Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sciberras [2015] NSWCATOD 146 Hearing dates: 23, 24, 25 March and 2 June 2015Final submissions 7 October 2015 Date of orders: 15 December 2015 Decision date: 15 December 2015 Jurisdiction: Occupational Division Before: D Robinson - Principal Member C Willcox - Professional Member Dr L Tong - Professional Member D Anderson - Lay Member Decision: 1. The Tribunal finds Mr Sciberras guilty of unsatisfactory professional conduct and professional misconduct. 2.The Tribunal reprimands Mr Sciberras in the strongest possible terms. 3.The Tribunal orders the cancellation of Mr Sciberras' registration and further orders that he not be eligible to apply for review of that decision within two years from the date of this order. Any application for review must be made to the New South Wales Civil and Administrative Tribunal. 4.The Tribunal orders that Mr Sciberras is prohibited from providing the following health services, whether provided as public or private services, while the cancellation order remains in force: • mental health services, including therapy, counselling, assessments and screening of patients • community health services • welfare services, as defined in section 4 of the Health Care Complaints Act 1993. 5.The Tribunal orders that Mr Sciberras pay the costs of the Health Care Complaints Commission. Catchwords: Unsatisfactory professional conduct and professional misconduct by psychologist; serious boundary violations; sexual relationship with former client; inappropriate communications and abusive behaviour. Legislation Cited: Health Practitioner Regulation National Law NSW Cases Cited: HCCC v Dr Della Bruna [2014] NSWCATOD 31 Briginshaw v Briginshaw (1938) 60 CLR 336) Pillai v Messiter (No 2) 16 NSWLR 97 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mr Anthony Sciberras (Respondent) Representation: Counsel: P Griffin SC (Applicant) F Corsaro SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) WG McNally Jones Staff, Lawyers (Respondent) File Number(s): 1420153 Publication restriction: The Tribunal made a non-publication order to prevent the publication of the names of Mr Sciberras' clients referred to in the Complaint or any information which might identify those clients. .........................................Reasons for Decision INTRODUCTION The Complaints 1. On 6 June 2012 Ms C made a complaint to Nepean Hospital alleging sexual misconduct, harassment and negligence by Mr Sciberras, a Senior Psychologist at the Hospital. On 19 June 2012, the Nepean Blue Mountains Local Health District CEO made a notification to the Australian Health Practitioner Regulation Agency (AHPRA) in relation to alleged sexual misconduct by Mr Sciberras. AHPRA referred this notification to the Health Care Complaints Commission (the Commission) on 22 June 2012. 2. The Commission, after investigation and consultation with the Psychology Council of New South Wales, made two Complaints to the Tribunal. The Complaints allege, in accordance with the provisions of the Health Practitioner Regulation National Law (NSW) (the National Law), that Mr Sciberras is guilty of unsatisfactory professional conduct and professional misconduct. 3. It is asserted that between May 2012 and November 2012 a sexual relationship existed between Mr Sciberras and Ms C. It commenced shortly after Ms C and her daughter, Client B ceased counselling with Mr Sciberras. 4. It was also alleged that Mr Sciberras failed to maintain professional boundaries in the period leading up to the sexual misconduct and that during the relationship, he verbally abused Ms C and inappropriately requested that she withdraw the complaint she made against him in June 2012. 5. At the commencement of the hearing the Commission sought leave to amend the Complaint by adding an additional Particular 1(e), which asserts that Mr Sciberras failed to observe proper professional boundaries by giving Client B, while treating her, a bicycle, which he delivered to Ms C's house. Leave was granted, without objection from the Respondent. 6. The amended Complaints, their Background and Particulars are set out in Annexure A. Although in the amended Complaints, the complainant is referred to as Client C, during the hearing and in these Reasons for Decision she is referred to as Ms C. Legislative provisions 1. Unsatisfactory professional conduct is relevantly defined in S139 B of the National Law to include: (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed or the care exercised by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training of experience. (l) Other Improper or Unethical Conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Professional Misconduct is defined in S139 E of the National Law as: (a) Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) 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 Issues 1. The issues for the Tribunal are: 1. Which, if any, of the Particulars of the Complaints are proven to the comfortable satisfaction of the Tribunal; and 2. Whether the proven conduct amounts to unsatisfactory professional conduct and professional misconduct; and 3. If such findings are made, whether orders or directions pursuant to the National Law are appropriate. Standard of proof 1. The Commission bears the onus of establishing that Mr Sciberras has departed to the requisite degree from the appropriate standards and is guilty of unsatisfactory professional conduct and professional misconduct. 2. The standard of proof required to establish the Complaints is the civil standard, so the Tribunal must be reasonably satisfied on the balance of probabilities of the matters alleged against Mr Sciberras. However because of the seriousness of the allegations and the gravity of their consequences, the Tribunal needs to be comfortably satisfied that the Complaints have been established on the Briginshaw principles (see Briginshaw v Briginshaw (1938) 60 CLR 336). Procedural matters Documents 1. The Tribunal considered the following documents provided by the parties: 1. The Commission provided two folders of documents tabbed 1 to 33 (Exhibit A). On 2 June 2015 a further bundle of documents was included as Volume 3 of Exhibit A. 2. Mr Sciberras provided a statement dated 28 November 2014 (Exhibit 1) and a report from Dr Katie Seidler dated 23 January 2015 (Exhibit 2). On 2 June 2015 the following additional documents were provided: * A further statement of the Respondent, dated 21 April, 2015 (Exhibit 3) * A letter from Dr Seidler, dated 13 April 2015 (Exhibit 4) * A report from Chris Probets, Forensic and Counselling Psychologist, dated 27 May 2015 (Exhibit 5) * A number of references (Exhibit 6) 1. Written submissions were provided by the Commission and, after some delay, by the Respondent, at the conclusion of the proceedings. Admissions 1. Mr Sciberras admitted some but not all of the Particulars. He admitted he had a personal and sexual relationship with Ms C and that his behaviour in this regard constituted unsatisfactory professional conduct. Witnesses 1. The