Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dewar (No.2) [2015] NSWCATOD 23 Hearing dates: 11, 12, 13, November 2014 Decision date: 01 April 2015 Jurisdiction: Occupational Division Before: M Brennan, Principal Member L Tong, Professional Member W Warren, Professional Member F Taylor, Lay Member Decision: 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) No 86a ("the National Law") if the respondent practitioner had been registered as a psychologist on the National Register of Health Practitioners maintained by the Australian Health Practitioner Agency ("the Register") the Tribunal would have suspended his registration for three months. 2. Pursuant to s 149C(4)(c) of the National Law, the Psychology Board of Australia (the Board") shall record that the Tribunal would have suspended the respondent practitioner's registration in the Register kept by the Board for three months. 3.The Tribunal reprimands the respondent practitioner. 4.Pursuant to s 149A(3) the respondent practitioner is prevented from being registered unless he meets the requirements prescribed in the National Law and satisfies the Board that the following orders are complied with: (a) The practitioner must arrange for a Board approved supervisor to supervise the practitioner in his day to day practice for two years, including but not limited to the practitioner's consultations with clients in their private residences; his record keeping; and the practitioner's management of his client load and scope of practice. The practitioner must provide a copy of this decision and that made in Health Care Complaints Commission v Dewar [2014] NSWCATOD 139 to the Board approved supervisor; (b) The practitioner must undergo psychological counseling with a clinical psychologist by attending at least six consultations prior to seeking registration; (c) The practitioner must undertake the following Australian Psychological Society (APS) on-line courses: Private Practice Management Standards for Psychology and Fundamentals of Cognitive Behaviour Therapy (CBT) and provide the Board with evidence of his completion of these courses at the time he seeks to be registered; (d) Further, the practitioner must undertake the APS facilitated module on Suicide Prevention Professional Development Training and at least a day workshop on Ethics such as Dr Phil Watts' course "Bullet-proofing psychology: Ethical, legal and professional considerations" and provide the Board with evidence of his completion of these courses at the time he seeks to be registered. If any of the programs particularised in paragraphs (c) and (d) are not available to the practitioner at the time he seeks to undertake them, the Board can stipulate an alternative course(s) to cover the subject areas identified by the Tribunal. 5. The practitioner is to pay the complainant's costs as agreed or assessed. Catchwords: ADMINISTRATIVE LAW –Civil and Administrative Tribunal. Professional disciplinary proceedings against a psychologist. Protective orders in case of de-registered practitioner and costs. Legislation Cited: Health Practitioner Regulation National Law (NSW) No.86a Cases Cited: HCCC v King [2011] NSWCA 353 HCCC v Litchfield [1997] NSWSC 297 Bannister v Walton (1993) 30 NSWLR 699 Health Care Complaints Commission v Dr Hofer [2014] NSWCATOD 74 Health Care Complaints Commission v Do [2014] NSWCA 307 Ohn v Walton (1995) 36 NSWLR 77 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Darryl Dewar (Respondent) Representation: Counsel: H Bennett (Applicant) Solicitors: Health Care Complaints Commission (Applicant) DLA Piper (Respondent) File Number(s): 1420187 Publication restriction: Clause 7 of Schedule 5D of the Health Practitioner Regulation National Law(NSW) No 86a applies to the details of Client A and to the medical practitioner who referred Client A to the respondent reasons for decision SECOND STAGE HEARING What The Tribunal decided 1. Pursuant to s 149C(4)(a) of the National Law the Tribunal declares that if the practitioner were still registered the Tribunal would have suspended his registration for three months. 2. Pursuant to s 149C(4)(c) of the National Law the Tribunal requires the Board to record the fact that the Tribunal would have suspended the practitioner's registration in the Register kept by the Board. 3. The Tribunal reprimands the practitioner. 1. Pursuant to s 149A(3) of the National Law the practitioner is prevented from being registered unless he meets the requirements prescribed in the National Law and satisfies the Board that he has complied with the following orders: 1. The practitioner must seek and take advice in relation to the management of his practice from a Board approved supervisor who will supervise the practitioner in his day to day practice for two years, including but not limited to: the practitioner's consultations with clients in their private residences; his record keeping; and the practitioner's management of his client load and scope of practice. The practitioner must provide a copy of this decision and that made in Health Care Complaints Commission v Dewar [2014] NSWCATOD 139 to the Board approved supervisor. 