Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Firth (No2) [2015] NSWCATOD 84 Hearing dates: 19 March 2015 Decision date: 19 March 2015 Jurisdiction: Occupational Division Before: M Joseph SC (Principal Member) Prof C Willcox (Professional Member) Dr E Collins (Professional Member) Prof D Anderson (Lay Member) Decision: 1. The practitioner's registration is cancelled pursuant to s149C(1)(b) of the National Law. 2. The practitioner cannot reapply for registration for a period of at least two (2) years pursuant to s149C(7) of the National Law. 3. The practitioner is prohibited pursuant to s149C(5) of the National Law from providing any of the following health servies whether provided as a public or private service unless and until registered as a psychologist; Therapy Counselling Psychotherapy Welfare services (as defined in section 4 of the Health Care Complaints Act 1993) Any other mental health service Clinical supervision of psychology students and/or Any other alternative/healing health care/therapies 4. The practitioner is to pay the costs of the HCCC. Legislation Cited: Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Department of Ageing Disability and Home Care v Lambert [2009] 74 NSWLR 523] Health Care Complaints Commission v Athour [2014] NSWCATOD 28 Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Lee v The Health Care Complaints Commission [2012] NSWCA 89 The Health Care Complaints Commission v Do [2014] NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ian Firth (Respondent) Representation: Counsel: A Britt (Applicant) T Hammond (Respondent) Solicitors: J Dinihan, Health Care Complaints Commission (Applicant) I Firth (Respondent in person) File Number(s): 1420296 Publication restriction: A Non-publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of all persons identified as patients. Reasons for decision 1. The Tribunal on 27 February 2015 gave an oral decision in respect of the complaints against Ian Firth brought by the Health Care Complaints Commission. In that decision the Tribunal found the vast majority of particulars proven and found Mr Firth guilty of professional misconduct as well as unsatisfactory professional conduct. It did so on two bases, in short; one in reliance on the sub particulars on their own, but also in reliance on the found particulars, when considered together, amounted to professional misconduct. 2. The principal conduct which centred in that decision related to the sexualisation of the professional relationship by Mr Firth, a registered psychologist, with, firstly, a patient, and secondly, the mother of a patient. We are now dealing with stage two of the decision making process and this decision must be considered in the light of the findings made in the stage one decision making process. The range of conduct which finds its source in that first decision involved an inappropriate sexual relationship and also inappropriate texting of a sexual nature between the psychologist and the mother of a patient. 3. Of course, the background to this conduct is the vulnerability of, firstly, Patient A, but also the vulnerability of a patient's mother, knowing that her child's welfare is in the hands of that child's psychologist and in that sense the mother is also vulnerable to the conduct of the psychologist. There were also complaints concerning recordkeeping, but they are not a significant part of the Tribunal's second stage consideration, although they themselves are serious. At this stage the HCCC (Exhibit T) are seeking the following protective and ancillary orders: 1. The practitioner's registration is cancelled pursuant to s 149C(1)(b) of the National Law; 2. That the practitioner cannot reapply for registration for a period of at least two years pursuant to 149C(7) of the National Law; and 3. The practitioner is prohibited pursuant to s 149C(5) of the National Law from providing any of the following health services, whether provided as a public or private service, unless and until he is registered as a psychologist: 1. therapy; 2. counselling; 3. psychotherapy; 4. hypnotherapy; 5. welfare services as defined by section 4 of the Health Care Complaints Act 1993; 6. any other mental health service; 7. clinical supervision of psychologist students, and/or; 8. any other alternative/healing healthcare therapies. 1. They also seek an order for costs against Mr Firth. The respondent, whom today has Mr Hammond appearing for him, submits that there should not be cancellation of the registration. The reasons are; 1. that the community needs of Port Macquarie are such that cancellation would create far greater harm to that community than is reasonable 2. Mr Firth's acknowledged prior good character, of which there does not seem to be any issue,. 3. Events that have occurred since the alleged acts which involved humiliation to both Mr Firth and his family. 4. The psychological harm that has been caused to Mr Firth by way of a depressive order that has resulted from those events, and as well as the nature of these proceedings. 1. It also opposes any costs order against Mr Firth and seeks that there be no award as to costs in the sense each party pay their own costs. The hearing today has taken an unusual sequence, in that Mr Firth has provided to the Tribunal a three page letter which has been marked exhibit V, which he addresses to the "Tribunal Members" and commences with the sentence: "I have apologised unreservedly for failing to maintain proper boundaries and the confusion and the stress this has caused Patient A. Patient B and person C have sought assistance with ongoing referrals from their treating doctor since 2012 and I have been able to express my apologies in person. Patient B continues to respond to therapy and her mother, person C, is pleased with the assistance." 