following people gave oral evidence to the Tribunal: * Ms C, the original complainant * Mr Sciberras, the Respondent * Dr Wendy Roberts, clinical psychologist and expert witness for the Commission * Dr Katie Seidler, clinical psychologist and expert witness for Mr Sciberras * Mr Chris Probets, forensic and counselling psychologist gave evidence by conference telephone Non-Publication Order 1. The Tribunal made a non-publication order to prevent the publication of the name of Mr Sciberras' clients or any information which might identify those clients. In these Reasons they are referred to as Client A, Client B and Ms C. Two stage hearing 1. The question of whether or not a two stage hearing process was appropriate was canvassed with the parties. The Respondent did not to seek a two-stage hearing and there was general agreement that this was not required. Background Mr Sciberras 1. Mr Sciberras was born on 7 September 1958. He graduated BSc (Psychology) from University of New South Wales in 1982. In 2005 he completed a Masters of Social Science (Child and Youth Studies) at the University of Western Sydney and in 2004 an MBA from that University's Sydney Graduate School of Management. 2. Mr Sciberras was first registered as a psychologist on 2 April 1991. He has been a member of the Australian Psychological Society (APS) since 2006. 3. In 1991 Mr Sciberras commenced private practice in his own consultancy firm. Between 1995 and 2007 he was a senior psychologist at the Tresillian Family Care Centre at Wentworth. In 2007 Mr Sciberras became a supervisor of conditionally registered (intern) psychologists in New South Wales and in August 2010, after gaining accreditation with the Psychology Board of Australia, he became a supervisor of provisionally registered psychologists. 4. Between 2007 and 2012 Mr Sciberras was Senior Psychologist at Nepean Hospital in the women, children and youth health network. 5. On 6 July 2012, following the complaint made by Ms C, Mr Sciberras was interviewed by members of the management team at Nepean Hospital, in relation to that complaint. He was dismissed from his employment at the Hospital in August 2012 on the basis of professional misconduct. 6. He is presently employed at the Transcultural Mental Health Clinic and as a Multicultural Problem Gambling Counsellor. He is also a Family Life Educator with Natural Fertility Services and has a private practice at Penrith. 7. Mr Sciberras has lectured at Nepean TAFE and Nepean Community College and provided occasional lectures at other educational organisations. Ms C 1. Ms C is a 48 year old single parent. She did some training in counselling while residing in the United Kingdom, but after migrating to Australia worked only briefly at a local community centre and then divided her time between parenting duties and occasional part-time work. 2. Ms C consulted a professor of paediatrics at Nepean Hospital in relation to concerns about her son, Client A. She was referred to Nepean Hospital psychologist, Mr Sciberras. Client A's therapy began in November 2009 and concluded in May 2010. 3. She also consulted Mr Sciberras in relation to behavioural issues with her daughter, Client B. This therapy occurred between October 2011 and January 2012. 4. Ms C attended the therapy sessions involving her children and Mr Sciberras also saw Ms C independently of her children, in relation to their therapy, on at least two occasions. 5. Ms C made a formal complaint to Nepean Hospital about Mr Sciberras in June 2012. Which, if any, of the Particulars of the Complaints are proven to the comfortable satisfaction of the Tribunal? The personal and sexual relationship 1. Mr Sciberras admits Particular 1 (d) and Particular 2. He admits that in May 2012 he contacted Ms C and invited her to go to dinner and to the movies. He also admits that between May and November 2012 he had a personal and sexual relationship with Ms C. 2. Ms C said she had been getting "mixed messages" and was confused about her relationship with Mr Sciberras. On 24 December 2011 she called him and suggested they attend church together on Christmas Eve. Mr Sciberras declined her invitation. 3. However, around 7 May 2012 Mr Sciberras phoned Ms C and invited her to a movie and dinner. This outing occurred on 11 May 2012 after which Mr Sciberras went to Ms C's home and sexual intercourse took place. 4. A short time later Ms C became concerned that she may be pregnant and undertook a home pregnancy test, which she said was positive. She said that initially Mr Sciberras was excited about the pregnancy but then his attitude and manner towards her changed and he became cold and aloof. Ms C stated that she became very distressed and on one occasion went to Mr Sciberras' house where she broke his front window. 5. She said that even after the relationship soured and after she had made a formal complaint about Mr Sciberras to his employer, they continued to see each other and had sex on several occasions, including 17 September 2012, 5 occasions in October 2012 and on 5 and 7 November 2012. 6. Ms C said that the pregnancy ended in July 2012 when she suffered a miscarriage. Other boundary violations 1. In relation to Particular 1(e), Mr Sciberras admits he failed to observe proper professional boundaries while treating Client B, by giving her a bicycle, which he took to Ms C's house for Client B. 2. Ms C told the Tribunal that Client B's bike had been stolen and she had difficulties replacing the bike due to financial constraints. She said she felt disempowered by Mr Sciberras' offer of a bicycle as it was made very quickly, in front of her daughter and without discussion with her. 3. Mr Sciberras denies the boundary violations alleged in Particulars 1(a), 1(b) and 1(c). Particular 1 (a) The practitioner failed to observe proper professional boundaries in that he, at consultations with Client A and/or Client B and/or Ms C, inappropriately discussed himself, his ex wife, children and previous relationships. 1. Ms C described Mr Sciberras as "unboundried" in his work in that he disclosed very personal information about his feelings and relationships. In her statement to the Commission, dated 19 March 2013, Ms C stated, "If we had a two hour session, he would take up about an hour talking about himself. He would talk about issues with his ex-wife, his kids and previous relationships. He spoke so much about himself I thought I knew him better than I knew my own children. 1. In her oral evidence to the Tribunal, Ms C stated that Mr Sciberras spoke not only about his relationships with women, his failed marriage and his problems with his two daughters, but also about his relationship with his mother, his abusive relationship with his father and finally the sexual abuse he had suffered as a child. 2. She stated that he discussed inappropriate personal matters when counselling both her children. However his behaviour became more pronounced in this regard when counselling her daughter, Client B. 3. Ms C also stated that while counselling Client A, Mr Sciberras would use at least one quarter of the therapy session time talking about himself. She felt this increased in relation to the counselling of her daughter, when he might spend up to 50% of the therapy time discussing his own personal issues. 