Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Talmadge [2016] NSWCATOD 16 Hearing dates: 14, 15, 16, 17 December 2015 Date of orders: 03 February 2016 Decision date: 03 February 2016 Jurisdiction: Occupational Division Before: J Millbank - Senior Member C Lennings - Professional Member J Szyndler - Professional Member F Taylor - General Member Decision: (1) The application by Mr Talmadge for the Tribunal to terminate the hearing is dismissed; (2) Pursuant to s 149C(4) of the National Law, the Tribunal declares that the practitioner's registration as a Psychologist on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency would have been cancelled from the date of this order if he had been currently registered; (3) Pursuant to s 149C(7) the practitioner may not make an application to the Tribunal under Division 8 to return to the register until 5 years from the date of this order; (4) The practitioner is prohibited, pursuant to s149C(5A), from providing any "health services" as defined by s 5 of the National law, until such time as a reinstatement order is made; (5) A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of the current or former names of Patient A or any other material that could identify her, including the name of her former partner or child; (6) Costs in favour of the Commission pursuant to cl 13(1) of Sch 5D of the National Law as agreed, or failing agreement, liberty to restore to the list to be assessed. Catchwords: Psychology – sexual relationship between practitioner and patient – patient very vulnerable – patient with complex mental health presentation – Dissociative Identity Disorder – appropriateness of diagnostic process and treatment plan – failure to seek expert supervision – Gender Identity issues – failure to support referral for psychiatric review prior to surgical procedures –- failure to maintain professional boundaries in treatment – failure to maintain professional boundaries in telephone communication out of session – home visits – failure to refer for other mental health support at termination of therapeutic relationship – allegation of destruction of clinical records – failure to keep clinical records – application to dispense with hearing as complaints conceded – important particulars not conceded Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) ('CAT') ss 36, 50(2), 64; Health Practitioner Regulation National Law 2009 (NSW) ('The National Law') ss 3A, 4, 139B, 139E,149(b), 149C,165H, Sch 5D cl 12; Health Records and Information Privacy Act 2002 (NSW) s 25(1)(a) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34, (1983) 60 CLR 336 Gianoutsos v Glykis [2006] NSWCCA 137, (2006) 65 NSWLR 539 In re Sood [2006] NSWMT 1 HCCC v Fraser [2014] NSWCATOD 29 HCCC v Perroux [2011] NSWDC 99 HCCC v Litchfield (1997) 41 NSWLR 630 HCCC v Jamieson [2014] NSWCATOD 56 HCCC v Della Bruna [2014] NSWCATOD 31 HCCC v Philipiah [2013] NSWCA 342 Lucire v HCCC [2011] NSWCA 182 Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 Sabag v HCCC [2001] NSWCA 411 Texts Cited: Australian Psychological Society (APS) Code of Ethics (2007); APS, Guidelines for Providing Psychological Services and Products Using the Internet and Telecommunications Technologies (2011); APS, Guidelines on Working with Sex Diverse and Gender Diverse Clients (2012); Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Seth Erin Talmadge (Respondent) Representation: Counsel: R Mathur (Applicant) D Villa (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Colin, Biggers and Paisley (Respondent) File Number(s): 1520127 Publication restriction: A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of the current or former names of Patient A or any other material that could identify her, including the name of her former partner or child. REASONS FOR DECISION Background 1. Mr Talmadge was a registered psychologist in private practice in a regional centre in New South Wales. At the time of the events complained of he had been a full time psychologist for 12 years. 2. In June 2012 Patient A's general practitioner referred Patient A to Mr Talmadge for grief counselling in relation to the sudden death of Patient A's partner. Patient A's partner had been a patient of the practitioner for approximately two years prior to her death. 3. Patient A commenced seeing the practitioner in July 2012, initially on a monthly basis. 4. Patient A was born biologically female, but had transitioned to a male identity 13 years before seeking treatment from the practitioner. Patient A presented as a male when first attending on the practitioner for treatment. 5. In approximately November 2012, after only a few sessions of treatment with the practitioner, Patient A disclosed a previous diagnosis of Dissociative Identity Disorder (DID). 6. In early 2013, the practitioner commenced treating Patient A for DID on a more frequent basis. The approach was to pursue personality reintegration through prescheduling particular personalities to attend sessions, having previously decided with Patient A which traumatic events from the past were being worked upon. 7. From approximately September 2013 the practitioner undertook several treatment sessions with Patient A as home visits. 8. In late November 2013 the practitioner accepted a massage from Patient A and a sexual relationship between them commenced. 9. On 21 November 2013, Patient A sought medical assistance to transition back to a female identity. 10. On 26 November 2013 the practitioner certified that Patient A was unfit to work for at least two years, if not indefinitely, due to severe anxiety and post-traumatic stress. 11. The practitioner took out a loan in December 2013 to fund a series of surgeries for Patient A to transition to female. 12. The last Medicare claim processed for services provided by the practitioner to Patient A was for an attendance on 16 December 2013. 13. The practitioner moved into Patient A's house in December 2013, before himself taking out a lease on a property that Patient A moved into with him in January 2014. 14. Patient A changed legal sex to female in January 2014 and recorded a female name at that time. We refer to Patient A as "she" throughout this decision in recognition of her current gender identification. 15. Patient A undertook a series of medical appointments and surgeries from January through March 2014 in Sydney in pursuance of gender reassignment. The practitioner arranged some of these appointments, travelled with Patient A to Sydney, and attended six appointments. 16. The practitioner accepted an enduring guardianship and power of attorney over Patient A in March 2014. 17. On 5 April 2014 the practitioner left the shared residence and ended the relationship with Patient A. 18. On 7 April 2014 the practitioner phoned his colleague Carol Moylan in a distressed state; he admitted the relationship and showed signs of disordered or delusional thinking. Ms Moylan undertook the required mandatory notification to AHPRA. 19. On Ms Moylan's advice, the practitioner was admitted to a private hospital for psychiatric care on 10 April 2014. He was discharged on 16 April 2014. 20. The practitioner approached the police on 23 April 2014 concerning Patient A repeatedly phoning and texting him. 21. Patient A approached the police on 24 April 2014 stating that the practitioner's wife had made threatening phone calls to her. 22. On 23 May 2014 the practitioner consented to a condition being placed on his registration that he not practice psychology until such condition was reviewed and removed by the Psychology Council. He has not practised since that time. 23. In July 2014 the practitioner returned to the police and in August 2014 an Apprehended Violence Order (AVO) was taken out on his behalf against Patient A. The Complaint 1. The HCCC brought two complaints, of unprofessional conduct and professional misconduct, respectively. Two other complaints were dropped. By the time of the hearing the practitioner conceded both complaints, but contested a number of the particulars upon which they rested. 