respondent masturbating a dog called "Lucky". Client A also makes reference to these photos in paragraph 59 of her statement. Initial attempts to meet with "Lucky" were not successful. 6. Client A recounts the Respondent made arrangements for them to meet with another dog, a Staffordshire terrier or pit-bull cross named "Vladamir". This was the first occasion on which there had been an encounter with a dog. Client A describes how she "freaked out" as the dog was scratching at her arms and legs and ultimately the Respondent agreed that they should leave. The Respondent attempted various forms of sexual contact with Client A whilst she was driving him back to his car after this incident. 7. As detailed above there was an email from the Respondent to Client A organising to meet the owner of "Lucky" on 2 March 2012 (E91). The Tribunal notes the contents of Client A's statement regarding this encounter. 8. The Tribunal notes that Client A was not called to give evidence in person. Further, at the request of the HCCC no admissions of Client A regarding conduct of this nature is being published by the Tribunal. As settled above the Tribunal was content to accept the evidence of Client A on the basis of the admissions of the Respondent. Further, with respect to this Particular there is an email from the Respondent to Client A dated 3 March 2012 which confirms the conduct detailed in this Particular. 9. The Tribunal is also reasonably satisfied on the evidence before it that on at least one of these occasions the sexual activity with the dog was filmed. The Respondent makes this admission when he was interviewed by the HCCC. Other evidence regarding this Particular is not published by the Tribunal. 10. Further email correspondence during the months of March and April 2012 record the Respondent informing Client A that he wanted them to engage in sexual activity with "… as many dogs as we can manage". 11. E100 is an exchange of emails between the Respondent and Client A that confirms arrangements to meet with the same owner and dog (Lucky) as had occurred on 2 March 2012. The Respondent reminds Client A to bring a camera and states he is "dying to rim you again". 12. The Tribunal will not recount the details of the incident on 12 April 2012 save that it is satisfied that the conduct described in the Particular occurred. Client A statement records that she observed the owner of the dog masturbating and that she engaged in anal sex with the Respondent in the bathroom before they left the premises. 13. The Tribunal notes, with substantial concern, the email exchanges that had occurred earlier in the day of 11 April 2012 between the Respondent and Client A. At 8.15 am that morning Client A informed the Respondent that a friend of her partner had died "because of drugs" (E99). Client A then discusses her use of methamphetamine and writes what the Tribunal would describe as a distressed call for help and support ("… the pain is enough to make you want to kill yourself", "I have so much guilt", "It aches so much", "I'm so angry and upset"). The Respondent initially responds with brief expressions of support and concern. That night (at 7.43 pm) the Respondent wrote an email to Client A that made reference to a conversation that had obviously occurred earlier that day wherein discussions regarding another sexual encounter with a dog was discussed. The email included the following content: * Ready to meet a couple of Shepherd??!?!?!? :) And then Lucky in the next 2-3 weeks. * You are really going to get your dose of doggy cock [Client A]! J I love it! Bring it all on! I cant wait to fuck dogs with you. And to drink your pee. And to fuck a female (or male) dog for you too… 1. The Tribunal is satisfied that Particular 4 is established. Particular 5(i) 1. By way of background the Tribunal notes that the Psychology Board of Australia (PsyBA) adopted the Australian Psychological Society's (APS) Code of Ethics (Code). This Code therefore applies to all registered psychologists from the commencement of the National Registration and Accreditation Scheme (NRAS) on 1 July 2010. General Principle A2 relates to "respect" for clients. The Tribunal notes in particular 2.1.a which states: In the course of their conduct, psychologists: (a) communicate respect for other people through their actions and language; 1. The Tribunal is of the view that sending the song "Daddy" to Client A on 7 June 2011, having regard to the lyrics of that song as detailed above, indicates gross disrespect for Client A through his actions. 2. The Tribunal is satisfied that Particular 5(i) is established. Particular 5(ii) 1. Principle B.3 Professional Responsibility states: Psychologists provide psychological services in a responsible manner. Having regard to the nature of the psychological services they are providing, psychologists: (a) act with the care and skill expected of a competent psychologist; (b) take responsibility for the reasonably foreseeable consequences of their conduct; (c) take reasonable steps to prevent harm occurring as a result of their conduct; (d) provide a psychological service only for the period when those services are necessary to the client; (e) are personally responsible for the professional decisions they make; (f) take reasonable steps to ensure that their services and products are used appropriately and responsibly; (g) are aware of, and take steps to establish and maintain proper professional boundaries with clients and colleagues; and (h) regularly review the contractual arrangements with clients and, where circumstances change, make relevant modifications as necessary with the informed consent of the client. 1. Principle C.4.3 states: Psychologists: (a) do not engage in sexual activity with a client or anybody who is closely related to one of their clients; (b) do not engage in sexual activity with a former client, or anybody who is closely related to one of their former clients, within two years after terminating the professional relationship with the former client; (c) who wish to engage in sexual activity with former clients after a period of two years from the termination of the service, first explore with a senior psychologist the possibility that the former client may be vulnerable and at risk of exploitation, and encourage the former client to seek independent counselling on the matter; and (d) do not accept as a client a person with whom they have engaged in sexual activity. 1. The admitted conduct of the Respondent of engaging in sexual activities with Client A breaches these ethical principles. The brief details of the nature of the conduct are set out by the Tribunal above. The conduct is characterised by the Tribunal as gross breaches of ethical standards. The Tribunal makes further conclusions regarding the severity of these breaches below. 2. The Tribunal is satisfied that Particular 5(ii) is established. Particular 5(iii) 1. Principles A2.1(a) and (d) read as follows: A.2.1. In the course of their conduct, psychologists: (a) communicate respect for other people through their actions and language; and … (d) do not denigrate the character of people by engaging in conduct that demeans them as persons, or defames, or harasses them. 1. Principle C.4.3 is set out above. 2. Principles C1.1 and C1.2 read: C1.1 Psychologists avoid engaging in disreputable conduct that reflects on their ability to practise as a psychologist. C.1.2. Psychologists avoid engaging in disreputable conduct that reflects negatively on the profession or discipline of psychology. 