Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Smith [2016] NSWCATOD 93 Hearing dates: 31 July 2015 Date of orders: 18 July 2016 Decision date: 18 July 2016 Jurisdiction: Occupational Division Before: Y Grant, Senior Member Dr E Collins, Professional Member Associate Professor C Willcox, Professional Member A Collier, General Member Decision: (1) Pursuant to s 149C(4) of the Health Practitioner Regulation National Law (the National Law) the Tribunal records that if Terrence Smith (the practitioner) was still registered on the register of health practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) for the Psychology Board of Australia it would have cancelled his registration. (2) AHPRA is requested to record in register the fact that the Tribunal would have cancelled the practitioner's registration had he been registered at the date of this decision. (3) Pursuant to s 149C(7) of the National Law no application for a review shall be made for a period of eighteen months from the date of this decision. (4) Pursuant to s 149(5)(a) and s 149(5A) of the National Law the practitioner is prohibited from providing the following services as defined in the Health Care Complaints Act 1993 (NSW) unless and until he is again registered as a psychologist: (i) Therapy; (ii) Counselling; (iii) Psychotherapy; (iv) Welfare services (as defined in s.4 of the Health Care Complaints Act); (v) Any other mental health service and/or; (vi) Any other alternative, or healing or health care or therapies (5) The Tribunal orders the Respondent to pay the Health Care Complaints Commission's costs of and incidental to the proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law (Application) Act 2014 (NSW). Catchwords: HEALTH PRACTITIONER REGULATION NATIONAL LAW – Where applicant asserts practitioner guilty of unsatisfactory professional conduct and professional misconduct – Where practitioner admits the complaints – consideration of appropriate protective orders. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Psychologists Act 2001 (NSW). Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Gianoutsos v Glykas (2006) 65 NSWLR 539 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 Health Care Complaints Commission v Litchfield [1997] NSWSC 297; 41 NSWLR 630 Latoudis v Casey (1990) 170 CLR 534 Lindsay v HCCC [2010] NSWCA 194 New South Wales Bar Association v Evatt (1968) 117 CLR 177 NSW Bar Association v Meakes [2006] NSWCA 340 Ohn v Walton (1995) 36 NSWLR 77 Polglaze v Veterinary Practitioners Board of New South Wales [2009] NSWSC 347 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qidwai v Brown [1984] 1 NSWLR 100 In Re Dr Suman Sood [2006] NSWMT 1 Sudath v Health Care Complaints Commission [2012] 84 NSWLR 474; [2012] NSWCA 171 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Terrence Smith (Respondent) Representation: Counsel: R Graycar (Applicant) Solicitors: Health Care Complaints Commission (Applicant) File Number(s): 1520070 Publication restriction: The Tribunal makes a Suppression Order pursuant to Schedule 5D, Clause 7 of the Health Practitioner Regulation National Law (NSW) to protect the identity of Client A, including anything that may tend to identify her. REASONS FOR DECISION Introduction The Complaint 1. On 9 April 2015, the NSW Civil and Administrative Tribunal – Occupational Division (the Tribunal) received a complaint from the Acting Director of Proceedings of the Health Care Complaints Commission (HCCC) relating to Mr Terrence Smith (the Respondent). The Respondent was formerly a registered psychologist. This followed the Acting Director having determined to prosecute a complaint against the Respondent pursuant to s 90B[1] of the Health Care Complaints Act 1993 (NSW) (the HCCC Act). The complaint asserts that the Respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) and/or s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) (the National Law) on the basis of the matters particularised in Complaint One, elaborated upon below. 2. Complaint Two asserts that the respondent is guilty of professional misconduct within the meaning of s 139E of the National Law as he has engaged in unsatisfactory professional conduct "of a sufficiently serious nature to justify suspension or cancellation" of his registration or that he has engaged in unsatisfactory professional conduct on a number of occasions which considered together amount to conduct sufficiently serious to justify suspension or cancellation. Complaint Two is particularised by reference to the particulars to Complaint One. Terms of the Complaint 1. The terms of the complaint brought against the Respondent are set out below. The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, have consulted with the Psychology Council of New South Wales in accordance with s 39(2) and s 90B(3) of the Health Care Complaints Act 1993 and s 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Mr Terrence Smith ("the Practitioner") …, being a psychologist formerly registered under the National law COMPLAINT 1 is guilty of unsatisfactory professional conduct under s139B(1)(a) and (l) of the National Law in that the practitioner has: (i) Engaged in conduct that demonstrates that the knowledge, skill or judgment possessed or care exercised