2. The practitioner must undergo psychological counseling by attending at least six consultations with a clinical psychologist prior to seeking registration; 3. The practitioner must undertake the following APS on line courses: Private Practice Management Standards for Psychology and Fundamentals of Cognitive Behaviour Therapy (CBT) and provide the Board with evidence of his completion of these courses at the time he seeks to be registered; 4. Further, the practitioner must undertake the APS facilitated module on Suicide Prevention Professional Development Training and at least a day workshop on Ethics such as Dr Phil Watts' course "Bullet-proofing psychology: Ethical, legal and professional considerations" and provide the Board with evidence of his completion of these courses at the time he seeks to be registered. If any of the programs particularised in paragraphs (c) and (d) are not available to the practitioner at the time he seeks to undertake them, the Board can stipulate an alternative course(s) to cover the subject areas identified by the Tribunal. 1. The practitioner is to pay the complainant's costs as agreed or assessed. Introduction 1. On 27 November 2014 this Tribunal found that the practitioner had engaged in unsatisfactory professional conduct and professional misconduct under the National Law. These reasons for decision should be read in conjunction with the Tribunal's earlier factual findings detailed in Health Care Complaints Commission v Dewar [2014] NSWCATOD 139. 2. At a case status hearing conducted on 3 November 2014, the complainant proposed that the hearing be conducted in two stages in light of the decision in HCCC v King [2011] NSWCA 353 so that the practitioner could consider the Tribunal's findings and then be able to file any evidence or make submissions on any protective orders which may follow and in relation to costs. The practitioner agreed with this approach. 3. In the final stages of the hearing of the Complaints on 11 November 2014 the applicant provided written submissions addressing the Complaints, the evidence and proposed protective orders and costs. 4. On 27 November 2014 the Tribunal delivered its decision on the Complaints. Its orders included: "The practitioner may adduce evidence and submissions on the appropriate orders consequential to the Tribunal's findings by 10 December 2014 by lodging such material with the Registrar of the Occupational Division, New South Wales Civil and Administrative Tribunal by 10 December 2014. He should also advise the Registrar at this time whether he would like to appear in person to make oral submissions to the Tribunal or whether he agrees with the Tribunal considering protective orders and costs on the basis of any evidence or submissions he has filed and those of the applicant." 5. On 6 December 2014 the Registrar received a letter from the practitioner seeking an extension of time to file and serve a submission until 30 January 2015. The letter included a medical certificate detailing that the practitioner was unfit to participate in court proceedings until 20 December 2014. The complainant did not oppose the extension request. On 10 December 2014 the Tribunal granted the practitioner an extension until 30 January 2015 to lodge any submissions on protective orders and costs. 6. On 30 January 2015 the Tribunal received a submission from the practitioner's lawyers, DLA Piper. The submission included letters from the practitioner, Mr Greg Sorrell, Mr Robert Haebich and Dr Ewa Latoszynska. The submissions did not advise the Registrar whether the practitioner would like to appear in person to make oral submissions to the Tribunal or whether he agreed with the Tribunal considering protective orders and costs on the basis of the evidence or submissions he and the complainant had filed. In view of this, the Tribunal wrote to the respondent's lawyers seeking confirmation within 3 days that the practitioner agreed with the Tribunal considering protective orders and costs on the basis of the material he and the applicant had filed. A copy of this letter was also sent to the complainant. 7. On 12 February 2015 the respondent's lawyers advised the Tribunal that their client was content for a decision on protective orders and costs to be made on the basis of the parties' written submissions. 8. On 18 February 2015 the Tribunal convened to consider the parties' submissions. National Law and protective orders 1. Section 3 of the National Law sets out the objectives and guiding principles of the Law, as those objectives and principles apply to the national registration scheme. 2. Importantly, Section 3A provides as follows: "In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration." 3. The purpose of protective orders has been examined in numerous decisions involving health practitioners. Those principles are discussed in cases including HCCC v Litchfield [1997] NSWSC 297 and Bannister v Walton (1993) 30 NSWLR 699. As noted by the Tribunal in Health Care Complaints Commission v Dr Hofer [2014] NSWCATOD 74, in making protective orders the Tribunal should take account of the following considerations: 1. the protection of the public is the paramount consideration; 2. the maintenance of the high standards of the profession; 3. deterring not only the particular practitioner, but also others who may stray from the appropriate standards; 4. to emphasise the unacceptability of the conduct involved; and 5. that while not intended to be punitive, the orders nevertheless may have such an effect. [272] 1. In the New South Wales Court of Appeal decision of Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA with whom Basten JA and Emmett JJ concurred, discussed both the value of deterrence and the importance of public confidence and noted: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining the standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." [35] The complainant's submissions 1. The complainant submits that the appropriate orders should include: 1. a declaration pursuant to s 149C(4) that if the practitioner were still registered the Tribunal would have cancelled his registration; 2. The practitioner is disqualified from being registered in the health profession of psychology for 2 years; 3. the National Board with which the practitioner was registered is to record the fact that the Tribunal would have cancelled the practitioner's registration in the National Register kept by the Board. 