2. At the hearing the HCCC filed an amended complaint. The amended particulars relied upon by the HCCC for both complaints were: 1. Sometime around his third treatment session with Patient A, the practitioner inappropriately diagnosed Patient A with Dissociative Identity Disorder (DID) and began treating her for that disorder in circumstances where he: (a) lacked training and experience in the assessment, diagnosis and treatment of DID; (b) failed to recognise his own limitations as a clinician and his ability to treat Patient A given the complex nature of her psychiatric presentation; (c) [deleted] (d) failed to refer Patient A for expert psychiatric opinion; 2. The practitioner failed to appropriately manage the therapeutic relationship with Patient A in that he: (a) failed to recognise or act on the developing counter-transference in his relationship with Patient A; (b) failed to seek peer supervision, collegial or professional advice and support to assist in his management of Patient A; (c) failed to regularly review the contractual arrangements where circumstances changed. 3. The practitioner failed to maintain appropriate professional boundaries with Patient A in that during treatment sessions he: (a) discussed his personal life and relationships with Patient A including his marital problems; (b) [deleted] (c) [deleted] 4. [deleted] 5. On various dates in the period July 2013 to mid-December 2013 and while the practitioner remained Patient A's treating psychologist, the practitioner failed to maintain appropriate professional boundaries in that he attended Patient A's home on a weekly basis to conduct treatment sessions. 6. Sometime in the period August 2013 to November 2013 and while the practitioner remained Patient A's treating psychologist, the practitioner failed to maintain appropriate professional boundaries in that he attended Patient A's home for the purpose of receiving a Reiki massage from Patient A. 7. On various dates in the period August 2013 to mid-December 2013 and while the practitioner remained Patient A's treating psychologist, the practitioner failed to maintain appropriate professional boundaries in that following weekly treatment sessions at Patient's A home he: (a) stayed the night at Patient A's home; (b) engaged in sexual intercourse with Patient A. 8. In December 2013 the practitioner inappropriately discouraged a referral made by Patient A's general practitioner for Patient A to consult a psychiatrist in relation to her desire to cease testosterone treatment and transition back to a female identity. 9. On and after termination of the formal therapeutic relationship with Patient A in mid-December 2013, the practitioner failed to adequately manage the termination and post-termination period in that he: (a) told Patient A in words to the effect that if she felt like talking, they could do so at home; (b) failed to take all reasonable steps to safeguard Patient A's ongoing welfare including failing to refer or offering to refer Patient A to another psychologist or suitably qualified mental health professional. 10. Between October 2013 and April 2014, the practitioner failed to maintain appropriate professional boundaries by engaging in frequent telephone contact with Patient A. 11. Sometime in December 2013, the practitioner failed to maintain appropriate professional boundaries by moving into the home of Patient A. 12. Sometime in January 2014, the practitioner failed to maintain appropriate professional boundaries by allowing Patient A and her daughter to move into his home. 13. Between January 2014 and early April 2014 the practitioner failed to maintain appropriate professional boundaries by: (a) continuing to live with Patient A; (b) continuing a personal relationship with Patient A; (c) continuing a sexual relationship with Patient A; (d) accompanying patient A to Sydney on at least 6 occasions for medical appointments and surgeries; (e) agreeing to be Patient A's Power of Attorney; (f) agreeing to be Patient A's Enduring Guardian; (g) agreeing to be the Executor and Trustee of Patient A's will; (h) agreeing to be the Guardian of Patient A's minor daughter. 14. Between December 2013 and January 2014 the practitioner inappropriately gave $37,000 to Patient A for the purpose of breast implant surgery and other expenses associated with the process of transitioning back to a female identity. 15. In February or March of 2014 the practitioner inappropriately destroyed all records of his care and treatment of Patient A. 16. The practitioner failed to retain records relating to his care and treatment of Patient A for a period of 7 years from the last occasion on which a health service was provided by the practitioner to Patient A, in contravention of: (a) Section 25(a) of the Health Records and Information Privacy Act 2002 No 71; and (b) General Principal B.2.2 of the Australian Psychological Society (APS) Code of Ethics (2007). 1. The practitioner denied particulars 1, 2(b) and 15. He admitted the facts of particulars 5, 8, 9 and 10 but contended that his actions were clinically appropriate in response to Patient A's needs. The remaining particulars were admitted. 2. What remained at issue by the time of the hearing was: 1. Whether the practitioner had in fact destroyed Patient A's clinical file; 2. Whether the practitioner failed to seek peer supervision, collegial or professional advice and support to assist in his management of Patient A; as well as the professionalism of the following acknowledged facts: 1. The practitioner's diagnosis and treatment plan of Patient's A's DID presentation; 2. The practitioner's telephone contact with Patient A; 3. The practitioner's home visits with Patient A; 4. The practitioner's cessation of the therapeutic relationship without referral; 5. The practitioner's discouragement of Patient A from psychiatric referral concerning pursuance of a sex change. 1. Further, although the practitioner admitted the sexual relationship, there was a major dispute as to the context in which it occurred. Mr Talmadge contended that the relationship arose as part of a pattern of violence, abuse and intimidation at the hands of Patient A: in short, that he was victimised and lived in fear of her through the final few months of the therapeutic relationship and through the four months of the acknowledged sexual relationship. It was Mr Talmadge's case that he was impaired at the time the improper relationship commenced in December 2013 and that the misconduct was a product of the impairment. 2. The HCCC argued that while the practitioner may have been briefly impaired at the conclusion of the sexual relationship in April 2014, he was of sound mind at the time it commenced in late November 2013, and was at all times in a position to know that his conduct in entering into the relationship was unprofessional. 3. The HCCC case was that it was Mr Talmadge who was in a position of power by virtue of the professional relationship, that it was he who was in a position to determine the terms of that relationship. The fact that the practitioner had obtained an AVO against the patient four months after the personal relationship ended did not establish that the relationship was one in which the practitioner was victimised. Rather the behaviour of the Patient in repeatedly contacting the practitioner in writing was a result of her confusion and distress at the abrupt cessation of the relationship. Application to Dispense with Hearing 1. On the first day of the hearing Mr Villa for the practitioner applied to dispense with the oral hearing. He proposed that the Tribunal proceed to determine any contested matters and the appropriate protective orders on the basis of written submissions alone. 2. In his oral submissions in support of the application Mr Villa relied upon s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) which requires it to 'facilitate the just, quick and cheap resolution of the real issues in the proceedings' (bearing in mind that it must not be inconsistent with the objects or principles of the enabling legislation, s 3A of the National Law, which provides that the protection of the health and safety of the public must be the paramount consideration). 3. The respondent conceded the complaints. He proposed that the appropriate orders would be those providing that the practitioner would have been deregistered as a psychologist if still registered, preventing him from applying for a review of that order for three years, and further, imposing a prohibition order preventing him from providing health services unless and until re-registered as a psychologist. 4. Section 50(2) of the CAT Act provides that the Tribunal "may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal." 5. Counsel for the practitioner noted that by virtue of s 149(b) the Tribunal was able to exercise any disciplinary power under Subdivision 6 of the National Law because the practitioner had admitted in writing the subject matter of the complaint. Further, s 165H of the National Law provides that "No inquiry need be conducted" if the practitioner "admits the subject-matter of the complaint in writing to the Tribunal." 