by the practitioner in the practise 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 practise or purported practise of psychology. BACKGROUND OF COMPLAINT 1 PARTICULARS OF COMPLAINT 1 1. The practitioner failed to establish and maintain appropriate professional boundaries in that, between 6 April 2010 and 5 December 2012 the practitioner: 1. inappropriately used telephone communication to contact Client A by sending a total of 82 SMS messages to Client A; 2. inappropriately used telephone communication to contact Client A by making 450 telephone calls to Client A; 3. inappropriately allowed Client A to communicate with him in that he received 269 SMS messages from Client A; 4. inappropriately allowed Client A to communicate with him in that he received 54 telephone calls from Client A; 1. Between 6 April 2010 and 23 November 2011, the practitioner failed to report contact between the practitioner and Client A to his supervisor. COMPLAINT 2 Is guilty of professional misconduct under s 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. 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 2 As for Complaint One PARTICULARS OF COMPLAINT 2 1. The particulars of Complaint One and the particulars thereof are repeated and relied upon, both individually and cumulatively. ORDERS SOUGHT BY THE HEALTH CARE COMPLAINTS COMMISSION (HCCC) (the Applicant) IN RESPECT OF MR TERRENCE SMITH (the Respondent) ORDERS SOUGHT: The Applicant seeks the following orders: In the event the Complaints against the Respondent are proved or admitted: 1. Orders pursuant to s 149A (powers to caution, reprimand, impose conditions on registration, etc), s 149B (power to impose a fine) and/or s 149C (powers to suspend or cancel registration), make a prohibition order, etc of the National Law. 2. A Prohibition Order which will prevent the Respondent from providing the listed health services on a public, private or volunteer basis, until he is registered as a psychologist. 3. A Suppression Order pursuant to clause 7, schedule 5D, of the National Law to prevent the identity of Client A being disclosed in the proceedings or anything that may serve to identify Client A. 4. Costs. Brief Factual Background to the Complaint 1. The factual background to this matter has two key components. The 2009 Complaint 1. Client A alleges that, at the time when the Respondent was employed by the Campbelltown Community Mental Health Emergency Team (CoMHET) where he treated Client A, he had a sexual relationship with her while she was a client at CoMHET. The complaint was later withdrawn after Client A resiled from the complaint and claimed to have made the complaint under the duress of her husband. 2. The Respondent denied having had a sexual relationship with Client A but several text messages were provided by her, which demonstrated some kind of non-professional relationship between the two. Despite the complaint being withdrawn by Client A, the Respondent was referred to the NSW Psychology Board (as it then was). 3. Following investigation, an inquiry was held on 6 April 2010, under Part 4, Division 4 of the then Psychologists Act 2001 (NSW) (repealed). In Reasons for Decision of 30 April 2010, the Board found that the complaint concerning the text messages was made out and also found that there was confusion in the nature of the relationship between Client A and the Respondent. The Respondent was cautioned "to be more aware of the importance of boundaries in the practice of psychology and of the appropriate procedures in dealing with complex clients". 4. He was also directed to undergo supervision until 23 November 2011, to "focus particularly on boundaries in the practice of psychology and the need to be aware of the dangers of overstepping these boundaries by overcommitting to his clients". 5. For various reasons not now relevant the supervision was provided first by Ms Lynette Toms, and subsequently by Mr Simon Jakes. They provided reports to the then Board on 8 November 2010 (Ms Toms) and on 10 November 2011 (Mr Jakes). Current Complaints 1. Client A passed away in December 2012. Her husband, from whom she was separated at the time of her death, wrote to the HCCC on 6 August 2013 seeking a review of the earlier complaint and providing additional information. Client A's husband followed up with a letter received on 13 September 2013, noting that he had Client A's phones but was unable to access the messages. He also attached a note from Client A's flat mate in which the flat mate noted that he had observed Client A having continued contact with the Respondent up to shortly before she passed away. 2. The HCCC wrote to the Respondent on 20 November 2013 with a copy of the new complaint, seeking a response. He responded on 3 December 2013 and stated that he "took very seriously the 'breach of boundary determination' of 30 August 2010". He claimed that Client A made contact with him by telephone at various times of crisis and he repeatedly informed her that the contacts must stop because of the "Breach of Boundary issues", and that she was to "seek assistance and support from other avenues". 