1. The conduct found to be established by the Tribunal in Particular 4 above demonstrates gross breaches of each of the ethical principles set out above. The Respondent's conduct demonstrated total disrespect for Client A. His conduct denigrated and demeaned Client A in a most depraved manner. There is nothing before the Tribunal indicating the Respondent sought any sort of guidance from a senior colleague prior to embarking upon the sexual activity he engaged in with Client A. 2. It is well settled that all clients/patients are vulnerable due to the power differential in the treatment/therapeutic relationship. It would not be controversial to state that clients of psychologists are likely to have a higher degree of vulnerability due to factors such as the nature of the health care services provided to them and the delivery environment usually being private - generally involving only the client and the practitioner. 3. In this particular matter, whilst the Tribunal did not have the benefit of hearing evidence directly from Client A, there was an enormous volume of correspondence (emails) that flowed between her and Respondent in evidence. Many of these emails express Client A's reactions to certain actions of the Respondent and to many other issues in her life. The Tribunal has been able to form the view that Client A fell into the category of patients considered extremely vulnerable. Even if the Tribunal was not of this view it would still be satisfied to the requisite standard that the Respondent breached the ethical principles listed in this Particular. However, the overlaying of the extreme vulnerability of Client A compounds the seriousness of the breach and gives insight in to the deficits in the Respondent's character. 4. The Tribunal is of the view that conduct described in each and every one of the Particulars 1 to 4 (and each sub-particular thereof) brings the profession of psychology into disrepute and reflects negatively on the profession of psychology. 5. The Tribunal is satisfied that Particular 5(iii) is established. Particular 6(i) 1. A bare reading of the sample of the emails in evidence allows the Tribunal to be satisfied that there were no set guidelines as to the frequency and content of email correspondence. The Tribunal notes it has only been provided with a small percentage of the actual email exchanges between them. The monthly tally of emails between the Respondent and Client A ranges from 51 to well over 1,000. 2. In March 2011 the Respondent replied to an email from Client A as follows (E4): Just an email to say how proud I am of you and your progress … You have a very complex history which involves any number of abuses … I look forward to any/all emails you might compile. I want to see many as feel that they are probably very good for you in a purging way … I can reply via this email intermittently, but can also be reached on: [two further email addresses are provided - one being an Area Health Service email address, the other a personal email address]. 1. The Respondent provided further encouragement to Client A in an email to her dated 21 March 2011 wherein he wrote (E6): Thank you for your email. Again, I reiterate, that I see another side [of] you when you write these things down … continue your almost-diary writing via email. 1. On 24 March 2011 Client A expressed her surprise that the Respondent kept replying and thanked him for doing so (E7). 2. The Tribunal also notes that in his first letter to the referring doctor the Respondent recorded that Client A's primary issues were "dysfunctional eating patterns, increasing use of methamphetamine and history of complex trauma from childhood". The Respondent concluded the report to the referring doctor by stating that he recommended 12 CBT (cognitive behavioural treatment) and DTT (distress tolerance treatment) sessions. Given the evidence available to the Tribunal a significant degree of deception in this letter is revealed. 3. The evidence supports the position that the Respondent failed to set guidelines as to the frequency and content of the email correspondence between them and kept the fact of it secret. 4. The Tribunal is satisfied that Particular 6(i) is established. Particular 6(ii) 1. The Tribunal was not provided with any articles, publications etc. that record current knowledge or professional standards regarding the use of email in the provision of psychological services to clients. 2. Without regard to the content of the emails, and just considering the number of emails that passed between the Respondent and Client A, the Tribunal, as an expert tribunal, is of the view that there can be no clinical justification for the huge volume of emails in this matter (noting that they reached over 1000 for at least one month - but generally ran over 100 most months during the course of the contact between them). The defining of the nature and frequency of contact with a treating psychologist is a fundamental part of the establishment of the therapeutic relationship. Just as it would generally not be acceptable to allow a client to present at a practice multiple times every day it follows that it is not acceptable professional conduct to allow email traffic at the volume demonstrated in this matter. It is not surprising that there is no defining of this aspect of professional practice as the appropriateness and utility of this type of contact will no doubt vary from case to case depending on all of the circumstances of the matter. In this matter the Respondent took advantage of the lack of definition of the use of the email communication to further his exploitation of Client A and maintain the secrecy of this exploitation. 3. The Tribunal is satisfied that Particular 6(ii) is established. Particular 6(iii) 1. There are numerous emails in evidence before the Tribunal wherein the Respondent encourages, in the strongest terms, email contact from Client A. In particular he encouraged content of a sexually explicit nature and for her to send him emails that provided extensive details of his own sexual desires. 2. The Tribunal is satisfied that Particular 6(iii) is established. Particular 6(iv) 1. General Principle A.3.3 of the Code reads: A.3.3. Psychologists ensure consent is informed by: (a) explaining the nature and purpose of the procedures they intend using; (b) clarifying the reasonably foreseeable risks, adverse effects, and possible disadvantages of the procedures they intend using; (c) explaining how information will be collected and recorded; (d) explaining how, where, and for how long, information will be stored, and who will have access to the stored information; (e) advising clients that they may participate, may decline to participate, or may withdraw from methods or procedures proposed to them; (f) explaining to clients what the reasonably foreseeable consequences would be if they decline to participate or withdraw from the proposed procedures; (g) clarifying the frequency, expected duration, financial and administrative basis of any psychological services that will be provided; (h) explaining confidentiality and limits to confidentiality (see standard A.5.); (i) making clear, where necessary, the conditions under which the psychological services may be terminated; and (j) providing any other relevant information. 1. The Tribunal is satisfied that the evidence support the establishment of this Particular. There is nothing in the evidence that falls into the category of "informed consent" regarding the nature of the communications with the Respondent. Whilst the Respondent encouraged email communication with him, nothing indicates he had obtained informed consent from Client A to engage in either this level of contact or as to how the information would be used or stored. 