Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Leighton [2016] NSWCATOD 33 Hearing dates: 22 February 2016 Date of orders: 30 March 2016 Decision date: 30 March 2016 Jurisdiction: Occupational Division Before: O Shub, Principal Member G Perkis, Professional Member A L Sharpe, Professional Member J Klauss, General Member Decision: The Tribunal finds the Respondent guilty of unsatisfactory professional conduct as alleged in complaints one and two, guilty of professional misconduct as alleged in complaint three, that the Respondent has an impairment as alleged in complaint four, save that it does not find proven that the Respondent is dependent upon crystal methamphetamine. That the Respondent is not competent to practice a health profession as defined in section 139A Catchwords: Psychologist, impairment, drug use, unethical conduct, sexual relationship Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 Cases Cited: Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 HCCC v Gillett [2007] NSWNMT 7 HCCC v Rutner [2009] NSWDT 2 Gayed v Walton [1997] NSWSC 279 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Health Care Complaints Commission v Howe [2010] NSWMT 12 Re Dr Parajuli [2010] NSWMT 3 Clyne v New South Wales Bar Association (1960) 104 CLR 186 New South Wales Bar Association v Evatt (1968) 117 CLR 177 NSW Bar Association v Meakes [2006] NSWCA 340 Skinner v Beaumont (1974) 2 NSWLR 106 Law Society of NSW v Foreman (1994) 34 NSWLR 408 Saville v HCCC [2006] NSWCA 298 Lee v HCCC [2012] NSWCA 80 HCCC v Dr Graeme Harris [2008] NSWMT 6 HCCC v King [2013] NSWMT 9 Department of Ageing, Disability and Home Care v Lambert (2009) NSWLR 523 HCCC v Platt [2013] NSWLR 523 Sudath v HCCC [2012] NSWCA 171 Lindsay v HCCC [2010] NSWCA 194 Briginshaw v Briginshaw 1938 60CLR336 HCCC v Saedlounia [2013] NSWMT 13 HCCC v Dr Gow [2008] NSWMT 2 HCCC v Nemeth [2012] NSWMT 4 Spicer v NSW Medical Council unreported, CA No.3, 19 February 1981 HCCC v Gorodny-Novak [2011] NSWMT 3 Re Dr Than Le unreported, NSWMT, 20 September 2001 HCCC v Reimers [2012] NSWCA 317 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Julie Leighton (Respondent) Representation: Counsel: A Britt (Applicant) Solicitors: Health Care Complaints Commission (Applicant) No appearance by Respondent File Number(s): 1520181 reasons for decision Background 1. The Applicant, the Health Care Complaints Commission, has brought an application for disciplinary findings against the Respondent, Ms Julie Leighton. The Respondent is a psychologist registered under the Health Practitioner Regulation National Law (NSW) ("the National Law"). The Applicant complains that the Respondent is: 1. Guilty of unsatisfactory professional conduct under section 139B (1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgement 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 2. Engaged in improper or unethical conduct relating to the practice or purported practice of psychology; 3. Is guilty of professional misconduct under section 139E of the National Law in that: a. the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration; or b. 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 practitioners registration. 1. By an amended complaint the Applicant has set out the background and particulars to each of five complaints brought against the Respondent. Background to Complaint One 1. The practitioner was first registered as a psychologist in NSW on 5 September 2006. Between January 2009 and October 2009 the practitioner was employed as a psychologist for the Department of Corrective Services at Parramatta Correctional Centre ("PCC") having been previously employed at PCC as a Probation and Parole Officer. 2. Sometime in June 2009 Client A, an inmate in custody at PCC with whom she had a prior association, self-referred for counselling. The practitioner accepted the referral and consulted with Client A between 24 June and 21 July 2009. 3. Client A was released from PCC sometime in late July 2009. The practitioner resigned from PCC on 3 December 2010. Particulars of Complaint One 1. The practitioner inappropriately accepted a referral from and consulted with Client A on at least three occasions between 24 June 2009 and late July 2009 without disclosing her prior association with Client A to her supervisor, a professional colleague or any other PCC member of staff. 2. The practitioner failed to observe appropriate professional boundaries in that she provided Client A with her personal mobile phone number prior to his release from PCC. 3. The practitioner failed to observe appropriate professional boundaries in that she met Client A at the Red Lion Hotel in Rozelle sometime in August or September 2009. 