4. In cross-examination Ms C denied that she had confused discussions during counselling sessions with discussions she might have had with Mr Sciberras during the personal relationship. She acknowledged that personal information was shared during the sexual relationship but maintained her position that Mr Sciberras' disclosures during counselling were inappropriate. 5. Mr Sciberras denied discussing his marriage, his sex life or sexual abuse during consultations and in the presence of Ms C's children. He said that he does refer to personal matters as a way of developing empathy with a client but not in a protracted or inappropriate manner. He stated, "I often use my own experience of family as points of reflection and simile, as a means of creating empathy with the client. I have found this approach to work and clients have reacted favourably to it. I deny that my sessions with Client B lasted about two hours." 1. The Commission submits that Mr Sciberras' comments about his use of family anecdotes suggest he is in the habit of talking about himself and his family in therapy sessions and this supports the evidence given by Ms C. 2. Mr Scibberas' submission acknowledges that he disclosed personal details during therapy, but only in a manner and to an extent consistent with proper professional practice. Particular 1(b) The practitioner failed to observe proper professional boundaries in that he at a consultation with Client B, in the presence of Ms C, made inappropriate comments to Ms C about her blouse being inside out and it being see through. 1. Ms C asserts that Mr Sciberras flirted with her by making comments about her appearance. On one occasion he told her blouse was on inside out. She stated, "even though when I examined it, it was not inside out he insisted it was and would not move away from the subject. Another occasion, noticing how see-through it was." 1. Mr Sciberras concedes that he did mention that Ms C's blouse was inside out, in the presence of Client B, but denies that his comments were inappropriate. He says he mentioned the blouse only to prevent Ms C experiencing any embarrassment. "It was during the second session with Client B on 19 January 2012 that I noticed that Ms C was wearing her blouse inside out. I do not believe that the comment I made about her blouse was inappropriate nor did Ms C complain to me at the time that it was inappropriate." 1. Mr Sciberras denies saying that Ms C's blouse was "see through". Particular 1 (c) The practitioner failed to observe proper professional boundaries in that he, on 19 January 2011 at the conclusion of a consultation with Client B, suggested to Ms C that he and Ms C go out for a coffee. 1. Ms C stated, "at the end of our work during our last session, about 19 January 2012 with Client B and myself, Tony suggested it would be nice to meet up for coffee and a chat sometime and keep in touch." 1. In his written statement Mr Sciberras denies that he invited Ms C for coffee. He states, "I did invite her to keep in touch with me if she required further assistance with Client B. This was not an unusual invitation for me to extend to a parent of a client." Inappropriate communications Particular 3 Between about 6 June 2012 and 30 November 2012 the practitioner verbally abused Ms C in relation to her complaint to the Nepean hospital and/or the Health Care Complaints Commission. 1. In her statement to the Commission, dated 19 March 2013, Ms C said that on 9 September 2012 Mr Sciberras arrived unannounced at her home "and started getting very verbally abusive on the doorstep and then walked off." 2. She stated that after he was dismissed from his employment around the end of August 2012, he started becoming verbally abusive after sex. She described him as angry and agitated and stated that he made insulting and nasty comments to her. 3. In her letter to Mr Sciberras dated 12 November 2012 she refers to a pattern of sex and verbal abuse, "ever since you got fired in September the pattern is the same, sex and then immediately after verbal abuse". 4. Mr Sciberras denies Particular 3. Particular 4 Between 16 July 2012 and 30 November 2012 the practitioner inappropriately requested that Ms C withdraw the complaint she had made against him to the Nepean Hospital and/or the Health Care Complaints Commission. 1. Mr C stated that in July 2012 Mr Sciberras indicated he wanted her to retract the complaint, asking if she could say she had made it up out of vengeance. She also stated that towards the end of the relationship he asked her to write a letter taking back what she had alleged "for his registration purposes". 2. In her letter to Mr Sciberras dated, 12 November 2012, Ms C states, "with concern to a letter you are requesting me to write to the Health Care Complaints Commission, I cannot agree to write retracting my complaint saying it was a lie on my behalf because it was not." 1. Mr Sciberras says that Ms C offered to rescind the Complaint and denies Particular 4. He also says that once the Complaint had been made, he had put his position on record and made relevant admissions and that it would make no sense in these circumstances to urge Ms C to withdraw her complaint. 2. Mr Sciberras relies on the fact that the Commission carries the onus of establishing the allegations in Particulars 3 and 4 and asserts that onus has not been discharged. Discussion 1. Particulars 1(a), 1(b) and 1(c) relate to what was said during therapy sessions. The available evidence consists of evidence from Ms C and the Respondent. The only other people who may have been able to give an account of what was said were Ms C's children who were not called as witnesses. 2. Particulars 3 and 4 concern events which occurred during the sexual relationship and relate to communications between Ms C and Mr Sciberras to which there were no other participants or witnesses. 3. Ms C's version of the alleged communications and events differs from Mr Sciberras' version and much of the cross examination of both the Complainant and the Respondent went to matters of credibility. Ms C 1. Ms C's evidence was at times inconsistent. For example, she referred to Mr Sciberras discussing his sexual abuse as a child in front of her son, but later clarified that it was only discussed in front of her daughter. 2. Her evidence was also vague at times. Ms C had some difficulty remembering exactly how many therapy sessions had been provided to her children, however she believed that Client A had had 10 sessions and Client B had at least 7 sessions. 3. She was sometimes confused in relation to dates. 