Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Gachon [2015] NSWCATOD 158 Hearing dates: 18, 19 November 201526 November 2015 (final submissions) Date of orders: 22 February 2016 Decision date: 19 November 2015 Jurisdiction: Occupational Division Before: A Britton, Principal Member E Collins, Occasional Member G Purkis, Occasional Member A Collier, Occasional Member Decision: 1. Pursuant to s.149C(1) of the Health Practitioner National Law (NSW) (the National Law), the Tribunal decides to cancel Mr Gachon's registration. 2. Pursuant to s149C(7) of the National Law, Mr Gachon cannot seek review of Order 1 before 18 months of the date of this decision. 3. Pursuant to s149C(5) of the National Law, Mr Gachon is prohibited from providing the following health services with or without supervision for a period of 18 months from the date of this decision: a) Therapy b) Psychotherapy c) Counselling d) Mental Health services e) Health education services f) Welfare services, necessary to implement any services referred to in paragraphs (a) and (e). 4. Decision on cost made on 22 February 2016 - Respondent must pay the Commission's costs of the proceedings. Catchwords: ADMINISTRATIVE LAW — Civil and Administrative Tribunal (NSW) — health practitioner — whether practitioner guilty of unsatisfactory professional conduct — whether practitioner guilty of professional misconduct — appropriate disciplinary orders where finding made that practitioner is guilty of professional misconduct COSTS — principles applying to awarding costs under the Health Practitioner Regulation National Law (NSW) Legislation Cited: Health Practitioner Regulation National Law (NSW) Health Care Complaints Act 1993 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Ohn v Walton (1995) 36 NSWLR 77 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Robert Gachon (Respondent) Representation: Counsel: P Griffin SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) File Number(s): 1520110 REASONS FOR DECISION 1. Robert Gachon holds a Masters degree in psychology and has been registered as a psychologist since 2001. In 2015 the Health Care Complaints Commission (the Commission) referred for determination two complaints (the Complaints) about Mr Gachon to the Civil and Administrative Tribunal of New South Wales (NCAT). The Complaints principally involve Mr Gachon's conduct in relation to two female clients. Among other things, the Commission alleges that Mr Gachon failed to maintain proper "professional boundaries". The alleged conduct occurred while Mr Gachon was working as a psychologist at a medical centre in Rouse Hill NSW (the Centre) in 2013. 2. The Commission contends that the conduct particularised in each complaint constitutes both "unsatisfactory conduct" and "professional misconduct": ss 139B and 139E of the Health Practitioner Regulation National Law (NSW) (the National Law). 3. For convenience, we reproduce at Annexure A to these Reasons, the Complaints in full. 4. For the reasons set out below we decided to cancel Mr Gachon's registration and, to order that he not seek review of that decision or provide nominated "health services", for a period of 18 months. Suppression orders 1. In the course of these proceedings orders were made under cl 7 of sch 5D to the National Law to prohibit the disclosure and/or publication of the name of and any information, picture or other material that identifies, or is likely to lead to the identification of, any of Mr Gachon's former clients referred to in the Complaints. In these Reasons, we will refer to these clients by pseudonyms. Mr Gachon's participation in these proceedings 1. Mr Gachon applied for an adjournment a week before the hearing. He stated that he was reluctant to ask his employer for leave to attend the hearing, having just started in a new position. The Commission opposed that application. We decided to refuse that application and decided that the following factors weighed against the exercise of the discretion to grant leave: the late notice of the adjournment application, the fact that the matter had been set down for a number of months and Mr Gachon's failure to given any indication as to when he might be able to attend a hearing. We also took into account that Mr Gachon remained registered as a psychologist and there was no evidence to support his claim that he was no longer working as a psychologist. Nor did we have any evidence about whether Mr Gachon's current employment might constitute "health services" as that term is defined by the National Law. 2. After being advised that his request for an adjournment had been refused, Mr Gachon wrote to the Tribunal advising he had provided the Commission with his version of events and there was no additional material he wished to rely upon. Issues for determination 1. The key issues we must decide are: 1. Whether the conduct particularised in the Complaints occurred 2. If so, whether any conduct found proven constitutes "unsatisfactory professional conduct" 3. If so, whether some or all of that conduct constitutes "professional misconduct" 4. If so, whether disciplinary orders should be made. 1. The Commission bears the burden of proving the Complaints on the balance of probabilities. The evidence necessary in cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the practitioner's loss of livelihood, was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, by exclusion that is, not "slender and exiguous proofs" (per Rich J at p 350), nor "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at p 362). Complaint 1 Client A 1. In April 2013, Client A was referred to Mr Gachon by general practitioner, Dr Gemma Began, under a Mental Health Care Plan for anxiety and depression. In her letter of referral, Dr Began wrote that Client A "had low self-esteem and low self-confidence, feels a failure and is struggling to maintain any positivity". 2. The following summary is taken largely from statements and emails that Mr Gachon and Client A each provided to the Commission. The primary documents setting out Client A's account is the initiating complaint made to the Commission on 16 January 2014 and an unsigned statement, apparently drafted by the Commission following an interview with Client A, dated 1 May 2014. In an email to the Commission dated 15 May 2014, Client A advised that while she did not wish to proceed with her complaint, the contents of the 1 May 2014 statement were true and correct. 3. Between 11 June and 23 August 2013, Client A attended five consultations with Mr Gachon. After the fourth consultation on 9 August 2013, at his invitation, Client A joined Mr Gachon for coffee. The following day they dined at a restaurant. Client A claimed that Mr Gachon grabbed and tried to kiss her. While Mr Gachon admits that a sexual relationship later developed he disputes Client A's claim that he made sexual advances on the evening of the dinner. 4. In a statement provided to the Commission dated 12 February 2014, Mr Gachon claimed that after the dinner he did not see Client A on a professional basis again. Records produced by the Centre in answer to a notice issued by the Commission under s 34A of the Health Care Complaints Act 1993 (NSW), reveal that a further consultation was held on 23 August 2013. 5. Mr Gachon and Client A commenced a personal relationship which soon developed into a sexual relationship. On 16 August 2013, Client A disclosed the relationship to Dr Began. In a note of that conversation Dr Began recorded: Arranged to meet up again Felt on subsequent meetings over this weekend that [Mr Gachon] was pushing for the relationship to go faster than she wanted Felt he wanted to label her as his girlfriend but too early for that She has now ended the relationship as a result 1. A week later Dr Began spoke to Mr Gachon about the matters raised by Client A. In a note of that conversation, Dr Began wrote: "[Mr Gachon] claims it was a misunderstanding, he had fitted [Client A] in around his coffee break as an extra as she was distressed…". In a letter to the Commission dated 6 October 2015, Mr Gachon conceded that he had not been truthful with Dr Began, explaining that at the time he was "quite confused as to what Client A had in mind". 