4. The practitioner inappropriately engaged in a sexual relationship with Client A from approximately September 2009 to mid-August 2010. 5. The practitioner inappropriately maintained a personal relationship with Client A between mid-August 2010 and at least September 2013 including her continuing to meet with Client A approximately once every one to two weeks. Background to Complaint Two 1. On 25 January 2012 the practitioner attended a medical assessment with a health practitioner pursuant to section 152B of the National Law. On 4 April 2012 the practitioner attended an Impaired Registrants Panel ("IRP") inquiry established under section 173A of the National Law and voluntarily agreed to conditions being placed on her registration under section 152J of the National Law. The conditions on the practitioner's registration included: 1. Condition 10: To attend for treatment, where required, by a psychiatrist or clinical psychologist of her choice, at a frequency to be determined by the treating psychiatrist or clinical psychologist… 2. Condition 12: That should she be prescribed or directed to take a: 1. Schedule 4D Drug; 2. Narcotic derivative; 3. Non-prescription compound analgesic or cold medication She will notify the Council and the Council Appointed Practitioner/s. In addition, within seven days she must provide the Council with written confirmation of such treatment from the treating practitioner. 1. To attend for random Urine Drug Testing in strict accordance with the Council's protocol. Results of the Urine Drug Testing to be forwarded to the Council. This will include testing for Stilnox/ Fentanyl/Propofol. 1. On 4 November 2013 proceedings under section 150 of the National Law were convened and the practitioner's registration was suspended under section 150(1)(a). Particulars of Complaint Two 1. The practitioner contravened condition 10 of her registration in that between 1 May 2012 and 4 November 2013 she failed to attend appointments for psychiatric review on: 1. 8 June 2012; 2. 22 June 2012; 3. 7 September 2012; 4. 16 November 2012; 5. 23 November 2012; 6. 14 December 2012; 7. 11 January 2013; 8. 14 March 2013; 9. 14 June 2013; 10. 18 October 2013. 1. The practitioner contravened condition 12 of her registration in that on 27 July 2013 she was prescribed Valium 5 mg and failed to: 1. Notify the Council; 2. Notify the Council appointed health practitioner; 3. Provide written confirmation to the Council of such prescription. 1. The practitioner contravened condition 13 on her registration in that she failed to attend for random Urine Drug Testing on: 1. 2 May 2012; 2. 24 May 2012; 3. 29 May 2012; 4. 12 June 2012; 5. 18 June 2012; 6. 28 June 2012; 7. 25 July 2012; 8. 31 July 2012; 9. 10 August 2012; 10. 20 August 2012; 11. 30 August 2012; 12. 7 September 2012; 13. 17 September 2012; 14. 29 January 2013; 15. 25 March 2013; 16. 2 April 2013; 17. 11 September 2013; 18. 26 September 2013; 19. 8 October 2013; 20. 21 October 2013; 21. 31 October 2013. Background to Complaint Three 1. The background set out under Complaints One and Two is repeated. Particulars of Complaint Three 1. Complaint One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively. Complaint Four 1. Has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of psychology. Background for Complaint Four 1. The background set out under Complaint Two is repeated. 2. The practitioner has a long history of psychological and psychiatric difficulties for which she received treatment at various times, dating back to her early adult years. 3. The practitioner attended further medical assessments with the Council appointed medical practitioner on 12 September 2012, 27 March 2013 and 2 October 2013. The practitioner attended further IRP inquiries on: 18 July 2012; 10 October 2012; 24 April 2013; and 18 October 2013. Particulars for Complaint Four 1. The practitioner suffers from: 1. A mood disorder; 2. Personality vulnerability; 3. Benzodiazepine dependence; 4. Analgesic dependence; 5. Crystal methamphetamine dependence; 6. Anxiety disorder. Complaint Five 1. Is not competent within the meaning of section 139(a) of the National Law in that she lacks the mental or physical capacity to practise as a psychologist. Background for Complaint Five 1. The background for Complaint Four is repeated. 2. On 15 December 2015 the Council issued a notice directing the practitioner to attend an examination with a Council Appointed Practitioner pursuant to section 152B of the National Law scheduled for 7 January 2016. On 16 December 2015 the practitioner advised the Council that she would not be attending the examination with the Council Appointed Practitioner. Particulars for Complaint Five 1. The particulars for Complaint Four are repeated and relied upon. 2. The practitioner failed without reasonable excuse to comply with the notice issued by the Council pursuant to section 152B to attend an examination by a Council Appointed Practitioner. 