6. In addition there is power under Sch 5D cl 12(a)(ii) of the National Law to terminate the inquiry if the respondent ceases to be a registered health practitioner and under cl 12(1)(b) in the opinion of the Tribunal it is not in the public interest for the inquiry or appeal to continue. 7. Mr Villa also submitted broadly that the process was unfair because the practitioner was significantly disadvantaged by the absence of Patient A, who did not appear to give evidence. The Tribunal took this to be an argument that the hearing did not meet the requirement of "just" resolution of the real issues in dispute. In tandem, and subsequently, objection was taken to Patient A's evidence inasmuch as it was relied upon as evidence of any disputed fact. 8. The HCCC opposed the application. Ms Mathur for the HCCC submitted that a hearing was necessary because although the practitioner had admitted the complaint of unprofessional conduct and misconduct he disputed several of the particulars on which the complaints rested concerning the appropriate professional standard in treatment and supervision practices, and also disputed the factual basis of the admitted sexual relationship. If the HCCC case were proved the orders sought by them would exceed those accepted as appropriate by the practitioner. 9. The practitioner's claim was that he was victimised by the patient and came under her control, whereas the HCCC case was that Patient A was extremely vulnerable and was victimised by this improper relationship. This dispute went to the practitioner's credit as well as his present candour and insight. The HCCC argued that it was necessary for the Tribunal to explore and resolve this factual matrix by hearing from the practitioner and other witnesses, both so as to determine the gravity of the misconduct and so as to be fully informed in the determination of appropriate orders. This was a serious matter and it was in the public interest to explore all of the contested matters fully. 10. The HCCC submitted that all of the particulars save one, particular 15, were supported by other evidence than Patient A's statement. The sole particular still pressed which relied upon Patient A's account raised a wholly different kind of allegation, that of deliberate dishonesty. The practitioner's own evidence on this question was still available and ought to be assessed. The non-attendance of Patient A was a matter for the weighing of her evidence not a basis upon which to terminate the hearing or exclude the evidence. 11. The Tribunal adjourned to consider the application. On resuming, the application was denied, with reasons reserved. The reasons for denying the application are provided here. 12. A hearing was required. Key issues remained in dispute which went to the evaluation of professional conduct (particulars 1, 5, 8, 9, 10) as well as the occurrence of certain conduct (particulars 2(b) and 15), the seriousness of the admitted conduct, and the appropriate protective orders. The Tribunal was not satisfied that the issues for determination could be adequately determined in the absence of the parties by considering written submissions and the admitted evidence per s 50(2) of the CAT Act. Nor could it rightly be said that the practitioner had fully admitted the subject matter of the complaint under s 165H of the National Law when key particulars were contested. 13. Sch 5D cl 12(b) requires that the Tribunal be of the opinion that it is not in the public interest for an inquiry to continue. Section 3A of the National Law requires in the exercise of functions under a NSW provision the paramount consideration of the protection of the health and safety of the public. Thus a decision to dispense with the hearing and/or inquiry requires the Tribunal to be satisfied that it is in the public interest to do so having addressed the paramount consideration of the health and safety of the public. 14. In HCCC v Do [2014] NSWCA 307 Meagher JA, with whom the other members of the NSW Court of Appeal agreed, stated: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." [35] 1. In HCCC v Do, the Court of Appeal held that the Tribunal had fallen into legal error by focusing only upon the risk of reoccurrence of misconduct of the relevant practitioner and not upon the public interest in denouncing unacceptable conduct, nor the full implications of the findings that the practitioner's skill and judgement had fallen significantly below the standard reasonably expected: [39]. In so doing the Tribunal had failed to give proper consideration to the protection of the health and safety of the public as required by ss 3A and 4 of the National Law: [40]. 2. It is our view that terminating the proceedings prior to oral hearing would have fallen into similar error. The very serious nature of the misconduct alleged, and the dispute as to the occurrence of some events and the professionalism of others, meant that an inquiry was required. These matters could not be determined on the papers, nor could they be left unresolved. The Hearing 1. The HCCC called evidence from Mr Borenstein, a psychologist who provided an expert report, and Ms Carol Moylan and Mr Frank Bonneville, psychologists who had worked in rooms with Mr Talmadge at the time he treated Patient A. The respondent gave evidence in his own case. Applicable Law 1. The standard of proof is the civil standard as stated in Briginshaw v Briginshaw (1983) 60 CLR 336 at 362-3. By reason of the seriousness of the allegations and the gravity of the consequences the Tribunal must be comfortably satisfied that the matters in the complaint have been established. 2. The use of "comfortably satisfied" does not imply that proof to a higher standard than the balance of probabilities is required: Gianoutsos v Glykis (2006) 65 NSWLR 539 at 547-9, applied by the Medical Tribunal in In re Sood [2006] NSWMT 1 at 10. 3. At common law there are only two standards of proof, the civil standard of proof upon a balance of probabilities, and the criminal standard of proof beyond reasonable doubt: Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [31]. The Briginshaw standard is not a third standard of proof. Rather, it is concerned with the quality or sufficiency of the evidence necessary to discharge the civil standard. 4. The professional members of the Tribunal are entitled to apply their own specialist experience to the evidence in forming opinions about whether there has been a departure from the relevant standard of conduct, with appropriate attention to the expert evidence if there is a genuine difference of view: HCCC v Fraser [2014] NSWCATOD 29 at [238]. 5. The Tribunal must make findings for each particular (except those conceded in writing: s 165H National Law), and then determine whether those findings amount to proof on the balance of probabilities of the complaint: Lucire v HCCC [2011] NSWCA 182 per Basten JA at [43]. 6. 'Unsatisfactory professional conduct' is defined in s 139B of the National Law as including: (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or 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 or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. 'Professional misconduct' is defined in section 139E 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. 1. In making a finding of professional misconduct the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": HCCC v Perroux [2011] NSWDC 99 at [18]. 2. The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. 3. Whether the gravity of the misconduct was such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. 4. It is demonstrated current unfitness, not a determination of probable permanent unfitness, that is required to justify deregistration: Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 at [102]; HCCC v Della Bruna [2014] NSWCATOD 31. 5. A prohibition order can only be made if the Tribunal either suspends or cancels a practitioner's registration under s149C(2) or (3) or if the Tribunal makes a disqualification order under s149C(4) of the National Law. It is then open to the Tribunal to consider imposing a prohibition order. The National Law states that the Tribunal must be satisfied that a person "poses a substantial risk to the health of members of the public" prior to making a prohibition order under s149C(5) or (5A). Findings and Reasons 1. As noted Patient A did not give evidence. As there was no opportunity to test her evidence, very little weight was placed upon the factual assertions in her written statement when there was no other evidence to corroborate them. Whether the practitioner destroyed Patient A's clinical file 1. Patient A claimed that in March 2014 she had watched the practitioner "put my file through the shredder" at his office. 