Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ledner [2017] NSWCATOD 90 Hearing dates: 21 November 2016, 27 - 28 February, 1 and 22 March 2017 Date of orders: 15 June 2017 Decision date: 15 June 2017 Jurisdiction: Occupational Division Before: R C Titterton, Senior Member A Shires, Professional Member Assoc Prof C Willcox, Professional Member M Turner, General Member Decision: 1 The respondent's registration is cancelled. 2 The respondent is not entitled to re-apply for registration for a period of one year. 3 The respondent is prohibited from providing health services for a period of one year. 4 The Commission is to pay the respondent's costs thrown away of the hearing of 21 November 2016. 5 The respondent is otherwise to pay the Commission's costs of the proceedings, as agreed or as assessed. Catchwords: Health Practitioner Regulation National Law –psychologist – complaints of inappropriate and sexual conduct with former patient – complaints of unsatisfactory professional conduct and professional misconduct admitted Legislation Cited: Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW) No 86a Cases Cited: Gad v Health Care Complaints Commission (2002) NSWCA 111 Health Care Complaints Commission v Ahmad [2015] NSWCATOD 10 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1977) 41 NSWLR 630 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 New South Bar Association v Hamman (1999) NSWCA 404 New South Bar Association v Meakes [2006] NSWCA 340. Psychologists Registration Board of Victoria v Pallini [2008] VCAT 2632; Psychology Board of Australia v IVX (Review and Regulation) [2016] VCAT 35 Psychology Board v Garcia [2015] VCAT 128 Richter v Walton, Court of Appeal, 15 September 1993, unreported Sabag v Health Care Complaints Commission [2001] NSWCA 411 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Mrs Brooke Ledner (Respondent) Representation: Counsel: Mr S Maybury (Complainant) Mr J Downing (Respondent) Solicitors: File Number(s): 2016/00378729, 1620167 Publication restriction: The Tribunal makes a non-publication order in accordance with cl 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) No 86a in respect of the name of Patient A and the name of the respondent's husband REASONS FOR DECISION Summary 1. The respondent is a registered psychologist. 2. By an Application for Disciplinary Findings and Orders dated 30 June 2016, the Health Care Complaints Commission (the Commission) seeks orders in relation to complaints that the respondent is: 1. Guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW) No 86a (National Law) (Complaint One); and 2. Guilty of professional misconduct within the meaning of s 139E of the National Law (Complaint Two). 1. The complaints are set out in Attachment A to these Reasons. The principal basis for the complaints is that, during the period the respondent provided counselling services to Patient A, the respondent failed to observe appropriate professional boundaries, and during the two year period after their therapeutic relationship ended, the respondent continued to fail to observe appropriate professional boundaries with Patient A, by entering into and maintaining an inappropriate personal and sexual relationship with him. 2. The respondent admits each complaint. 3. For the reasons below, the Tribunal finds each complaint proved, cancels the respondent's registration and orders that she is not entitled to seek re-registration for a period of one year. 4. In these reasons, all statutory references are a reference to the National Law except where otherwise stated. Evidence 1. The Commission filed three folders bundle of 70 documents including but not limited to the complaint of Patient A, correspondence between Patient A and the Commission, a statement of Patient A; Patient A's personal file maintained by Kedesh Rehabilitation Services; expert reports of Professor Diana Kenny, and related correspondence; correspondence between the Commission and the respondent, references, police statements; relevant records of the Australian Health Practitioners Regulatory Authority (AHPRA), and literally thousands of text and mobile phone messages between the respondent and Patient A. The Materials also included the s 150 decision of the Psychology Council (the Council) of 26 August 2016, the transcript of proceedings of the Council of 8 August 2016 and related correspondence. 2. The respondent filed a bundle of materials on 21 November 2016. This included her reply to the complaint, (which reply was amended by the filing with the Tribunal on 28 February 2017 of an Amended Reply to Complaint); and an updated statement numbering eight pages, three professional references, and a report of Dr Graham Vickery dated 25 October 2016. Dr Vickery is a Psychiatrist and Pain Management Consultant. Background 1. The following matters are not in dispute (either the findings being available on the written documents tendered without objection to the Tribunal or by way of admission) and the Tribunal makes the following findings. 2. The respondent is 31 years of age. She is married with a young child. 3. The respondent held provisional registration as a psychologist from April 2012, and was granted registration in June 2014. She holds a Bachelor of Arts, majoring in psychology, from the University of Wollongong (2010), and holds two postgraduate diplomas. 4. In June 2013, Patient A was in an extremely stressed and anxious state and started self-medicating with stimulants including the drugs known as GHB (gamma hydroxybutyrate) and ICE (crystal methamphetamine). 5. In December 2013, Patient A entered a detox program at Simpson's Hospital. 6. Sometime between the end of January and mid February 2014, Patient A entered an eight week residential program at the Phoenix Unit of Kadesh Rehabilitation Services at Manly (Kadesh), where the respondent was employed as a psychologist. Kadesh is a community-based non-profit organisation which offers psychological treatment for people who have issues with addiction and co-occurring mental illnesses. Kadesh utilises cognitive behavioural therapy to do so. Patient A thought the program was "great", and found the respondent to be "really good as a counsellor". Patient A says the program was successful and it changed his life for the better. After leaving the program, the respondent remained in contact with Patient A. 7. On 27 September 2014 at 11:30 PM, Patient A received a text message from the respondent which stated "Hi [first name]". Shortly afterwards, at 12AM and 12:20AM, he received two missed calls from her. 8. On 29 September 2014, the respondent rang Patient A, explaining that "it had been a drunk call" that she had no memory of. 9. On the evening of 10 October 2014, Patient A and the respondent exchanged text messages and at 11:30 PM, the respondent enquired what he was up to. They agreed to meet for a drink later at a bar. When they met, they were both intoxicated. They had some drinks and then went to Manly Beach for a swim in the early hours of the morning. They then went to the apartment where Patient A was staying. They showered together and then had sexual intercourse. 