Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Mayr [2017] NSWCATOD 52 Hearing dates: 20 February 2017 Date of orders: 07 April 2017 Decision date: 07 April 2017 Jurisdiction: Occupational Division Before: O. Shub (Principal Member) J. Haigh (Professional Member) B. Sheridan (Professional Member) F. Taylor (General Member) Decision: 1. The Respondent is guilty of unsatisfactory professional conduct; 2. The Respondent is guilty of professional misconduct; 3. The practitioner's registration is cancelled; 4. The practitioner is not eligible to apply to the Tribunal for a review of Order 3 for a period of 5 years; 5. The practitioner is prohibited from providing the following health services, whether as public, private or volunteer, unless and until he obtains re-registration as a psychologist: (a) community health services; (b) counselling; (c) health education services; (d) mental health services (e) supervision or coaching of psychologists, psychology students or any allied health services, and; (f) welfare services or any allied health services necessary to implement the above services; 6. The Respondent is to pay the costs incurred by the Applicant. Catchwords: Psychologist, Power Imbalance, Vulnerable Patient, Sexual Relationship, Negligent Treatment Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40 Herron v McGregor (1986) 6 NSWLR 246 [2013] NSWMT 7 at [144] HCCC v KING [2013] NSWMT 9 HCCC v Priyamanna No. 2 [2016] NSWCATOD 3 HCCC v Litchfield [1997] 41NSWLR 630 at [638] Health Care Complaints Commission v Talmaadge [2016] NSWCATOD 16 Sabag v Health Care Complaints Commission [2001] NSWCA 411at [82] Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 at [102] HCCC v Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Firth (No.2) [2015] NSWCATOD 84 Lee v Health Care Complaints Commission [2012] NSWCA 80 A Solicitor v NSW Law Society (2004) 216 CLR 253 at [21] Gad v HCCC (2002) NSWCA 111 at [55] Dr. Vipal Kupal Mehta (No 40017 of 2001 at p.13) De Gregory v. General Medical Council [1961] AC 957 at [966] HCCC v Marcareno Vega [2015] NSWCATOD 62 at [150] Ohn v. Walton 20 (1994-1995) 36 NSWLR 77 at [79] Latoudis v. Casey (1990) 170 CLR 534 Health Care Complaints Commission v Philipiah (2013) NSWCA 342 Category: Principal judgment Parties: Health Care Complaints Commission (HCCC) (Applicant) Dr Harald Mayr (Respondent) Representation: Counsel: Ms V. Hartstein for Applicant No Appearance for Respondent Solicitors: Ms M Richmond for Applicant File Number(s): 2016/00378759, 1620198 Publication restriction: Pursuant to s 64 Civil and Administrative Tribunal Act (2013) an Order suppressing the names and identifying information of patients A to F is made. reasons for decision BACKGROUND/HISTORY 1. The Applicant, the Health Care Complaints Commission ("HCCC") has brought an application for disciplinary findings against the Respondent Mr Harry Mayr. The Respondent is a psychologist registered under the Health Practitioner Regulation Law (NSW) ("The National Law"). The Applicant complains that the Respondent: COMPLAINT ONE 1. is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: 1. engaged in conduct that demonstrates the 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 2. engaged in improper or unethical conduct relating to the practice or purported practice of psychology. 1. Each of the particulars 1, 2, 3, 4(a), 4(b), 4(c), 5, 6(a), 6(b), 6(c), 6(d), 7(a), 7(b), 7(c), 7(d), 7(e)(i), 7(e)(ii), 8(a), 8(b), 9(a), 9(b), 9(c), 9(d), 10, 11(a), 11(b), 11(c), 11(d), 11(e), 11(f), 12(a), 12(b), 13(a), 13(b), 14, 15(a), 15(b), 15(c), 15(d), 15(e), 15(f), 15(g), 15(h), and 15(i) as set out justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more particulars are taken together, a finding of professional misconduct is justified. BACKGROUND TO COMPLAINT ONE 1. In 1977 the practitioner graduated with a Bachelor of Science (Psychology, Mathematical Statistics) from Sydney University. In 1978 he graduated with a Master of Arts (Psychology) from Sydney University. 2. The practitioner was first registered as a psychologist in April 1992. 3. The practitioner has worked since 1979 as a drug and alcohol counsellor, a mental health psychologist with NSW Health, a locum psychologist in private practice and also as a professional supervisor for psychologists and social workers. The practitioner has also held various positions as a trainer and lecturer in psychology, addiction and welfare studies. 4. The practitioner has been the owner and principal psychologist at St Marys/Penrith Psychological Services ("the Clinic") since 1994. 5. Patient A first came into contact with the practitioner in 2006 when he treated her middle son, Patient B, who was preschool age and had suffered from anxiety. 6. Patient A next had contact with the practitioner in March 2010 when she took her eldest son, Patient C, to the Clinic. Patient A was seeking counselling for Patient C, who was 13 years old at the time and suffered from Asperger's Syndrome. 7. On 10 December 2010 the practitioner began treating Patient A. The therapy provided by the practitioner to Patient A primarily dealt with Patient A's past sexual traumas. 8. The practitioner's care of Patient A included arranging for her therapy to be paid for by Victims Services under the Victims of Crime Compensation Scheme (VCCS). 9. The practitioner submitted claims to Victims Services for therapy provided to Patient A between 24 December 2010 and 28 September 2011. 10. The practitioner continued to treat Patient C until 21 December 2011. 