2. The Tribunal is satisfied that Particular 6(iv) is established. Particular 6(v) 1. Ethical Principle A.2.1 of the Code is reproduced above. The email communications of the Respondent to Client A do not demonstrate respect for Client A in the context of her being his client (or in any context at all). Many of the emails illustrate that he behaved in a manner that was demeaning to Client A. Having access to Client A's previous history as well as being privy to her current thought processes, a cohesive reading of the emails that passed between them also illustrates the coercion exerted by the Respondent on Client A to engage in various forms of sexual conduct. The Respondent fostered Client A's dependence upon him and then set about what is commonly called "grooming behaviour" towards her. Being in a position of power and trust with respect to Client A facilitated the enticement of Client A to engage in the conduct. 2. The Tribunal is satisfied that Particular 6(v) is established. Particular 6(vi) 1. Ethical Principle A.4 of the Code reads: Psychologists avoid undue invasion of privacy in the collection of information. This includes, but is not limited to: (a) collecting only information relevant to the service being provided; and (b) not requiring supervisees or trainees to disclose their personal information, unless self-disclosure is a normal expectation of a given training procedure and informed consent has been obtained from participants prior to training. 1. In the context of the referral of Client A to the Respondent the collection of information regarding what might be generally described as "sexual fantasies" is not clinically indicated. The collection of photographs of Client A performing sexual acts is a gross breach of this ethical standard. It is an understatement for the Tribunal to say that there is absolutely no justification for the Respondent to collect this material. 2. The Tribunal is satisfied that Particular 6(vi) is established. Particular 6(vii) 1. Ethical Principle B.2.1 reads: Psychologists make and keep adequate records. 1. The clinical notes of the Respondent contained a lengthy email (three pages in tight typed font) dated 25 February 2011 from Client A. The email refers to a therapy session having occurred earlier that day. The email records that Client A had been taking an antidepressant medication, although not taking it as prescribed. The email also details the self-harming behaviour she had been engaging in (cutting and limiting food intake) and her current thought processes. 2. The Tribunal notes at this point that the letters of referral from Client A's GP to the Respondent record that she suffers from Coeliac disease and had been prescribed antidepressant medication and the contraceptive pill. 3. The Tribunal is satisfied that Particular 6(vii) is established. Particular 7(i) 1. The Tribunal is of the view that the clinical notes kept by the Respondent did not contain comprehensive detail (or any significant detail whatsoever) about the therapy delivered to Client A and her response to it. 2. The Tribunal is satisfied that Particular 7(i) is established. Particular 7(ii) 1. The Tribunal is of the view that the clinical records maintained by the Respondent contained insufficient detail regarding his treatment plan regarding Client A's drug use. Further, the email correspondence between the Respondent and Client A indicate extremely limited interest on the part of the Respondent about her use of methamphetamine. 2. The Tribunal is satisfied that Particular 7(ii) is established. Particular 7(iii) 1. The Tribunal is of the view that the clinical notes failed to adequately document how the Respondent was treating Client A's personality disorder. Apart from the initial report to Client A's GP there is little documentation that could be characterised as recording treatment of a personality disorder. 2. The Tribunal is satisfied that Particular 7(iii) is established. Particular 7(iv) 1. Once again upon reviewing the clinical notes maintained by the Respondent the Tribunal is of the view that they are defective. The notes do not include Client A's history of physical and sexual abuse. Having regard to the information provided by Client A the failure to record this information is grave as such information is pivotal to treatment provided. 2. The Tribunal is satisfied that Particular 7(iv) is established. Particular 7(v) 1. Ethical Principle B.2.1 is set out above. Even a cursory review of the clinical notes kept by the Respondent substantiate that the Respondent failed to maintain adequate notes with respect to Client A. 2. The Tribunal is satisfied that Particular 7(v) is established. 3. At this point the Tribunal notes that the clinical records kept by the Respondent include a copy of a letter dated 31 October 2011 written by the Respondent on behalf of Client A seeking special consideration on the basis of "psychological factors" for difficulties she was encountering with her university studies. The Tribunal has found that sexual contact between the Respondent and Client A had commenced by this time. At this point the Tribunal notes that the evidence of Client A was that the Respondent's conduct towards her was contributing to the "psychological factors" referred to by the Respondent in this special consideration letter. Whilst the gravity of the balance of the Respondent's conduct is substantial such a conflict should not be overlooked as it forms a pattern of deception that may be explored by a future tribunal should the Respondent ever make a review application. Particular 8(i) 1. The Tribunal notes from the email records that by May 2011 the Respondent was encouraging sexually explicit information from Client A and Client A was providing this information. In a lengthy email sent by Client A to the Respondent on 12 May 2011 there is reference to discussions of Client A's "s&m tendencies" (E12). After stating that she was not sure how this came out during the session Client A states: … I must say it was amusing to watch you try to contain your interest I was surprised by how comfortable you were about openly discussing it with me and asking specifics. 1. On the following day the Respondent wrote to Client A (E13): You shall never shock me. I doesn't matter what you say or do. You could walk into my office with nothing but a trench coat and FM boots, and I would still not betray your trust or judge you... 1. On 19 May 2011 Client A sent an email to the Respondent attaching two images of herself naked from the waist up. 2. There is no doubt that the professional boundary was crossed by July 2011 when the Respondent confided in Client A that anal sex was "…a particular kink of mine" (E27) and boasted in another email (E29) that he could insert a pen in his urethra. 3. Once these boundary violations had occurred it was incumbent on the Respondent to terminate the therapeutic relationship. In the view of the Tribunal the therapeutic relationship was irretrievably damaged by these matters (well before any actual sexual contact occurred between them). The only professional course open to the Respondent was to arrange an appropriate referral on to another practitioner and to appropriately terminate the therapeutic (and any other) relationship with Client A. 4. The Tribunal is satisfied that Particular 8(i) is established. Particular 8(ii) 1. In email correspondence between the Respondent and Client A from 19 April 2012 the Respondent advises Client A that his wife had discovered some of the emails that had passed between them on the "gmail" email account they had used. The Respondent provided Client A with the "story" he would like "to play out" (obviously if his wife made contact) (E103). The Respondent also warned Client A that his wife may try to contact her on Facebook and asked her not to accept the contact. The Respondent also asked Client A to ring and cancel the appointment she had with him for "Friday". The Respondent ends this email by stating "I don't think we are going to recover from this … Shit". 