1. The complainant notes the imperative for the Tribunal to denounce the practitioner's conduct which will act as a deterrent to the practitioner, as well as other psychologists. The complainant also refers to the Tribunal's powers in s 149A(3) relating to cautions, reprimands and conditions if a health practitioner is no longer registered. It submits this section should not be used in this case and that any conditions to be imposed on the practitioner would be most appropriately determined at the time of any application for re-registration. The practitioner's submissions 1. The practitioner submits that a reprimand would be an appropriate response to his conduct as would the placing of a number of conditions upon his registration at the time of his re-registration. These include that he undergo further training on proper record keeping, that he be supervised for two years and that the supervisor will provide reports to the Psychology Council via the complainant, every three months. Discussion and findings 1. The Tribunal was assisted by the parties' written submissions in considering appropriate protective orders in this matter. It accepts that the practitioner has shown some insight into why the consultation with Client A on 25 October 2012 resulted in the findings made on 25 November 2014. The Tribunal notes the opinion of Mr Greg Sorrell, a clinically endorsed psychologist who has worked with the practitioner intermittently for approximately twenty years before and after the practitioner was registered. Mr Sorrell was also the practitioner's supervisor while the practitioner was provisionally registered. The professional members consider Mr Sorrell to be a highly respected member of the psychology profession. 2. Mr Sorrell refers to the practitioner helping hundreds of clients in areas "marked by educational and social dislocation" that many "other private practitioners are unwilling to tackle." Mr Sorrell also raises the possibility of the practitioner being subject to a health condition which, when combined with serious and prolonged stress, might partly explain the conduct covered by the Complaints. 3. The Tribunal notes the objective and guiding principle in the National Law set out in s 3A that the protection of the health and safety of the public must be the paramount consideration. In view of its finding that the practitioner engaged in professional misconduct it has decided to exercise its powers under s 149C(4)(a) of the National Law and make a declaration that if the practitioner were still registered the Tribunal would have suspended his registration for three months. Further, pursuant to s 149C(4)(c), the Tribunal requires the Board to record the fact that the Tribunal would have suspended the practitioner's registration in the Register kept by the Board. 4. It considers that a declaration that it would have cancelled the practitioner's registration for two years is excessive in this case. It is mindful of the importance of deterrence to the practitioner in question and to other psychologists. It considers this has been achieved through the orders made above and in the paragraphs which follow. 5. The Tribunal has some concerns about the practitioner's competence to practice and also his current psychological health. In view of these concerns, it also exercises the powers given under s 149A(3) to prevent the practitioner being registered unless he complies with the requirements prescribed in the National Law and satisfies the Board that he has complied with the following orders: 1. Pursuant to s 149A(1)(f) the practitioner must seek and take advice in relation to the management of his practice from a Board approved supervisor who will supervise the practitioner in his day to day practice for two years, including but not limited to the practitioner's consultations with clients in their private residences; his record keeping and the practitioner's management of his client load and scope of practice. The practitioner must provide a copy of this decision and that made in Health Care Complaints Commission v Dewar [2014] NSWCATOD 139 to the Board approved supervisor. 2. Pursuant to s 149A(1)(c) the practitioner must undergo psychological counseling by attending at least six sessions with a clinical psychologist prior to seeking registration; 3. Pursuant to s 149A(1)(d) the practitioner must undertake the following APS on line courses: Private Practice Management Standards for Psychology and Fundamentals of Cognitive Behaviour Therapy (CBT) and provide the Board with evidence of his completion of these courses at the time he seeks to be registered; 4. Further, pursuant to s 149A(1)(d) the practitioner must undertake the APS facilitated module on Suicide Prevention Professional Development Training and at least a day workshop on Ethics such as Dr Phil Watts' course "Bullet-proofing psychology: Ethical, legal and professional considerations" and provide the Board with evidence of his completion of these courses at the time he seeks to be registered. If any of the programs particularised in paragraphs (c) and (d) are not available to the practitioner at the time he seeks to undertake them, the Board can stipulate an alternative course(s) to cover the subject areas identified by the Tribunal. 