11. The practitioner also conducted a single therapy session with Patient A's youngest son, Patient D, around mid-2011 after he was involved in an incident at school. PARTICULARS OF COMPLAINT ONE 1. From early in the therapeutic relationship with Patient A, around 10 December 2010, the practitioner failed to maintain appropriate professional boundaries with Patient A in that he engaged in regular therapy sessions at Patient A's home which continued up until around 28 September 2011. 2. Around early 2011the practitioner failed to maintain appropriate professional boundaries by inappropriately initiating consultations for himself with Patient A to occur either at her home or via email. 3. Around early 2011 the practitioner failed to maintain appropriate professional boundaries by inappropriately sharing personal information about himself with Patient A during therapy sessions including details about: 1. his past; 2. his insecurities; 3. his marriage; 4. his part relationships and extra marital affairs; 5. his past indiscretions with a female patient. 1. From early in the therapeutic relationship with Patient A, and at least by late February 2011, the practitioner failed to maintain appropriate professional boundaries in his communications with Patient A in that he: 1. exchanged emails with Patient A outside of normal business hours, including late at night; 2. used inappropriate language, abbreviations and symbols in email exchanges with Patient A including: 1. signing off with a heart symbol next to his name in an email sent to Patient A on 25 February 2011; 2. writing "feel my hug" in an email sent to Patient A on 27 February 2011; 3. using the abbreviation "lol" and emoticons in emails sent to Patient A on 25, 26 and 28 February 2011; 1. had conversations with Patient A over Skype, including late at night. 1. From early to mid-2011 the practitioner failed to maintain appropriate professional boundaries with Patient A by making comments to Patient A, in the course of therapy, which purported to suggest a personal connection between himself and Patient A, including commenting on similarities between Patient A and the main character in the children's book he was writing. 2. Around early to mid-2011 the practitioner failed to maintain appropriate professional boundaries in that he arranged a therapy session with Patient A out of normal business hours on a Saturday during which he: 1. met Patient A at Holden Heartland in Blacktown and drove with her to a McDonalds; 2. sat and talked with Patient A in the car for several hours; 3. told Patient A that he had feelings for her; 4. said words to the effect of "If I kiss you I will always want more" to Patient A. 1. From early to mid-2011 the practitioner failed to maintain appropriate professional boundaries with Patient A by engaging in communications of an intimate or sexual nature with Patient A in that he: 1. wrote in an email to Patient A around Easter 2011 that he "loved" her; 2. after receiving a photograph Patient A emailed to him of herself wearing no clothes on the top half of her body with her breasts covered by her arms and hands, wrote to Patient A in an email that he "liked" that photo a lot. 3. commented on a necklace worn by Patient A with a heat key by stating words to the effect of "Don't I hold the key to that?" during a visit to her home; 4. stated words to the effect of "you are thinking about kissing me" to Patient A during a therapy session at her home; 5. sent Patient A emails from about mid-2011 in which he: 1. wrote about his sexual fantasies; 2. encouraged her to perform or engage in certain sexual activities. 1. From May 2011 the practitioner failed to maintain appropriate professional boundaries by engaging in telephone contact of a frequent and personal nature with Patient A including: 1. text exchanges with Patient A; 2. telephone conversations with Patient A of varying times and often lengthy duration. 1. From mid-2011 the practitioner failed to maintain appropriate professional boundaries by engaging in interactions with Patient A outside of therapy sessions of a personal or intimate nature, including: 1. visiting a lookout with Patient A in July 2011; 2. accompanying Patient A to a professional engagement at a hotel in Sydney on 15 September 2011 and acting as Patient A's assistant; 3. accepting a lift home from Patient A on 15 September 2011; 4. kissing Patient A on 15 September 2011 in the backseat of her car. 1. Around mid-2011, the practitioner failed to maintain appropriate professional boundaries in that he initiated physical contact with Patient A in the context of therapy by introducing three types of hugs into his therapy sessions with Patient A, including engaging in a prolonged hug with Patient A during a therapy session on at least one occasion. 2. Around mid-2011the practitioner failed to maintain appropriate professional boundaries with Patient A during a therapy session in that he: 1. Invited Patient A to sit on his lap; 2. lifted Patient A's shirt to above her breasts; 3. commented on Patient A's stomach; 4. kissed Patient A's stomach and breasts; 5. told Patient A about his sexual desires; 6. stated words to the effect of "I am the type of person who would be in the shower with you and would take a shampoo bottle and put it up your arse". 1. Around mid-2011 the practitioner failed to maintain appropriate professional boundaries with Patient A in that he: 1. suggested to Patient A during a therapy session that he could lick her face; 2. a week or two after making the suggestion set out at Particular 12(a), licked Patient A's face during a therapy session while she was laying on a lounge and continued this until Patient A kissed him. 1. At the end of therapy sessions subsequent to the conduct set out at Particular 12(b), the practitioner engaged in inappropriate sexual contact with Patient A in that: 1. the practitioner masturbated Patient A with his hand; 2. the practitioner watched Patient A as she masturbated herself. 