2. On 2 September 2013, as Dr Began was apparently unavailable Client A consulted another GP at the Centre, Dr Sohair Sulieman. In a note of that consultation Dr Sulieman recorded: Here because she felt pressured by Robert [Gachon] …. Consensual relations started involving phone calls texts and visiting her home…after a while he was demanding they live together … refused a few times and asked him to allow her more time…says [Mr Gachon] is pushy and at times demanding … feel confused… 1. When confronted by Dr Sulieman on the same day, Mr Gachon admitted having a relationship with Client A. The following day Mr Gachon telephoned the Centre's Practice Manager and said he felt ashamed and was unable to return to work as the "doctors had lost all respect for him". He has not returned to work at the Centre. 2. According to Client A, in the early stages of their relationship Mr Gachon told her he loved her and pressured her to live with him and to disclose their relationship to her children. Mr Gachon, on the other hand, claims that Client A pressured him to move in with her. 3. The relationship came to an end on 27 September 2013. Mr Gachon claims he decided to walk away from the relationship following an argument with Client A in which she abused him and criticised him for gaining weight. Client A claims she ended the relationship and over the following months Mr Gachon pleaded with her to change her mind. 4. From late September until mid-January 2014 Mr Gachon and Client A maintained intermittent contact, primarily through text messages. Client B 1. In July 2013 Dr Began referred Client A's 14-year-old son, Client B, to Mr Gachon for treatment. In the letter of referral, Dr Began wrote that Client B was suffering anxiety and experiencing difficulties with his father after his parents had separated. 2. The complaint relating to Client B relates solely to Mr Gachon's alleged failure to keep proper and complete records of the clinical care provided to Client B. The Commission also alleges that Mr Gachon failed to keep proper and complete records in relation to Client A. Did the conduct particularised in Complaint 1 occur? Particulars 1, 2, 3 and 4 of Complaint 1 1. Mr Gachon expressly admitted in writing to particulars 1, 2, 3 and 4 of Complaint 1 (having coffee and dinner and exchanging phone numbers with Client A, having a sexual relationship with Client A, denying the relationship when questioned by Dr Began). There is ample evidence to support each of those particulars. We are comfortably satisfied that the conduct occurred. Particular 5 of Complaint 1 1. Particular 5 of Complaint 1 states: Between about 28 September and 16 January 2013 after Client A had requested that their personal and sexual relationship cease, the practitioner inappropriately continued to contact Client A. 1. Particular 5 requires us to decide, whether (i) Client A requested that the relationship cease and (ii) Mr Gachon's continued contact with Client A after 28 September 2013, was "inappropriate". Did Client A request that the relationship cease? 1. While there is no argument that the sexual relationship between Mr Gachon and Client A ended on 28 September 2013, there is conflicting evidence about who ended the relationship. Client A claims that she ended the relationship; Mr Gachon claims it was he. Arguably, which party ended the relationship is irrelevant to a consideration of whether, as alleged, Mr Gachon inappropriately continued to contact Client A. However, the wording of this particular requires that this issue be determined. 2. Mr Gachon provided the Commission with copies of text messages that he and Client A exchanged between 28 September 2013 and 16 January 2014. They are probably the most reliable material about the nature of the contact between the parties during this period. 3. On 10 October 2015, Mr Gachon and Client A met for a drink and Mr Gachon sent Client A a text message asking "for another chance" and to give the relationship "another three months". A few days later Client A replied "I don't want to go into a relationship with you at this point in time". 4. On 15 October 2013, Client A sent Mr Gachon a text message saying she "felt low" and wanted to chat. Over the ensuing four weeks, Mr Gachon and Client A were in regular contact and Mr Gachon provided Client A with advice about applying for jobs and her attendant anxiety about being unemployed. In mid-January 2014, Mr Gachon advised Client A that he had been contacted by "the Board" and believed he would be deregistered. An exchange ensued between the parties with Client A denying any involvement in the complaint and Mr Gachon protesting that he had not been abusive in the relationship. The exchange ended acrimoniously. 5. The only text message to expressly refer to who initiated the ending the relationship is a message sent by Mr Gachon on 5 November 2015: How ironic. About to lose my career and didn't get the girl I risked all for. No worries. That's life. Hope you find the man you are looking for and really hope that things go well for you. You know you never told me why you dumped me…not that it matters. 1. Taken together with the evidence of Mr Gachon attempting to persuade Client A to recommence the relationship in October 2013, together with Client A's account of the circumstances in which the relationship ended, we think it more probable than not that, as alleged by the Commission, Client A requested that the relationship cease. Was the contact inappropriate? 1. For the reasons set out in [65] – [67] below, we find that Mr Gachon inappropriately continued to contact Client A for four months after the relationship ended. Particular 6 of Complaint 1 1. Particular 6 states: Between about 28 September and 16 January 2014 after Client A had requested that their personal and sexual relationship cease, the practitioner inappropriately sought to persuade Client A to resume their relationship. 1. In statements provided to the Commission, Mr Gachon did not expressly address Client A's claim that he attempted to persuade her to resume the relationship after it came to an end. The text messages sent between the parties during this period reveal that on one occasion Mr Gachon sought to persuade Client A to resume the relationship. (See text message sent by Mr Gachon to Client A on 10 October 2013 at 10:03:12.) 2. For reasons we address below, we find Mr Gachon's conduct in being in a concurrent sexual and therapeutic relationship with Client A to be inappropriate. It follows that his actions in attempting to persuade Client A to continue their sexual relationship were also inappropriate. We find proven the conduct alleged in particular 6. Particulars 7 and 8 1. The Commission alleges in particular 7 that Mr Gachon "failed to keep proper and complete records of his clinical care of Client A". The Commission makes the same allegation in relation to Client B (see particular 8). 2. In a letter to the Commission dated 15 September 2015, Mr Gachon acknowledged that his clinical notes were "not as extensive as expected to be", pointing out that during the relevant period he was working long hours, often seven days a week. 3. The Psychology Board of Australia has approved the Australian Psychological Society's Code of Ethics, 2007 (the Code) under s 39 of the National Law to provide guidance to registered psychologists. Section 41 of the National Law states that the Code can be used as evidence in proceedings under the National Law of what constitutes appropriate professional conduct or practice of the health professions. 4. Standard B.2 of the Code states: B.2. Record keeping B.2.1. Psychologists make and keep adequate records. B.2.2. Psychologists keep records for a minimum of seven years since last client contact unless legal or their organisational requirements specify otherwise. B.2.3. In the case of records collected while the client was less than 18 years old, psychologists retain the records at least until the client attains the age of 25 years. 