10. Thus commenced a relationship which lasted until 6 January 2015. 11. The initial conduct of the respondent failed to observe professional boundaries in contacting Patient A for personal discussions both by email and telephone. Her later conduct developed to regular socialising with Patient A, extensive personal communication amounting to thousands of text messages, and having a sexual relationship with him. The respondent admits these matters. 12. The relationship ended in acrimony when the respondent obtained an apprehended violence order (AVO) against Patient A on 8 January 2015. The AVO was withdrawn shortly afterwards. 13. On 6 January 2015, Patient A lodged a complaint with the Commission. This complaint was in the following terms: My psychologist, Brooke Ledner, pursued a sexual relationship with myself. The relationship is unhealthy and has been detrimental to my mental health. I have fallen back into depression and my pain is the worst it has ever been. The profession[al] relationship ended in April 2014 and the sexual relationship started in October 2014. The main issue(s) I am concerned about are: 1. Professional Conduct: Boundary violation. 1. On 26 February 2015, the Commission notified the respondent that Patient A's complaint was to be investigated. The respondent was invited to provide information to the Commission including submissions as to what action the Commission should take. 2. On 12 March 2015, the respondent responded to the Commission. Relevantly, she stated that: 1. By late November 2014, Patient A was pressuring her to move out of her home and to obtain a divorce. She asked him for some space to be able to consider his requests; 2. One day, her wedding and engagement rings went missing from her home. After this occurred, she told Patient A that she could no longer see him and was ending the relationship. When this happened, Patient A started to threaten her. Patient A told the respondent that he would tell her husband about how serious the relationship was, would call her boss, and report her to the Commission. 3. Throughout December 2014 Patient A continued to contact her. "[r]egrettably and out of fear" she stayed in contact with him. 1. The respondent also denied (what she described as) Patient A's insinuation that she was "pursuing" him and states that in fact the opposite was true. Reports of Professor Kenny 1. During the course of its investigation of the complaint, the Commission obtained expert reports from Prof. Diana Kenny. Prof. Kenny is a Professor of Psychology and Consultant Psychologist. Her expertise was not in issue at the hearing. Prof Kenny's first report was undated but received by the commission in mid-September 2015. 2. Prof Kenny was relevantly provided with a statement of Patient A and a document described as a "response from Mrs Brooke Ledner dated 12 March 2015". In addition to his statement, Patient A had also provided print outs of text messages and Facebook messages to the Commission as evidence of his allegations. Those text messages include references to their sexual relationship, to the respondent being aware of the potential breach of the Australian Psychological Society Code of Ethics (APS Code of Ethics) in relation to her relationship with Patient A, to the respondent being drunk, and a reference to the respondent consuming cocaine on a single occasion. 3. The questions asked of Prof Kenny, and her responses, are summarised below: 5.1 Assuming Mrs Ledner's version of events is correct please provide your opinion of her conduct in having sexual intercourse with [Patient A] on 12 October 2014 given that their therapeutic relationship ended in April/May 2014 … At the time of these events, Mrs Ledner had only recently qualified as a psychologist (June 2014) and had had limited professional experience. However she was fully aware of her responsibilities with respect to maintenance of appropriate boundaries between herself and patients, and clearly expressed her knowledge and understanding of these boundaries to [Patient A]. I consider that this conduct fell significantly below what is reasonably expected of a practitioner of equivalent training or experience. This conduct invites my strong criticism. 5.2 Assuming Mrs Ledner's version of events is correct, please provide your opinion of her conduct in entering into an ongoing sexual relationship with [Patient A] approximately six months after their therapeutic relationship at Kadesh had ended in April/May 2014. …[E]ntering into a sexual relationship six months after the termination of therapy, particularly as the psychologist maintained a supportive contact with the patient my email after the formal part of his treatment had ended, constitutes a serious breach of the therapist-patient relationship. Furthermore, Brooke was married, was experiencing marital difficulties and separated temporarily from her husband in September 2014. A couple of weeks later, she engaged in a sexual encounter with [Patient A] and thereafter in an ongoing sexual relationship for a period of three months. Mrs Ledner showed very poor judgement in introducing a "third" into a conflicted marriage, and poor psychological insight into the possible consequences of doing so to herself and her former patient. I consider that this conduct fell significantly below what is reasonably expected of a practitioner of equivalent training or experience. This conduct invites my strong criticism. 5.3 Assuming Mrs Ledner's version of events is correct, please provide your opinion of Mrs Ledner's conduct in remaining in email contact, initially of a professional nature, and then of a more personal nature, with [Patient A] following his discharge. … I consider that this conduct fell significantly below what is reasonably expected of a practitioner of equivalent training or experience. This conduct invites my strong criticism. 5.4 Assuming [Patient A's] version of events is correct, please provide your opinion of Mrs Ledner's conduct in calling [Patient A] from her mobile phone around June/July 2014 for a "general chat between friends", thereby providing him with her mobile telephone number. …[T]hese behaviours on the part of the treating psychologist are professionally inappropriate and could potentially leave the patient with the belief he can no longer rely on his therapist for psychological support or after-care following in-patient treatment. I consider that this conduct fell significantly below what is reasonably expected of a practitioner of equivalent training or experience. This conduct invites my strong criticism. 5.5 Assuming [Patient A's] version of events is correct, please provide your opinion of Mrs Ledner's conduct in texting and calling [Patient A] at the end of September 2014 when she was drunk. Texting a patient, even if a former patient, while in the state of abrogation, is professionally reprehensible, made more so by the fact that [Patient A] was being treated for alcohol and substance abuse/addiction. This conduct indicates that his psychologist may be impaired, vulnerable and needing support and therefore not fit to offer psychological services to people struggling with substance abuse/addiction. No assumption regarding [Patient A's] version of events is necessary. The text messages confirm the veracity of his version… I consider that this conduct fell significantly below what is reasonably expected of a practitioner of equivalent training or experience. This conduct invites my strong criticism. 