1. After December 2011 the practitioner inappropriately continued to engage in email exchanges with Patient A of a personal nature. 2. From around mid-2011 to around March 2013 the practitioner engaged in an inappropriate sexual relationship with Patient A including that he: 1. visited Patient A's home on one occasion around mid-2011, motioning for her to lie on the floor in the hallway and performing oral sex on her; 2. visited Patient A's home on a further occasion around mid-2011 for the purpose of a therapy session with Patient D and, after Patient D had returned to school, the practitioner performed oral sex on Patient A and then inserted a sexual device into her vagina; 3. engaged in sexual intercourse with Patient A at a hotel in Bathurst in or around September 2011; 4. engaged in sexual intercourse with Patient A at his home on one occasion just after Christmas 2011; 5. stayed two nights at a hotel in Sydney with Patient A in about January 2012 and engaged in sexual intercourse with Patient A during that stay; 6. took photographs of Patient A naked, during his overnight stay with Patient A at a hotel in about January 2012; 7. engaged in sexual intercourse with Patient A on his desk at the Clinic on one occasion; 8. performed oral sex on Patient A on one occasion at the Clinic while Patient A was on the Clinic's kitchen bench; 9. engaged in regular sexual intercourse with Patient A at her home from around September 2011 to around March 2013. COMPLAINT TWO 1. is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: 1. 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. 1. Each of the particulars 1(a), 1(b), 2(a), 2(b), 3(a), 3(b), 3(c), 3(d), 4(a), 4(b) and 4(c) as set out justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT TWO 1. As for Complaint One. PARTICULARS OF COMPLAINT TWO 1. The practitioner failed to provide adequate care and treatment to Patient A in that he: 1. failed to review his provisional diagnosis of PTSD during the course of therapy; 2. failed to consider a differential diagnosis. 1. During the course of the therapeutic relationship, the practitioner failed to provide appropriate care and treatment to Patient A in that he suggested that Patient A: 1. read or view material which was inappropriately gruesome or sexually explicitly, namely: 1. the book "Shubumi"; 2. the work of photographer David Hamilton; 3. the film "Bilitis"; 4. the film "Last Tango in Paris", 5. read of view that material referred to at (a)(i), (ii), (iii) and (iv) above without explaining the therapeutic purpose or rationale of the exercise to Patient A. 1. From around early to mid-2011, the practitioner failed to appropriately manage issues of transference and counter-transference with Patient A including that he: 1. failed to seek the advice of a senior colleague or otherwise address the increasingly personal nature of his interactions with Patient A; 2. failed to terminate treatment of Patient A and refer her to another psychologist for treatment; 3. failed to terminate treatment of Patient C and refer him to another psychologist for treatment; 4. accepted Patient D as a new patient rather than referring him to another psychologist for treatment. 1. The practitioner failed to keep adequate or appropriate professional clinical records concerning his treatment of Patient A including that he: 1. failed to keep clear and comprehensive records that would allow for continuation of care should another psychologist take over Patient A's care and treatment; 2. failed to keep copies of all email correspondence exchanged between himself and Patient A during the therapeutic relationship; 3. failed to keep records of lengthy telephone discussions between himself and Patient A during the therapeutic relationship. COMPLAINT THREE 1. Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: 1. engaged in improper or unethical conduct relating to the practice or purported practice of psychology. 1. Each of the particulars 1, 2(a) and 2(b) as set out justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT THREE 1. As for Complaint One. PARTICULARS OF COMPLAINT THREE 1. Sometime between about September 2011 and December 2011 the practitioner, without appropriate professional or therapeutic reason, inappropriately requested that Patient A delete all evidence of their personal communications, namely all email exchanges between himself and Patient A via her personal email account, for the period that they were in therapy. 2. The practitioner breached patient confidentiality by talking to Patient A during therapy sessions about other patients and otherwise breaching their confidentiality by: 1. telling Patient A about a female patient, Patient E, who lived in a nursing home and subsequently taking Patient A to visit Patient E; 2. telling Patient A about a female patient, Patient F, who had a son with autism and subsequently providing Patient A with Patient F's contact details. COMPLAINT FOUR 1. is guilty of professional misconduct under section 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 TWO (SIC) 1. As for Complaint One. PARTICULARS OF COMPLAINT TWO (SIC) 1. Complaints One to Three and the particulars thereof are repeated and relied upon both individually and cumulatively. THE HEARING 1. The Applicant was represented by counsel and instructing solicitor and there was no appearance for the Respondent, he having notified the Tribunal that he did not propose to attend the NCAT Tribunal hearing scheduled to begin Monday 20th February 2017 (file number 1620198). He advised that he also did not intend to defend the proceedings against him. EVIDENCE OF PATIENT A 1. Patient A was sworn and confirmed that her statement (part of Exhibit 1) is true and correct. The allegations made in the statement are fully set out in the complaint made by the Applicant and do not require repetition in this decision but the statement was available to the Members of the Tribunal read by them and taken into account in their deliberations. 