3. The Respondent claimed that his consistent response had been to discourage Client A from contacting him and to emphasise such conduct was impermissible. He claimed to have discussed these "boundary issues" with his supervisor and also with a barrister/solicitor with whom he had a long standing working relationship, and to have been advised to take Client A's calls, to be polite and noncommittal and to discourage further contact. 4. On 10 June 2014, the HCCC wrote again to the Respondent, this time enclosing extensive mobile phone records showing he and Client A had exchanged numerous calls and text messages throughout the period, 10 April 2010 to December 2012. In addition the HCCC asked whether he had discussed his ongoing contact with Client A with his supervisors. 5. On 20 June 2014 the Respondent responded to the HCCC stating that he had resigned his job with the Department of Health and would request the Australian Health Practitioner Regulation Agency (APRHA) not to renew his registration on 30 June 2014. He claims to have no explanation for his actions and stated he recalled "those telephone contacts but not of making them". He acknowledged that the calls were made and this was untenable in relation to the finding of the Breach of Boundary issue and the subsequent requirement of supervision. 6. The Respondent also acknowledged that he had denied to both his supervisors that contact was continuing with Client A during the time he was under supervision. He claimed not to have deliberately tried to deceive the HCCC and again stated that his memory had failed him. 7. Following investigation, by letter dated 16 September 2014 the HCCC informed the Respondent that it proposed to refer the matter to the Director of Proceedings and he was invited to make submissions under s 40 of the HCCC Act. 8. On 1 May 2015 the Respondent wrote to the Tribunal stating that he had received the HCCC letter of 9 April 2015, that he had been denied legal representation from the Professional Indemnity and Public Liability insurer and accordingly: "I wish to formally advise the Tribunal that I will admit the issues the HCCC has raised in its application to prosecute me. I do not wish to challenge any of the issues raised in the application." 1. On 17 July 2015, the Respondent wrote to the Tribunal waiving any need for the Brief of Evidence to be served on him. He further stated that his last contact with Client A was in August 2012. 2. The Respondent participated in the hearing by telephone. He answered questions from the members of the Tribunal and confirmed that he consented to the making of the orders proposed by the HCCC. He stated he did not wish to make any submissions about the proposed Prohibition orders as he had no intention of continuing to practise in the field of psychology or related areas. Witnesses Statements 1. As part of the investigation of the complaint, a number of statements were taken from witnesses. These include the following: (i) Statement from Person B 14 June 2014, with annexure (correspondence to Client A from Client A's solicitor) and a handwritten note. (ii) Statement from AB (flatmate of Client A) 14 June 2014. (iii) Statement from Ms JC (Client A's sister) dated 12 June. (iv) Statement from Ms RS (Client A's sister) dated 19 June 2014. Both sisters confirmed that they had been told by Client A that there has been a sexual relationship between Client A and the Respondent. (v) Further correspondence from the Respondent's former supervisors Simon Jakes and Lynette Toms. 1. The HCCC sought an independent review of the complaint from an expert, Ms Amanda Gordon, whose report is dated 9 September 2013. The Issues before the Tribunal 1. The issues for the Tribunal to determine: (i) whether the complaints are established; (ii) if they are, what protective orders are appropriate; and (iii) whether the Tribunal should make a Prohibition Order. Preliminary Issues 1. Before dealing with the substantive matters the subject of the complaints, a number of preliminary issues will be addressed. Non publication order 1. The Commission requests that the Tribunal make an order under Schedule 5D, clause 7 of the National Law prohibiting the publication or disclosure of the names, addresses or any other identifying information that might tend to, or lead to, the identification of the persons referred to in the schedule to the complaint. 2. The Order was not opposed. The Tribunal made such an order under Schedule 5D, clause 7 of the National Law in this matter, prohibiting the publication or disclosure of any matter which may identify Client A. No need for the Tribunal to conduct an inquiry into the substance of a complaint 1. Section 165H provides that "no inquiry need be conducted into a complaint referred to the Tribunal under [the National Law] if the registered health practitioner … who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal". 2. In light of the Respondent's admissions in relation to the particulars of the complaint, and his indication that he does not intend to contest the allegations against him (in his letter of 12 October 2014 and again in correspondence dated 1 May 2015 and via telephone during the conduct of the hearing), it is not necessary for there to be an inquiry into the subject matter of the complaint. 