3. By a series of emails between December 2015 and February 2016 the Respondent indicated to the Applicant that she would not be attending the hearing of the complaint against her and on the day of the hearing following the calling of her name in the court precinct the matter proceeded to hearing in her absence. 4. The Applicant provided the Tribunal with an amended complaint, the contents of which were brought to the attention of the Respondent prior to the hearing and in respect of which the Respondent only raised one objection, namely particular (e) of Complaint Four, relating to the allegation that the practitioner suffers from crystal methamphetamine dependence. In the circumstances, the Tribunal considered the application to lodge the amended complaint and ordered that the amended complaint be substituted for the original complaint. 5. The Applicant tendered as exhibits the evidentiary certificate of the Psychology Council of New South Wales (Exhibit 2), the confirmation of registration status by AHPRA (Exhibit 3), a report dated 5 February 2016 (Exhibit 4 – a copy of which had been provided to the Respondent), an exchange of emails with one commencing on page 1 dated 15 February 2016 (Exhibit 6), a string of emails commencing on page 1 with the 20th of February 2016 (Exhibit 6) and volumes 1 – 4 of documents served by the Health Care Complaints Commission (Exhibit 7). 6. In light of the fact that the Respondent failed to appear and accordingly did not call any witnesses for cross-examination and in light of the fact that the documents tendered by the Applicant speak for themselves, the Tribunal did not have a need to call any of the witnesses to give viva voce evidence. 7. The Applicant closed its case and provided the Tribunal with written submissions. Submissions The Jurisdiction of the Tribunal 1. The jurisdiction of the Tribunal is protective in nature, not punitive (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; HCCC v Gillett [2007] NSWNMT 7 at [13] and HCCC v Rutner [2009] NSWDT 2 at [14]). 2. In the exercise of its protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the psychology profession, the preservation of public confidence in the psychology profession and the protection of the community (Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] and Health Care Complaints Commission v Howe [2010] NSWMT 12 at [113]). 3. In the exercise of its protective jurisdiction the Tribunal's primary purpose is the protection of the health and safety of the public (see Re Dr Parajuli [2010] NSWMT 3 at [31]). 4. This role now has specific legislative backing. Section 3 of the National Law sets out the relevant principles of the National Law: which include, (2)(a): "to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered". Pursuant to s3A, "the protection of the health and safety of the public must be the paramount consideration" in the exercise of functions under the National Law or a regulation. 5. As s3A of the National Law makes clear, the paramount consideration in proceedings such as this is to protect the public: it is not the focus of such proceedings to punish the practitioner. Accordingly, the Tribunal's jurisdiction must be exercised bearing in mind the need to concentrate on issues of public safety. It has also been held that, in addition to the protection of the public being the paramount consideration, other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in similar conduct: (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201, 202 and New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184). 6. In NSW Bar Association v Meakes [2006] NSWCA 340 at [114], Basten JA set out the following as the important, but indirect, effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order: 1. The order reminds other members of the profession of the public interest in the maintenance of high professional standards; 2. The order may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence; and 3. By speaking to the public at large, the order seeks to maintain confidence in the high standards of the profession. 