2. Patient A was asked various questions by Counsel for the Applicant and by members of the Tribunal. 3. In response to a question about how Patient A felt at the moment in respect of the treatment she received and the complaint against the Respondent to which she replied that she cannot believe that the Respondent is not there to hear what she has to say. She was very tearful, said she felt terribly ashamed by this, and did not think there would be any closure. 4. Patient A was asked whether she is in therapy to which she replied that it took a long time to come forward with this complaint and she needs to get through this. She has difficulty understanding what is appropriate behaviour. When she saw a psychologist in 2015, even though the psychologist was a woman, she took her husband with her because she had been abused by a woman in the past. She confirmed that she is currently studying psychology. In addition to the questions put to her she indicated to the Tribunal that she had had an additional read through the statement that day and did not believe that there was anything to add. She stated however that she feels very concerned that her motivation from the beginning was to prevent this from happening to anyone else. 5. The Tribunal asked whether the Respondent had ever explained to her why he was using the particular type of treatment and what it was designed to achieve. She indicated that she did not remember him ever explaining why and that he did not explain the purpose of homework that he was giving her such as watching certain films and reading certain books. 6. Patient A was asked whether, when the Respondent made sexual advances, he had explained to her why this would be helpful as a method of treatment. She stated that only in respect of the hugging did he explain, but she does not believe that he explained the other sexual behaviour. On being asked whether the therapy ended in August 2011 as stated in her statement she said that she had in fact seen him once more in November 2012 but the therapy and the personal relationship were constantly intertwined. 7. She was asked whether she believed that he had helped her in any way to which she replied that she did not know whether he helped her but her mental state was such that whatever he wanted her to do she would go along with it. After a moments reflection she stated that he did not help her and in fact made her worse. 8. Patient A was asked whether the hugging was a one-off therapy or a continuing therapy to which she replied that it was a one-off as a routine but by then she was in a relationship with the Respondent and so she would hug him every time she saw him. 9. Patient A was asked whether she at any time felt unsafe or felt that her life was threatened by self-harm. She stated that she did feel that, but her 3 children are her anchor and they drew her back at all times. EXPERT EVIDENCE 1. The reports of the expert Mr Borensteen dated 12 January 2016, 21 January 2016, and 7 February 2017 (contained in Exhibit 1) were accepted by the Tribunal in evidence. In respect of each of the particulars of the complaint the expert submitted that the Respondent's behaviour was significantly below the standard expected of a practitioner with the same training and experience as the Respondent, complained about at the time of the events the subject of the complaint. The departure from the standard invites his strong criticism. 2. That concluded the evidence for the Applicant. RESPONDENT'S EVIDENCE 1. The Respondent, as indicated, failed to appear and did not defend the proceedings against him. The Respondent had provided the Tribunal with various explanations of his behaviour and in his replies to the complaint had conceded the allegations made against him entirely save for the allegation that he had commenced a sexual relationship with Patient A prior to the termination of his treatment of her as a patient. He alleged that the sexual relationship commenced only after termination of his professional relationship with Patient A. This allegation was denied by Patient A, Patient A indicating that the sexual relationship commenced prior to the 31st August 2011 while the Respondent alleged that it did not commence until after the 31st August 2011. It had been indicated on the Respondent's version of the sexual relationship that the relationship commenced during September 2011. The Tribunal was referred to page 9 of tab 20, a tax invoice sent by the Respondent to the Victims Services Unit which indicated charges for sessions of treatment by the Respondent on the 14th September and the 28th September 2011. APPLICANT'S SUBMISSIONS The Nature of the Jurisdiction 1. The jurisdiction exercised by the Tribunal is protective, not punitive. The object is not to punish the practitioner but to protect the public and to maintain proper standards in the profession. The Tribunal not only has to protect the public but it is in the community interest that the profession of psychology should retain and be entitled to retain the respect and high regard in which it is held. 2. Section 3A of the National Law provides that in the exercise of functions under the NSW legislation, the protection of the health and safety of the public must be the paramount consideration. 