1. In assessing the adequacy of the notes we adopt the approach taken by consultant psychologist, Professor Dianna Kenny who gave evidence in these proceedings, namely that the standard expected of a psychologist requires records of consultations to be accurate, current, complete and of sufficient detail to permit planning for continuity in the delivery of psychological services. 2. The Centre's records reveal that Mr Gachon failed to make notes of two of the five consultations held with Client A and one of the four consultations held with Client B, namely the 19 July 2013 consultation. 3. With respect to those consultations with Client A and Client B where notes were kept, we agree with Professor Kenny's opinion that they were largely "sketchy and descriptive", did not disclose a case plan, record diagnostic considerations or contain insufficient detail to facilitate continuity of care in the event that another practitioner took over their care. 4. We are satisfied that Mr Gachon failed to keep proper and complete records of his clinical care of both Client A and Client B. Expert opinion 1. At the request of the Commission Professor Kenny provided an opinion about the care and treatment provided by Mr Gachon to Clients A, B and C and the relationship between Mr Gachon and Client A. Professor Kenny set out her opinion in respect of Clients A and B in reports dated 1 September 2014, 30 September 2014 and 1 October 2014 and in respect of Client C in reports dated 12 and 13 November 2014. In addition, Professor Kenny gave oral evidence. 2. Some of the issues addressed by Professor Kenny concerned alleged conduct by Mr Gachon that fell outside the scope of the Complaint. Except where relevant to our consideration of the Complaints, in these Reasons we have not addressed her opinion about those matters. 3. In her reports Professor Kenny refers to "boundary crossings" and "boundary violations". She explained that she used the term "boundary crossing" to mean conduct below what is reasonably expected of a practitioner with the equivalent training or experience as Mr Gachon and "boundary violation" to mean conduct which is significantly below reasonable expectations and which invites strong criticism. In support of this approach, she cited the following extract from Gutheil, TC and Gabbard GO, The concept of boundaries in clinical practice: theoretical and risk-management dimensions in American Journal of Psychiatry, 150, 188-196: Boundary crossings or violations can occur on a range of therapeutic dimensions and include role, time, place and space, money, gifts, services, language, self-disclosure, and physical/sexual contact. They state that crossing boundaries "may at times be salutary, at times neutral, and at times harmful" and that the nature, clinical usefulness, and impact of a particular boundary crossing "can only be assessed by careful attention to the clinical context" (pp. 188-189). … An assessor...determine[s] the impact of a boundary crossing on a case-by-case basis that takes into account the context and situation-specific facts, such as the possible harmfulness of this crossing to this patient. A violation...represents a harmful crossing, a transgression of a boundary...Note...that the difference between a harmful and a non-harmful boundary crossing may lie in whether it is discussed or discussable; clinical exploration of a violation often defuses its potential for harm (189-190). 1. Professor Kenny described Mr Gachon's conduct in respect of Client A as "a cascading pattern of boundary crossing". In her opinion, his actions in having coffee and exchanging phone numbers with Client A constituted a boundary crossing, but his conduct after that time became increasingly more serious. In her opinion, having dinner and later developing a sexual relationship with Client A were clear "boundary violations". She pointed to the NSW Psychologists' Registration Board, Code of Professional Conduct 2004, which states: Psychologists should safeguard a relationship of trust with their clients ... across all stages of their professional relationship, and have regard to future personal relationships under the principle of the primary welfare of the client. … 3. ii. Psychologists must not have a sexual relationship with a client during the professional relationship. In some cases, sexual relationships may never be appropriate at any time after the termination of the professional relationship. 3. iii. Psychologists must not have a sexual relationship with a former client when less than two years have expired since the ending or termination of the professional relationship, and then only after consultation with suitably experienced colleagues. 1. The 2004 Code referred to by Professor Kenny has been superseded by the 2007 Code referred to at [38] above. While some differences between the Codes, the 2007 Code also states that psychologists must not engage in a sexual relationship with a client during and for at least two years after the end of the professional relationship (at [C.4.3]). 2. In Professor Kenny's opinion, while sexual attraction between patients and therapists is not unusual, it is always inappropriate for a therapist to act on that attraction, either during or after the therapy has concluded. 3. While critical of Mr Gachon's conduct in engaging in a concurrent sexual and therapeutic relationship, in Professor Kenny's opinion, his evident infatuation with Client A made him "psychologically vulnerable" resulting in a flood of emotions which overrode his professional judgement. According to Professor Kenny, very early on in his contact with Client A, Mr Gachon lost sight of his role as therapist. In her opinion, while Mr Gachon must take primary responsibility for his conduct, Client A was nonetheless a "very active and powerful participant in the events that unfolded". She pointed to a number of examples of what she considered to be Client A's "assertive and manipulative conduct". In Professor Kenny's opinion, while Mr Gachon exercised power as a consequence of the therapeutic relationship, given the short duration of the therapeutic relationship together with Client A's assertive conduct both with Mr Gachon and staff of the Centre, the power differential was not significant. Does the conduct particularised in Complaint 1 constitute "unsatisfactory professional conduct"? 1. The Commission contends that the conduct particularised in Complaint 1 constitutes "unsatisfactory professional conduct" within the meaning of ss 139B(1)(a) and 139(1)(l) of the National Law: Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, judgment possessed, 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. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. Particular 1 of Complaint 1 Does the impugned conduct demonstrate that the judgment possessed, or care exercised by Mr Gachon fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience? 1. This question requires us to (i) identify the standard of judgement or care expected of a psychologist of Mr Gachon's skill and experience (the relevant standard) and (ii) evaluate whether the impugned conduct demonstrates that the judgement possessed, or care exercised, by Mr Gachon fell "significantly below" that standard. 2. As noted, Mr Gachon holds a Masters degree in psychology. At the time of the conduct, the subject of the Complaints, he was a reasonably experienced practitioner having working continuously as a psychologist for over 12 years. 3. The Code does not provide express guidance on the propriety or otherwise of psychologists engaging in personal (non-sexual) relationships with their clients. We agree with Professor Kenny's opinion that the potential for personal relationships or dealings between a psychologist and their client may undermine the therapeutic relationship. 