1. This, in part, so the respondent submits, is an acknowledgement of a certain level of insight on the part of Mr Firth, together with the corrections that he has made to his practice to ensure that proper boundaries are maintained. In this regard Mr Firth goes on and states in that same letter, "I recognise the mistakes I have made and I want to change". He then sets out the nine ways in which he has made changes and then concludes, "These steps taken above were introduced to protect clients and adopt a change in behaviour on my part to avoid future mistakes. I have gained real insight into the mistakes I have made in my practice". 2. This evidence Mr Hammond submits is sufficient for the Tribunal to avoid the cancellation of Mr Firth's registration. In particular, Mr Hammond takes the Tribunal to the case law which cites, that the finding of professional misconduct does not automatically lead to the cancellation of registration of the health practitioner. He refers to the case of Health Care Complaints Commission v Athour [2014] NSWCATOD 28 at 12, wherein it is stated: "The authorities also establish that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit for a protective purpose, this Tribunal needs to find the practitioner is probably permanently unfit to practice." 1. Mr Hammon then takes the Tribunal to some part of the decision of Lee v The Health Care Complaints Commission [2012] NSWCA 89, where Barratt JA quotes with approval what Basten JA stated in the Director General, Department of Ageing Disability and Home Care v Lambert [2009] 74 NSWLR 523 at [83], the summary as follows: "(a) The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual; (b) That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating the protective order; (c) the punitive effects may be directly relevant to the need for the protection, so that in a particular case there may be factual findings that a harrowing experience of disciplinary proceedings, together with the real threat of loss of livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist." 1. In short, and I do not seek to say in total, Mr Hammond relies on Mr Firth's letter as providing evidence sufficient to satisfy the Tribunal that Mr Firth has produced a level of insight into his own character and misconduct which he did not previously have. 2. The Tribunal cannot accept that submission or make such a finding. 3. Firstly, the Tribunal has already referred to the unusual circumstances concerning exhibit V, in that Mr Firth was not cross examined, and the Tribunal finds that given that fact, as well as considering certain submissions made by Mr Hammond, that exhibit V cannot be accepted on its face as being evidence of a gained insight. 4. Secondly, Mr Hammond told the Tribunal that his client does not accept the findings of the Tribunal other than to the extent that he made admissions in the hearing itself. That of itself, in the Tribunal's mind, leads it to conclude that the requirements suggested by Barratt JA in Lee v The Health Care Complaints Commission have not been satisfied in this case. 5. Thirdly, as was pointed out by Mr Britt in his oral and written submissions, the letter refers to "mistakes". It is, in our view, this is a gross mischaracterisation of the findings to describe the conduct which the Tribunal has found took place as "mistakes". 6. There is little to no evidence to suggest that Mr Firth was not fully aware and conscious of what he was doing and that his conduct post the sexual encounter at the Rydges Hotel was clear evidence that he knew he had violated professional boundaries, and that Patient A remained post this event a patient of his. 7. The encounter was not a "mistake" The Tribunal found that he left home on the evening of the particular night with the clear intention of having a sexual relationship, albeit a consensual one, knowing at all times that this was conduct which was professional unjustified and could not in any way be described as a mistake. Similarly the texting. Mr Hammond noted some of that texting was admitted as being inappropriate, but not all of it. 8. The principles as to what are appropriate protective orders have been set out in numerous decisions of the Tribunal, applying principles set out by the Court of Appeal in various decisions. The most relevant in terms of the statutory context of this hearing is The Health Care Complaints Commission v Do [2014] NSWCA 307, where Meagher JA, with whom Basten JA and Emmett JA agreed, said at 35, the following: "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 conduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards, and where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practice, 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 whose conduct does not meet the required standards will not be permitted to practice." 1. This decision and others which were summarised by the president of the Tribunal in Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 at 99, we adopt as those set of principles in our consideration. 