3. Section 3(2)(a) of the National Law provides:The objectives of the national registration and accreditation scheme are-- 1. 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; Unsatisfactory professional conduct and professional misconduct 1. Section 139B of the Health Practitioner Regulation National Law (NSW) ("the National Law") defines "unsatisfactory professional conduct" relevantly as follows: 1. Unsatisfactory professional conduct of a registered health practitioner includes each of the following- 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. Section 139E of the National Law defines "professional misconduct" of a registered health practitioner as 1. unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner'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 practitioner's registration. Appropriate Protective orders 1. Section 149C of the Health Practitioner Regulation National Law provides relevantly that the Tribunal may suspend or cancel registration in certain cases. (1) The Tribunal may cancel the registered health practitioner's registration if the Tribunal is satisfied- (a) the practitioner is not competent to practise the practitioner's profession; or (b) he practitioner is guilty of professional misconduct; or … (d) the practitioner is not a suitable person for registration in the practitioner's profession. (5) If the Tribunal cancels a registered health practitioner'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; ... 1. In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal held: 33.... The factors which the Tribunal is required to consider in the exercise of its protective jurisdiction are to be found in the terms of the [National] Law. They may be stated expressly or arise by implication from its subject-matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40 (Mason J). 34….The National Law establishes a registration and accreditation scheme. That scheme, by Div 3 of Pt 8, includes provisions for the making of complaints about registered health practitioners and the determination of those complaints, including in relation to serious complaints, by the Tribunal. The objectives of that scheme, as described in s 3(2), include to "provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered" and to "facilitate access to services provided by health practitioners in accordance with the public interest". The provisions in Pt 8 concerning the making and dealing with of complaints are provisions substituted in the National Law by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW).. Section 3A of the Law provides that in the exercise of those functions "the protection of the health and safety of the public must be the paramount consideration". Section 4, which applies to the National Law as in force in New South Wales, also requires that an entity having functions under it "is to exercise its functions having regard to the objectives and guiding principles" set out in s 3. 35….The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 36….In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. "But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the Orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37….In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 38…. 39….In concluding that the public could be protected adequately by the imposition of conditions which had to be complied with before the respondent could reapply for registration, the Tribunal focused only on the protection of the public from further malpractice or misconduct of the respondent. It did not address at all the public interest in having the respondent's conduct denounced as unacceptable. Nor did it address the full implications of its finding that the respondent's conduct, although contained or confined, had revealed her "knowledge, skill and judgment in the practice of medicine to be significantly below the standard reasonably to be expected of a practitioner of her level of training and experience": HCCC v Do [2013] NSWMT 7 at [144]. 40….In not addressing these matters the Tribunal failed to give proper consideration to the full scope of the objective of protecting the health and safety of the public, as it was required to do by ss 3A and 4 of the National Law .... 1. Thus it can be seen that the Tribunal's orders as well as protecting the public in the individual case, have both a public education role and a deterrent aspect. They uphold the maintenance of standards and the dignity of the profession. 2. Suspension or cancellation is not, however, an automatic outcome where professional misconduct is admitted or proven. Rather, the Tribunal must assess, at the date of hearing, if the practitioner is unfit to practise. This requires an assessment of the gravity of the conduct and consideration of remorse and insight, if any, demonstrated by the practitioner. (HCCC v King [2013] NSWMT 9; HCCC v Priyamanna (No. 2) [2016] NSWCATOD 3) 3. The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this were not done, there would be a risk that the conduct of the delinquents in a profession would indirectly establish the standards applied by the Tribunal. (HCCC v Litchfield [1997] 41NSWLR 630 at 638). 4. In Health Care Complaints Commission v Talmaadge [2016] NSWCATOD 16 it was held: 57….Whether the gravity of the misconduct was such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v Health Care Complaints Commission [2001] NSWCA 411at [82]. 