4. Whether the impugned personal dealing/relationship demonstrates that the judgment possessed, or care exercised by Mr Gachon fell significantly below the relevant standard, requires consideration of all of the circumstances surrounding the impugned personal dealings/relationship. 5. We agree with Professor Kenny's opinion that Mr Gachon's action in having coffee with, exchanging telephone numbers and inviting Client A to dinner demonstrated judgement that fell below, but not "significantly below" the standard excepted of a psychologist of his training and experience. It follows that we are not satisfied that the conduct outlined in particular 1 (a),(b) and (c) constitutes unsatisfactory professional conduct within the meaning of ss 139(1)(a). Does the impugned conduct constitute improper or unethical conduct? 1. The Commission's alternative contention is that the conduct set out in Particular 1 of Complaint 1 constitutes improper or unethical conduct relating to the practice or psychology: s 139B(1)(l) of the National Law. 2. The word "improper" is not defined by the National Law. The Macquarie Dictionary offers a number of definitions, which include "... 2. not in accordance with propriety of behaviour, manners, etc.: improper conduct". In the context in which it appears, the word "improper" denotes conduct, which is not in accordance with accepted standards of professional conduct. 3. While the conduct set out at Particular 1 shows poor judgement and is not consistent with good practice, we are not satisfied that it is sufficiently egregious to be considered "improper" or "unethical". Summary 1. We are not satisfied that the conduct set out in particular 1 of Complaint 1 constitutes unsatisfactory professional conduct within the meaning of ss 139(1)(a) or 139(1)(l) of the National Law. Particular 2, 3 & 6 of Complaint 1 1. Mr Gachon's actions in engaging in a personal and later sexual relationship with Client A (particular 2) had the potential to corrupt and undermine the therapeutic relationship and constituted a clear breach of the Code. Among other things, the personal and later sexual relationship had the potential to compromise Mr Gachon's ability to make an objective assessment about Client A's psychological health and need for treatment. 2. Notwithstanding that the sexual and therapeutic relationships ran concurrently for only a short period, we find Mr Gachon's conduct in engaging in those relationships demonstrated that the judgement he possessed and care exercised, fell significantly below the relevant standard. 3. For largely the same reasons, we find Mr Gachon's subsequent actions in seeking to persuade Client A to resume their relationship (Particular 6) also demonstrates that his judgement fell significantly below the relevant standard. We note that the Code states that "sexual activity" between a psychologist and a client should not occur for at least two years after the termination of the therapeutic relationship. 4. While less serious, we find Mr Gachon's conduct in having dinner with Client A (Particular 2) demonstrates judgement that fell significantly below the relevant standard. In forming that assessment we have assumed but not decided, as claimed by Mr Gachon, that at the dinner he neither kissed nor hugged Client A, nor attempted to do so. Nonetheless, his decision to have dinner with Client A in circumstances where, by his own admission, he was aware of their mutual attraction, demonstrates judgement that fell significantly below the relevant standard. Particular 5 of Complaint 1 1. After the relationship ended the parties remained in contact for about three and a half months. Throughout that period, each initiated contact with the other from time to time. Initially, Mr Gachon initiated contact to explore the possibility of a resumption of the relationship; later, Client A then contacted Mr Gachon seeking assistance and advice about obtaining employment and finally, Mr Gachon initiated contact after learning that Client A had lodged a formal complaint about him. 2. In our opinion, whether or not the contact was initiated by Mr Gachon, or the reason for that contact, is irrelevant. In remaining in contact with Client A, especially where he had made clear that he wished to resume their relationship and he was continuing to provide some psychological assistance and support to Client A, demonstrates judgement that fell significantly below the relevant standard. In reaching that conclusion we accept Professor Kenny's opinion that by this time Mr Gachon's was emotionally fragile and finding it difficult to extricate himself from a painful entanglement with Client A. While these considerations might explain his conduct, it is not relevant to an assessment of whether it demonstrated judgement that fell below the relevant standard. 3. We are satisfied that by continuing to have contact with Client A, Mr Gachon demonstrated judgement that fell "significantly below" the relevant standard. Particular 4 of Complaint 1 1. We find that by knowingly giving false information about his relationship with Client A to Dr Began, Mr Gachon engaged in improper and unethical conduct within the meaning of s 139(1)(l) of the National Law. Particular 7 and 8 1. As noted, we found Mr Gachon failed to keep proper and complete records of his consultations with Clients A and B. We find this conduct demonstrated that the care exercised by Mr Gachon fell significantly below the relevant standard. Summary 1. We are not satisfied that the conduct set out in particular 1, Complaint 1 constitutes unsatisfactory professional conduct within the meaning of ss 139B(1)(a) and 139(1)(l) of the National Law. We are satisfied that the conduct particularised in the balance of Complaint 1 constitutes unsatisfactory professional conduct. Complaint 2 1. In January 2013, Client C, a university student in her early twenties was referred to Mr Gachon under a Mental Health Care Plan. She attended three consultations with Mr Gachon that were held on consecutive days. She estimates that the first consultation ran for 90 minutes, the second 120 minutes and the third, approximately three hours. Immediately after the final consultation, at Mr Gachon's invitation, Client C joined him and his two children at the movies. 2. In August 2013, Client C advised her GP that she was "not comfortable" seeing Mr Gachon, and was awaiting a referral to another psychologist. Client C's account 1. In a statement provided to the Commission dated 25 August 2014, Client C wrote that the reason she consulted Mr Gachon was because she was depressed and having suicidal thoughts. She stated that about six months earlier "things had started to go downhill": she was in conflict with her father and having problems with her studies. First consultation 1. Client C wrote that during the first consultation, she: * told Mr Gachon she had been having suicidal thoughts, which had recently become "more extreme" and one of the reasons she decided to seek help was because she no longer feared dying. * was sobbing profusely and Mr Gachon put his hand on her knee, which "did not feel uncomfortable". * told Mr Gachon about her tumultuous relationship with her father and disclosed that she was "repulsed by men" and had never been in a sexual relationship. 1. At the close of the consultation, Mr Gachon told Client C he would like to see her the following day. He also gave Client C his mobile phone number and urged her to ring him at any time if she felt the need to do so. 2. According to Client C, having "vented" she felt better but Mr Gachon did not give any tips or techniques about how to deal with the difficulties she was experiencing. Second consultation 1. Client C claimed that during the second consultation: * Mr Gachon remarked "your hair looks nice curly" * she did most of the talking * Mr Gachon asked whether she was available the following day for a consultation. Third consultation 1. Client C wrote that during this consultation, which commenced at about 3 pm, she: * told Mr Gachon about a falling-out with a friend and her "self-esteem issues" * said she was finding it difficult to lose weight and her father had made offending comments about her figure to which Mr Gachon replied, "Don't get me the wrong way, you're quite an attractive girl and you shouldn't feel like that, your dad's wrong" * felt uncomfortable because of the way Mr Gachon looked at her. She felt he was staring at her legs (she was wearing a mid-thigh pants suit). 