4. She was questioned about why she continued to see Mr Sciberras when she had complaints about him as a therapist. She said she tried to obtain a referral to another therapist but could not afford to leave the public system. She said she did raise her concerns with Mr Sciberras. She explained she returned to see him with her daughter because the issue was a limited one and she felt it would not involve lengthy treatment. Also her paediatrician wanted Mr Sciberras to give a second opinion about her daughter's condition. 5. Ms C was asked about the pregnancy she said occurred in May 2012. She was asked about her consultations with her GP, Dr Vial and why after confirming the pregnancy with a home pregnancy test kit, she failed to discuss it with her GP, and on 24 May 2012 obtained a prescription for Clomid, a fertility treatment. Ms C was also questioned about why it took her so long to tell Mr Sciberras she had suffered a miscarriage. 6. It was suggested that Ms C had not been honest with Mr Sciberras in relation to the pregnancy. It was suggested that she had misrepresented herself to Mr Sciberras as still being pregnant at a time when she was not and Ms C conceded this latter point. 7. Ms C was not a candid witness in relation to matters involving the pregnancy. It was suggested that Mr C's account of the pregnancy and miscarriage was not reliable and accordingly the Tribunal should regard her generally as an unreliable witness. Mr Sciberras 1. Mr Sciberras presented as an evasive witness. He had difficulty answering questions directly and on several occasions was unable to answer the specific question put to him. Many of his responses were an attempt to obfuscate. The Tribunal did not regard Mr Sciberras as a frank or forthright witness. 2. The Commission makes the following submission in relation to his evidence, "It is instructive to consider the evidence about his time working at Tresillian. In paragraph 76 of his statement dated 28 November 2014 the Respondent stated: 'The allegation of sexual harassment against me, referred to by Ms C in her letter of complaint, relates to an issue raised against me in 2003 by a work colleague who wanted my position at Tresillian. The allegation was dismissed by the NSW Psychologist Registration Board and I was cleared to return to work.' The Applicant issued a summons to obtain documents from the Psychology Council of NSW in relation to the Respondent. These revealed that paragraph 76 of his statement was incorrect.The Respondent now concedes that his "recollection of what occurred at Tresillian was inaccurate." Rather than being an investigation following a complaint about sexual harassment it was in fact "an investigation about difficulties in my work during a period of emotional and mental turmoil". [Respondent Further Statement dated 21 April 2015 paragraph 5]. It was an investigation concerning his professional performance at work. The Respondent claims that he does not recall attending a review on 12 July 2004. The question which arises is how could the Respondent forget such a significant issue? It is open to the Tribunal to conclude that he was intending to mislead the Tribunal and also undermine the credibility of Ms C in his first statement." 1. Mr Sciberras' submissions point to the fact that the incident at Tresillian occurred many years earlier (2004), and involved concerns about his health being expressed by colleagues. "Having regard to the underlying basis for the investigation, and the possible state of the Practitioner's health at the time, it is perfectly understandable that the Practitioner's memory was less than perfect, and that the documents recovered by the HCCC assisted in the Practitioner's recall about those events." 1. However, some of the matters of concern investigated at Tresillian were similar to the allegations raised in the Complaint and it is more likely in these circumstances that Mr Sciberras would be reluctant to fully reveal, rather that fail to recall, the Tresillian investigation. Mr Sciberras' recollection changed to accommodate new information and he only corrected misinformation when confronted by other evidence which disproved his account of events. The Tribunal's decision 1. Neither Ms C nor Mr Sciberras can be regarded as an entirely reliable witness. 2. There were inconsistencies in Ms C's evidence, and, in relation to the question of her pregnancy and miscarriage, her evidence was not reliable. The Tribunal accepts that Mr Sciberras was prepared to provide misleading information in relation to events which occurred at his former employment. Ms C also gave her account of events in a somewhat dramatic, rather than a measured fashion and Mr Sciberras presented at times as intentionally evasive. 3. However, on balance the Tribunal prefers the evidence of Ms C to that of Mr Sciberras. Despite the issues mentioned above, in relation to the matters canvassed in the Particulars, Ms C presented as a frank and forthright witness who was making every effort to answer questions directly and thoroughly. The Tribunal considers she did her best to recall and explain the events in issue (which did not include matters relating to the pregnancy and miscarriage). In comparison Mr Sciberras was not endeavouring to give a full and frank account of the events in question and did not present as a candid and trustworthy witness. 4. The Tribunal must be satisfied that the disputed particulars are proved on the balance of probabilities. As noted in the Commission's submission the Briginshaw standard is not a third standard of proof but rather is concerned with the quality or sufficiency of the evidence necessary to discharge the civil standard. 5. In assessing the evidence of Ms C and Mr Sciberras the Tribunal considered the available documentary material. This included Mr Sciberras' clinical records and Ms C's GP records, Ms C's written correspondence with Mr Sciberras, and his correspondence with the Commission and the telephone records, which document calls and text messages between Ms C and Mr Sciberras. 6. In relation to what was said during therapy sessions (Particulars 1(a), 1(b) and 1(c)), the Respondent's clinical notes are available, but are of little assistance. 7. Ms C's statements, in relation to the events which occurred during the sexual relationship, have been consistent over time. She refers to a pattern of verbal abuse in her letter to Mr Sciberras, written relatively contemporaneously, in November 2012. She also refers to Mr Sciberras' request that she withdraw her complaint, in that letter and also in consultation with her GP. 8. After a consultation with Dr Vial on 18 October 2012 he recorded in his notes "discussion re relationship issues with psychologist who is going to be investigated and is trying to get her to reneg". 9. The Tribunal also considered the general circumstances and the fact, as admitted by Mr Sciberras, that a personal and sexual relationship began with Ms C in early May 2012. It is inherently unlikely that a relationship of that nature arose completely spontaneously, without any preliminary "personal" communications. 