1. The Tribunal should consider five matters bearing on protection: 1. any need to protect the public against further misconduct by the practitioner; 2. the need to protect the public through general deterrence (of other practitioners); 3. the need to protect the public by reinforcing high professional standards and denouncing transgressions; 4. the maintenance of public confidence in the profession; and 5. the desirability of making available to the public any special skills possessed by the practitioner (see Skinner v Beaumont (1974) 2 NSWLR 106 at 109; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 471B; Saville v HCCC [2006] NSWCA 298 at [45]; Lee v HCCC [2012] NSWCA 80, at [20]-[21]; Re Dr Parajuli [2010] NSWMT 3 at [32]; HCCC v Dr Graeme Harris [2008] NSWMT 6 at [175] and HCCC v King [2013] NSWMT 9 at [27]). 1. An unavoidable concomitant of making orders aimed at protecting the public is that sometimes the protective orders demanded by the circumstances may be incidentally punitive in effect, although that is not the purpose of the orders so made (see Lee v HCCC [2012] NSWCA 80, at [20] and [31] following Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) NSWLR 523 at [83] and HCCC v Platt [2013] NSWMT 14 at [55] and [71]). Legislative Framework 1. Part 8 of the National Law deals with complaints concerning health practitioners. 2. Section 144 specifies the grounds for complaints against a health practitioner. They include: 1. … 2. A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. 3. A complaint the practitioner is not competent to practise the practitioner's profession. 4. A complaint the practitioner has an impairment. 5. A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. 1. Section 139B of the National Law defines "unsatisfactory professional conduct" of a registered health practitioner as including a number of matters. This section relevantly provides: 1. 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. …. 1. A contravention by the practitioner (whether by act or omission) of- 1. a condition to which the practitioner's registration is subject; or 2. an undertaking given to a National Board. …. 1. Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. "Conduct" is defined in s138 of the National Law to mean "any act or omission". 2. Section 5 of the National Law relevantly defines "impairment" to mean in relation to a person, that the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practice the profession. 3. Section 139(a) of the National Law relevantly provides: 4. A person is "competent" to practise a health profession only if the person- 5. (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; 6. Section 139E of the National Law defines "professional misconduct" to mean: 7. unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 8. 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. Rules of Evidence 1. The Tribunal is not bound by the rules of evidence (see s38(2) of the Civil and Administrative Tribunal Act 2013). Justice Meagher pointed out in Sudath v HCCC [2012] NSWCA 171 at [75], though not bound by the rules of evidence the Tribunal is subject to the rules of procedural fairness. Further, while, although the Tribunal may inform itself in any way "it thinks fit", "it must base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined" (see Sudath at [79] and also the observations by Justice Young in Lindsay v HCCC [2010] NSWCA at [34-35]). Burden of Proof 1. It is well established law that the burden of proof is as defined in the case of Briginshaw v Briginshaw 1938 60CLR336 at 360 – 363 in terms of which the civil test of balance of probabilities applies but having regard to: 1. The gravity and importance of the issues to be decided; and 2. The possible consequence to the practitioner if a finding was to be made that he or she had been guilty of unsatisfactory professional conduct, the Tribunal must be "comfortably satisfied" as implying that proof to a higher standard than the balance of probabilities is required. Evidence 1. In her email of 19 February 2016 the Respondent has admitted the factual components of all complaints other than Complaint Four particular 1(e). 2. In addition the Complainant relied on and the Tribunal considered the evidence set out below. Complaint One Particular One Corrective Services Report - Tab 5 Transcript of Interview - Tab 6 pages 8,9,12,13 Respondents clinical notes for Client A - Tab 7 Ms Goldberg's Report - Tab 9 Email of Respondent of 6 May 2011 - Tab 117 Particular Two Corrective Services Report - Tab 5 Transcript of Interview - Tab 6 pages 11,12,23 Ms Goldberg's Report - Tab 9 Email of Respondent of 6 May 2011 - Tab 117 Particular Three Corrective Services Report - Tab 5 Transcript of Interview - Tab 6 pages 24,27 Ms Goldberg's Report - Tab 9 Email of Respondent of 6 May 2011 - Tab 117 Particular Four Corrective Services Report - Tab 5 Transcript of Interview - Tab 6 pages 25,27 Ms Goldberg's