1. Prof Kenny also considered, assuming Patient A's version of events was correct, that: 1. The respondent's conduct in having sexual intercourse with Patient A on 12 October 2014, given that their therapeutic relationship ended in April/May 2014 and that the respondent was aware that her conduct was in contravention of the APS Code of Ethics; 2. The respondent's conduct in making admissions to Patient A of her social consumption of illegal drugs was reprehensible, and 3. was conduct which fell significantly below what is reasonably expected of a practitioner of equivalent training or experience. This conduct invited Prof Kenny's "strong criticism". Council meeting 1. On 18 August 2016, the Council held a hearing pursuant to s 150. The respondent agreed that her judgement had been seriously "clouded", and said that she had been "naïve" about professional standards in relation to professional boundaries. The respondent agreed that she was aware of the relevant professional standards, and the APS Code of Ethics, before she engaged in her relationship with Patient A. She said that: I didn't actually realise how serious my actions were at the time and I was going through a lot of things and my judgement was clouded very much so and I feel like, you know, in terms of maintaining professional boundaries, I'm such an advocate for that now and, you know, I'm quite – I don't know what the word is – hyper-sensitive to anything that could be perceived as a, you know, potential issue with boundaries. 1. The respondent apologised for her actions and said that she realised that it was up to her as a psychologist to be looking after the welfare of clients. At the conclusion of the hearing, the Council imposed conditions on her registration. These conditions included that the respondent not engage in individual client therapy; that she be permitted to engage in group therapy, subject to the presence of a co-facilitator on all occasions, and to provide a statutory declaration to the Council stating she had complied with the conditions. 2. On 26 August 2016, the Council delivered its written reasons. The Council found that the respondent acknowledged having a sexual relationship with Patient A and expressed remorse for this. She described her personal circumstances in the time leading up to the relationship included separation from her husband in September 2014. In response to the expert witness report, the respondent stated she and her husband were reconciled and that she had been undertaking personal therapy and psychotherapy. The respondent stated that she "sincerely apologise[d] for [her] actions, and "[understood] that [her] actions were a direct violation of the code of ethics". Admissions of the respondent 1. By her Amended Reply, the respondent now admits unsatisfactory professional conduct under s 139B(1)(a) and professional misconduct under s 139B of the National Law. However, not all particulars of the two complaints are admitted. 2. As regards the background to Complaint One, the respondent concedes that whilst the last individual counselling session with Patient A was on 25 March 2014 at the Phoenix Unit, she had a form of ongoing therapeutic relationship through April 2014, when she was co-facilitator at two SMART program meetings held in the community, which Patient A attended. The respondent says that her therapeutic relationship with Patient A was markedly different during that period, compared to when he was an in-patient at the Phoenix Unit. She states that the therapeutic relationship did not come to an end until the last of the two SMART program meetings which the respondent co-facilitated. 3. In respect of Complaint One, particular 1(a), the respondent maintains that between 1 June 2014 and 11 October 2014, she did not make telephone calls to Patient A for personal reasons. She submits that the evidence indicates that the telephone contact was in respect of a Commission notification she was assisting Patient A with, in respect of one of his treating practitioners, and the Commission's response to that complaint. There were two accidental calls early on the morning of 28 September 2014, following on from an accidental text whereby the respondent had intended to contact another person with the same first name as Patient A, which person was out on a social occasion with her husband. The respondent submits that the evidence does not establish personal calls, much less personal calls that would be sufficient to demonstrate unsatisfactory professional conduct, during the relevant period. 4. In respect of Complaint One, particular 1(b), the respondent maintains the provision of her personal mobile number to Patient A was appropriate as it was the phone number she used in her professional practice at the time (as evidenced by her business card). The respondent submits that at the time she provided the card to Patient A, it was in the context of the Commission complaint she was assisting him with. She submits that the evidence does not indicate that the phone number was provided as part of a personal relationship. 5. In respect of Complaint One, particular 1(c), the respondent concedes that she exchanged emails of a personal nature with Patient A between 1 June and 11 October 2014. The respondent submits that the evidence indicates that whilst the early emails involved her providing advice as to particular courses or mindfulness exercises Patient A might pursue, at a time when he was attending SMART program meetings which she was co-facilitating from time to time. The respondent concedes that these "quickly spilled over" into personal exchanges. The respondent says that she made the relevant admission in her Amended Reply and similarly conceded in her evidence that the emails quickly became personal in nature after Patient A completed his in-patient course at Kedesh and that this represented a boundary transgression. 6. In respect of Complaint One, particular 1(d), the respondent maintains that the only personal calls she made or texts she sent to Patient A during the relevant period were late on 27 September 2014/very early on 28 September 2014. She submits that the evidence indicates that she mistakenly texted Patient A and followed up with two calls, before realising that person seeking to contact was Patient A, not her husband's friend who had the same first name. As the contact was made in error, the respondent submits that this conduct was not sufficient to satisfy the s 139B definition of unsatisfactory professional conduct. 