2. The Tribunal is satisfied that the conduct of Mr Firth, as found in its decision, is so objectively serious and breaches the standards of care and the professional standards of psychologists, that a cancellation of his registration must occur. The respondent seeks, however, to be relieved of this conclusion by relying on a number of references and assessments made by not only counsellors with whom Mr Firth has had professional contact, but by Mr Firth's present supervisor, Mr Campbell, and certain medical practitioners who have not been cross examined, Mr Kerr included. 3. The problem facing the Tribunal in assessing what weight to give to these documents, and I am including the references from the patients to the Health Care Complaints Commission, is to ascertain the exact knowledge that these various persons had of the Tribunal's findings. Some of these persons gave evidence on the phone today and it was very unclear, except in the most general of terms, what each of them understood to be the conduct which they were addressing in making their references. This, of course, does not mean the Tribunal gives no weight to those opinions, but it does affect the weight which the Tribunal can give as to the confidence they express of both Mr Firth's past conduct and likely future conduct. 4. To this extent the Tribunal disregards as compelling the evidence that has been sought to be relied on by the respondent. The other evidence the respondent seeks to rely on, as affecting the discretion the Tribunal has in what protective orders to make, is the vulnerable situation the young residents of Port Macquarie have in finding psychologists who have specialist knowledge and training in the effects of those who unfortunately suffer from autism and the spectrum of conduct associated with that diagnosis. 5. This issue was raised by Mr Firth at the start of the hearing in exhibit B when he described that the majority of his patients are people under the age of 18 with autism and parents of children with autism, that he would estimate 75% of his clients were minors with autism, that some of his clients travel for one hour to see him, and that to the best of his knowledge there are no other psychologists who specialise in minors with autism, other than himself and one other, between Newcastle and Coffs Harbour.Because of that the Tribunal made an order suppressing publication of the name of Mr Firth at the start of the hearing to protect the harm that might otherwise have been caused to that group of young people. 6. Mr Firth now returns to this issue outlined in exhibit V and clearly it is a matter of concern to his clients and it's of concern to the counsellors who gave evidence that they are already restricted in the number of psychologists who can deal with this type of psychological issue and therefore. Thus the respondent says, the Tribunal should consider, rather than cancelling the registration, making conditions on his practice in terms of which he has already undertaken and which he is prepared to adhere to. 7. Not a lot of attention has been given to the practicality of those measures in the hearing thus far. However, clearly it's within the discretion of the Tribunal to adopt conditions on registration of the sort raised by both Mr Hammond and his clients outlined in exhibit V, if it is deemed appropriate. However, as already indicated, the Tribunal is of the view that given the objective seriousness of the conduct and given the principles summarised in Jamieson and identified above, that the conduct, taken in its totality, requires, for the reasons expressed in Do and other cases therein mentioned, the cancellation of the registration of Mr Firth as a psychologist. 8. In so doing, we note that the respondent states in exhibit V that he does not believe he is permanently unfit to practice. Of course, those are terms that have been used by the Tribunal as a matter of consideration such as being undertaken here, namely it does not necessarily follow that just because a registered practitioner has been found guilty of professional misconduct, that registration must be either suspended or cancelled, as being the only protective order to make. That's clear enough from the decision in the Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. 9. However, as stated in Jamieson, it is clear that the definition of professional misconduct is focused on the nature of the conduct, which must have the capacity to justify an order of suspension or cancellation, whether or not such an order should be made in the particular circumstances. As further stated in Jamieson at 100: "That such an order need not be made is clear from the terms of ss 60 to 64, which are substantially the same as ss 149 to 149C of the National Law, which provide that a full range of disciplinary powers is available on the finding of professional misconduct. The statutory constraints operate differently. Thus a person may not be suspended or deregistered unless the Tribunal finds that the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1) [149C(1) of the National Law is to a similar effect]." 1. Thus it goes on: "The discretion of the Tribunal is at large and it will depend upon the circumstances of the individual case." 1. It goes on: "The authorities also establish that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit for a protective purpose, the Tribunal must find the practitioner is probably permanently unfit to practice." 