2. In her statement Client A states that the Respondent informed her that he had told his wife that they had only ever had a "cyber sexual relationship". 3. Email contact a few days later (E104) make reference to a message that had been placed on Facebook by the Respondent's wife stating that Client A had been having an affair with her husband. Client A also states "I am sorry … I can't imagine what you are going through … I truly am sorry …". The Respondent's reply warrants recording in full to allow an appreciation of the Respondent's lack of concern with appropriate termination of the therapeutic relationship (or what was left of it at that point) (E104): *[Name of Respondent's wife - omitted] doesn't know we are emailing, so play itlow key Im sorry too. At the moment she is putting out a message to retract saying she had the wrong person. Hopefully this works. She will ensure to everyone that she made a mistake. You do not know this btw. She doesn't know Im emailing you. Hopefully it takes the heat off. I don't think we can work it out - honestly. We are separated and not sure if it can be reconciled … :( Sorry she used facebook; she is attempting to wind it back and hopefully people say, 'oh ok'. Sorry again… -G- P.S. Im sorry I violated the patient-clinician trust. It was wrong of me. And Im sorry. :(((((((( 1. There is nothing in the evidence before the Tribunal that indicates that the Respondent made a referral to another psychologist or otherwise took any steps to ensure continuity of care for Client A. 2. The Tribunal is satisfied that Particular 8(ii) is established. Particular 8(iii) 1. Ethical Principle B.3 is set out above under the heading of Particular 5(ii). Ethical Principles B.11.2 and B.11.5 read as follows: B.11.2. When psychologists terminate a professional relationship with a client, they shall have due regard for the psychological processes inherent in the services being provided, and the psychological wellbeing of the client. B.11.5. When confronted with evidence of a problem or a situation with which they are not competent to deal, or when a client is not benefiting from their psychological services, psychologists: (a) provide clients with an explanation of the need for the termination; (b) take reasonable steps to safeguard the client's ongoing welfare; and (c) offer to help the client locate alternative sources of assistance. 1. The Tribunal finds that the Respondent did not have due regard for the psychological processes inherent in the provision of psychological services to Client A and to her psychological wellbeing. Further, the Respondent failed to terminate the therapeutic relationship when it became inappropriate to continue such a relationship given the interactions between them. This was compounded by the failure on the part of the Respondent to ensure Client A's ongoing welfare by arranging for her to have care provided by an appropriately qualified health professional. The conduct of the Respondent is viewed more seriously by the Tribunal as a result of his active recruitment of Client A to assist him with his own personal position with respect to his wife. 2. The Tribunal is satisfied that Particular 8(iii) is established. Particular 9 1. Ethical Principle B.1.4 reads: Psychologists continuously monitor their professional functioning. If they become aware of problems that may impair their ability to provide competent psychological services, they take appropriate measures to address the problem by: (a) obtaining professional advice about whether they should limit, suspend or terminate the provision of psychological services; (b) taking action in accordance with the psychologists' registration legislation of the jurisdiction in which they practise, and the Constitution of the Society; and (c) refraining, if necessary, from undertaking that psychological service. 1. There is no evidence before the Tribunal that the Respondent sought supervision or advice from a senior colleague when providing services to Client A. This is not only a departure from appropriate professional practise it is also a breach of the Code. 2. The Tribunal is satisfied that Particular 9 (and 9(i)) is established. Summary - Complaints One and Two 1. Whilst the Tribunal has made comments regarding the fact that it considers the Respondent is well trained, the Tribunal is of the view that any registered psychologist would have appreciated that the conduct engaged in with Client A was unethical, improper, lacking in judgment and lacking in care. The Respondent held two Area of Practice endorsements. The fact of the Area of Practice endorsements, necessarily, by virtue of the legislative test, means that this Tribunal must view the conduct more seriously than if it had been committed by a person less well trained. 2. Although the Respondent did not appear before the Tribunal, the written material received by the Tribunal left the Particulars of Complaints One and Two uncontested. As noted elsewhere the Respondent made general admissions as to the conduct but did not take the opportunity to address each of the Particulars specifically. 3. The Tribunal is satisfied to the requisite standard that the Respondent is guilty of unsatisfactory professional conduct within the meaning of section 139B(a) and (l) in that engaged in conduct that demonstrates that the judgment possessed and the care he exercised in the practice of psychology is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Further the Tribunal finds that the conduct of the Respondent was improper and unethical. The complaint of unsatisfactory professional conduct is established - specifically each of the sub-particulars of Particulars 1, 4, 5, 7, and 8 are found by the Tribunal to amount to unsatisfactory professional conduct standing alone. Particulars 2, 3, 6 and 9 are also found to individually amount to unsatisfactory professional conduct. 4. The HCCC provide submissions as to aspects of the conduct that would establish professional misconduct. Jacobsen v Nurse Tribunal (unreported Dunford J BC9705032) involved a mental health nurse who arranged for an ex-patient to move into his home as a "boarder" the day after he handed over her care to another practitioner and commenced a sexual relationship with her shortly thereafter. The court held: The plaintiff had entered into a sexual relationship with an ex-patient, of whom he knew much that was confidential to the professional relationship, and who was likely to suffer from future mental illness. This fact alone was serious enough to elevate the nature of the conduct from unsatisfactory professional conduct to professional misconduct as it undoubtedly offended against the foundations of the nurse/patient relationship and justified the removal of the plaintiff's name from the register. 1. The HCCC also refers to an extract from HCCC v Engel Jones [2011] NSWNMT 23 which was applied in HCCC v Scully [2011] NSWNMT 28 which reads as follows: The Tribunal has an obligation to assist in maintaining public confidence in the nursing profession and to confirm for nurses (and midwives) that that their professions standards will be maintained. The order that the Tribunal makes in the circumstances of this case must reflect the fact that mental health patients are perhaps the most emotionally vulnerable patients a nurse may treat and that the ethical standards of nurses need to be steadfastly maintained in relation to them. Keeping the professional boundary between themselves and their patients is a matter that is well understood and practised by most mental health nurses. 