7. In respect of Complaint One, particular 2, the respondent admits having sexual intercourse on a number of occasions with Patient A in October-November 2014, socialising with Patient A and sending a large number of written and picture text messages of a personal and intimate nature to him during the period 12 October 2014 through to 6 January 2015. She admits that she entered into and maintained an inappropriate personal and sexual relationship with Patient A and that this amounts to professional misconduct under s 139E of the National Law. 8. The respondent also admits that on 4 November 2014, she communicated by text with Patient A while she was intoxicated to the effect that she was intoxicated and thought that she had consumed illegal drugs. She admits that in the text communications, she told Patient A that she had taken an illegal drug, but says that this was because of information provided to her by the friends she was socialising with at the time that they had sprinkled cocaine in her vodka and soda. The respondent says that she subsequently confirmed with her friends that they had not in fact put any drugs in her drink. 9. The Tribunal had before it the APS Code of Ethics. The APS Code of Ethics was adopted by the Australian Psychological Society on 27 September 2007. The APS Code articulates and promotes ethical principles, and sets out specific standards to guide both psychologist members and the public to a clear understanding and expectation of what is considered ethical professional conduct by psychologists. The APS Code of Ethics is based on three general ethical principles, being respect for the rights and dignity of people and peoples, propriety, and integrity. Standard C.4.3 (Non-exploitation), relevantly states that psychologists do not engage in sexual activity with a client or anybody who is closely related to one of their clients; 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. Findings 1. The Tribunal notes the qualifications to the respondent's admissions. However, the Tribunal is satisfied on the evidence before it, and given the respondent's written admissions and her oral evidence to the Tribunal that between 1 June and 11 October 2014, the respondent failed to observe appropriate professional boundaries in that she provided her personal mobile phone number to Patient A, and exchanged emails of a personal nature with Patient A. In this respect, the Tribunal accepts the matters set out in her Amended Reply and as explained in her counsel's oral and written submissions in relation to the particulars to Complaint One. 2. In addition, the Tribunal is satisfied on the evidence before it, and given the respondent's written admissions and her oral evidence to the Tribunal that between from about 12 October 2014 until 6 January 2015 the practitioner entered and maintained an inappropriate personal and sexual relationship with Patient A including: 1. Having sexual intercourse on a number of occasions with Patient A; 2. Socialising with Patient A; 3. Sending a large number of written and picture text messages of a personal and intimate nature to Patient A; 4. Communicating to Patient A that she was intoxicated and had consumed illegal drugs, and communicating with Patient A while intoxicated. 1. Notwithstanding the respondent's admissions, the Tribunal is independently satisfied that these matters constitute unsatisfactory professional conduct under s 139B of the National Law in that the respondent has: 1. Engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of 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. The Tribunal is also satisfied that these matters constitute professional misconduct under s 139E of the National Law in that the respondent has: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and 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. Relevant Law 1. It is appropriate to set out the relevant provisions of the National Law. These are as follows. 2. Section 3, which provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for (a) the regulation of health respondents; and (b) the registration of students undertaking (i) programs of study that provide a qualification for registration in a health profession; (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health respondents who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health respondents wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health respondents; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health respondents; and (e) to facilitate access to services provided by health respondents in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health respondents. (3) The guiding principles of the national registration and accreditation scheme are as follows— (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Section 3A of the National Law, which is an additional provision for NSW, provides, in terms: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. A "NSW provision" is defined in s5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health respondent Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. 1. Section 139B of the National Law (which is an additional provision for NSW), which relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health respondent generally [NSW] (1) Unsatisfactory professional conduct of a registered health respondent includes each of the following— (a) Conduct significantly below reasonable standard: Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the respondent in the practice of the respondent's profession is significantly below the standard reasonably expected of a respondent of an equivalent level of training or experience. … (l) Other improper or unethical conduct: Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Section 139E of the National Law (which is an additional provision for NSW), which provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health respondent means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent'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 respondent's registration. Relevant principles 1. The relevant principles in determining the appropriate order include the following: 1. The nature of the jurisdiction of the Tribunal is not to punish the respondent, but to protect the public and to maintain proper standards in the chiropractic profession: Clyne v New South Wales Bar Association [1960] HCA 40; Prakash v HCCC [2006] NSWCA 153. 2. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public: s 3A. 3. There are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include the reminder to other members of the profession of the public interest in maintaining high professional standards (the deterrent aspect to the protective nature of the jurisdiction: Health Care Complaints Commission v Do [2014] NSWCA 307) and the unacceptability of certain kinds of conduct and the maintenance of confidence in the high standards of the profession: New South Bar Association v Meakes [2006] NSWCA 340. 