1. Client C wrote that towards the end of the consultation after engaging in "small talk", Mr Gachon asked whether she had plans for that evening and invited her to join him and his two children to see a movie. She wrote that as she rang her sister, he announced he had purchased her a ticket on line. 2. According to Client C, Mr Gachon told her to meet him downstairs "as it doesn't look good us leaving together". She claimed that throughout the movie Mr Gachon leant across her offering popcorn and commenting on the movie. She said he insisted on driving her home despite being told that she had arranged to be picked up by her sister. She claimed that when he dropped her home, Mr Gachon said "It's been a long time since I've had such a good time in the company of a woman, like on a date". She wrote that to make clear that any future meeting would not be "a date", she replied she would contact reception to make an appointment. 3. Following that evening, Mr Gachon contacted Client C on a number of occasions urging her to make a further appointment and asking how she was feeling. In a text message sent on 13 February 2013, Mr Gachon wrote: …Thank you for your message. I wasn't sure what your situation was, if you had felt uncomfortable after we went out or because I had expressed my desire to go out with you again and then I thought about your situation at home and got concerned. … I have a free slot on Friday at 9 pm if you want it. Let me know either way… 1. Client C said she found the experience of going to the movies with Mr Gachon distressing. She confided in a friend who reported it to Client C's GP. Mr Gachon's response to the complaint 1. In an email to the Commission sent on 20 October 2014, responding to a summary of the claims made by Client C, Mr Gachon: * agreed he had invited Client C to the movies but claimed he acted on impulse after she overheard he was taking his children to the movies * agreed he purchased a movie ticket and snacks for Client C, reasoning that he felt he could hardly pay for himself and his children and not Client C * admitted sitting next to Client C at the movies and tapping her on the shoulder to ask if she was enjoying the movie but "categorically denied" otherwise touching Client C * denied making disparaging comments about his former wife and referring to the evening as a "date" when he dropped Client C home * stated the reason he tried to contact Client C and her sister after that evening was because he was concerned about Client C's wellbeing. 1. In a letter to the Commission dated 15 September 2015, Mr Gachon: * again, denied touching Client C in a way that "suggested sexual interest" * claimed that he could not recall mentioning his ex-wife to Client C, but wrote that if he had it was probably in the context of mentioning that his children were living with her * emphasised that the reason he asked Client C to accompany him to the movies was because he felt sorry for her and not to take advantage of her. He wrote that given her suicidal thoughts, he wanted to offer her the distraction of an outing * agreed that he had attempted to make contact with Client C after the final consultation but claimed it was out of concern for her welfare * denied referring to the evening as "a date" in conversation with Client C * conceded his behaviour was inappropriate. Evidence given by Client C 1. In oral evidence given in these proceedings, Client C confirmed her account of events as set out in her statement of 25 August 2014. She said the main reasons she went to see Mr Gachon was because she was in a "very dark place" and having suicidal thoughts. 2. She testified that she was "certain" that when Mr Gachon dropped her home after the movies he mentioned his former wife and referred to their evening together as "a date". 3. She said that during the consultations it appeared Mr Gachon had "lost sense of time". She said based on her experience of seeing other psychologists, the length of the consultations and the fact that they were held on three consecutive days (including two weekend days), struck her as "odd". She said that unlike her former psychologist, Mr Gachon did not give her any homework or "coping strategies". 4. She said she now believes that in asking intimate questions and probing her about her relationship with her father, Mr Gachon was seeking to "groom" her for a personal relationship. She said she was also concerned that Mr Gachon had apparently told her GP that she had revealed to him that she was a virgin. 5. She testified that after seeing Mr Gachon she "lost faith in psychologists" and that it took about six months before she was prepared to consider seeing another psychologist, a female psychologist. Clinical notes 1. The Centre produced to the Commission the clinical records made by Mr Gachon in relation to Client C. The only entry in those notes relates to the second consultation: 2nd visit Feeling much better 1. In his initial response to the Commission about being notified of Client C's complaint, Mr Gachon wrote that he recalled making case notes and was unable to offer an explanation as to why the Centre reported there were no notes on file. He suggested that the Commission contact the Centre's Practice Manager. In a later response, dated 15 September 2015, he conceded that his notes might not have been extensive as required. Did the alleged conduct occur? 1. Mr Gachon has admitted in writing most of the conduct particularised in Complaint 2 but argued that the inference could not be drawn that it was sexual in nature (see letters from Mr Gachon to the Commission dated 24 September 2014, 15 September 2015 and 6 October 2015). 2. The only part of Complaint 2 expressly denied by Mr Gachon were the statements attributed to him by Client C on dropping her home from the movies (particulars 2(h) and 2(i)) and the claim that the third consultation ran for three hours (particulars 2(a)). 3. In oral evidence, Client C said she was confident Mr Gachon referred to his former wife in pejorative terms and to the evening as "a date". She impressed us as a reliable witness who did not seek to embellish her account. Mr Gachon's claim that at the time he did not consider the outing to be a date, because Client C was only half his age, sits uncomfortably with the text message he sent after the movie " …I had expressed my desire to go out with you again…". Those remarks are consistent with the comments attributed to Mr Gachon by Patient C. We are comfortably satisfied that Mr Gachon made the comments as alleged by Client C. 4. With respect to the length of the third consultation, Client C has consistently claimed that it ran for three hours. While Mr Gachon disagrees with that estimate, he does not dispute that the consultation commenced at 3 pm and he and Client C drove directly to the movies and had something to eat beforehand. That time line is consistent with Client C's estimate of the length of the consultation. For these reasons, we are comfortably satisfied, as claimed by Client C, that the consultation ran for three hours. Summary 1. We are satisfied that all of the conduct particularised in Complaint 2 occurred. Expert opinion 1. With respect to the comments made by Mr Gachon at the second and third consultations, "Your hair looks nice curly" and "Don't get me the wrong way …", Professor Kenny was of the opinion that this conduct fell significantly below what is reasonably expected of a practitioner of Mr Gachon's training and experience. She pointed out that Client C reported feeling uncomfortable and that Mr Gachon was "gawk[ing] and staring at her, in particular at her legs". She thought the comments were of particular concern given Client C had disclosed being upset about the comments made by her father about her appearance and being uncomfortable with men. 2. Professor Kenny reached the same conclusion in respect of Mr Gachon's conduct of engaging in small talk at the end of the third session and disclosing details of his background and family (particular 2(a)). This, in her opinion, constituted a violation of the "therapeutic contract" because it "involved personal disclosures by the therapist that are not relevant to the therapy". Behaviour of that type, in Professor Kenny's opinion, placed the client in a reciprocal relationship with the therapist, thereby "vastly diluting the possible work of therapy". 