3. Moreover, the Tribunal may exercise any power conferred on it by Subdivision 6 of Part 8 of the National Law (which is headed "Disciplinary Powers of Tribunals" – a NSW specific provision) in either of the two circumstances set out in s 149: (i) it finds the subject–matter of a complaint against the practitioner to have been proved; or (ii) if the practitioner admits to the complaint in writing to the Tribunal. 1. Given the Respondent's response particularised above, it is therefore not necessary for the Tribunal to be independently satisfied, to the requisite standard of proof, that the conduct the subject of the complaints is established. As earlier noted, at the hearing the Respondent participated in a telephone conference. He answered questions from the members of the Tribunal and restated his position that he consented to the making of the proposed orders. He acknowledged he was aware of the extent of the Prohibition Order and did not wish to make any further submissions as he had no intention of continuing to practise in the field of psychology or related areas. 2. In the Respondent's email of 4 January 2015 he stated simply "There is really nothing that I can reply with, I am guilty, completely broken, devastated and suicidal. I have nothing left" and signed his name to the email. 3. The Respondent further stated in his letter of 1 May 2015: I wish to apologise for my actions. I am profoundly aware that my current position is untenable to continue to practice as a psychologist. I will not make any effort to return to the profession nor to act in any informal manner as an adviser to anyone of matters psychological." 1. Although the Tribunal does not need to conduct an inquiry into the allegations in the complaint it nevertheless it remains for the Tribunal to satisfy itself to the requisite civil standard the admitted conduct constituted unsatisfactory professional conduct and/or professional misconduct. The Tribunal also needs to consider what are appropriate protective orders. The Tribunal is not bound by the rules of evidence 1. In conducting its inquiry, the Tribunal is not bound by the rules of evidence and may inform itself as it sees fit: see National Law, Schedule SD, Clause 2 (and cf s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW). However, as Meagher JA pointed out in Sudath v Health Care Complaints Commission [2012] 84 NSWLR 474; [2012] NSWCA 171 at [75], while not bound by the rules of evidence, the Tribunal is subject to the rules of procedural fairness. And at [79], 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 also the observations by Young JA in Lindsay v HCCC [2010] NSWCA 194 at [34-35]). Standard of Proof 1. The Complainant bears the onus of proof with respect to the two complaints prosecuted in these proceedings, namely unsatisfactory professional conduct and professional misconduct. 2. The standard of proof is the civil standard but subject to the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-3. That is, by reason of the seriousness of the allegations and the gravity of the consequences, the Tribunal must be comfortably satisfied that the matters in the Complaint have been established. 3. The Court of Criminal Appeal has cautioned against use of 'comfortably satisfied' as implying that matters must be proved according to a higher standard than that of the balance of probabilities: Gianoutsos v Glykas (2006) 65 NSWLR 539 at 547-9, applied by the Medical Tribunal in In re Dr Suman Sood [2006] NSWMT 1 at 10. 4. At common law there are only two standards of proof, the civil standard of proof on a balance of probabilities, and the criminal standard of proof beyond reasonable doubt: Polglaze v Veterinary Practitioners Board of New South Wales [2009] NSWSC 347 at [31]. The Briginshaw standard is not a third standard of proof; rather, it is concerned with the quality and sufficiency of the evidence necessary to discharge the civil standard. 5. However, the strength of the evidence needed to establish a case will vary according to the matters identified in Briginshaw, and now set out in s 140(2) of the Evidence Act 1995. THE RELEVANT LEGISLATION The National Law 1. The National Law came into effect from 1 July 2010 and provides, inter alia, for a national regulatory scheme administered by AHPRA (Part 4). However certain parts of the legislation, and in particular, Part 8, headed "Health Performance and Conduct" and which governs complaints, are specific to NSW. 2. Section 3 sets out the relevant principles of the National law, which include, by s 3(2)(a): "to provide for the protection of the public by ensuring that only health practitioners who are suitable trained and qualified to practise in a competent and ethical manner are registered". By s 3A (a NSW specific provision), "the protection of the health and safety of the public must be the paramount consideration" in the exercise of the functions under the National Law or a regulation. 3. Section 139B(1)(a) and (l) of the National Law provides: "139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) "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, 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." 1. Section 139E is in the following terms: "139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means: (a) Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) More than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration." 