4. The conduct of the respondent must be measured against what is reasonably expected of a practitioner of an equivalent level of training and experience and by the standard of the profession. In HCCC v Litchfield (1977) 41 NSWLR 630 the Court stated at 638: 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 is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal. 1. The test for cancellation of a practitioner's registration under the National Law was stated by the Tribunal in Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103 at [278] to [281] as follows: [278] In making a finding of professional misconduct the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": HCCC v Perroux [2011] NSWDC 99 at [18]. [279] The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. [280] Whether the gravity of the misconduct was such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. [281] Past cases referred to the determination of whether the practitioner is "permanently unfit to practice" in making an order for de-registration: Stanoevski v Law Society of New South Wales [2008] NSWCA 93 at [52]- [54]. More recent consideration of these cases clarify that an undue focus on the word "permanent" is a gloss. It is demonstrated current unfitness, not a prophesy of permanent unfitness, that is required to justify deregistration: Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 at [102]; Health Care Complaints Commission v Della Bruna [2014] NSWCATOD 31. Commission's submissions 1. In summary, the Commission is critical of the respondent's evidence given in cross-examination. The Commission submits that the respondent was not always a forthcoming witness, prevaricated and minimised the seriousness of her actions. The Commission submits that the Tribunal would not generally accept the respondent's evidence given its inconsistencies. The Commission submits that: 1. The respondent has, at times, glossed over the detail of the history of her relationship with Patient A in an obvious attempt to downplay her own involvement; 2. In her response to the investigation dated 12 March 2015, her very strident response to the report of Prof. Kenny and her statement in these proceedings, the respondent sought to present a consistent picture that Patient A had pursued her and she ultimately relented. That was not borne out by the text messages throughout October and early November 2014, as ultimately accepted by the respondent, in which she often initiated and pursued contact. 1. The Commission submits that because there are so many inconsistencies in the respondent's evidence which all have the effect of minimising the blameworthy conduct of the respondent, it is open to infer that they are part of a larger scheme to inappropriately achieve that purpose. 2. The Commission submits that the respondent is a witness who at times was untruthful and at other times sought to put an inappropriate spin or context on the evidence to suit her position. Often the only times she would not do so was where the evidence was incontrovertible. 3. The Commission submits that the Tribunal would not accept the evidence of the respondent unless it is appropriately corroborated by other material. 4. The Commission seeks orders that: 1. The respondent's registration be cancelled; 2. The respondent not be entitled to re-apply for registration for a period of two years; 3. The respondent be prohibited from providing health services for a period of two years. 1. In support of these orders, the Commission submits that the respondent has shown a severe lack of judgment in her admitted conduct and its surrounding context. The Commission submits that the respondent fails to have full insight into, and accept full responsibility for, that conduct, and that her attempts to blame Patient A for what occurred demonstrates that lack of insight into the fact that she was the person who was in a position of power vis á vis Patient A. The Commission submits that the respondent was expected to know better and to behave professionally. 2. The Commission submits that the fact that it was only on the first day of the (vacated) hearing that the respondent accepted that her actions constituted professional misconduct also demonstrates a lack of ongoing insight and responsibility. It was only during the hearing that the respondent accepted for the first time that her actions caused Patient A harm. Previously she had only indicated she accepted her actions 'could have' caused him harm. The Commission submits that this is a significant distinction in the context of the events. Respondent's submissions 1. The respondent submits that the appropriate protective orders are a reprimand, a period of six months' suspension of registration (with a reduction to three months in light of the delay in the hearing of these proceedings from 21 November 2016 to the conclusion of the hearing) and the imposition of conditions similar to those made arising out of the s 150 proceedings. 2. While admitting that her conduct in respect of Patient A fell "far short" of the standard required of her as a practising psychologist, the respondent submits that the Tribunal ought to have regard to the following factors when it comes to determining the appropriate protective orders: 1. The conduct occurred at a time of intense personal crisis in the respondent's life. These factors include the breakdown of the marriage, her very recent qualification, the limited professional experience and deteriorating mental health marked by anxiety, depression, which personal circumstances thus created a vulnerability which goes some way to explaining, but not excusing, her behaviour; 2. The respondent has sought supervision and therapy/psychotherapy very soon after the relevant conduct, and well before the Tribunal hearing, with supervision sessions and psychotherapy sessions continuing as at the date of the hearing; 3. There is no evidence of predatory behaviour on the respondent's part: Psychologists Registration Board of Victoria v Pallini [2008] VCAT 2632; 4. When the respondent was contacted by the Commission, she immediately admitted the inappropriate sexual relationship she had had with Patient A. It is acknowledged that her admissions in respect of the inappropriate personal communications between her and Patient A came later, in her 31 October 2016 Reply and her November 2016 statement. Nonetheless, she admitted unsatisfactory professional conduct in her 31 October 2016 Reply and professional misconduct in her 21 November 2016 Amended Reply. Here the respondent relies on Psychology Board of Australia v IVX (Review and Regulation) [2016] VCAT 35 at [103]; 5. The respondent has demonstrated insight into her conduct, and understands that her conduct, commencing with inappropriate communications and developing into a sexual relationship, set in train the whole sequence of events. It took her time to understand the full effect of her conduct on Patient A. Through reading Prof. Kenny's reports, and her own reflection, the respondent now understands and accepts the nature and full extent of her wrongdoing. The respondent recognises the seriousness of her conduct and now accepts that it was her serious boundary transgressions which led directly to the inappropriate intimate relationship and communications with Patient A and caused him harm; 6. On the basis of the steps the respondent has taken since January 2015 to seek supervision, seek out therapy/psychotherapy, abstain from drinking and undertake courses in respect of boundary transgressions and ethical decision making in psychology, the Tribunal will have confidence that the likelihood of any repetition is minimal. 