10. On balance, the Tribunal is comfortably satisfied that the evidence of Ms C, as it relates to the Particulars in issue, is more reliable than that of Mr Sciberras and considering her evidence in light of all other available evidence, the Tribunal is satisfied that the Particulars in dispute are proven. The Tribunal's Findings 1. Mr Sciberras has admitted admits Particulars 1(d) and 1(e) and Particular 2. The Tribunal finds these Particulars proven on the basis of Mr Sciberras' admissions and the available evidence. 2. For the reasons stated above, the Tribunal finds that Particulars 1(a), 1(b) and 1(c) and Particulars 3 and 4 are also proven. Does Mr Sciberras' conduct amount to unsatisfactory professional conduct and professional misconduct? Expert evidence 1. Both Dr Roberts and Dr Seidler provided written reports and gave oral evidence to the Tribunal. Personal and sexual relationship 1. Dr Roberts said that Mr Sciberras' conduct in inviting Ms C to dinner and a movie and subsequently engaging in a sexual relationship falls significantly below the standard reasonably expected of a practitioner of equivalent training or experience and invites her strong criticism. 2. In oral evidence Dr Seidler stated that she agreed wholeheartedly with the reports of Dr Roberts. She said Mr Sciberras made a number of ethical errors and boundary violations in having a personal and sexual relationship with Ms C. She described Mr Sciberras as someone whose sexually opportunistic behaviour was entirely inappropriate. 3. Dr Roberts was critical of the fact that even after Mr Sciberras had discussed his ethical obligations during his July 2012 interview at Nepean Hospital and been dismissed from his employment there, he continued to have a sexual relationship with Ms C. Dr Seidler was also surprised that Mr Sciberras continued to have a sexual relationship with Ms C after the complaint was made and after she broke into his house and damaged his property. 4. Dr Seidler considers Mr Sciberras' conduct gave rise to a serious risk of emotional damage to Ms C. His behaviour also had a direct and indirect impact on Ms C's children, as they were present in the house on some occasions when Mr Sciberras visited and the emotional stress experienced by Ms C would also impact on her parenting. Other Boundary violations 1. While acknowledging that some psychologists do draw on personal experiences when talking to clients, Dr Roberts stated that if Mr Sciberras spent considerable time discussing himself, his ex-wife and previous relationships this would fall significantly below the standard expected of a practitioner with his training and experience but, on its own, would not invite her strong criticism. 2. Dr Roberts had a similar view in relation to a psychologist making inappropriate comments about a client's blouse. 3. Dr Roberts stated that suggesting a coffee with a client for social reasons falls below the standard reasonably expect expected of a practitioner of equivalent training and experience. She described such action, in light of Ms C's Christmas Eve invitation, as questionable and unwise, but initially said it would not attract her strong criticism, as there may be different views on this matter within the profession. However in her supplementary report she was more strongly critical as the coffee invitation, in context, could be seen as an example of the "slippery slope in Mr Sciberras' blurring of professional boundaries." 4. In her supplementary report Dr Roberts considered that Mr Sciberras' conduct, in relation to the gift of the bicycle, fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. She regarded it as "the initial warning signs of loss of clarity in boundaries" and it attracted her strong criticism. 5. Dr Seidler also commented on the gift of the bicycle. She agreed with Dr Roberts. When discussing Mr Sciberras' ethical errors she included "giving Client B a bicycle he had repaired and dropping it off at her home". Dr Seidler described the giving of the bicycle as a boundary violation. She said that generally a psychologist would not give a gift to a client and it may have been very confusing for the family to receive such a gift. Inappropriate communications 1. Dr Roberts stated that Mr Sciberras' behaviour in being verbally abusive towards Ms C and requesting her to withdraw the complaint falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The departure would be significantly below that standard and invites strong criticism. Insight 1. Both Dr Roberts and Dr Seidler concurred in their concerns about Mr Sciberras' lack of insight into his boundary violations and unethical professional conduct. 2. Dr Roberts wrote that she is shared Dr Seidler's concerns, "about the lack of help Mr Sciberras has sought for his personal and professional issues, and his ongoing lack of insight into the extent of the problems and impact on his ability to practise as a psychologist. I regard his wish to work in an educative role to train other psychologists in ethical areas as completely inappropriate." Supervision 1. Dr Seidler considered that at the time he had the relationship with Ms C, Mr Sciberras was professionally isolated and both Dr Roberts and Dr Seidler were concerned about his lack of supervision and peer support. They believe that Mr Sciberras should have had formal supervision, provided by a senior colleague, to discuss not only individual cases but also ethical and boundary issues. Personal therapy 1. Dr Seidler and Dr Roberts were also concerned that Mr Sciberras had not adequately addressed his own emotional issues and personal vulnerabilities. Personal factors impacted on his capacity for insight in relation to the sexual relationship with Ms C and contributed to him not understanding the warning signs or the triggers, which indicated that his professional judgement was failing. Such issues could be addressed through personal therapy. Evidence of Mr Sciberras Was Ms C a client? 1. In his written and oral evidence, Mr Sciberras denied that Ms C was his client. He stated, "At no time was Ms C referred to me as a client either by Dr Nannan or any other medical practitioner………I did invite Ms C to an individual session…….. to obtain a more detailed family of origin history without Client A being present…… I did not regard Ms C as my client because of this individual fact-finding session." 1. Dr Seidler stated that if a client is a child, the general approach in the psychology profession is to regard the parent of that child also as a client. Dr Roberts agreed. Awareness of relevant Guidelines 1. Mr Sciberras said he didn't know about the guidelines which prohibited a relationship between a psychologist and the relative of a client. 