2. Mr Talmadge claimed in his written statements and oral evidence that he had provided Patient A's client file to her at her request in February or March 2014. He stated that he did not keep a copy. In oral evidence he amplified upon his earlier statements to say that he had placed it on the kitchen bench in their shared residence and not seen it again subsequently. 3. Mr Talmadge denied destroying the file and stated that he did not have a shredder in his office. 4. Neither Mr Bonneville nor Ms Moylan had any recollection of a shredder on the office premises. 5. Mr Talmadge was unable to produce a number of other records of his interactions with Patient A, specifically emails, text messages and letters said to be received in large number from Patient A through 2013. He gave vague, uncorroborated and at times contradictory accounts of how this came to pass, including: not having kept copies, his email being hacked in late 2013 and again in 2014, having provided police with material that they neither kept nor returned to him that he did not keep copies of, and changing his mobile phone handset and number in late 2013 and early 2014. 6. As a result of his own evidence, the Tribunal had doubts about the credit of the practitioner when it came to documentation that arose out of the relationship with Patient A. 7. However the practitioner did produce, when called upon by the HCCC, two bundles of material he claimed were presented to him by Patient A early in the therapy (purporting to be records of her previous DID 'treatment' undertaken between herself and her former partner). As will be discussed this material did not assist the practitioner's case in relation to particular 1. Yet he had retained the material, and had passed it on to his lawyers in 2014. 8. We are unable to find on the balance of probabilities that the practitioner destroyed Patient A's file. The practitioner's diagnosis and treatment plan concerning Patient A's DID presentation 1. The practitioner's case was that he began assessing and treating Patient A's DID in an appropriate manner, consistent with her clinical presentation and her self report of past DID diagnosis. He denied that he lacked the training and experience necessary to enable him to assess and treat Patient A, stressing his previous academic qualifications in disassociation and his clinical work in post-traumatic stress disorder (PTSD) more generally. 2. The practitioner admitted that he did not refer Patient A for expert psychiatric evaluation, did not seek to consult with any of the professionals who had treated Patient A for mental health issues previously, and did not seek expert supervision from a psychiatrist or psychologist specialising in DID at any time. 3. Mr Talmadge justified this course of action by reference to the fact that he told Patient A at the time that he had not previously treated a patient with DID and that "she was free to see someone else", that at the relevant time he was not aware of any other practitioner in the region who had treated a patient with DID, and that Patient A responded positively to the treatment provided to her through the course of the therapeutic relationship. 4. The Tribunal is in no position to judge the validity of Patient A's DID diagnosis, or the ultimate success of her "personality reintegration treatment" with the practitioner, nor is it necessary to do so. At issue is the appropriateness and professionalism of the diagnostic and treatment processes. 5. The Australian Psychological Society (APS) Code of Ethics (2007) provides at B.1.2: Psychologists only provide psychological services within the boundaries of their professional competence. This includes, but is not restricted to: (a) working within the limits of their education, training, supervised experience and appropriate professional experience; … (e) ensuring that their emotional, mental, and physical state does not impair their ability to provide a competent psychological service. 1. While Mr Borenstein did not think that the practitioner was unable to make a DID diagnosis, he opined that the practitioner ought to have been more cautious in the making of it, and should have conferred with a senior psychiatrist. The view of the professional panel members was that the diagnostic process should have involved a second opinion from a psychiatrist or psychologist with specialist expertise in DID, and that the practitioner should himself have considered alternate diagnoses. 2. Mr Borenstein's expert opinion was that the practitioner's undergraduate and postgraduate training in dissociative conditions more generally was insufficient for the treatment of such a complex condition as DID, which required at a minimum specialised training in complex psychiatric cases and intensive supervision from senior colleagues. 3. Mr Borenstein stressed that expert supervision of the clinician was essential to assist both patient and clinician in the treatment process in a complex presentation such as that of Patient A. The professional members of the panel concurred in this view. 4. Mr Talmadge's own treating psychiatrist and psychologist in their reports in evidence also expressed the view that the practitioner was acting outside of his experience and skill in treating Patient A. 5. Dr Heiner is a psychiatrist who treated Mr Talmadge as an in-patient in April 2014 and then saw him again periodically as an out-patient. Dr Heiner's report of 25 June 2014 says, "The information I have suggests that Mr Talmadge found this situation both clinically fascinating and challenging" and speaks of Mr Talmadge's "clinical immaturity and inexperience" as a major contributing factor in the events. 6. Chris Symonds is a psychologist who saw Mr Talmadge regularly from April 2014. In a report of 6 January 2015 he states, Any personal gain present is more likely to have been connected with some personal, clinical aggrandisement connected with treating such a complex case. It does seem that the more he became committed to the treatment, the more deluded he became about what he was trying to accomplish, and the means he was using to do this. 1. Mr Talmadge admitted in these proceedings that he failed to appropriately manage the therapeutic relationship in that he was unable to deal with transference, counter transference and out of session boundary pushing from Patient A throughout 2013. These admissions are at odds with his continued insistence that he was professionally equipped to treat a patient with such a complex presentation. 2. In the course of his oral evidence Mr Talmadge referred to, and subsequently was requested to produce, further materials concerning Patient A that he had previously made available to his solicitors. This file contained two bundles of materials he said were given to him by Patient A early in 2013 shortly after she disclosed her DID to him. 3. In his statement of 6 January 2015 Mr Talmadge stated that in her DID disclosure Patient A "stated that she had done extensive integration work with her [former] partner already, who was not a formally trained clinician, and that successful integration had occurred, but only for a couple of 'personalities'." 4. Moreover the practitioner had previously treated Patient A's partner. His oral evidence was that the partner had previously told him in the course of that treatment that two of her (the partner's) children suffered from DID. 5. It is the Tribunal's view that these materials alone would have given a reasonable practitioner cause for concern. The practitioner was prepared to accept that Patient A had been 'treated' for DID by someone untrained who was, moreover, her romantic partner at the time, and who also had two children with this very rare condition. He also accepted material that, even on a casual reading, appeared to contain considerable evidence of long standing delusional thought on the part of Patient A. These materials should have alerted the practitioner to the need for a second opinion concerning the diagnosis of DID, the need for senior and expert supervision for the management of DID and the need for peer supervision at a minimum for the management of boundary issues. 