7. Prof. Kenny indicated that, notwithstanding her serious concerns about the nature of the respondent's behaviour, she believed the experience of the complaint being made against her by Patient A and the subsequent s 150 and Tribunal proceedings would have given the respondent a salutary lesson; 8. The Tribunal would not accept the case theory put forward by the HCCC of the respondent's conduct bespeaking an inherent lack of judgment, rather than a response to a period of intense personal crisis. That position is at odds with the references before the Tribunal and the way the respondent presented in giving evidence. Consideration 1. It is trite to observe that the entering into and the maintaining of an inappropriate personal and sexual relationship by a registered psychologist with a former patient within the two year period proscribed by the APS Code of Ethics is unacceptable and inexcusable conduct. The seriousness of the respondent's conduct is exacerbated by her personal conduct of drinking to the point of intoxication with the Patient A, who had been treated for alcohol abuse, and drinking with others and sharing that experience with him (a condition she frequently described as "retarded"). The seriousness of her conduct is further exacerbated by her knowledge that what she was doing was wrong and in direct violation of the APS Code of Ethics. Indeed, there was evidence before the Tribunal, in the form of handwritten notes of the respondent, that Patient A had looked up the relevant requirements about relationships between practitioner and patient and told her that the prescribed period was two years and that the respondent stated "that we could lay low for another 12 months until that time was up that I could speak to my superiors about it". The respondent also told Patient A that she could lose her job by having a relationship with a patient. And the respondent continued her relationship with Patient A notwithstanding that she told Patient A that her therapist had told her to stop contact with him, at least for a while. 2. Other unsatisfactory aspects of the respondent's conduct included that she told Patient A (on at least two occasions) that he needed to delete the text messages between them. She knew, as she stated in another text message, that her conduct was "very selfish [and] narcissistic". 3. There is immense trust placed in health care professionals. In a passage cited with approval in Litchfield at 638, Priestly JA said in Richter v Walton (Court of Appeal, 15 September 1993, unreported, at 8-9), in the context of doctors (but equally applicable, it is submitted, to psychologists): The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest. 1. In determining the appropriate order the Tribunal is required to consider thewhole of the practitioner's conduct: Gad v Health Care Complaints Commission (2002) NSWCA 111 at [55]. 2. In protective jurisdictions, the object of protection of the public includes deterring the practitioner from repeating his or her misconduct and deterring others who might be tempted to behave in a similar way: NSW Bar Association v Hamman (1999) NSWCA 404. The Commission rightly submits that the respondent's conduct is a serious breach of the standards that the public have a right to expect of a practitioner. The objective seriousness of the conduct of the respondent, the fact it was deliberate, the fact it occurred over a period of time and the lack of proper acceptance of responsibility for the conduct on the part of the respondent all militate strongly in favour of an order cancelling or suspending the respondent's registration. 3. The Tribunal accepts the Commission's submission that there are particular aggravating features in relation to the respondent's conduct. She met the patient during an inpatient program at a drug and alcohol rehabilitation facility, yet she commonly drank in his presence, spoke of being intoxicated, intimated that she was driving whilst intoxicated and made references suggesting she was using alcohol as a coping mechanism. Patient A was plainly vulnerable and coming out of a difficult time in his life. The likelihood of harm being done to him through the relationship was high, and in fact came to pass. 4. The other aggravating matter is this. Patient A provided a statement to the Commission dated 23 April 2015. This statement was tendered by consent, and Patient A was not required for examination. At par [34]ff Patient A stated: 34. I felt that the relationship changed in that I was playing the role of counsellor and she was the patient: her husband had moved out of the house and Brooke told me they had separated. Brooke was also hot and cold with me, saying she needed space, then contacting me again. My anxiety levels were very high at time due to the 'on again off again' nature of the relationship. I started drinking a lot of alcohol. 35. On 3rd January 2015, Brook came over to my place. I said to her that we needed to stop seeing each other or make a go of it. We agreed to go our separate ways. 36. I blocked her mobile phone that day. Brook tried to call me from another mobile phone. She came around to my place and knocked on the door, but I did not answer the door. She also came around to my Mum's house on 6 January 2016 unannounced… 37. On 5 January 2016, I called the Acute Mental Health Hotline at Manly Hospital to talk about what was happening with Brooke… … 43. Initially I did not feel there was a power imbalance between Brooke and I. I felt quite hard for her. I now realise that she had complete control over me, for example, if we argued she would bring up things I had confided to her during counselling. I thought I was strong enough to deal with the stress or is associated with the relationship with Brooke, but I realise now I was not. 44. As a result of the relationship with Brooke, I started retreating heavily, withdrew from my Psychology degree (first year), isolated myself from friends and family, stopped seeing my psychologist and thoughts of self-harm. (In January 2015, I was admitted to Manly Hospital Emergency Department to surveillance after I had told the mental health Hotline that I was thinking of self-harm. The mental health team sent the police and ambulance to pick me up. If February 2015 I have attended [Royal North Shore Hospital] after heavy drinking session to which I severed a nerve in my hand). In the last month or so, I have started seeing my psychologist again. 45. My medication use has altered as well. I am taking mitrazpine 45mg daily. My social anxiety is very high struggle for me to venture out of the house especially during the day. I walk my dog really early morning very late at night. I do my grocery shopping at 11:30 PM to minimise social contact. 1. We are satisfied that this evidence establishes serious emotional harm to Patient A. 2. The respondent referred the Tribunal to a variety of decisions involving sexual conduct between a psychologist and a former patient which did not result in a Tribunal cancelling the psychologist's registration. These decisions included Psychology Board v Garcia [2015] VCAT 128 and Psychology Board of Australia v IVX (Review and Regulation) [2016] VCAT 35 (which case summarised a number of other decisions involving psychologists who had a sexual relationship with patients). 