2. He said when he was registered as a psychologist in April 1991 he was given a booklet, which set out the standards expected of a psychologist. He says there was no reference in the booklet to relationships with clients, but he became aware of this through supervision. He said, " No one mentioned relatives or near relatives to me." 3. Mr Sciberras asserts he was under the mistaken belief there was no prohibition against having a relationship with Ms C. He did not regard her as a client and he said he did not understand that his professional Code of Conduct prohibited him from having a relationship with her for two years after Client B ceased to be a client. Mr Sciberras claims that his behaviour demonstrates not a "wanton disregard of the standards, but an unjustifiable failure to know them." 4. However, when he was interviewed by his managers at Nepean Hospital Mr Sciberras stated that he had told Ms C she was not his client and explained to her, "Because I'm a member of the Australian Psychological Society, I'm on the Sydney branch of the APS; I know our code and ethics. You're not allowed to go out with anybody who is client….. Well, I'm a child and family psychologist, so you know, there's a bit of a problem with defining who the client is in a family……….. For me it's been two years since you've been a client and the Client B thing was six months ago and you didn't want me to be your counsellor then anyway…….." 1. Dr Roberts pointed to several inconsistencies in Mr Sciberras' evidence about his knowledge of the Code of Conduct. Dr Seidler agreed that Mr Sciberras' statements about his lack of knowledge of his professional codes were contradictory. She was surprised that he claimed to be unaware of the prohibition against having a sexual relationship with a client's close relative. Recent standards are readily available and a practising psychologist must make sure he is up to date and aware of the standards. Dr Roberts also gave oral evidence about the range of publications and information on the Australian Psychological Society website to inform practitioners of their ethical and professional obligations. Ms C's vulnerability 1. Mr Sciberras states that Ms C gave him no indication that she was in an emotionally vulnerable position. He said, "as I was treating her children, I had very limited knowledge of Ms C. I knew very little about her or any of her problems." He also stated that he did not consider Ms C to be a vulnerable person as she had qualifications in counselling. 2. Dr Seidler noted that Ms C consulted Mr Sciberras because she had parenting issues in relation to both her children. The therapy he provided to her family made him aware of her emotional difficulties and vulnerabilities. 3. Dr Roberts believes Mr Sciberras showed little understanding of the effect of his behaviour on Ms C or her children as evidenced by his description of his observations of her children in the family home. She noted that even when he acknowledged he made a mistake, he did not acknowledge the impact on Ms C or her children and referred to her harassing him. Explanation of the relationship 1. Mr Sciberras stated that he did not pursue Ms C for a relationship. He was only seeking companionship – "an escape from the grief and sadness of my life. I saw my relationship with Ms C as a purely physical one." 2. Mr Sciberras says he was in a vulnerable emotional position at the time as his relationship had ended and he felt lonely and depressed. He was "curious" after Ms C invited him to church and this curiosity led to his invitation to her. "It just happened at a time when I was lonely, depressed and needed a woman's company and passion". The anniversary of his father's death was also a significant stressor. 3. He says he was also experiencing work related stress as he had several difficult cases and he was also without administrative assistance and supervision in the workplace. "I never received any supervision or 'line management' when I worked at the Nepean Hospital. I was unaware of the Guidelines on relationships with near relatives of former clients nor were they ever brought to my attention by my employer." Insight 1. Mr Sciberras regards his conduct as "a mistake……….an aberration, based on ignorance and human frailty." When asked about the continuation of the sexual relationship, after he was interviewed and then dismissed from Nepean Hospital, Mr Sciberras said that he continued the sexual relationship because "it was more important to find out about the child". He said he was having sex with Ms C to determine if she was in fact pregnant. He said he would be able to do this by seeing if she was changing shape. 2. In cross examination Mr Sciberras was asked if he had now read the Australian Psychological Society (APS) Code of Ethics, Guidelines on the prohibition of sexual relationships with clients, Guidelines for psychological services involving multiple clients, Guidelines for managing professional boundaries and multiple relationships and the Guidelines for working with young people. 3. Mr Sciberras responded in a confusing way by first saying he had read the APS guidelines, then saying he hadn't read them and finally stating that he had read only parts of them. When asked how he could supervise intern psychologists without having read all of the guidelines, he said that he had been practicing for so long he understood the essence of them. 4. Mr Sciberras stated that he had made an inquiry about an ethics course through the Australian Catholic University, but had not yet enrolled or undertaken any courses. He has not approached the APS for information about ethics courses. Supervision 1. Mr Sciberras stated that since 2013 he has been engaged in supervision with two colleagues, Ms Linda Cassell and Miss Carmel O'Connell. Both of these psychologists, whom he meets with regularly but infrequently, are junior to Mr Sciberras (with less than ten years' experience) and they are personal friends. Mr Sciberras said he meets with Ms Cassell every second month. He also meets with Ms O'Connell for therapy on an informal basis. 2. Mr Sciberras also stated that he has been engaged in more formal supervision since January 2015 with Ms Christine Sedliak from the Transcultural Mental Health Centre. He said they discuss both individual client cases and ethical issues in supervision. He stated he has also been involved in a Christian Life Community group which meets every fortnight and where personal issues are discussed. Personal therapy 1. Mr Sciberras has been seeing Mr Chris Probets for psychological therapy since 28 March 2015. Mr Probets told the Tribunal that he is undertaking cognitive behavioural therapy with Mr Sciberras to assist him to be less impulsive. In his opinion Mr Sciberras does not need much more treatment, possibly another three or four sessions, but he agreed he requires ongoing supervision. 2. In cross examination Mr Probets acknowledged that although Mr Sciberras made him aware of the general nature of the complaint made by Ms C, he was not aware that the sexual relationship continued for some time after the complaint had been made. He had also not seen a copy of the complaint or all of the documents relating to it. Discussion 1. This may not be a case where a client has been an innocent victim of a health practitioner's predatory sexual advances. Ms C invited Mr Sciberras out on Christmas Eve 2011. She willingly entered into a sexual relationship with him and was emotionally invested in that relationship to the extent that she was unable to control her behaviour on the occasion she entered his house without his permission and broke his front window. 