3. With respect to Mr Gachon's conduct in purchasing a movie ticket for Client C before she had confirmed she would attend, Professor Kenny considered this not only a "boundary violation" but also "coercive". In her opinion, this replicates a mild form of the type of abuse Client C experienced from her father. 4. In Professor Kenny's opinion, the comments made by Mr Gachon while dropping Client C home (particular 2(h), (i)) fell significantly below what is reasonably expected of a practitioner of equivalent training or experience to Mr Gachon. 5. With respect to the length of the consultations, Professor Kenny considered the length of the first two consultations to be within "the bounds of good psychological practice" given that Client C was evidently experiencing significant emotional trauma. However, she considered a three hour consultation to be unwarranted. In her opinion, a consultation of that length would only be appropriate in rare circumstances. With respect to scheduling the third session so soon after the second, in her opinion given that Client C's condition had apparently stabilised by the end of the second session (referring to the brief clinical note made about the session), it was probably not required. 6. Professor Kenny considered Mr Gachon's actions in sending text messages to Client C after the third consultation to also fall significantly short of the standards expected of a psychologist of his level of training and experience. Professor Kenny considered that the second message (set out at [81] above), showed a lack of insight on Mr Gachon's part. In her opinion, it reveals that he had only reflected superficially on the import of his conduct, and went on to minimize its impact on Client C by accepting her superficial reassurance and then being "glad and relieved" she reported being okay. 7. Professor Kenny considered Mr Gachon's notes of the consultations with Client C to be "sketchy in the extreme" and not meet the standard for record keeping for psychologists. According to Professor Kenny, Client C's intense emotional distress indicated that her coping mechanisms were exhausted. In those circumstances, in her opinion it was "mandatory" that Mr Gachon make full notes of each consultation and prepare a suicide prevention plan. In oral evidence she explained that given Client C presented reporting suicidal thoughts, it was critical that Mr Gachon kept sufficiently detailed notes to allow another practitioner to step in, if for some reason he could not continue to treat Client C. 8. Professor Kenny considered Mr Gachon's "multiple boundary violations" in the context of a very vulnerable patient whom he knew to be in an acute stage of her illness, to constitute conduct that fell well short of the relevant standard. In her opinion, his actions in stepping outside the therapeutic relationship to be the most troubling. According to Professor Kenny, by his actions Mr Gachon corrupted the potential to develop a therapeutic relationship and placed Client C at risk. Does the conduct particularised in Complaint 1 constitute "unsatisfactory professional conduct"? 1. Apart from the comment made by Mr Gachon during the second consultation — "your hair looks nice curly" (particular 1(a)) — we agree with Professor Kenny's opinion that the conduct particularised in Complaint 2 demonstrates that the judgment possessed, or care exercised by Mr Gachon, fell significantly below the relevant standard. 2. With respect to the comment about Client C's hair we accept that at the time Client C was acutely unwell. We also accept that she now holds the genuine belief that that comment was part of a pattern of conduct designed to groom her for a sexual relationship. On the available evidence we are unable to make any reliable finding about Mr Gachon's motivation for making that comment. It may have been an entirely innocent comment designed to comfort Client C. Alternatively, as Client C believes, the motivation may have been more sinister. Even if the former, given the potential for misinterpretation, it was unwise for the remark to be have been made. Nonetheless we are not satisfied that it demonstrates that the judgement possessed, or care exercised by Mr Gachon fell "significantly below" the relevant standard. Nor in our opinion, could it be considered improper or unethical conduct. Summary 1. We are not satisfied that the conduct set out in particular 1(a) of Complaint 2 constitutes unsatisfactory professional conduct. We are satisfied that the conduct particularised in the balance of the Complaints constitutes unsatisfactory professional conduct. Is Mr Gachon guilty of professional misconduct? 1. Relying on the conduct particularised in Complaints 1 and 2, individually and cumulatively, the Commission contends that Mr Gachon's conduct constitutes "professional misconduct". Professional misconduct of a registered health practitioner is defined by s 139E of the National Law to mean: (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. Is the conduct of a sufficiently serious nature to justify suspension or cancellation of Mr Gachon's registration? 1. In evaluating whether the conduct we found to constitute unsatisfactory professional conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, the existence of any mitigating factors and an assessment of where the conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. The gravity of the impugned conduct is not to be measured by reference to the worst cases, but by reference to the extent it departs from proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. 2. Of the conduct found to constitute unsatisfactory professional conduct, we find Mr Gachon's conduct in relation to Client C to be the most serious. His actions in taking a vulnerable young woman in an acute state of distress to the movies and making it apparent that he saw the outing as a date, together with his subsequent actions of sending her text messages that were personal both in content and tone, constitute a clear "boundary violation". In addition, his failure to keep proper notes in circumstances where there was a real risk Client C might have acted on her suicidal thoughts was, in our opinion, reckless. We have no hesitation in finding that the conduct particularised in Complaint 2 to be "sufficiently serious" to warrant suspension. 3. The conduct particularised in Complaint 1, in our view, was objectively less serious than that particularised in Complaint 2, and of itself not "sufficiently serious" to warrant suspension or cancellation. We find nonetheless that taken together with the conduct particularised in Complaint 1, it was "sufficiently serious" to warrant suspension. 4. We find Mr Gachon guilty of professional misconduct within the meaning of s 139E (a) and (b) of the National Law. What if any disciplinary orders should be made? 1. Headed "Disciplinary Powers of Tribunals", Part 8, Division 3, Sub Division 6 of the National Law sets out the disciplinary powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and to impose conditions on the practitioner's registration. Where, as in this case, the practitioner is found guilty of professional misconduct, the Tribunal may suspend or cancel the practitioner's registration. 