Report - Tab 9 Email of Respondent of 6 May 2011 - Tab 117 Particular Five Corrective Services Report - Tab 5 Transcript of Interview - Tab 6 pages 24-29 Ms Goldberg's Report - Tab 9 Email of Respondent of 6 May 2011 - Tab 117 Complaint Two General Confirmation of Registration Status – Tab 1A Condition 10 - Tab 1A pages 3,6,7 Condition 12 - Tab 1A pages 4,6,8 Condition 13 – Tab 1A pages 4,6,8 Particular One Correspondence of Respondent of 11 June 2014 - Tab 122 Correspondence from Respondent's solicitors of 8 July 2014 -Tab 123 Particular Two Correspondence from Respondent's solicitors of 4 March 2015 - Tab 85 Ryde Community Health Centre Notes - Tab 132 Correspondence from Dr Eli Zeltzer - Tab 80 Particular Three List of Dates - Tab 74 UDT - Tab 75 Psychology Council of NSW Compliance Report - Tab 90 Complaint 4 Psychology Council of NSW Report/Inquiry - Tab 25 Psychology Council of NSW Report/Inquiry - Tab 26 Psychology Council of NSW Report/Inquiry - Tab 27 Psychology Council of NSW Report/Inquiry - Tab 29 Associate Professor Samuel's Report - Tab 30 Associate Professor Samuel's Report - Tab 31 Associate Professor Samuel's Report - Tab 32 Associate Professor Samuel's Report - Tab 33 Associate Professor Samuel's Report - Tab 34 Associate Professor Samuel's Report of 5 February 2016 Correspondence from Dr Eli Zeltzer - Tab 80 Correspondence from Respondent's solicitors - Tab 119 Complaint 5 Associate Professor Samuel's Report of 5 February 2016 1. Having considered all of the evidence available to the Tribunal, all but one conclusion of which was admitted by the Respondent, the Tribunal determined that the Respondent: 1. Is guilty of unsatisfactory professional conduct as alleged in complaint one; 2. Is guilty of unsatisfactory professional conduct as alleged in complaint two; 3. For the reasons and based on the considerations set out below, is guilty of professional misconduct as alleged in complaint three; 4. Has an impairment within the meaning of section 5 of the National Law as alleged in complaint four, save that the Tribunal is not comfortably satisfied that the Applicant has discharged its onus of proving particular E of complaint four in that this allegation is denied by the Respondent and the evidence provided by the Applicant proves only that the Respondent has used crystal methamphetamine but there is no evidence to indicate that the Respondent is dependent on crystal methamphetamine; 5. Is not competent within the meaning of section 139A of the National Law. 6. The position in respect of a determination of unsatisfactory professional conduct is clear and has been dealt with in many decisions of the Tribunal and the courts. Complaint three calls upon the Tribunal to find that the Respondent is guilty of professional misconduct. The Tribunal had regard to various decisions of the Tribunals and the courts. 1. The concept as contained in s139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognize that that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct (see HCCC v Saedlounia [2013] NSWMT 13 at [43]-[50]). 2. By its terms, s139E in respect to professional misconduct refers to conduct that is of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration and therefore concerns itself with the measure of the seriousness of that conduct. The determination of whether conduct amounts to professional misconduct has as its starting point, an objective assessment of the Respondent's conduct against the standard "reasonably expected of an equivalent practitioner". When coming to a decision about whether conduct is "sufficiently serious" to justify the sanction of de-registration, circumstances which bear on that objective assessment of that conduct may properly be taken into account (see HCCC v Dr Gow [2008] NSWMT 2 at [67]). 3. Further, the Complainant submitted that both individually but also cumulatively the particulars of Complaint One and Complaint Two that: 1. the Respondent has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration; or 2. 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 Respondent's registration. 3. It has been held that the "gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards" (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638). 