1. The HCCC submitted that these matters involved relationships with former patients and that the breach of boundaries will necessarily be more extreme in circumstances where it involves a current patient, a trusting therapeutic relationship is breached, the exploitation is of a particularly vulnerable client and encouragement is given to engage in denigrating and prima facie criminal conduct. The Tribunal accepts these submissions. 2. The Tribunal is of the view that the conduct is of a sufficiently serious nature to warrant cancellation of the practitioner's registration. Complaint Two is therefore established. The Tribunal makes a finding of professional misconduct with respect to each of Particulars 1(ii), 1(iii), 1(v), 1(vi), 1(vii), 1(viii), 2, 3, 4(i), 4(ii), 5(i), 5(ii), 5(iii), 6(i), 6(iii), 6(v), 6(vi), 6(vii), 7, 8 and 9. Findings re Complaint Three 1. The Tribunal notes that the Respondent does not challenge this Complaint of impairment. The Tribunal accepts the evidence of both Dr Westmore (report dated 11 April 2013) and Dr Lennings (both his report dated 11 June 2013 and his oral evidence). The Tribunal notes that the evidence detailed in these written reports was relied upon by the Respondent. 2. The Tribunal accepts the diagnoses reached by Dr Westmore made at the time he assessed the Respondent. Dr Westmore diagnosed the Respondent as suffering from a mental impairment or disorder, namely a complex paraphilia characterised by periods of fetishism (non-living objects), zoophilia (animals) and an obsessive compulsive pre-occupation with pornographic material that detrimentally affects the practitioner's capacity to practise the profession. 3. In describing the Respondent's paraphilia as "complex" the Tribunal notes that there were multiple aspects to the Respondent's paraphilia, that they were long standing, obsessive and compulsive. Hence the Tribunal has described it elsewhere in this document as complex/multiple paraphilia. 4. The Diagnostic and Statistical Manual of Mental Disorders, Fifth edition (DSM-5) published in May 2013 recasts the classification pertaining to Paraphilic Disorders from that of the previous DSM – IV. In DSM-5 a "paraphilia" is distinguished from a "paraphilic disorder" in that the former refers to sexual interests that are greater than or equal to normophilic sexual interests, whereas such becomes a "disorder" when those interests or related behaviour cause distress or impairment, or involve personal harm, or risk of harm to others. The Tribunal is neither troubled by nor competent to express opinion on this matter of formal diagnosis. It simply notes that whether the Respondent can be said to have a "complex paraphilia/paraphilic disorder" or "multiple" and/or "co-morbid paraphilias/paraphilic disorders" it is clear that he has a substantial degree of impairment. 5. The Tribunal also accepts the evidence of Dr Westmore that there is a guarded prognosis unless the Respondent undertakes adequate and appropriate treatment. The Tribunal has no evidence that the Respondent has undertaken such treatment. The Respondent certainly did not follow through with the treatment planned with Dr Lennings. There is nothing to support the Respondent claiming that he had not sought treatment as a result of financial difficulties despite having raised this as a reason why he would not be in a position to meet any "fines" imposed. 6. The HCCC submission also provides a comprehensive analysis of authorities on the matter of whether an inference can be drawn from the Respondent's failure to give evidence. The Tribunal accepts all of the submissions made under the heading "The effect of the Respondent not giving evidence" which commences on page 9 of the written outline. The overall effect is that the Tribunal is of the view that it is entitled to draw an adverse inference from the failure of the Respondent to give evidence before the Tribunal in the circumstances of this matter. Further the Tribunal would be entitled to rely on this adverse inference to make findings upon any Particulars where the factual elements were within the Respondent's knowledge. This position accords with the Tribunal's view that it incumbent on all registered health practitioners (or previously registered health practitioners) to attend before the relevant body (tribunal, panel, Council or Board) and answer allegations made in relation to their conduct. This is the counterpart responsibility of the privilege of holding registration. In this matter the Tribunal has been satisfied on the evidence before it of each of the Particulars and does not therefore need to draw any inferences in relation to the Respondent's failure to attend before it to give evidence. 7. The question for the Tribunal is whether the Respondent suffers from an impairment as at the time of making this decision. 8. The Tribunal has the benefit of having heard oral evidence from Dr Lennings at the hearing in addition to his comprehensive report (dated 11 June 2013). The Tribunal accepts Dr Lennings opinion that the paraphilia condition suffered by the Respondent is well entrenched and that his "urges" were likely to resurface unless he received appropriate treatment. Dr Lennings further opined that the mere abstaining from viewing pornography would not impact upon the Respondent's condition nor would supportive counselling alone. 9. The Tribunal is of the view that there is sufficient evidence to find that the Respondent continues to suffer from an impairment as at the date of this decision. Further, based on the evidence before the Tribunal it has formed the view that there is little prospect that the Respondent will overcome this impairment to the point where it would not be likely to detrimentally affect his capacity to practise the profession. 10. The Tribunal finds Complaint Three established. Findings re Particulars of Complaint Four Particular 1 1. The Tribunal has made a finding that the Respondent suffers from a mental impairment or disorder, namely a multiple/complex paraphilia characterised by periods of fetishism (non-living objects), zoophilia (animals) and an obsessive compulsive pre-occupation with pornographic material (pictophilia) that detrimentally affects his capacity to practise psychology. 2. The Tribunal finds Particular 1 established. Particular 2 1. The impairment rendered the Respondent incapable of making proper clinical judgments with respect to Client A and of inhibiting his abhorrent behaviour. 2. The Tribunal is of the view that the nature and degree of the Respondent's impairment detrimentally affects his mental capacity to practise psychology. 3. The Tribunal finds Particular 2 established. Particular 3 1. The conduct detailed in the Particulars of Complaints One and Two is indicative of a lack of mental capacity on the part of the Respondent. The Tribunal looks to factors such as: * There being a compulsion evident from the email evidence before the Tribunal demonstrating that the Respondent had no capacity for self-control. * The rampant escalation of the Respondent's sexual behaviour with Client A is another demonstration of a lack of ability to be self-aware of his conduct. * The callous disregard for the mental and physical welfare, dignity and reputation of Client A is of such magnitude that it demonstrates the mental capacity of the Respondent is not sufficient to practise psychology * The extreme nature of the grooming and opportunistic predation engaged in by the Respondent also supports a lack of mental capacity to practise psychology (or indeed any other health service). 