6. The professionals in this case spoke with one voice in their view that the practitioner was manifestly ill-equipped and out of his depth in dealing with a presentation as rare, complex and contested as DID. We find that the practitioner was working beyond the limits of his education, training, supervised experience and appropriate professional experience in breach of B1.2 of the APS Code of Ethics. Bearing in mind the regional location of his practice, the Tribunal finds that, at a minimum, the practitioner ought to have consulted an experienced psychiatrist or psychologist with specialist knowledge of DID in the diagnostic process and sought supervision from a more senior psychologist colleague throughout the treatment process. Whether the practitioner failed to seek peer supervision, collegial or professional advice and support to assist in his management of Patient A 1. Mr Talmadge asserted that he consulted with his colleague Carol Moylan about his patients "from time to time" in 2013 and that he discussed Patient A "on several occasions in peer consultation". At the hearing he stated that they had a number of informal peer consultations and that he had definitely discussed the issue of a patient with DID "pushing boundaries" with Ms Moylan in winter of 2013. 2. This was contradicted by Ms Moylan's evidence. In her written statement of 19 August 2014 Ms Moylan stated that Mr Talmadge had first mentioned a patient with DID to her in November 2013. Her only recollection of Mr Talmadge raising a "boundary pushing" patient with her was in November 2013 in relation to her raising "in passing" with Mr Talmadge the issue of the waiting area of the practice rooms having been redecorated and Mr Talmadge commenting that it had been done by "one of the personalities of his patient". 3. In oral evidence Ms Moylan recalled the "odd occasion" on which she and Mr Talmadge would meet for peer supervision continuing professional development sessions (CPD) in 2013, including one in June 2013. However she had no recall of any session in which a patient with DID, gender identity issues or consistent boundary pushing was discussed. Ms Moylan gave evidence that she believed Mr Talmadge to be undertaking peer supervision with Mr Bonneville at that time. 4. In oral evidence Mr Talmadge conceded that he had recently reviewed notes including those of 2013 CPD meetings with Ms Moylan but had not produced them for these proceedings. 5. We find that Mr Talmadge did not undertake peer supervision with Ms Moylan concerning Patient A at any time during 2013. 6. Mr Bonneville gave evidence of a number of peer supervision CPD sessions that he and Mr Talmadge conducted from April 2013 to February 2014. A patient with DID, gender identity issues, or suicidality was not discussed at any of these sessions, nor was the issue of a patient offering sex or boundary pushing through out of session contact. 7. We find that Mr Talmadge did not undertake peer supervision with Mr Bonneville concerning Patient A at any time in 2013 or 2014. 8. Mr Talmadge did not claim to have undertaken supervision with any other colleagues. 9. The Tribunal is satisfied that this particular is clearly established to the required standard. The practitioner's telephone contact with Patient A 1. The practitioner's response to this particular was that between October and December 2013 he maintained a level of telephone contact with Patient A that was appropriate to, and in an response to, Patient A's therapeutic needs. From December 2013 to April 2014, he says, the telephone contact was appropriate to the personal relationship that is conceded. 2. In his statement of 6 January 2015 Mr Talmadge stated, The phone contact during October and November [2013] was frequent as [Patient A] was calling me frequently during my busy days dealing with other clients to discuss events occurring within the system, some of which were 'crises' that needed to be solved because [of a] 'personality' involved in the integration process…I spent a great deal of time trying to deal with these situations. 1. The exact number of separate text messages as evidenced by phone records was contested. The phone records were accepted to establish repeat text and phone contact over the October to December period. In Mr Talmadge's words, contact "steadily escalated" and was "intense" through that time, although he maintained that the contact was professional not personal. 2. At the hearing Mr Talmadge stated that contact from Patient A at one point in October 2013 was in relation to a suicide crisis and that his response to this via text message and a brief phone call was appropriate. He did not raise this suicide crisis in peer supervision with Mr Bonneville at that time. 3. Professional members of the Tribunal asked Mr Talmadge whether he was aware of the APS, Guidelines for Providing Psychological Services and Products Using the Internet and Telecommunications Technologies (2011); and whether he had ever made a formal agreement with Patient A about out of session contact or therapeutic sessions via phone. Mr Talmadge responded that he was unaware of the guideline and that although he had "tried to get her to decrease contact" he had never made a clear agreement with her about therapeutic contact via email or phone. 4. Mr Borenstein's criticism of the practitioner's telephone contact with Patient A up to December 2013 was based on the assumption that it was of a personal nature. There is insufficient evidence to support such a conclusion. 5. Regardless of the content of these communications, we find that there were no appropriate professional boundaries drawn around this contact by the practitioner at any stage. It was the practitioner' obligation to negotiate such contact in accordance with professional guidelines, and to manage it in such a way that it served rather than impaired the therapeutic relationship. He did not do so. Nor did he seek assistance, or seek to terminate the relationship, when the contact was by his own account unmanageable. We therefore conclude that this particular is established. The practitioner's home visits with Patient A 1. The practitioner's response to this particular was that he did undertake home visits from late September or early October 2013 but that these were appropriate in the circumstances because Patient A had reported experiencing anxiety about the drive home from his office after sessions. 2. Mr Borenstein expressed the view, concurred with by the professional members of the panel, that while home visits may sometimes be appropriate they were not so in the context of this particular relationship in which the personal and professional boundaries were already blurred. 3. This context is one in which, on the practitioner's account, the patient had made a sexual advance, and then followed up with a series of communications pursuing a friendship, and an escalation of out of session contact via text and email which he felt unable to manage or contain. The practitioner's conduct in conducting home visits, including visits in the late afternoon and early evening, extending beyond the usual session time (culminating in a five hour session), would have contributed to further confusion between the personal and professional boundaries. 4. It is not the home visit per se but home visits in the context of this particular poorly bounded therapeutic relationship that represents conduct falling significantly below the standard expected of a practitioner with the same training or experience. The particular is established. The practitioner's cessation of the therapeutic relationship without referral 1. The APS Code of Ethics provides: B11.2 When psychologists terminate a professional relationship with a client, they shall have due regard for the psychological processes inherent in the services being provided, and the psychological wellbeing of the client. B.11.3. Psychologists make reasonable arrangements for the continuity of service provision when they are no longer able to deliver the psychological service. 1. Mr Borenstein was strongly critical of the failure by Mr Talmadge to refer Patient A to another therapist. 