2. In exercising 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). 3. In Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD Wright J 31 at [88] summarised the principles underlying the purpose of orders made under Part 8, Division 3, Sub Division 6: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of 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. (2) 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; (1997) 41 NSWLR 630 at 637. (3) 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 at [91]. (4) 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 at [91]. (5) 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 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. Orders sought by the Commission 1. The Commission seeks: (i) the cancellation of Mr Gachon's registration; (ii) an order that he not seek review of the cancellation order for 24 months; (iii) a prohibition order, also for 24 months. 2. Professor Kenny is of the opinion that Mr Gachon's dealings with the Commission since the impugned conduct occurred indicate that he is fully aware that he breached professional boundaries in respect of both Client A and C. Further, in her opinion, he has demonstrated insight and a willingness to accept responsibility for his conduct. Professor Kenny disagreed with the proposition advanced by the Commission that the most likely explanation for his statements of contrition was because he regretted the consequences for him, not because of the harm caused, or potentially caused, to Clients A and C. She pointed out that from the outset Mr Gachon has conceded that his conduct breached professional standards and he was prepared to take responsibility for his actions. 3. In her opinion, Mr Gachon was "a good candidate for rehabilitation" provided that he (i) underwent psychological therapy to assist him to address a range of personal issues that made him vulnerable to transgression in the therapeutic relationship; (ii) was supervised; (ii) reduced his caseload. In her opinion, the excessive hours worked by Mr Gachon at the time of the Complaints provided him with little opportunity for reflection on his practice or to replenish his emotional energy. 4. There is scant information before us about Mr Gachon's circumstances since he stopped working at the Centre in September 2013. Is it not known whether he has undergone any therapy or taken any steps to minimise the risk of a repeat of the impugned conduct. Nor is it known whether since then he has worked as a psychologist or in an associated field. The only available information is Mr Gachon's unsupported claim that he no longer works as a psychologist. 5. Where a practitioner is found guilty of professional misconduct, an order to cancel or suspend their registration does not necessarily follow. Cancellation and suspension are but some of the available orders where a practitioner is found guilty of misconduct. While the safety of the public is the paramount consideration, any order made must be, nonetheless, commensurate with the seriousness of the conduct found to constitute professional misconduct and taken into account the likelihood of the impugned conduct being repeated. 6. Whether the conduct, found by us to constitute profession misconduct, is likely to be repeated depends upon, among other things, Mr Gachon's recognition of its inappropriateness and evidence of rehabilitation, both demonstrated and prospective. Mr Gachon's failure to attend the hearing or provide any supporting evidence makes it difficult for us to decide whether, as claimed, he is genuinely contrite for his conduct and has developed a real appreciation of why (and in what way) it fell short of the standards of the profession. This, together the lack of evidence of rehabilitation, makes the task of assessing the likelihood of the conduct reoccurring difficult, if not impossible. 7. In the absence of any reliable evidence that Mr Gachon has taken steps to safeguard against a reoccurrence, we could not be confident that there is no material risk that the conduct will be repeated if he were to return to work as a psychologist. 8. We agree with Professor Kenny that, of itself, the impugned conduct does not suggest that Mr Gachon is inherently unsuited to work as a psychologist. We note that previously, he worked as a psychologist for over a decade apparently without incident. We also note that apart from the impugned conduct, other health professionals at the Centre where he had been working apparently held Mr Gachon in high regard. Had we had the opportunity of hearing evidence from Mr Gachon, we may have reached a different conclusion. However, without some reliable evidence that there is no real or material risk that the conduct found to constitute professional misconduct will be repeated, we have decided that the appropriate order is to cancel Mr Gachon's registration as a health practitioner. Having regard to the seriousness of the impugned conduct, we are in the opinion that the Commission's proposal that Mr Gachon not be eligible to seek review of the cancellation order for a period of two years to be excessive and have decided 18 months is more appropriate. Should a prohibition order be made? 1. Section 149C(5) of the National Law gives the Tribunal power to make a prohibition order: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order") do any one or more of the following- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. (emphasis added) 1. The term "health services" is broadly defined: see s 5 of the National Law. 2. The power to make a prohibition order can only be exercised if we are satisfied that Mr Gachon poses a substantial risk to the health of members of the public. Apart from the directive that the protection of the health and safety of the public is the paramount consideration, the Act gives no guidance on the considerations to be taken into account in deciding whether the power to make a prohibition order should be exercised. In our opinion, consistent with the line of authority that the purpose of disciplinary orders is protective not punitive, any order made under s 149C(5) must be measured and proportionate to the risk posed by the practitioner. 3. If Mr Gachon were to work in the area of "health services" and repeat the type of conduct the subject of the Complaints, members of the public are likely to be placed at risk. In the absence of evidence of rehabilitation or other evidence to support a finding that the conduct is unlikely to be repeated, we are comfortably satisfied that if he were to work in some health services Mr Gachon would pose a substantial risk to members of the public. Accordingly, we have decided to exercise the power to make a prohibition order in relation to the following health services with or without supervision for a period of 18 months from the date of this decision: a) Therapy b) Psychotherapy c) Counselling d) Mental Health services e) Health education services f) Welfare services, necessary to implement any services referred to in paragraphs (a) and (e). for a period of 18 months. Should an award for costs be made? 1. At the close of the hearing we invited the parties to make written submissions in respect of the Commission's application for costs. The Commission filed written submission on 26 November 2015. No submissions were received from Mr Gachon. The power to award costs 1. The power to award costs in proceedings where a complaint has been referred to NCAT for determination under the National Law, is found in cl 13 of Schedule 5D to the National Law: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner ... at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. ... 