1. The Tribunal notes the practitioner's submission regarding various conditions being imposed upon his registration. While some of the orders made by the Tribunal pursuant to s 149A(1) are very similar to the conditions proposed by the practitioner, the Tribunal is concerned to ensure that the practitioner complies with the orders as a prerequisite to registration. It considers this is an essential step in the protection of the public. Costs in the proceedings 1. The complainant seeks an order that the practitioner pay its costs pursuant to Clause 13 of Schedule 5D of the National Law. It refers to the New South Wales Court of Appeal decision in Ohn v Walton (1995) 36 NSWLR 77 for the proposition that costs should follow the event unless the circumstances of the case require the exercise of a discretion not to do so. The complainant also refers to prior decisions noting that it is for "the losing party" to establish a basis for any departure from the usual rule. 2. The practitioner submits that the question of costs is a matter of unfettered discretion. He asks that the Tribunal regard all relevant circumstances in the case, including his personal affairs at the time of the investigation and hearing and his financial situation. 3. Clause 13 of Schedule 5D provides that: "A Tribunal may order the complainant (if any), the registered health practitioner…concerned, or any other person entitled to appear at an inquiry… to pay costs to another person as decided by the Tribunal." 4. While the Tribunal is clearly given a discretion in awarding costs, it was noted in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 that "the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion… It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made." [44] 5. In this case there may have been no need for a hearing if the practitioner had made earlier admissions to the allegations made by Client A. The Tribunal notes the practitioner made a number of admissions at the hearing. The Tribunal accepts that the practitioner was dealing with significant personal issues at the time he was advised of the investigation and after the Complaints were filed. However, his failure to respond to requests from the complainant and to have sought advice, as suggested by the complainant and the Tribunal on more than one occasion, meant that the proceedings were more protracted than they might otherwise have been. Again, looking at the Tribunal's function in providing deterrence to other practitioners, it should be noted that the practitioner's failure to respond to the matter has consequences in relation to costs. 6. The Tribunal does not consider there should be a departure from the usual rule that costs should follow the event and so orders that the respondent pay the complainant's costs as agreed or assessed. ORDERS 1. Pursuant to s 149C(4)(a) of the National Law the Tribunal declares that if the practitioner were still registered the Tribunal would have suspended his registration for three months. 2. Pursuant to s 149C(4)(c), the Tribunal requires the Psychology Board of Australia (the Board) to record the fact that the Tribunal would have suspended the practitioner's registration in the National Register kept by the Board. 3. The Tribunal reprimands the practitioner. 4. Pursuant to s 149A(3) The practitioner is prevented from being registered unless he meets the requirements prescribed in the National Law and satisfies the Board that he has complied with the following orders made pursuant to s 149A(1)(c),(d) and (f): 1. The practitioner must seek and take advice in relation to the management of his practice from a Board approved supervisor who will supervise the practitioner in his day to day practice for two years, including but not limited to the practitioner's consultations with clients in their private residences; his record keeping; and the practitioner's management of his client load and scope of practice. The practitioner must provide a copy of this decision and that made in Health Care Complaints Commission v Dewar [2014] NSWCATOD 139 to the Board approved supervisor; 2. The practitioner must undergo psychological counseling by attending at least six sessions with a clinical psychologist over a three month period prior to seeking registration; 3. (c) The practitioner must undertake the following Australian Psychological Society (APS) on line courses: Private Practice Management Standards for Psychology and Fundamentals of Cognitive Behaviour Therapy (CBT) and provide the Board with evidence of his completion of these courses at the time he seeks to be registered; 4. Further, the practitioner must undertake the APS facilitated module on Suicide Prevention Professional Development Training and at least a day workshop on Ethics such as Dr Phil Watts' course "Bullet-proofing psychology: Ethical, legal and professional considerations" and provide the Board with evidence of his completion of these courses at the time he seeks to be registered. If any of the programs particularised in paragraphs (c) and (d) are not available to the practitioner at the time he seeks to undertake them the Board can stipulate an alternative course(s) to cover the subject areas identified above by the Tribunal. 1. The practitioner pay the complainant's costs as agreed or assessed. 2. Clause 7 of Schedule 5D of the National Law applies to the details of Client A and to the medical practitioner who referred Client A to the respondent. 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: 01 April 2015