2. The practitioner admitted that he did not in December 2013 refer or offer to refer Patient A to another psychologist or suitably qualified mental health professional and said to her words to the effect that if she felt like talking to him then she could do so at home. 3. Mr Talmadge's position was that Patient A would not have acted upon or accepted a referral to another psychologist or suitably qualified mental health professional; that he continued to monitor the Patient A's mental health; and that he did demonstrate appropriate care in about April 2014 when Patient A reported to him that she was thinking of killing herself (by contacting the local Mental Health Access Line 1800 number as a result of which Patient A was contacted by and treated by mental health professionals for her then current mental health issues). 4. Whether Mr Talmadge made contact with mental health services in April 2014 at the conclusion of the personal relationship is not relevant to his failure to do so at the conclusion of the professional relationship. 5. Mr Talmadge claimed that Patient A had told him that she did not have DID shortly after they moved in together. He claimed that at this time Patient A stated that she had no mental health problems and that it was he who was 'sick'. In oral evidence he stated, We did discuss whether she needed to see somebody else. She was opposed to it. There wasn't any identified risk. She wasn't expressing suicidality. I didn't see a reason to refer her. She wasn't wanting a referral. 1. The reluctance of a patient to accept a referral has no bearing on the duty of the practitioner to make it. 2. On any view of the evidence Patient A had a complex mental health presentation. It is a reasonable inference that her health would have been more precarious by reason of her abrupt cessation of therapy and commencement of a live-in sexual relationship with her former therapist. 3. In these circumstances an impartial assessment of the patient's wellbeing would indicate to a practitioner of an equivalent level of training or experience that such a referral was necessary. The particular is established. The practitioner's discouragement of psychiatric referral concerning Patient A's sex change. 1. Mr Talmadge stated on 30 September 2014 in correspondence with the HCCC that he had "very limited experience with transition of gender clients" having only had one previous client in the period before he was working in private practice. At the hearing Mr Talmadge stated that he had seen "one or two" clients with gender identity issues prior to his private practice. 2. Mr Talmadge conceded in his 30 September 2014 statement that, "my relationship with the client had been compromised" by the time that Patient A decided to cease testosterone and undertake three surgical procedures to transition to female, in November 2013. 3. In his written statements and oral evidence Mr Talmadge consistently stated that at that time he accepted Patient A's rationale, which was that she had lived as male in order to hide from a particular danger and that she no longer needed to do so. This account is corroborated by Patient A's GP's notes of 27 November 2013 which say, "States that changing gender [to male] was a self-protection strategy – supported by his friend/partner of the time". 4. In September 2014 Mr Talmadge stated that, in this context, "the client and I both felt that it was unfair at the time that she have to seek psychiatric consult for cosmetic surgery to undo some of the damage that her 'hiding' had caused, not gender identity confusion." In oral evidence Mr Talmadge referred to Patent A as "frustrated" at the "hurdle" of a psychiatric referral and consistently characterised himself as "validating" her frustration. 5. Mr Talmadge claimed that Patient A would not have accepted and acted upon the referral in any case, regardless of his view. 6. Mr Talmadge also claimed that Patient A's desire to change sex arose spontaneously at about the same time the relationship commenced, in early to mid-December 2013. 7. We find that Mr Talmadge was an active participant in the sex change process: he took out a substantial loan to fund it, made medical appointments on Patient A's behalf and travelled to Sydney on six occasions over three months as she underwent medical and surgical appointments. 8. Patient A's GP records indicate that Mr Talmadge was also actively involved in the decision prior to December 2013. A letter from Patient A to the GP dated 21 November 2013 on the GP files says, After so much work with Seth I have seen why I am so stuck and why I hate me so much. I hate what I have done and I never really wanted to be this way I want to undo it all and go back to being me, and I will do whatever it takes to do it but I know I need your help. I have talked to Seth for many weeks about this… 1. The GP records indicate that the GP spoke with Patient A on the phone in response to this letter and then saw Patient A on 27 November 2013. The GP files notes indicate that the patient "wants to revert to his 'female birth gender' – all in context of ongoing psychologist management for 'Dissociative Identity Disorder'", "states has been organising plastic surgery to restore more feminine features". 2. The GP referral letter to a psychiatrist dated 5 December 2013 states, [Patient A] has recently had long and multiple sessions with a local psychologist who feels that [Patient A] has a dissociate identity disorder that is perpetuated by continuing testosterone treatment and the continuation of a male lifestyle and external appearance. 1. In oral evidence the practitioner denied that he had ever stated that Patient A's male gender identification was a result of the DID or contributed to it. 2. Whatever Patient A's stated motivation for changing sex was, after nearly 15 years living as male, this was a major decision; one undertaken at a time of personal upheaval and in an atmosphere of haste. 3. The same week that Patient A saw her GP to commence transitioning to female, the practitioner wrote a letter to support the patient's claim to a disability pension on the basis that the patient was so debilitated by the effects of anxiety and long term trauma that employment was not possible in the foreseeable future. 4. Patient A wrote to her GP on 21 November 2013 saying that she couldn't wait for the next available appointment in early December. The GP spoke to her by phone and then saw Patient A on 27 November 2013. Patient A completed the first statutory declaration for legal change of sex on 5 December 2013. Mr Talmadge applied for a loan to fund the surgeries in December 2013 and transferred the first instalment described as "surgery" into an account of a friend of Patient A on 31 December 2013. Patient A was consulting surgeons and completed documentation for a new birth certificate in January 2014. 5. In his statement of 6 January 2015 Mr Talmadge acknowledged he was aware at the time that Patient A's decision to transition to female was influenced by her wishing to be more sexually attractive to him as an avowedly heterosexual man. He confirmed this in oral evidence, saying, "She was doing it for us. We both thought it would be helpful." 6. Mr Borenstein was strongly critical of Mr Talmadge's conduct in not supporting a referral to a psychiatrist. He opined that at the very least Mr Talmadge should have spoken to the GP about the treatment rationale. 7. Mr Talmadge's insistence that he didn't "actively discourage" Patient A from accepting her GP's referral to a psychiatrist, but simply "validated" her in her refusal is semantic. We find that the practitioner's conduct in "validating" Patient A in her refusal of oversight by a psychiatrist in the sex change process reflected the personal relationship and not his professional obligations. There was no impartiality and no assessment of Patient A's current or longer term health needs. The particular is established. 8. We acknowledge that the inclusion of "gender identity disorder" in the Diagnostic and Statistical Manual of Mental Disorders (DSM) IV and "gender dysphoria" in DSM V is contentious; some transgender people object to this as a form of pathologisation of non-normative gender identification, expression or preference. (See APS, Guidelines on Working with Sex Diverse and Gender Diverse Clients (2012), in particular [4.1], [7.2]). Our finding on this issue is not intended to suggest that any or all gender identity issues inevitably require psychiatric treatment. This particular situation involved a sudden decision for surgical intervention to reverse a long-standing gender identification by a person who was not in a state of stable mental health. We find that in this particular circumstance a psychiatric referral was necessary. Context of the admitted and proved misconduct 1. We do not accept the practitioner's claim that he was the victim of a violent, abusive or threatening relationship with Patient A, or that he only entered into the sexual relationship as a result of such threats. 