2. However Ms C's behaviour is not in issue here. The conduct which the Tribunal has to evaluate is the professional conduct of Mr Sciberras. Unsatisfactory professional conduct 1. It is alleged that Mr Sciberras' conduct constitutes unsatisfactory professional conduct because it falls below the standard reasonably expected of a practitioner with equivalent training and experience. It is also asserted that Mr Sciberras' conduct is improper and unethical conduct. 2. The conduct complained of occurred at a time when Mr Sciberras had been a registered psychologist for over 20 years. He had in fact completed his psychology qualifications almost 10 years prior to that registration. He was also an authorised supervisor of intern psychologists in New South Wales. Given his time in the profession and his various professional appointments, Mr Sciberras can be regarded as a senior and experienced psychologist. 3. Mr Sciberras had a sexual relationship with Ms C, shortly after she ceased to be a client and the therapy he provided to her children concluded. Prior to that relationship commencing, Mr Sciberras engaged in a number of lesser but still inappropriate boundary violations, including making inappropriate personal disclosures during therapy, inviting Ms C out for a coffee and giving a gift of a bicycle to Ms C's daughter. 4. The sexual relationship continued on and off until November 2012. It continued after Mr Sciberras was dismissed from his employment for professional misconduct. During the course of that relationship Mr Sciberras was verbally abusive to Ms C and attempted to influence her to revoke the complaint she had made in relation to him. 5. Mr Sciberras admits that having a sexual relationship with Ms C constitutes unsatisfactory professional conduct. The Tribunal has no doubt that his sexually opportunistic behaviour was at odds with professional standards. It was significantly below the standard reasonably expected of a practitioner with his level of training of experience and was also improper and unethical. 6. The Tribunal considers that other aspects of Mr Sciberras' conduct, such as making a gift of a bicycle to Client B and attempting to influence Ms C to withdraw her complaint, also constitute unsatisfactory professional conduct. 7. Behaviour such as inviting Ms C for a coffee or commenting on her blouse may not, on its own, be a significant deviation from the relevant standards, but when Mr Sciberras' conduct is considered as a whole, it is significantly below the relevant standard and is both inappropriate and unethical. The Tribunal is comfortably satisfied Mr Sciberras' conduct constitutes unsatisfactory professional conduct. Professional Misconduct 1. It is alleged that Mr Sciberras' unsatisfactory professional conduct is so serious that it constitutes professional misconduct. Professional misconduct has historically been defined in terms of conduct which would incur the strong reprobation of professional brethren of good repute and competence. In Pillai v Messiter (No 2) 16 NSWLR 97 Kirby P said, "But the statutory test is not met by mere professional incompetency or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration". 1. Dr Roberts and Dr Seidler were of one mind in strongly criticising Mr Sciberras for engaging in a sexual relationship with a former client shortly after the end of the therapeutic relationship. 2. Mr Sciberras attempted to explain his sexual misconduct by denying that Ms C was his client. The Tribunal does not accept this assertion. In a situation where a child is receiving therapy that child's parent is an integral part of the therapeutic process and is also regarded as a client. The individual sessions, which Mr Sciberras had with Ms C, further support this conclusion. The Tribunal is in little doubt that Ms C is properly characterised as a client of Mr Sciberras. 3. Mr Sciberras made contradictory statements about his understanding of the APS Code of Conduct and his assertion that he was unaware of the guidelines prohibiting a relationship with a relative of a client is difficult to accept. Mr Sciberras is a senior and experienced psychologist, who, amongst other things, has also been responsible for the training of junior psychologists. He has been a member of the Australian Psychological Society for many years and claims to understand the 'essence' of the APS guidelines. 4. We have commented above on the credibility of Mr Sciberras. The Tribunal did not consider him to be a frank and candid witness. He was at times evasive and was prepared to mislead the Tribunal in relation to matters concerning his previous employment. Given the unreliability of Mr Sciberras' evidence and in light of his experience and seniority in the profession, it is difficult to accept that he genuinely believed Ms C was not a client and that he was unaware of the prohibitions in the APS guidelines. But even if this was the case, his ethical obligations were discussed at his interview with Nepean Hospital in July 2012, prior to his dismissal in August 2012. Yet he continued the sexual relationship until November 2012. 5. Mr Sciberras claimed that his behaviour demonstrates "not a wanton disregard of the standards, but an unjustifiable failure to know them." This account of the events is not borne out by the evidence. 6. Mr Sciberras' insight into his misconduct is highly questionable. Following the complaint Mr Sciberras did not undertaken personal therapy or do anything to address the issues in his personal life, which may have contributed to the boundary violations. He is now involved in therapy with Mr Probets but this began only in March 2015 and it is uncertain whether Mr Probets has been able to address all relevant issues, given his lack of knowledge of background material, and it is also uncertain how long this therapy will continue. 7. Similarly his effort to engage in appropriate supervision has been made only very recently. 8. As a practising psychologist, it is incumbent upon Mr Sciberras to become and remain aware of his professional ethical obligations. Mr Sciberras admits to not having read all of the APS guidelines at the time of the Tribunal hearing and he has not enrolled in any professional development activities directed towards improve his understanding of ethical issues. 9. In his written statement Mr Sciberras did apologise for his behaviour. However, he also stated that he had not been "defensive enough" and referred to Ms C as vengeful and harassing. 10. His explanation for the fact that the sexual relationship continued until November 2012 is perplexing and unsatisfactory. The Tribunal notes Dr Seidler's comment, "he described how he had decided to have sex with her again in order to see if he could get proof that she was pregnant from any observed changes in her body. This seemed an odd explanation to me". 