1. The Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) considered the exercise of the discretion to award costs and accepted at [42] that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event". See also Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]; and in relation to a similar but not identical costs provision, Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 (Lucire) and Ohn v Walton (1995) 36 NSWLR 77 at p 79. While as a general rule costs follow the event, factors may exist that militate against the recovery of costs by the successful party: Philipiah at [42]; Lucire at [48]–[52]. 2. The authorities emphasise that while the discretion not to award costs to the successful party is unfettered, it must nonetheless be exercised judicially "according to proper fixed principles and rules of reason and justice, not according to private opinion": Philipiah at [43]. In Philipiah the Court of Appeal observed at [43] that it is "not easy to state the precise principles" that are to guide a decision-maker in exercising the discretion over costs. The discretion is only to be exercised where there are materials upon which to exercise it (Philipiah at [43]; Williams v Lewer (1974) 2 NSWLR 91 at 95). 3. The presumption that the successful party is entitled to receive their costs is generally only displaced where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 (Oshlack) at [40]. Should the power to award costs be exercised? 1. The Commission was largely successful in these proceedings. We saw nothing to indicate that it conducted the proceedings in a manner that meant that costs were unnecessarily incurred. While Mr Gachon's failure to respond to the Commission's costs application does not indicate that he consents to the making of a costs order, nonetheless it means no reasons have been advanced for departing from the "usual rule". 2. In these circumstances, we have decided there is no basis to depart from that rule and therefore order that Mr Gachon pay the Commission's costs of these proceedings. Orders 1. Pursuant to s149C(1) of the National Law, the Tribunal decides to cancel Mr Gachon's registration. 2. Pursuant to s149C(7) of the National Law, Mr Gachon cannot seek review of Order 1 before 18 months of the date of this decision. 3. Pursuant to s149C(5) of the National Law, Mr Gachon is prohibited from providing the following health services with or without supervision for a period of 18 months from the date of this decision: a) Therapy b) Psychotherapy c) Counselling d) Mental Health services e) Health education services f) Welfare services, necessary to implement any services referred to in paragraphs (a) and (e). 4. Decision on cost made on 22 February 2015 - Mr Gachon must pay the Commission's costs of the proceedings. Attachment A Mr Robert Gachon ("the practitioner") of xxx NSW 2153 being a psychologist registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of psychology is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of psychology. BACKGROUND TO COMPLAINT ONE At all relevant times, the practitioner provided psychological services at the Rouse Hills Medical Centre. On 30 April 2013 Client A's general practitioner referred Client A to the practitioner under a Mental Health Assessment plan for anxiety and depression. Client A's first consultation with the practitioner took place on 11 June 2013. Thereafter, Client A consulted with the practitioner on 5 occasions on 30 July, 6 August, 9 August, 13 August and 23 August 2013. On 17 July 2013 Client A's general practitioner referred Client B, a close relative of Client A, to the practitioner under a Mental Health Assessment plan for anxiety and depression. Client B's first consultation with the practitioner took place on 19 July 2013. Thereafter, Client B consulted with the practitioner on 3 occasions on 9 August, 13 August and 23 August 2013. PARTICULARS OF COMPLAINT ONE 1. On 9 August 2013 the practitioner failed to maintain proper professional boundaries in that: (a) the practitioner invited Client A to have coffee with him after her consultation, (b) the practitioner had coffee with Client A after her consultation, (c ) the practitioner exchanged mobile telephone numbers with Client A, (d) the practitioner invited Client A to have dinner with him. 2. On 10 August 2013 the practitioner had dinner with Client A at a restaurant. 3. From about 10 August 2013 the practitioner entered into and maintained an inappropriate personal relationship with Client A which developed into a sexual relationship on about 19 August 2013. 4. On about 23 August 2013 during a discussion with Client A's referring general practitioner, the practitioner denied that he and Client A were having a personal or sexual relationship. 5. Between about 28 September and 16 January 2014 after Client A had requested that their personal and sexual relationship cease, the practitioner inappropriately continued to contact Client A. 6. Between about 28 September and 16 January 2014 after Client A had requested that their personal and sexual relationship cease, the practitioner inappropriately sought to persuade Client A to resume their relationship. 7. The practitioner failed to keep proper and complete records of his clinical care of Client A. 8. The practitioner failed to keep proper and complete records of his clinical care of Client B. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of psychology is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of psychology. BACKGROUND TO COMPLAINT TWO At all relevant times, the practitioner provided psychological services at the Rouse Hills Medical Centre. On 15 January 2013 Client C's general practitioner referred Client C, to the practitioner under a Mental Health Assessment plan for anxiety and depression. Client C's first consultation with the practitioner took place on 8 February 2013. Thereafter, Client C consulted with the practitioner on 2 occasions on 9 February and 10 February 2013. PARTICULARS OF COMPLAINT ONE TWO 1. The practitioner made the following inappropriate comments to Client C during professional consultations: (a) On 9 February 2013 words to the effect of "Your hair looks nice curly", (b) On 10 February 2013 words to the effect of "Don't get me the wrong way, you're quite an attractive girl and you shouldn't feel that way and your dad's wrong." 2. On 10 February 2013 the practitioner failed to maintain proper professional boundaries in that: (a) the practitioner prolonged the consultation with Client C on this occasion, permitting it to last for approximately three hours, and engaged in small talk with Client C during the consultation without a proper therapeutic purpose for doing so, (b) the practitioner invited Client C to the cinema to see a film with the practitioner and two of his children that evening, (c) the practitioner inappropriately instructed Client C to leave the consulting rooms saying, words to the effect of, "go downstairs and wait for me because it doesn't look good us leaving together", (d) the practitioner drove Client C to the cinema in his car after the consultation, (e) the practitioner accompanied Client C at the cinema and watched a film with her, (f) the practitioner purchased Client C's cinema ticket and some food for her from a food outlet, (g) the practitioner drove Client C to her home from the cinema in his car, (h) the practitioner made a comment about his ex-wife to Client C during the drive to Client C's home. (i) the practitioner said to Client C words to the effect of, "I just wanted you to know it's been a while since I've had such a good time in the company of a woman, like you on a date." 3. On 13 February 2013 the practitioner inappropriately sent Client C two text messages that were personal in their content and tone. 4. The practitioner failed to keep proper and complete records of his clinical care of Client C. COMPLAINT THREE is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration BACKGROUND TO COMPLAINT THREE The background to Complaints One and Two is repeated. PARTICULARS OF COMPLAINT THREE 1. Complaints One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively. 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: 22 February 2016