2. The practitioner did not produce any email, letter or text message sent to him by the Patient during the course of the therapeutic or sexual relationship. His explanations for this failure were unconvincing. In his response of 30 September 2014 to a request from the HCCC for copies of the emails between himself and Patient A, Mr Talmadge merely said, "I did not keep copies of these emails." 3. Later Mr Talmadge made various claims of his email account being hacked and all past emails lost, having changed mobile phone handset and phone number and having no copies of documents provided by him to police and not retained or returned by them. He did not produce any corroborating evidence to support these claims. For example in his statement of 24 November 2015 Mr Talmadge said that his secretary could corroborate that his email had been hacked and all emails lost in 2013, but he did not seek to tender any evidence from her. Nor did he have any explanation for the lack of emails after that point in time and before the sexual relationship concluded: i.e. late 2013 to April 2014. A claim made by Mr Talmadge in correspondence with his lawyers that his email was again hacked in September 2014 was withdrawn in oral evidence. 4. In his written statement of 25 June 2014 Mr Talmadge claimed that, in early to mid 2013, that [Patient A] began to aggressively pursue a personal relationship and would offer me sexual favours from her various personalities. I resisted strong and persistent advances by [Patient A] to make the relationship sexual and personal 'i.e friends' from early to mid-April 2013 onwards. 1. Later Mr Talmadge states that "after months of her aggressively coming onto me, I feel like I was sexually harassed". 2. In his oral evidence Mr Talmadge contradicted this position, stating that there was only one email from Patient A making a sexual advance in early 2013, that this behaviour stopped within a few days and was not repeated. This was followed by emails from Patient A seeking friendship. This evidence was given in light of criticism of Mr Talmadge for not having sought supervision and/or terminated the therapeutic relationship in response to such sexual advances, and in the context of his own claim that he was making "good progress" in his therapeutic work with Patient A through the first half of 2013. 3. We conclude that Mr Talmadge was prepared to revise and tailor his evidence concerning Patient A's sexual advance, or advances, and his own response, in order to suit his own case. 4. It is clear that, at the cessation of the sexual relationship, Patient A pursued unwanted contact with the practitioner, which was experienced by him as harassing and distressing, particularly when it involved letters hand delivered to his family home. 5. The practitioner repeatedly claimed in his written statements and oral evidence that this material was very threatening. We find that this claim was exaggerated. This is not to underplay the serious or distressing nature of such unwanted contact or of the two threats contained therein. In April and July 2014 the practitioner sought police assistance, and in August 2014 the police obtained an AVO on his behalf against Patient A. To the extent that this post-separation correspondence is relied upon to establish an abusive relationship in which the practitioner was at all times the victim, however, it is rejected. 6. Ms Moylan was asked about her two conversations with Mr Talmadge in early April 2014. Her evidence was that Mr Talmadge acknowledged a relationship with a patient in the second conversation but had not claimed to be living in fear of Patient A at that time. 7. In a clinical history taken upon Mr Talmadge's hospital admission on 10 April 2014 the notes make no mention of violence or abuse at the hands of Patient A, but there is a reference to him feeling "intimidated": He lived in this situation for 4m. He became more aware of the inconsistencies and the more he tried to escape the more he felt intimidated and trapped. 1. In a letter dated 16 April 2014 from Mr Talmadge's treating psychiatrist, Dr Heiner, to his GP at the conclusion of his hospitalisation, no mention was made of Mr Talmadge being a victim of abuse at the hands of Patient A. Nor was this claim in Dr Heiner's report of 25 June 2014. 2. In his email of 18 April 2014 to Ms Moylan, Mr Talmadge stated "I am still being harassed by the person, so looks like I will need to take out an AVO. I am doing a reasonable job of not beating too much on myself and to grow out of this." He went on to discuss business arrangements before concluding that he is "still trying to work out how this happened". This is consistent with the rest of the evidence, which establishes that Mr Talmadge felt harassed by Patient A after the relationship ended, but not that he was victimised during it. 3. Neither do we accept the practitioner's claim that he was impaired at the time the relationship commenced in late November 2013 or early December 2013 by virtue of depression and delusional thinking. 4. In his statement of 25 June 2014 Mr Talmadge said that, For a short period of time, as a consequence of being drawn into [Patient A's] purported belief system and having physiological responses to her suggestions and Reiki administrations, I believed that I was the 'son of God' and that I had become pregnant. However, I no longer hold this belief. 1. In oral evidence Mr Talmadge stated that these beliefs had become fixed by the time the relationship commenced in December 2013. In his statement of 6 January 2014 Mr Talmadge claimed that from October to December 2013 "people began to notice changes in me in both my personal and professional life". This claim was not corroborated. 2. Ms Moylan's evidence was that she did not notice any change in Mr Talmadge's behaviour in late 2013 and that "nothing made me think he was unwell". Her account was that she did not have cause for concern until she heard from others in March and early April 2014 that Mr Talmadge was behaving out of character. 3. Mr Bonneville undertook a number of peer supervision sessions with Mr Talmadge in October and November 2013 and in February 2014. Mr Bonneville's evidence was that they engaged in reasoned and rational discussion about a number of his clients. There was nothing unusual in Mr Talmadge's presentation in these sessions, or in his behaviour around the practice more generally. 4. Mr Talmadge was a voluntary patient in a mental health unit for six days in April 2014. In Dr Heiner's letter of 16 April 2014 following the hospitalisation the diagnosis was adjustment disorder with depression. The letter stated, "It would appear as if Mr Talmadge was depressed some six months ago" and "it would appear as if he had 'a number of strange beliefs and ideas that would qualify for a psychotic diagnosis'" at the time of hospitalisation in April. 5. The evidence establishes that the practitioner was functioning professionally throughout November and December 2013, including in his ability to write reports on the treatment of Patient A in a coherent and consistent fashion. He continued in his professional practice until the end of March 2014. Although it appears that the practitioner accepted some of the patient's belief system during the course of the relationship, we do not accept that he was impaired for a prolonged period prior to the brief episode in April 2014. Appropriate Protective Orders 1. The Tribunal is comfortably satisfied that all of the particulars, with the exception of particular 15, are made out to the required standard. The matters established are very serious, covering a number of major failures of professional judgment in addition to an improper sexual relationship with a very vulnerable patient. The findings concerning the sexual relationship alone would be sufficient basis for a conclusion of professional misconduct. The other findings of unprofessional conduct, arising from particulars 1-3, 5, 6, 8-10 and 16, are cumulatively sufficient for a conclusion of professional misconduct. 2. De-registration of the practitioner is the only appropriate protective order in the circumstances. A substantial period of deregistration is required to protect the public, both because of the need to protect professional standards in psychology and because the practitioner still fails to appreciate the scope and gravity of his misconduct. 