3. However, in other decisions, the Tribunal has cancelled a practitioner's registration. In Psychology Board of Australia v Cicconi [2013] VCAT 516, which concerned boundary violations during the therapeutic relationship, failure to manage transference and countertransference in the professional relationship, failing to manage the termination of the professional relationship, commencing a romantic and sexual relationship shortly after which lasted for two years, an assault by the psychologist on the former client and the giving of false information to the Board during its investigation. The Tribunal observed that the blurring of boundaries took many forms, and that the incidents of violence toward his vulnerable patient were reprehensible. The Tribunal considered his misleading conduct towards the Board to be equally grave. There was evidence of significant emotional harm to the patient. Mr Cicconi's registration was cancelled and he was disqualified from applying for registration for a period of 15 months. 4. In Health Care Complaints Commission v Senior [2015] NSWCATOD 50, this Tribunal considered the conduct of a psychologist who failed to maintain professional boundaries and entered into an inappropriate personal relationship with Client A, which began while Ms Senior was Client A's treating psychologist and continued after the therapeutic relationship ceased. The relationship began with inappropriate socialising and was later evidenced by intimate and sexualised telephone calls. The Tribunal found that the psychologist was guilty of unsatisfactory professional conduct and professional misconduct. The practitioner was not registered at the time of the hearing, so the Tribunal reprimanded her in the strongest possible terms, and declared that if she had been registered, it would have cancelled her registration. In the circumstances it disqualified her from being registered as a psychologist for a period of three years. 5. A similar result was reached in the case of Health Care Complaints Commission v Bergmeier [2014] NSWCATOD 75. There the psychologist, who worked at the Junee Correctional Centre commenced the relationship with a client who was managed by the Serious Offenders Review Council (SORC). He was serving a 21-year sentence for murder and malicious wounding. In addition to the inappropriate sexual relationship, the complaints also allege that Ms Bergmeier improperly accessed the Offender Integrated Management System and used another person's password, without her permission, to enter false information in relation to the identity of the author of Client A's case notes. It is also alleged she altered the SORC allocation list to falsely show another psychologist as Client A's allocated psychologist. The Tribunal ordered the cancellation of Ms Bergmeier's registration and further ordered that she not be eligible to apply for review of that decision for two years. 6. In Health Care Complaints Commission v Sheehan [2016] NSWCATOD 89, the Tribunal considered two complaints. In essence, the first complaint related to boundary violations, the second complaint to the respondent's ethical and professional obligations to and interactions with his professional bodies. The boundary violations related to, following the cessation of the therapeutic relationship between the respondent and the mother of a patient, the respondent engaging in regular and extended telephone contact and the entering into and maintaining an inappropriate personal and/or sexual relationship. After a notification to the Commission was made, the respondent then lied about the nature of the relationship to both the Commission and the Council. While the respondent admitted unsatisfactory professional conduct, he did not admit professional misconduct. This Tribunal found him guilty of both. The Tribunal cancelled the psychologist's registration for a period two years. The Tribunal notes that in this case the respondent did not give evidence to the Tribunal. Therefore, there was no direct evidence before the Tribunal of his remorse or insight, if any. Nor had the respondent provided any character references from patients or colleagues attesting to his professional and personal qualities. Conclusion 1. The Court of Appeal has cautioned against the use of comparative cases in the determination of periods of suspension: Lee v Health Care Complaints Commission [2012] NSWCA 80. 2. The purpose of the imposition of determinations in disciplinary matters is to maintain proper ethical and professional standards so as to protect the public (see for instance, Ha v Pharmacy Board of Victoria [2002] VSC 233 at [91]) and to protect the profession (Litchfield), in the sense of maintaining its status and integrity in the eyes of the public. 3. We agree with the statements in Garcia (footnotes omitted) that: 30 Determinations imposed by the Tribunal can protect the public and the standards of the profession by: a. deterring the person concerned from further inappropriate conduct (specific deterrence); b. deterring other practitioners minded to conduct themselves as the person concerned has done (general deterrence), and c. facilitating rehabilitation on the part of the practitioner. 31 The likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination. 32 Personal matters such as shame, personal ordeal, and financial difficulty likely to be occasioned by a determination are of little relevance except insofar as they contribute to the specific deterrence of the practitioner. 33 The degree to which the practitioner has acquired insight into his or her conduct is of potential relevance to the determination in that it goes to the continuing risk posed by the practitioner. 'Insight' might be reflected in a variety of ways, such as a. an understanding of the nature of the conduct; b. an acceptance that the conduct was wrong; c. an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or d. a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions. 1. Whether the complaints are sufficiently serious to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411, at [82]. 2. In our view, a period of deregistration is the appropriate disciplinary order required in the interests of general deterrence, and for a period sufficient to send a strong message that the respondent's conduct was inappropriate, unethical and unacceptable. We accept that the respondent now has insight into her conduct, but the respondent's conduct was deliberate and occurred over a period of time, much of which attracted strong criticism from Prof Kenny, and the respondent's failure to accept this until very late in the proceedings, over 18 months after the complaint was initially made, demonstrates a concerning lack of insight which continued until the hearing. 3. The Tribunal considers that the respondent will never repeat her conduct. She presented as someone who deeply regretted her actions. She fell in love with, or was infatuated with Patient A, as her thousands of text messages make clear. She, as much as Patient A, pursued the relationship, in circumstances where she knew she was transgressing professional ethical obligations. 