1. Section 139G provides: "(1) This section applies if a person was, but is no longer, registered in a health profession under this Law. (2) A notification may be made, and proceedings may be taken, under this Part in relation to the person's behaviour while registered as if the person were still registered under this Law by the National Board established for the health profession. (3) For the purposes of subsection (2), this Part (other than Division 2) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person." 1. Section 149A is in the following terms: "149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner- (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. (2) The Tribunal may do any one or more of the following in relation to the student- (a) caution or reprimand the student; (b) impose the conditions it considers appropriate on the student's registration; (c) order the student to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the student to complete an educational course specified by the Tribunal. (3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only- (a) to prevent the practitioner being registered unless the order is complied with; or (b) to require the conditions concerned to be imposed when the practitioner is registered. (4) If the Tribunal makes an order or imposes a condition on the registered health practitioner's or student's registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner's or student's registration being cancelled. (5) The order or condition concerned is then a "critical compliance order or condition"." 1. Sections 149C(4), (5) and (5A) are in the following terms: "149C Tribunal may suspend or cancel registration in certain cases [NSW] (4) If the person is no longer registered, the Tribunal may- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (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. Note: Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered." 1. Schedule 5D is in the following terms: "SCHEDULE 5D – Proceedings before Professional Standards Committees or the Tribunal [NSW] Note: This Schedule is an additional New South Wales provision. 7 Release of information [NSW] (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)- (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published- (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a registered health practitioner or student; (iv) any specified evidence; (v) the subject-matter of a complaint. (2) A direction may be amended or revoked at any time by the person presiding. (3) A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to- (a) a person who requested the direction; and (b) the complainant or the registered health practitioner or student concerned, as appropriate; and (c) another person the person presiding thinks fit. (4) For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. (5) A person who contravenes a direction given under this clause is guilty of an offence. Maximum penalty- (a) in the case of a corporation, 150 penalty units; or (b) in any other case, 20 penalty units." The protective nature of the jurisdiction 1. As s 3A of the National Law makes clear, the paramount consideration in these proceedings is to protect the public: it is not the focus of such proceedings to punish the Respondent. In addition, to the protection of the public being the paramount consideration, other purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see, for example, Health Care Complaints Commission v Litchfield [1997] NSWSC 297; 41 NSWLR 630 at 637; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201, 202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184. 2. 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: "(a) The order reminds other members of the profession of the public interest in the maintenance of high professional standards; (b) The order may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. (c) By speaking to the public at large, the order seeks to maintain confidence in the high standards of the profession". Protective orders 1. In Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88] to [91], the Tribunal summarised the relevant principles: (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 1211. (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 1211. (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]. 1. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA explained the various purposes of protective orders at [91]: "The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also 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." 1. In determining what protective order(s) if any ought be imposed, the matters to be considered include: 1. the gravity of the misconduct; 2. when the misconduct occurred (and over what period of time; ie, was it an isolated event, or a pattern or practice); 3. the Respondent's level of remorse, and degree of insight if any into his misconduct; 4. what if any steps have been taken by the Respondent to remedy the situation (eg, in this case, further education; any changes in how he undertakes his practice); 5. the overriding principle is the need to protect the health and safety of the public. HCCC's Submissions 1. The HCCC filed and served a Bundle of Documents (Vol 1 & 2) identified as Exhibit A1 on both the Tribunal and the Respondent prior to the commencement of the hearing. 