3. Of grave concern to the Tribunal is the fact that, despite his admissions, the practitioner continued to claim that he was a highly capable clinician and, in truth, the victim of events rather than responsible for them. Throughout proceedings the practitioner demonstrated a profound and continuing lack of insight concerning his professional conduct. 4. In response to a question from Ms Mathur about his failure to seek appropriate peer supervision, Mr Talmadge replied, "To my discredit I was a selfless person, putting others in front of myself. I didn't take care of myself." Mr Talmadge denied that he had failed to seek peer or expert supervision concerning Patient A because of ego or professional vanity, or because he was seeking to conceal the fact that professional boundaries had been transgressed. Rather, he was simply too caring in focusing upon his colleagues' need to discuss their own patients. 5. When asked by the panel to comment on what he would do differently, Mr Talmadge said twice that the "main things" he would alter were that he would seek greater peer supervision and support, limit his workload and have been in therapy himself. Tellingly, he did not say that he would have referred the patient to a specialist expert for DID or gender identity issues, or terminated the relationship due to boundary violation issues. 6. The practitioner conceded that his sexual relationship with a client was misconduct. However his position, which appeared to become more entrenched in the months leading up to the hearing, was that it arose as a consequence of Patient A's calculated campaign of manipulation and abuse in which he was the party victimised. 7. In his statement of 6 January 2015 Mr Talmadge acknowledged that he was "completely and utterly compromised" in the relationship at the point he accepted a Reiki massage from Patient A in November 2013 but continued in the next sentence, I believe that this was the long-term goal of [Patient A] from very early on in therapy and she had finally after great effort and significant anti-social behaviour, corrupted a good therapist and person, dragging him through coercion into a false reality… 1. Later in the same statement he says of the December 2013 period, My powerlessness was now complete within the relationship with [Patient A]. I was no longer the clinician at this stage, but a puppet on a string being guided by an elaborate and bizarre story that [Patient A] continued to expound upon. 1. Later again, he stated, [Patient A] was exactly where she wanted to be in life by Jan 2013. She managed to attain the person on who she formed a pathological obsession and was in full control of him via a complicated web of false information and ethical corruption. She had what she so very selfishly wanted; lying, manipulating and intimidating extensively to attain and steal him away from a family that of course very much needed him. 1. In both his written statements and oral evidence Mr Talmadge repeatedly spoke of himself as "taking back his power" following the termination of the improper relationship. Mr Talmadge consistently used passive language to describe the relationship as something that happened to him, or that he should not have allowed to happen, never as something that he did, or as something that was harmful to the patient. In response to a question from the Tribunal asking whether he would characterise Patient A as "vulnerable", Mr Talmadge replied, That's a hard question. She's quite complex. There is a vulnerability there. A lot of built up defence mechanisms. She has a way of dealing with her vulnerabilities that can be harmful to others. I allowed myself to get harmed in the process. 1. These statements, and the practitioner's evidence as a whole, demonstrate a continuing failure on the part of the practitioner to take responsibility for the power and trust which he held, and misused, by virtue of his professional relationship with the patient. As such we find that the practitioner continues to pose a substantial risk to public and that prohibition order is also required in this case. Costs 1. Counsel for the respondent submitted that much of the hearing was directed towards impeaching the credit of the practitioner. He argued that if particulars 8 and 15 were not established the HCCC ought to pay 50% of the respondent's costs of the part of the hearing occupied by those matters (submitted to be two of the four days). Mr Villa argued that although some part of the hearing was necessarily held for the Tribunal to determine the appropriate orders it could not be properly said that the HCCC was thereby successful such that it was entitled to costs. He submitted that the balance of the hearing costs ought to be borne by each party on the basis that the practitioner had already admitted the misconduct prior to hearing. 2. The HCCC submitted that the amount of hearing time it spent on the credit of the practitioner in relation to particulars 8 and 15 was not two days and was not disproportionate to the significance of the issues raised. As to the balance of the hearing, the Tribunal had heard the application from the respondent to dispense with the hearing, and determined that it was in the public interest to proceed. 3. In HCCC v Philipiah [2013] NSWCA 342, Emmett JA, with whom the other judges of the NSW Court of Appeal agreed, stated that, "As a general rule, costs of proceedings before the Tribunal should follow the event" (at [42]), noting that there may be factors which militate against the full recovery of costs by the Commission in particular proceedings, such as a failure to make out a claim of misconduct even though unprofessional conduct is established, a failure to establish all of the particulars, or oppressive or unjustified procedural conduct. Emmett JA continued (at [45]), The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. 1. The HCCC was largely successful in making out its case, which was properly conducted. In this matter only one disputed particular was not established to the required standard, that of the deliberate destruction of the patient file. Very little time was spent on this issue in the hearing. The time addressing the credit of the practitioner in the hearing was considerable, but it was relevant to other aspects of the case concerning disputed particulars and the context of the improper relationship. As noted previously, this latter issue was critical both in relation to the gravity of the past misconduct and to the practitioner's present candour and insight in the consideration of the protective orders. 2. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182, Basten JA, with whom the other members of the Court of Appeal agreed, stated of the Commission's failure to establish a particular, at [50]: This aspect is not to be assessed by a numerical calculation of the number of paragraphs of the particulars which were upheld and the number which were rejected. Nor would failure to establish some particulars necessarily result in any diminution in the costs payable to the Commission. 1. The decision to proceed with the oral hearing was made in the public interest to ensure that all of the contested issues in this serious matter were fully explored. Nothing in the HCCC conduct of the case merits a reduction in their entitlement to costs. ORDERS 1. The application by Mr Talmadge for the Tribunal to terminate the hearing is dismissed; 2. Pursuant to s 149C(4) of the National Law, the Tribunal declares that the practitioner's registration as a Psychologist on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency would have been cancelled from the date of this order if he had been currently registered; 3. Pursuant to s 149C(7) the practitioner may not make an application to the Tribunal under Division 8 to return to the register until 5 years from the date of this order; 4. The practitioner is prohibited, pursuant to s149C(5A), from providing any "health services" as defined by s 5 of the National law, until such time as a reinstatement order is made; 5. A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of the current or former names of Patient A or any other material that could identify her, including the name of her former partner or child; 6. Costs in favour of the Commission pursuant to cl 13(1) of Sch 5D of the National Law as agreed or, failing agreement, liberty to restore to the list to be assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 05 February 2016