58….It is demonstrated current unfitness, not a determination of probable permanent unfitness, that is required to justify deregistration: Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 at [102]; HCCC v Della Bruna [2014] NSWCATOD 31 59….A prohibition order can only be made if the Tribunal either suspends or cancels a practitioner's registration under s149C(2) or (3) or if the Tribunal makes a disqualification order under s149C(4) of the National Law. It is then open to the Tribunal to consider imposing a prohibition order. The National Law states that the Tribunal must be satisfied that a person "poses a substantial risk to the health of members of the public" prior to making a prohibition order under s149C(5) or (5A). 1. In Talmadage a registered psychologist was found guilty of professional misconduct on a number of bases, including having a sexual relationship with a patient. The Tribunal cancelled the registration of the practitioner and made a prohibition order with a 5 year ban on any application for re-registration. 2. In Health Care Complaints Commission v Firth (No.2) [2015] NSWCATOD 84 the Tribunal found Mr Firth, a registered psychologist, guilty of professional misconduct in respect of an inappropriate sexual relationship with a patient and inappropriate texting of a sexual nature with the mother of a patient. In that case the Tribunal made the orders sought by the HCCC cancelling the registration of the practitioner and making a broad prohibition order. It was ordered that the practitioner could not reapply for registration for a period of at least 2 years. 3. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal cautioned against the use of comparative cases in the determination of periods of suspension (at [24]-[25]) and found that comparison with a single, other "comparative" case provided "no useful or meaningful guidance": at [76]. However, the Court stated that it should proceed on the basis that at [34]: (a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern; (b) such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is "correct"; (c) the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers; (d) the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle; (e) since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection; and (f) the Medical Tribunal, as a specialist Tribunal, brings special skill and experience to the task of formulating protective orders. 1. While Lee cautions against reliance on comparative cases in the determination of periods of suspension and this can equally be applied to the determination of any non-review period following a cancellation order, it is worth noting that the practitioners in both Talmadge and Firth appeared and gave evidence before the Tribunal. The Tribunal will not be assisted by such evidence in the current proceedings, as the Respondent has elected not to participate in the hearing. Fitness to Practise 1. The question of fitness to practise must be determined at the date of the hearing: A Solicitor v NSW Law Society (2004) 216 CLR 253 at [21]. 2. In determining the question of fitness the whole of the conduct of the practitioner should be considered Gad v HCCC (2002) NSWCA 111 at [55]. Nature of the Complaints 1. The Respondent has admitted [TAB 34A p.2] that he is guilty of unsatisfactory professional conduct and/ or professional misconduct in that he has entered into a personal emotional and sexual relationship with Patient A. 2. The Respondent has admitted a number of the particulars of the Complaint in writing (TAB 34A p.3ff) but has not admitted that he conducted a sexual relationship with Patient A while she was his patient, insisting that it commenced soon afterwards. He has acknowledged, however, that such a distinction is not of substantial significance. 3. The Respondent has declined to attend the Tribunal hearing in the knowledge that this would result in there being no defence to the Complaints against him. 4. In circumstances where the Respondent fails to attend the hearing and does not subject himself to cross examination on his statements, it is submitted that the Tribunal can give those statements very little, if any, weight. Furthermore, where he has chosen not to cross examine the Complainant's witnesses despite arrangements being made for him to do so; there can be no room for a suggestion that those witnesses should not be accepted as witnesses of truth. 5. The Respondent has attended interviews in relation to this matter on 4 September 2015 [Tab 5] and 25 September 2015 (Tab 32). There are numerous examples (too numerous to list) scattered throughout those interviews where the evidence he has given has been shown to be inaccurate, false and/or misleading. Because his evidence is so unreliable, in any instance where his statements differ from statements by other people, the evidence of the other people should be preferred. 