2. The HCCC further provided the Tribunal with an outline of submissions. Complaint One: Unsatisfactory Professional Conduct Tribunal findings 1. Complaint One is particularised by reference to two particulars. Particular 1 (a)-(d) refers to the telephone and SMS contact between the Respondent and Client A. Particular Two relates to the failure of the Respondent to report contact between himself and Client A to his supervisor(s) between 6 April 2010 and 23 November 2011. 2. Both these particulars appear to have been accepted by the Respondent in his letter to the HCCC of 16 October 2014 and further in correspondence of 1 May 2015. The Tribunal is not required independently to make findings on those matters, in light of s165H of the National Law. Accordingly, the Tribunal finds both these matters proven in accordance with the provisions of s 165H of the National Law. 3. The Tribunal finds that the Respondent failed to maintain professional boundaries by continuing to exchange text messages with Client A, and by maintaining contact during a period of mandated supervision that was conditional upon him discontinuing any contact with Client A. This conduct, in the words of the peer reviewer, Ms Gordon, constituted conduct that was "significantly below" the standard expected by the Respondent's peers and invited her strong criticism. In addition, Ms Gordon found in continuing the contact after the end of the supervision, the Respondent's conduct to be significantly below the standard expected and invited her strong criticism. She was also critical of the Respondent having discussed the matter with a lawyer rather than raising it in supervision. Ms Gordon noted that she regarded such behaviour as "an absurdity that he should continue that contact after the 2010 findings against him, focusing on the specific issue of boundary breach with that client". Accordingly, the Tribunal is of the opinion that the above conduct, in particular the continuing contact from the Respondent to Client A, was significantly below the standard expected and constitutes unsatisfactory professional conduct. 4. For the reasons set out above the Tribunal finds the particulars of Complaint One, as admitted by the Respondent, constitute unsatisfactory professional conduct. Complaint Two: Professional Misconduct 1. The HCCC relies on the same particulars to Complaint One in its Complaint in relation to professional misconduct. 2. The HCCC referred the Tribunal to Qidwai v Brown [1984] 1 NSWLR 100, which held that to constitute professional misconduct the conduct the subject of the complaint must be of such a departure from the accepted standards of the profession as would reasonably incur the strong reprobation of professional colleagues of good repute and competence. 3. The Tribunal is comfortably satisfied that the individual and cumulative incidences of unsatisfactory professional conduct, as contained in the particulars of Complaint One and as admitted by the Respondent, are sufficiently serious to constitute professional misconduct. In reaching this conclusion the Tribunal had regard to the observations in Qidwai v Brown [1984] 1 NSWLR 100 per Priestley JA at 104: "Professional misconduct may involve moral turpitude but need not do so. For example, conduct that is not a deliberate departure from accepted standards but which portrays indifference and abuse of the privileges associated with registration as a medical practitioner may constitute: "misconduct in a professional respect". Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at 200. 1. When the Tribunal considered the cumulative effect of all findings of unsatisfactory professional conduct in respect of Complaint One, particulars 1(a)-(d) and particular 2, it had little difficulty in concluding that the Respondent was guilty of professional misconduct when the instances are considered together. The sustained disregard for the mandated supervision, together with the Board ruling to discontinue all contact, were specifically directed at the boundary violation aspect of the behaviour of the Respondent. 2. The Tribunal finds that the admitted conduct of the Respondent, as set out in the particulars of Complaint One, constitute professional misconduct when considered cumulatively, having regard to the ongoing continuation of the boundary violation. Moreover, the Respondent has accepted that the complaints are established. This concession applies both to Complaint One and to Complaint Two. Tribunal Findings on the Protective Orders sought The gravity of the misconduct 1. The Tribunal is of the opinion that the Respondent's conduct represented a breach of trust with a very vulnerable patient, and a clear boundary violation. It was exacerbated by the Respondent's actions in continuing the conduct while subject to supervision. As the expert, Ms Gordon, has made clear, the conduct was also a clear breach of a number of aspects of the Australian Psychological Society (APS) Code of Ethics. Furthermore, Ms Gordon also found that the Respondent had breached the Code of Ethics of the APS in a number of respects, referring in particular to s 83, pars (b), (d), (f), (g) and (h). She further stated that these breaches are significantly below the standard expected and invited her strong criticism. 