1. The Tribunal finds Particular 3 established. Summary - Finding re Complaint Four 1. The Tribunal is of the view that the Respondent shows no real insight in to his conduct. Further that he has no recognition of the need to seek professional help. The callous disregard for Client A demonstrated by his conduct also points to a lack of mental capacity to practise psychology. The Tribunal notes from the evidence that the Respondent had awareness that his conduct was in breaching the Code. His conduct was not a "one-off" rather it resulted from abstract thinking, decision making and his form of ethical reasoning. 2. The Tribunal finds that the Respondent is not competent to practise psychology under section 139 of the National Law as he does not have sufficient mental capacity to practise the profession of psychology. Peer Reviewer 1. Dr Timothy Keogh provided peer review evidence to the Tribunal. The Tribunal accepts the views expressed by Dr Keogh both in his report dated 5 May 2013 and in the oral evidence he gave before the Tribunal. 2. The opinion of Dr Keogh regarding the email contact engaged in by the Respondent with Client A is of particular assistance. Dr Keogh notes that there are no formal guidelines available from the APS or the PsyBA regarding the use of emails in the provision of psychological services. Notwithstanding this Dr Keogh opines that there are a number of scholarly contributions on this issue as well as the application of Code to such communications with a client. 3. Dr Keogh reports that in an article, Psychologists' use of e-mail with clients: some ethical considerations, Drude s Lichstein (August 2005 - The Ohio Psychologist - 13-17) the following suggestions are made regarding the use of email in therapy: a. That email communication should only be used if face to face or telephone contact is not possible; b. That the psychologist should educate the patient about what types of information and discussion are appropriate for email and those that are not; and c. That psychologists should maintain printed copies of all messages to and from clients. This is specifically to remind all parties that such communications are professional rather than casual and that they have potential clinical, legal and ethical importance. 1. Dr Keogh expresses the opinion that the Respondent did not adhere to Section A.3.3 of the Code before the email communication commenced as he failed to explain the nature and purpose of the procedures he intended using, he did not explain the disadvantages of this method or explain how the information gained would be collected, stored and recorded. 2. Dr Keogh also opines that the Respondent breached Section A.4 of the Code as he did not avoid undue invasion of privacy in the collection of information and only collecting information relevant to the services being provided. In his view there can be no justification for the Respondent asking Client A to reveal anything and everything about herself to him. 3. Dr Keogh also expresses the view that the manner in which the Respondent used the emails fell below the standards prescribed in Section A.2.1 of the Code as he ultimately allowed the email communications "to become a means by which he abused and denigrated" Client A. 4. As with the use of email communications with clients, Dr Keogh notes that there are no official guidelines that deal with the keeping of email correspondence in the clinical notes. Once again Dr Keogh points to the general understanding of the profession that such documents are communications between a psychologist and a client and should form part of the clinical notes. 5. Dr Keogh opines that the failure to keep copies of the email communications is a breach of Section B.2.1 of the Code. The severity of the breach is amplified by the fact that the Respondent told Client A that their purpose was to be part of the interventions he was providing. 6. Dr Keogh also provided an opinion regarding the clinical notes kept by the Respondent regarding Client A. In summary Dr Keogh found the notes to be "largely jottings and points" and lacking the substance required to be able to make clinical formulations and a diagnosis. There is little comprehensive detail regarding the therapy delivered or her response to it. Overall the notes represent "a confused amalgam of treatments whose application is hard to discern". Dr Keogh also observed that whilst there are many references to Client A's drug use there is little indication of what plan there was to address this major issue. 7. Dr Keogh comments on the Respondent's letter reporting to the referring GP. He concludes that the letter highlights the inadequacy of the Respondent's clinical notes as well as a lack of clarity in his clinical formulation. 8. Dr Keogh expresses the view that it is likely that the Respondent failed to establish adequate boundaries at the time Client A initially consulted him. He identifies early boundary transgressions to involve commenting on Client A's sexual attractiveness and encouraging her to send him photos of herself. The report of Dr Keogh continues (at page 14): Whilst these original boundary transgressions are serious enough, the later ones which include Mr Dawes encouraging his seriously disturbed client (who had a history of abuse and sexual abuse) into perverse sexual behaviour are particularly serious. His use of abusive sexual language towards his client (which disrespected and denigrated her), promoting and engaging in oral sex, as well as anal and vaginal penetration of her, and ultimately promoting and being an active participant in allowing her to be anally and vaginally penetrated by dogs (bestiality), exposure [of] her to a third party who was involved in her having sex with a dog and allowing this person to be present and masturbate at the sight of her having sex with a dog, all represent gross transgressions of professional boundaries. 1. Dr Keogh further comments that he considers the Respondent's conduct to represent the highest level of unethical behaviour for a psychologist. 2. With respect to the sexual contact with Client A Dr Keogh expresses serious criticism of the Respondent's conduct. He notes that ultimately the Respondent invited Client A to be involved with his most exciting perverse sexual fantasy (sex with a dog). The exploitation and disregard for Client A's welfare takes Dr Keogh's criticism to the strongest possible level. 3. Overall there is nothing in the evidence of Dr Keogh that discords with the views of the Tribunal. Considerations relevant to Orders 1. The Tribunal was satisfied that the Respondent was fully appraised of the submissions that would be made by the HCCC as to both the findings as to the Particulars/Complaints and the Orders it would seek should those Particulars/Complaints be established. The Tribunal therefore proceeded with a "one stage" hearing, that is determining both the Complaint and the protective orders flowing therefrom. It is therefore appropriate for the Tribunal to proceed to consider the orders that should flow from findings of professional misconduct, impairment and lack of competence. 2. The Tribunal has evidence that the Respondent had accessed professional supervision and mentoring. Initially this had been for the purpose of obtaining his Forensic Endorsement but it continued thereafter. 