1. There appears to be some uncertainty in relation to Mr Sciberras' characterisation of his conduct. In his written submission, dated 24 September 2015, in relation to the sexual relationship with Ms C, paragraph 24 states, "The Practitioner accepts that this contact was significantly below the required standards, and as constituting professional misconduct." 1. This accords with the admission he made to the Tribunal during hearing. However, the Commission's submissions in reply, dated 7 October 2015 refer to an email from the Respondent, dated 6 October 2015, which states that the Respondent admits only unsatisfactory professional conduct in relation to the sexual relationship. 2. Paragraph 86 of the Respondent's submissions acknowledge that Mr Sciberras' conduct, in having the sexual relationship, was a boundary violation which the Tribunal may find as sufficiently serious to constitute professional misconduct. 3. In any event, having considered the nature and extent of Mr Sciberras' conduct and taken into account the expert opinion, the Tribunal has no doubt that his conduct, considered as a whole, constitutes professional misconduct. The two psychologists who gave expert evidence to the Tribunal were strongly critical of his conduct and noted the severity of his transgressions. 4. His boundary violations are substantial and serious. Mr Sciberras failed to place his clients' welfare above his own opportunistic need for sexual gratification. He was unable to prioritise the needs and welfare of his clients and capitalised on the opportunity for sex, rather than thinking through the consequences of his actions and the ethical and professional issues involved. 5. He placed his clients at risk of emotional harm. His conduct persisted for a significant period of time and there is no question that from at least July 2012 he was aware of his ethical obligations, yet persisted in a sexual relationship with Ms C. 6. Mr Sciberras' conduct violated established ethical standards and in doing so, impacted on the reputation and standing of the psychology profession. It is Dr Seidler's opinion that Mr Sciberras' conduct would have negative ramifications for community confidence and trust in the psychology profession. 7. The Tribunal accepts and concurs with the evidence of Dr Seidler and Dr Roberts in this regard and notes Dr Seidler's conclusion, "In sum, this case is one in which a registered, experienced and senior psychologist made a number of serious errors in judgement that affected his behaviour such that he breached boundaries and committed ethical violations. Irrespective of the Code of Practice that Mr Sciberras had, I would argue that the nature of these breaches and violations are fundamental to ethical practice as a psychologist and have been regulated against in various guises for as long as the profession has been regulated to protect the public." 1. Mr Sciberras' unsatisfactory professional conduct is sufficiently serious to justify suspension or cancellation of his registration. The Tribunal is comfortably satisfied that Mr Sciberras is guilty of professional misconduct as alleged in the Complaint. What, if any, orders or directions pursuant to the National Law are appropriate? The Tribunal's Jurisdiction 1. The decision in HCCC v Dr Della Bruna [2014] NSWCATOD 31 provides a useful summary of the general principles applicable to the Tribunal's jurisdiction. Although this case involved a medical practitioner, the general principles are equally applicable to a psychologist. The Tribunal referred to the following considerations: * In the exercise of its functions under……… the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. * Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297. * The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153. * Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153. * Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80. Proposed orders 1. The Commission proposed that, given a finding of professional misconduct, Mr Sciberras' registration be cancelled for a period of up to 24 months and that a Prohibition Order be made preventing Mr Sciberras providing various related health services. The Commission submits that Mr Sciberras would pose a risk to the health and safety of the public if his registration were to be cancelled and he were to continue offering health services outside of the practice of psychology. 2. Mr Sciberras is willing to have conditions on his registration requiring him to undergo counselling, mentoring and supervision should he continue to practice. He submits this is an appropriate mechanism for deterrence and the ongoing protection of the public. 3. Mr Sciberras also submits that the Complaints involve 'a small sliver in a long professional life'. He states, "This is a career that has resulted in the Practitioner undertaking a substantial amount of beneficial and volunteer work for the general community, and in particular the Maltese community. The Tribunal would only remove the Practitioner from providing these services as a last resort, and only then if completely convinced that this is required for the protection of the public." The Tribunal's decision 1. Given the nature of Mr Sciberras' professional misconduct, his significant lack of insight into the deficits in his conduct and his failure to engage in meaningful remediation, the Tribunal is satisfied that it is appropriate to cancel his registration. 2. Mr Sciberras should not seek a review of the cancellation decision for a period of two years from the date of this order. This should allow Mr Sciberras sufficient time to undertake appropriate professional development activities, including education in ethical issues and to engage in personal therapy, so as to understand and come to terms with the impact of his behaviour on Ms C and her children. 3. The Tribunal is also satisfied that it is appropriate in the circumstances to make a Prohibition Order preventing Mr Sciberras from working in health related areas during the period the cancellation order remains in force. The Tribunal is satisfied that Mr Sciberras would pose a substantial risk to the health of members of the public if such an order was not made. He has demonstrated a serious failure to maintain proper professional boundaries and exercise proper professional judgement in his dealings with clients and his insight into his professional misconduct remains questionable. Costs 1. In its written submission, the Commission sought an order for costs. In his written submission, Mr Sciberras' did not address the question of costs. 2. Clause 13 Schedule 5D of the National Law (NSW) gives the Tribunal power to make a costs order. In this case the Tribunal has found all of the Particulars of Complaints proven. The Tribunal has made findings of serious professional misconduct and the Respondent has not actively argued against the making of a costs order. 3. The Tribunal is satisfied that the usual approach should be followed and orders that the Respondent pay the Commission's costs. ********** 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: 16 December 2015