1. The Complainant submits that the particulars of Complaint One demonstrate that the Respondent has: 1. Engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and 2. Engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 1. In HCCC v Nemeth [2012] NSWMT 4 the NSW Medical Tribunal referred to the well-known decision of the NSW Court of Appeal in Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981) when stating: As has been endorsed often by the Tribunal, a medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law constitutes professional misconduct. In Spicer v NSW Medical Council, Hope JA (Reynolds and Hutley JJA agreeing) said: In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner. 1. This principle has been endorsed on many occasions by the Medical Tribunal of NSW (see HCCC v Gorodny-Novak [2011] NSWMT 3 [196]-[197] and the cases cited therein). 2. The conduct of the Respondent in respect to Complaint One is such that the unsatisfactory professional conduct displayed by her is of such a nature as to fall within the definition of professional misconduct in Section 139E. 3. In addition the conduct of the Respondent was such that it included a number of aggravating factors: 1. the particular vulnerability of Client A who was an inmate in custody; 2. the slow sexualisation of the relationship by the Respondent; 3. the breaches of boundaries were significant; 4. the conduct is likely to bring the profession into disrepute; 5. the Respondent knowingly entered into the relationship with Client A; and 6. the Respondent's lack of insight and propensity for boundary infractions has been chronic over an extended period of time. 1. The Respondent's conduct in Complaint One is a serious breach of the standards the public have a right to expect of a practitioner. The Tribunal should be satisfied, because of the Respondent's lack of insight, and her attempts to minimise her conduct she is not presently fit to practice, and that her registration should be cancelled. 2. Further, the particulars of Complaint Two are also significant. The Respondent has simply ignored the conditions on her registration in respect to attendance at treatment, notification of being prescribed drugs and the provision of random urine samples and provided no basis for this failure. 3. The need to comply with the restrictions was self-evident and the restrictions were aimed at protecting the public as well as the Respondent. The failure to comply with these conditions in these circumstances amounts to professional misconduct especially given the extent of such breaches over an extended time frame. 4. Such a failure to comply with the conditions on the Respondent's registration, when taken together, are of a very serious nature, and demonstrate that the Respondent had a lack of insight into the need for her to act scrupulously with regard to her conditions of practice order to ensure that the public was protected. Prima facie, these failures are of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration (see HCCC v Saedlounia [2015] NSWCATOD 53 at [102]). These matters, when aggregated, represent compelling reasons for concluding that the Respondent has engaged in a pattern of unsatisfactory professional conduct that is of a sufficiently serious nature to justify cancellation of her practicing rights. 5. In Prakash v HCCC [2006] NSWCA 153 (Prakash), the Court of Appeal observed at [74] that "When conditions are imposed, as they were here, for restoration to practise, those conditions must be scrupulously observed. It is even more serious where dishonesty supervenes ...". 6. The Court of Appeal referred to a decision in Re Dr Than Le (Medical Tribunal decision, 20 September 2001 at 46, para 95 and quoted the following at [45]: Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, containing as it does a grave criticism of the standard of the practitioner's conduct. 1. The Tribunal could not be satisfied in such circumstances that the Respondent is fit to practice. 2. The conduct of the Respondent is such that the unsatisfactory professional conduct displayed by her falls within the definition of professional misconduct in Section 139E. The Tribunal should find that the Respondent is guilty of unsatisfactory professional conduct within the meaning of s139B of the National Law and professional misconduct within the meaning of section139E. 3. Even if the Tribunal finds that the Respondent is impaired it does not prevent her conduct from amounting to professional misconduct (see HCCC v Reimers [2012] NSWCA at [10]-[14]). Impairment 1. The definition of impairment, as it applies to health professionals (and others) under the National Law, has two parts. The first part requires that the health professional has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence). The second part of the definition requires that the impairment that meets one or more of the descriptions in the first part must also either, in fact, detrimentally affect or be likely to detrimentally affect the health practitioner's capacity to practise their profession. 