4. We have concluded that the respondent's registration should be cancelled for a period of 12 months. This period reflects the gravity of the respondent's conduct. We consider that there is substance in the Commission's submissions that: 1. The respondent glossed over the detail of the history of her relationship with Patient A in an attempt to minimise her own involvement; 2. In her response to the investigation dated 12 March 2015, her response to the report of Prof. Kenny and her statement in these proceedings, the respondent sought to present a consistent picture that Patient A had pursued her, a position not consistent with her thousands of text messages to Patient A. That was clearly not borne out by her text messages, which demonstrate that she often initiated and pursued contact; 3. The respondent initially tried to present a picture that Patient A threatened her often via text, but later moved away from that position and indicated the threats were via telephone, aware that it was not consistent with the vast bulk of her text messages. 1. We accept that (unlike Sheehan), the respondent submitted to the rigours of cross-examination over some two days, that she is now receiving appropriate counselling and that (again unlike Sheehan) she has positive references from peers and the support of her employer. We also accept that the respondent's relationship with Patient A was an "isolated episode", and that there was no evidence of repeated behaviour of a pattern of similar behaviour: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. We note that she has reconciled with her husband, stopped drinking, and has the responsibility of a young child. 2. However, we consider that the following comments in Garcia are applicable: 46 General deterrence is a more important factor in the case. Psychologists treat vulnerable people. There is an inherent imbalance in the professional relationship. If this is allowed to transfer into a personal relationship, the potential exists for damage to the client. This is why there are rules designed to prevent such occurrences. These rules are fundamental to the regulation of the psychologist/client relationship. The disposition must reflect the Tribunal's support of this regulation and the requirement to illustrate that failing to meet the standard has disciplinary consequences. 47 Overall, it is necessary for the Tribunal's determination to have the purpose of protection of the public and maintenance of the standards of the profession. In this case, as already stated, the more important factor is general deterrence which serves as a warning to other practitioners to consider their conduct in a careful manner. 1. A finding of professional misconduct may not automatically lead to cancellation of a practitioner's registration. However, we consider that deregistration is required to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in similar conduct and thus maintaining public confidence in the profession. Meagher JA, with whom Basten and Emmett JJA agreed, gave effect to these principles in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] where his Honour said: 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 conduct 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. Costs 1. This is a costs jurisdiction. As a general rule, costs of proceedings before the Tribunal should follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [45]. 2. The Commission has been successful. The respondent must pay its costs, as agreed or as assessed, save for the costs of the hearing on 21 November 2016. The Tribunal declines to reduce the amount of costs to be paid by the respondent by 50%, as submitted by her. There is substance in the Commission's submission that it was only as a result of the extensive cross-examination of the respondent that the full picture of the respondent's conduct emerged. 3. In relation to the costs of 21 November 2016, the Tribunal notes that the hearing was adjourned on the Commission's application, to enable it to obtain a statement from Patient A. No statement was ever obtained. The matter therefore could have proceeded on 21 November 2016. The Tribunal rejects the Commission's submission that there should be no costs order and rejects its submission that it was not responsible for the costs being thrown away. The Tribunal orders that the Commission is to pay the respondent's costs thrown away of the hearing of 21 November 2016. Orders 1. The Tribunal orders that: 1. The respondent's registration is cancelled. 2. The respondent is not entitled to re-apply for registration for a period of one year. 3. The respondent is prohibited from providing health services for a period of one year. 4. The Commission is to pay the respondent's costs thrown away of the hearing of 21 November 2016. 5. The respondent is otherwise to pay the Commissions costs of the proceedings, as agreed or as assessed. ******** ATTACHMENT A COMPLAINT ONE [The practictioner] 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; and / or 2. engaged in improper or unethical conduct relating to the practice or purported practice of psychology; Each particular justifies a finding of unsatisfactory professional conduct in itself. Alternatively, when two or more particulars are taken, together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT ONE The practitioner is a registered psychologist who at all relevant times was employed at Kedesh Rehabilitation Services ("Kedesh") in Manly, New South Wales. The practitioner provided counselling sessions to Patient A at Kedesh between January 2014 and March 2014 and facilitated a number of group counselling sessions attended by Patient A in April and May 2014. Patient A was receiving care and treatment for issues including drug and alcohol abuse. PARTICULARS OF COMPLAINT ONE 1. Between 1 June and 11 October 2014 the practitioner failed to observe appropriate professional boundaries in that 1. contacted Patient A by telephone for personal reasons; 2. provided her personal mobile phone number to Patient A; 3. exchanged emails of a personal nature with Patient A; 4. made telephone calls and sent text messages of a personal nature to Patient A; 1. From about 12 October 2014 until 6 January 2015 the practitioner entered and maintained an inappropriate personal and sexual relationship with Patient A including: 1. having sexual intercourse on a number of occasions with Patient A; 2. socialising with Patient A; 3. sending a large number of written and picture text messages of a personal and intimate nature to Patient A; 4. communicating to Patient A that she was intoxicated and had consumed illegal drugs, and communicating with Patient A while intoxicated and under the influence of drugs. COMPLAINT TWO 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 See background to Complaint One. PARTICULARS OF COMPLAINT TWO 1. Complaint One and the particulars thereof are repeated and relied upon both individually and cumulatively. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 16 June 2017 - Non publication order varied to cl 7 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: 16 June 2017