3. The Tribunal is of the view that this matter is at the upper end of severity. The Respondent engendered a deep sense of trust in both his abilities as a psychologist and as a "wise" person during the early treatment sessions. The vulnerability of Client A would have been patently obvious, not only to a qualified psychologist - but to any right minded person. She had a history of being the victim of various forms of abuse, of being a drug user and having had an eating disorder. 4. After gaining the trust of Client A the Respondent then set about manipulate her to participate in sexual acts with him - acts that she had initially indicated she had no interest in. 5. The Respondent then used Client A to fulfil his own sexual fantasies. Theses "fantasies" which involved criminal acts. The acts also involved third parties - both human and canine. Apart from some reassuring words there does not seem to have been any real care shown by the Respondent for Client A's mental or physical wellbeing. Client A's evidence, which is accepted by the Tribunal, is that she suffered physical injuries during the sexual encounters with the dog and has suffered psychologically from the whole involvement with the Respondent. 6. After using and abusing Client A the Respondent then recruited her help to attempt to cover up his conduct from his wife. 7. The elements of "grooming" are evident from many aspects of the Respondent's conduct. The Tribunal notes that Client A recounts the manner in which the Respondent would not mention the videos that they had been sharing until toward the end of the consultation. He often introduced this topic by asking how her "homework" was going. When these conversations occurred Client A felt that the Respondent was trying to gauge her reaction to the videos and to see how comfortable she was with them. Client A states that these conversations would have alerted the Respondent to the fact that it was more difficult for her to discuss them face to face rather than by email. 8. The Tribunal has no evidence of any professional conduct by the Respondent towards Client A with respect to termination of the therapeutic relationship or appropriate referral. The Tribunal does have evidence of total disregard for the ongoing welfare of Client A. 9. There is evidence before the Tribunal that the Respondent has attended a Counsellor (see report at Exhibit 9). This report records the Respondent had attended regular counselling sessions from 1 May 2012 to the date of his first report (31 January 2013). Initially the Respondent presented for an "online sex/porn addiction" which he said had caused the breakdown of his marriage. He informed the Counsellor that this behaviour had ceased by the time of this first consultation. Subsequently the Respondent informed the counsellor that his addiction was not just online but extended to sexual contact with another woman including "discussions" about "fetishes/non-standard sexual practices". This report also records that at a "more recent session" the Respondent had disclosed the extramarital sex was actually with a "former client". The Counsellor reports that his main role was "supportive counselling" in relation to past activity so he had not made any referrals for the Respondent. They had discussed "Sex Addiction Support groups" and understood the Respondent had attended one meeting. The Counsellor was also aware that he attended a program at the South Pacific Private Hospital independently of any referral from him. 10. The case notes made by the Counsellor record that the Respondent informed him that he had received legal advice in relation to the HCCC investigation of his conduct. 11. The Counsellor provided a further report dated 7 May 2014. The Counsellor stated he was not qualified to provide an opinion as to whether or not the Respondent suffered from an impairment. The report recorded that the Respondent recognised and regrated the role he played in the matters being investigated by the HCCC. The regret had caused the Respondent to deregister himself as a psychologist and he no longer intends to practise as a psychologist at any time in the future. Further, the Respondent was focussed on retraining so that he could financially provide for his children. The Respondent had informed the Counsellor that he had ceased all "non-standard and fetish sexual practices and porn-related compulsive behaviour" prior to the first counselling session and in fact had not engaged in any sexual activity with another party since that time. The Respondent had also informed the Counsellor that he had. On a "very rare basis" and for "short durations" viewed porn online. In oral evidence the Counsellor clarified his understanding that this occurred less than once per month. The Counsellor also understood that the Respondent had been prescribed anti-depressants by his GP to support his emotional wellbeing. 12. The Tribunal notes the qualifications of the Counsellor are as follows: * Bachelor of Arts * Masters of Arts (Education) * Diploma of Holistic Counselling * Diploma of Ecopsychology * Certificate of Transformational Coaching * Certificate of Integral Coaching Such qualifications endorse Mr Conyer's evidence that he is not qualified to comment on any diagnosis for the Respondent. 1. The Tribunal accepts the evidence of Dr Lennings that this type of supportive counselling will not bring about remediation of the disorder suffered by the Respondent. 2. The HCCC made submissions regarding considerations relevant to protective orders. The submission reads at paragraph 25 as follows: In HCCC v Litchfield (1997) 41 NSWLR 630 at 637-638 it was held that the Tribunal's jurisdiction must be exercised bearing in mind the need to protect the public and to maintain high standards in the profession. In NSW Bar Association v Meakes [2006] NSWCA 340 at [114] Basten JA listed the following important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order: (a) The order reminds other members of the profession of the public interest in the maintenance of high professional standards. (b) The order may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. (c) By speaking to the public at large, the order seeks to maintain confidence in the high standards of the profession. 1. The HCCC submission also notes that Basten JA stated in Meakes (at [101]) that "high standards of honesty and integrity [are] required in accordance with general law principles governing professional responsibility". 2. The Tribunal accepts these are matters relevant to the consideration of protective orders in this matter. 3. The HCCC written outline of submission also covers the question of whether or not the practitioner is "not of good character". The Tribunal notes that this is not subject of a Complaint (although under the National Law it would be described as "not a suitable person"). If such a Complaint was made the Tribunal would have found it established. The conduct of the Respondent would support a finding of "not of good character" and "not a suitable person". Further, the Respondent's impairment and lack of competence would support a finding of "not a suitable person". The Tribunal is also of the view that the Respondent would not be able to demonstrate that he is a fit and proper person to hold registration. The matters of good character and suitable person are not considered by the Tribunal in making the following protective orders. 