6. Patient A's evidence is supported by the objective evidence of some emails disclosing an inappropriate relationship and frequent, lengthy telephone contact between her and the Respondent. It is also supported by her parents and two friends, although this evidence is not specific as to timing. Complaint 1 1. The particulars of Complaint 1 relate to the Respondent's failure to observe professional boundaries in that he had an inappropriate and sexual relationship with Patient A. 2. The Australian Psychological Society Limited has published a Code of Ethics (Tab 35 referred to by the Expert at Tab 26) which refers to sexual activity between psychologists and patients as follows: C.4.3. Psychologists: (a) do not engage in sexual activity with a client or anybody who is closely related to one of their clients; (b) do not engage in sexual activity with a former client, or anybody who is closely related to one of their former clients, within two years after terminating the professional relationship with the former client; (c) who wish to engage in sexual activity with former clients after a period of two years from the termination of the service, first explore with a senior psychologist the possibility that the former client may be vulnerable and at risk of exploitation, and encourage the former client to seek independent counselling on the matter; and (d) do not accept as a client a person with whom they have engaged in sexual activity. 1. It was held by the Medical Tribunal in the case of Dr. Vipal Kupal Mehta (No 40017 of 2001 at p.13): "It is of course not the point that he perceived her to be a willing party. "Mutuality" in the relationship can never truly exist. The position of power occupied by a treating doctor is such that a relationship with a patient can never truly be "equal". The doctor and not the patient has the ethical and professional obligation to avoid such relationships. As Denning LJ observed in De Gregory v. General Medical Council [1961] AC 957 at 966 "even if she sets her cap at him, he must in no way respond or encourage her." 1. Sam Borenstein, in his expert report, has described the Respondent's conduct as falling significantly below the standard expected of a practitioner with the same training or experience and inviting his strong criticism. Complaint 2 1. The particulars of Complaint 2 relate to the Respondent's clinical deficiencies in diagnosis, treatment and record keeping. 2. The respondent admits Particulars 3(a), (b) and (c), 4(a) with qualifications, (b) and (c). Complaint 3 1. Complaint 3 relates to improper or unethical conduct in asking Patient A to delete emails and in breaching patient confidentiality. 2. The respondent denies asking Patient A to delete emails and attempts to minimise the breaches of patient confidentiality on the basis that the breaches were for the patient's benefit. 3. In HCCC v Marcareno Vega [2015] NSWCATOD 62 at [150] the Tribunal held: Mr Marcenaro Vega was aware that serious allegations had been made against him. He sought to influence the information that Ms Lindy Werner would provide to the Hospital, presumably in an attempt to prevent a genuine investigation of those allegations, with the aim of avoiding the personal and professional consequence of his actions. Having regard to his conduct as a whole, the Tribunal considers that his actions in attempting to influence Ms Werner, can and should be regarded as professional misconduct. 1. It is submitted that in this case where the deletion of emails can only be for the purpose of avoiding detection the conclusion should be similar. Complaint 4 1. Complaint 4 is based on the particulars of the first 3 complaints. 2. In conclusion, the Applicant submitted that the Respondent's professional misconduct is of a very serious nature, aggravated by his knowledge that Patient A had previously suffered trauma of a sexual nature, his engagement in sexual acts with her during therapy and at his practice premises and his use of so called therapeutic exercises to blur boundaries and sexualise the relationship with his patient. 3. In his October 2016 reply (At Tab 34A p.6) the Respondent shows no insight into his conduct save as it impacts upon himself and he speaks of "this one error in judgement" as if his course of conduct over a period of 3 years could be limited in this way. He then proceeds to criticise the profession (ibid at p.7) for not being understanding of him or providing assistance to him. 4. Whilst acknowledging that Patient A and her family have been adversely affected by his involvement with them, he states that this is a "reality" he "must forever live with". 5. It is the Complainant's submission that this continued self-focused approach, visible throughout his dealings with Patient A, causes the Respondent to remain a risk to the public. Even after the recent period of supervision, as a result of which the Respondent has conceded there was a power imbalance, the Respondent continues to assert that Patient A's treatment from him was largely successful. 6. Patient A has suffered harm as a result of the Respondent's conduct (Statement at Tab 7 at [121] - [125]). 7. The Respondent's "explanations" in respect of his breaches of confidence (ibid at pp 2-6) display no insight at all. 8. The Respondent's comments in his reply of 27 December 2016 (Tab 34B) that he sees his immediate professional usefulness in an "educational, training, supervisory and/or consultancy type of role" for the psychology profession is further evidence of his lack of insight. The Respondent sees this path, including a potential role in assisting psychologists to more clearly monitor how they are performing professionally and establishing frameworks to assist practitioners at all stages of "vulnerability, concern, risk and burn out", as being open to him even while accepting that he cannot see himself being allowed to see patients professionally for at least the next 1-2 years. Orders Sought by the Complainant 1. It is the submission of the Complainant that the only appropriate orders, having regard to: 1. the seriousness of the misconduct; 2. the Respondent's lack of insight; 3. the Respondent's lack of genuine contrition; 4. the Respondent's lack of candour; 5. the lack of any evidence of rehabilitation or other measures taken for the protection of the public; 6. the need for specific and general deterrence; 7. the need to uphold standards in the profession; 8. the need to maintain public confidence in the profession; are: 1. The practitioner's registration is cancelled. 