2. The Tribunal noted that the behaviour of the Respondent continued until not long before the death of Client A and persisted through the period that the Respondent was subject to supervision conditions. The conduct could not be characterised as an isolated incident. 3. The Tribunal notes that in a letter of 20 June 2014 the Respondent stated he had resigned his position with the Department of Health and would request AHPRA to not renew his registration from 30 June 2014. He also claimed to have no explanation for his actions and said he recalled "the telephone contacts but not making them". He acknowledged the calls were made and this was "untenable in relation to the finding of the 'breach of boundary issues' and subsequent requirement of supervision". The Respondent also acknowledged that he had denied to both his supervisors that contact with continuing with Client A during the time he was under supervision. He claimed not to have deliberately tried to deceive the HCCC and again stated that his memory had failed him. Insight/Remorse/Remedial Action? 1. The Respondent has provided no explanation for his conduct and showed little insight or remorse, nor indeed any evidence of an attempt to take action to address the misconduct. The HCCC submitted that while the Respondent claimed memory loss, he provided no medical evidence to support that claim. Of greater concern to the Tribunal was the fact that his continuing conduct while under supervision was evidence of his failure to respond to the earlier attempts to impose a program of rehabilitation and remedial action upon him with little result, by way of changed behaviour or discontinuation of previous inappropriate behaviour. 2. There was no evidence before the Tribunal to indicate that there was some prospect of the Respondent practising safely in the future. Moreover, the conduct of the Respondent during the period of supervision, in 2010-2011 militates against drawing the inference that there is no real risk that the misconduct would be repeated (and see the report of Ms Gordon at 5.1.3). 3. The Tribunal concluded in light of the paramount consideration reflected in s 3A of the National Law, namely the protection of the public, that in the circumstances of this case the only appropriate protective order is an order that the Respondent's registration would have been cancelled, had he been registered, and that a Prohibition Order be made preventing him from working in psychology or associated fields. 4. Following from the above, the Tribunal determined that the protective orders proposed by the HCCC should be adopted. Costs 1. By Schedule SD, Clause 13, "A Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear ... at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal". 2. It is widely accepted that costs generally follow the event or cause, i.e., that the unsuccessful party pays for the costs of the successful party: see Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 at [67]. In that case, the Tribunal set out the principles that govern the consideration of costs in this jurisdiction by reference to the decision of the High Court in Latoudis v Casey (1990) 170 CLR 534. The High Court explained that "costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings". 3. The Tribunal in Mazzaferro also noted (at [69]) that the Court of Appeal has held that the principles set out in Latoudis v Casey "should be applied by Tribunals such as the Medical Tribunal (Ohn v Walton (1995) 36 NSWLR 77)". 4. For these reasons, the Tribunal accepts that the usual order should apply and on that basis, the respondent should be ordered to pay the costs of the HCCC. Orders Made: 1. Pursuant to s 149C(4) of the Health Practitioner Regulation National Law (the National Law) the Tribunal records that if Terrence Smith (the practitioner) was still registered on the register of health practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) for the Psychology Board of Australia it would have cancelled his registration. 2. AHPRA is requested to record in register the fact that the Tribunal would have cancelled the practitioner's registration had he been registered at the date of this decision. 3. Pursuant to s 149C(7) of the National law no application for a review shall be made for a period of eighteen months from the date of this decision. 4. Pursuant to s 149(5)(a) and s 149(5A) the National Law the practitioner is prohibited from providing the following services as defined in the Health Care Complaints Act 1993 (NSW) unless and until he is again registered as a psychologist: 1. Therapy; 2. Counselling; 3. Psychotherapy; 4. Welfare services (as defined in s 4 of the Health Care Complaints Act 1993 (NSW); 5. Any other mental health service and/or; 6. Any other alternative, or healing or health care or therapies 1. The Tribunal orders the Respondent to pay the Health Care Complaints Commissions costs of and incidental to the proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law (Application) Act 2014 (NSW). 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: 18 July 2016