4. The HCCC also submitted that the exercise of Tribunal's jurisdiction should take into account the need to protect the public and to maintain high standards in the profession (HCCC v Litchfield (1997) 41 NSWLR 630 at 637-638). Further in NSW Bar Association v Meakes [2006] NSWCA 340 (at [114]) Basten JA listed important but indirect effects of a disciplinary order that should be considered when determining appropriate protective orders being: * Whether the order reminds other members of the profession of the public interest in the maintenance of high professional standards * Whether the order gives emphasis to the unacceptability of the kind of conduct involved * Whether it speaks to the public at large that the order seeks to maintain confidence in the high standards of the profession 1. The Tribunal accepts these submissions as relevant to the making of protective orders in this matter. 2. Another area where the HCCC makes detailed submissions is whether the Tribunal is entitled to consider whether, if the Respondent were registered, it would have proceeded to make a suspension or cancellation order. 3. The Tribunal is of the view that the Respondent is not fit to practise as a psychologist. Nothing in the evidence supports the Respondent being able to overcome the substantial flaws in his character that are evident from this document in the medium or even long term - if at all. The evidence regarding the Respondent's failure to engage in treatment is of grave concern to the Tribunal and does not bode well for the rehabilitation of the Respondent. 4. It is well documented that all health practitioners that are in a treatment relationship with a client/patient are in a position of power. In simple terms the power differential arises due to the client/patient having sought treatment from the health practitioner due to the expertise that that practitioner is expected to hold by virtue of their holding registration in a regulated profession. In the profession of psychology this treatment relationship generally develops into a therapeutic relationship as that is the nature of the kind of services provided by psychologists and the health needs of the clients. Generally the power imbalance becomes considerably greater as a result. The Tribunal also observes that generally clients attending psychologists will be more vulnerable given the nature of the health service they are seeking. 5. In this particular matter Client A was a particularly vulnerable client. She was young, lacked family support, had been subjected to physical abuse and sexual abuse and was suffering from significant medical and mental conditions at the time she consulted the Respondent. This is an aggravating feature of the Respondent's conduct. 6. There are few matters were the severity of the conduct exceeds that set out in the Particulars of this matter. Even if the conduct was not in this extreme category the Tribunal would not be satisfied that any other order (apart from cancellation of registration) would protect the public, maintain the standards in the profession, maintain the confidence that the public is entitled to have in a registered health profession and to act as a deterrent to this type of conduct. The reasons for the Tribunal's view that cancellation and disqualification is the only appropriate course includes the objective seriousness of the conduct, the Respondent's lack of insight into his conduct, his compulsion to continue with the conduct despite knowing it was contrary to ethical (and moral) standards, his deception and lack of care, his failure to engage in treatment, the impairment suffered by the Respondent and his lack of competence. 7. Similarly, the Tribunal is of the view that protection of the public requires the making of a prohibition order in accordance with s149C(5) of the National Law. The Tribunal has had regard to the expert evidence of Dr Westmore and Dr Lennings. There is nothing significant in the evidence before the Tribunal that would allow a finding that the Respondent has in any way rehabilitated. Given the nature of his conduct, the length of time he engaged in the conduct and lack of remediation the Tribunal is of the view that the Respondent poses a substantial risk to the health of members of the public. The Tribunal notes that the National Law was recently amended to allow this Tribunal to make a prohibition order in circumstances where the Respondent was previously registered. The Tribunal notes that this power was not included in the National Law as introduced in 2010 but it was available under the previous legislation (s53(3A) - Psychologists Act 2001). 8. In accordance with s149C(5)(a) the Tribunal is able to make a prohibition order for a specified period or permanently. The Tribunal is not aware of any other instance where a prohibition order was made permanently. The Tribunal has had regard to both the purpose of the National Law, in particular s3A thereof, and the facts and circumstances of this matter. The Tribunal is of the view that as the protection of the health and safety of the public must be the paramount consideration a permanent prohibition order is required. 9. The Tribunal would have reprimanded the Respondent in the strongest possible terms and made an Order cancelling the Registration of the Respondent had his registration not lapsed. The Tribunal requests that the National Board record in the National Register kept by that Board the fact that the Tribunal would have cancelled the Respondent's registration had he still been registered as at the date of this decision (see Health Care Complaints Commission v Do [2014] NSWCA 307). 10. The Tribunal was satisfied that the Respondent poses a substantial risk to the health of members of the public and has proceeded to make a permanent prohibition order regarding the provision of the following 'Health Services' as defined in s4 of the Health Care Complaints Act 1993: 1. Community health services; 2. Counselling; 3. Mental health services; 4. Health education services; 5. Welfare services necessary to implement the above services; and 6. Services provided in other alternative health fields 1. The Tribunal notes the power to award costs is set out in clause 13 of Schedule 5D of the National Law. The Tribunal accepts the submission of the HCCC that it is has established an entitlement to its costs. The Tribunal also notes that there were no aspects of the manner in which the case was conducted that could be viewed as anything other than essential. Orders 1. The Tribunal (the Respondent being hereinafter referred to as the Practitioner): 1. Declares that if the Practitioner were still registered as a psychologist the Tribunal would have cancelled his registration. 2. Orders that the Practitioner is disqualified from being registered as a psychologist for a period of 10 years commencing on the date of publication of Health Care Complaints Commissioner v Dawes [2015] NSWCATOD 8. 3. Orders that the Practitioner is permanently prohibited from providing the following 'Health Services' as defined in s 4 Health Services Act 1993 (NSW) (Prohibition Order): 1. Community health services; 2. Counselling; 3. Mental health services; 4. Health education services; 5. Welfare services necessary to implement the above services; and 6. Services provided in other alternative health fields. 1. Orders that the only appropriate review body for any application made by the Practitioner is NCAT (or any successor to it in time) or the 'responsible tribunal' as defined in s 5 of the National Law. 2. Order that the Respondent pay the costs of the HCCC as agreed or assessed. If agreement cannot be reached between the parties then the parties have leave to apply to the Tribunal for assessment unless some other assessment mechanism is provided for at the relevant time. 3. Requests that the Psychology Board of Australia record in the National Register kept by that Board the fact that the Tribunal would have cancelled the Respondent's registration had he still been registered as at the date of this decision. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2015