1. As goes on at 102 in Jamieson: "This quotation should not, however, be taken to support the proposition that the Tribunal may order deregistration only if it finds the practitioner is permanently unfit to practice. The express used by the High Court in Ex Parte Lenehan was "probable permanent unfitness" and referred to the finding which usually underlines an order striking off a solicitor. It serves to indicate that striking off a lawyer or deregistering a medical practitioner would generally only be appropriate if he or she is unfit to practice at the time of making the order and is likely to remain so for a significant or indefinite period." 1. As stated, the respondent submits that given the terms of exhibit V that the Tribunal could not be satisfied that Mr Firth is likely to remain unfit to practice for a significant or indefinite period. The Tribunal disagrees. The Tribunal has summarised in its earlier decision the conduct of Mr Firth, which can be described as manipulative and deceptive. He was at all times in a position of power over both Patient A and person C. He exercised that power in a sexual fashion, to which he to this day does not admit. It's now some years since these events which took place some time in 2012, and in respect of complaint 2, between February 2012 and July 2013. He has now read the decision of the Tribunal, which could only be described as damning. He still lacks insight as found. 2. He has involved his wife and his brother and his friends in the hearing to pursue his own self interest, which was one of denial. The Tribunal rejects that conduct as being appropriate to the standards expected of psychologists. To this day he has not come back into the witness box after the Tribunal gave its stage one decision. This is a matter of some concern to the Tribunal, to better understand his present view of his conduct. He has provided a certificate from a doctor expressing his unfitness to work, and yet we are told he was prepared to give evidence on the phone even though there was no attempt by the respondent to so organise that, knowing that the complainant sought his attendance and sought to test his evidence. Therefore the Tribunal does find that Mr Firth is presently likely to be unfit to practice for a significant, if not indefinite, period of time. 3. The Tribunal now needs to deal with the period for which Mr Firth should be prevented from seeking a review of this order. The Health Care Complaints Commission seeks an order that Mr Firth cannot reapply for registration for a period of at least two years pursuant to s 149C(7) of the National Law. Mr Hammond has not addressed this issue because he was of the view that the Tribunal would not or ought not to cancel Mr Firth's registration. The period for which such order should be made is at large again for the Tribunal. There are decisions that it might be said that would suggest that two years is in fact at the bottom of the range of such an order. 4. However, each case must depend on its own facts and the Tribunal, in the circumstances of this case, will make an order that the practitioner cannot reapply for registration for a period of at least two years pursuant to s 149C(7) of the National Law. In respect of the next order sought by the HCCC, there was some discussion as to whether or not Mr Firth should be allowed to continue counselling of young people in the various public organisations in which he has been associated with in the past and which deal in particular with children suffering from autism. 5. There was also, however, evidence from Mr Campbell that he would be prepared to supervise Mr Firth to ensure boundaries are maintained if he was allowed to continue practising as a psychologist, although his evidence never was tested at any level of particularity. The likelihood as to whether such supervision would be effective needs to be considered. The conduct which the Tribunal has found amounted to professional misconduct took place whilst Mr Firth was already being supervised by a Ms Oxley and at a time when she was also discussing with him boundary issues, and yet the conduct of inappropriate sexual conduct took place in respect of the two aspects referred to in our earlier decision. 6. The Tribunal is not satisfied that there should be any exemptions from the proposed order made by the HCCC in their stage 2 submissions, exhibit T, which was identified above, and the Tribunal will make an order in terms of proposed order 3. 7. The only other matter outstanding is costs. The normal rule is that costs follow the event. Clearly the HCCC have been successful on all aspects of the matter litigated before the Tribunal. Mr Hammond in his submissions in paragraphs 25 and 26, exhibit EE, put forward reasons as to why the normal order should not be made. 8. Whilst it is true that the Tribunal has a general discretion and that there is no absolute rule, the Tribunal considers that the rule that the successful party is to be compensated by the unsuccessful party is the appropriate basis of ordering the respondent to pay the complainant's costs. Mr Hammond further submits that such an order would cause financial hardship to the respondent. No doubt that is true. However, in the manner by which this litigation and complaint has been contested, and given the finding of the Tribunal, which is essentially a rejection of the respondent's evidence and his reliability as a witness, the order that the successful party be compensated is not to be displaced in this case by the financial hardship that would be caused by such an order. 9. The order will be that the respondent pay the costs reasonably incurred or assessed by the Health Care Complaints Commission. 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: 17 August 2015