2. The practitioner is not eligible to apply to the Tribunal for a review of Order 1 for a period of 3 years. 3. The practitioner is prohibited from providing the following health services, whether as public, private or volunteer services, unless and until he obtains re-registration as a psychologist: 1. community health services; 2. counselling; 3. health education services; 4. mental health services; 5. supervision or coaching of psychologists or psychology students, and; 6. welfare services necessary to implement the above services. Costs 1. The question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. Gleeson CJ said in Ohn v. Walton 20 (1994-1995) 36 NSWLR 77 at 79 "The point of Latoudis v. Casey ((1990) 170 CLR 534) is that the purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made. When legislation confers a power to order costs it is, in the absence of any contrary indication, to be understood as conferring a power to be exercised for that purpose. Two things that follow: 1. The usual rationale of making a costs order is that it is just and reasonable that the successful party should be reimbursed for costs incurred, in the absence of grounds connected with the charge or the conduct of the proceedings which make it unjust or unreasonable that there should be such reimbursement. 2. The test of whether an order for costs should be made against an unsuccessful plaintiff or complainant is not whether he or she has done anything to warrant punishment. It is whether, in the circumstances, the defendant or respondent should be compensated. The majority also held that these principles are equally applicable to a case where a complainant or informant is acting under a public duty to lay a complaint or information." 1. In Health Care Complaints Commission v Philipiah (2013) NSWCA 342 the Court accepted that as a general rule, costs of proceedings before the Tribunal should follow the event. The mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule". 2. In the present case the Respondent has absented himself from the proceedings despite being aware that a costs order would nevertheless be sought by the Complainant. There is no reason therefore why the Tribunal's discretion should be exercised in any but the usual fashion. Decision 1. The Tribunal has considered in detail the submissions made by the Applicant which clearly analyses each of the elements of the complaint brought against the Respondent. In light of the fact that the Respondent did not appear the Tribunal is comfortably satisfied that each of the particulars of complaints 1 to 4 are made out against the Respondent. 2. The Tribunal is comfortably satisfied that the arguments put forward by the Respondent and the character references provided to the Tribunal by the Respondent, none of which was capable of being questioned or cross-examined on by the Applicant or the Tribunal, can be given very little weight. Accordingly it does not affect the view of the Tribunal that in all respects, based on the evidence available to the Tribunal and the submissions made by the Applicant, that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct, which the Respondent in any event conceded in writing. 3. Having come to the conclusion that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct the Tribunal was obliged to consider the seriousness of the Respondent's behaviour in relation to Patient A and the protection needed by the public from the Respondent. 4. The Tribunal was deeply concerned that the Respondent's behaviour was of such a serious nature that the public requires to be protected from the Respondent and. In addition, the profession needs to be made aware that such behaviour cannot be tolerated by the profession without damage to the good name of the profession of psychology. The Tribunal's view is that the Respondent, a trained and qualified psychologist must have been aware of the very vulnerable state in which Patient A was when consulting the Respondent in respect of her past traumatic history. He would have been fully aware of the imbalance of power which exists between a psychologist and a patient particularly one in such a vulnerable state. Nevertheless he proceeded to use that imbalance of power to satisfy his own needs. 5. In the circumstances, the Tribunal came to the conclusion that the conduct of the Respondent was such a serious breach of his obligations as a psychologist that it warrants severe protective orders to be made. 6. In the circumstances the Tribunal makes the orders set out below: Orders 1. The practitioner's registration is cancelled. 2. The practitioner is not eligible to apply to the Tribunal for a review of Order 1 for a period of 5 years. 3. The practitioner is prohibited from providing the following health services, whether as public, private or volunteer, unless and until he obtains re-registration as a psychologist: 1. community health services; 2. counselling; 3. health education services; 4. mental health services 5. supervision or coaching of psychologists, psychology students or any allied health services, and; 6. welfare services or any allied health services necessary to implement the above services. 1. The Respondent is to pay the costs incurred by the Applicant. ********** 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 07 April 2017 - Correction of Order 4 reference to related Order 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: 07 April 2017