2. The recent evidence relied upon by the Complainant to prove impairment indicates that the Respondent has substance dependency and personality issues and is impaired (See Associate Professor Samuel's Report of 5 February 2016). 3. There is no evidence available, either from that obtained by the HCCC or put on by the Respondent to indicate that the Respondent's drug dependency issues have ceased. The available and reasonable inference to draw based on the totality of the evidence is that the drug dependency issues continue for the Respondent. 4. Accordingly, it is submitted that on the basis of the available evidence and the inferences available from that evidence that the Respondent is suffering impairment. The effect of the Respondent's impairment on her ability to practice psychology in addition to the evidence of Associate Professor Samuels is also a matter of inference from the evidence supporting her impairment. 5. Further, in order for the Respondent to practice psychology without risk to the public is itself contingent on a range of matters. Given the Respondent's history (as set out in Complaint Two) the Tribunal could be satisfied that the Respondent may be likely not to abide by any conditions. Competence 1. Section 139(a) of the National Law relevantly defines "competence" to mean a person is "competent" to practice a health profession only if the person has sufficient physical capacity, mental capacity, knowledge and skill to practice the profession. 2. It is alleged in the particulars and that the Respondent has substance dependence and depression as particularised in Complaint Four. 3. If the Tribunal finds that the Respondent has a substance dependence, which is a mental impairment, and the conditions in Complaint Four are likely to adversely affect her capacity to practice psychology necessarily leads, in the context of this case, to a finding that she lacks the mental capacity to practice psychology. In addition this finding is supported by the evidence of Associate Professor Samuel's Report of 5 February 2016. Judgment 1. For the reasons submitted by the Applicant and the evidence provided, the Tribunal finds the Respondent guilty of unsatisfactory professional conduct as alleged in complaints one and two, guilty of professional misconduct as alleged in complaint three. 2. The Respondent has an impairment as alleged in complaint four, save that it does not find proven that the Respondent is dependent upon crystal methamphetamine. 3. The Respondent is not competent to practice a health profession as defined in section 139A. 4. The Tribunal is comfortably satisfied that the Respondent is guilty of professional misconduct, has an impairment and is not competent to hold registration as a health professional, pursuant to the National Law. Orders 1. The Tribunal makes the following orders: 1. The practitioner's registration is cancelled pursuant to section 149C(1) of the National Law. 2. The practitioner cannot re-apply for registration for a period of at least three years pursuant to section 149C(7) of the National Law. 3. The practitioner is prohibited pursuant to section 149C(5) of the National Law from providing any of the following health services, whether provided as a public or private service and whether provided for payment or pro bono, unless and until she is registered as a psychologist: 1. Therapy; 2. Counselling; 3. Psychotherapy; 4. Any mental health service; 5. Hypnotherapy; 6. Clinical, supervision of psychology students; 7. Social welfare; 8. Welfare services necessary to implement (a) to (g). 1. The practitioner is to remove any reference to the practitioner's status as a psychologist in any documentation, website or telephone directory in which such a reference may appear 2. The practitioner pay the costs of the Commission. Comment 1. The Tribunal is fully cognisant of the fact that the circumstances in which the Respondent now finds herself are most unfortunate, but has no option but to make the orders set out above for the reasons set out herein the Tribunal wishes to point out to the Respondent that in the period of her suspension she would be wise to use that time to deal with her substance abuse and to gain insights into her behaviour so that in the event that she wishes to apply for re-registration, she might be able to demonstrate to the Psychology Council of New South Wales that she is a fit and proper person to hold in the future registration as a psychologist. 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 Amendments 05 May 2016 - Citations added to the cover sheet and corrected spelling errors on the cover sheet and paragraph 53. 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 May 2016