Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Denshire (also known as Lowick) [2018] NSWCATOD 19 Hearing dates: 14 December 2017 Date of orders: 16 February 2018 Decision date: 16 February 2018 Jurisdiction: Occupational Division Before: R Titterton, Principal Member M Crowley, Senior Member B Sheridan, Senior Member G Adler, General Member Decision: 1. Complaint One is established in relation to Particulars (1), (2) and (3). Particular (4) is not established). 2. Complaint Two is established. 3. Complaint Three is not established. 4. The respondent is reprimanded. 5. Conditions are placed on the respondent's registration in relation to mentoring, supervision, record auditing, and training and education Catchwords: TRADES AND PROFESSION –– Psychology –– Health Practitioner Regulation National Law –– complaints of unsatisfactory professional conduct and professional misconduct –– inappropriate text messages between psychologist and patient –– failure to include record of text messages in clinical notes Legislation Cited: Health 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 103 Health Care Complaints Commission v Fraser [2014] NSWCATOD 29 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Rahimpanah [2014] NSWMPSC 4 Health Care Complaints v Perroux [2011] NSWDC 99 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Pillai v Messiter [No. 2] (1989) 16 NSWLR 197 Prakash v Health Care Complaints Commission [2006] NSWCA 153. Qasim v HCCC [2015] NSWCA 282 Re Dr Parajuli [2010] NSWMT 3 Saville v Health Care Complaints Commission [2006] NSWCA 298 Category: Principal judgment Parties: Dr Catherine Elise Denshire (also known as Dr Elise Lowick) Representation: Counsel: H Bennett, Applicant B Kelleher, Respondent Solicitors: File Number(s): 2017/000236612 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act (2013), the Tribunal prohibits the disclosure of the names of the persons of institutions referred to as Client A, Client A's mother, Client A's School (School A), School B, Psychologists A, B, C, D and E and Clients B, C and D. REASONS FOR DECISION 1. These reasons concern an Application for Disciplinary Findings and Orders filed 3 August 2017. The Health Care Complaints Commission (the Commission) seeks orders against the respondent Dr Catherine Elise Denshire. 2. The respondent is professionally known as Dr Elise Lowick. In these reasons, we will refer to her as Dr Lowick or as the respondent. 3. For the reasons that follow, we find the two complaints of unsatisfactory professional conduct established, and the complaint of professional misconduct not established. We have decided to reprimand the respondent and to place conditions on her registration. The Complaints 1. Two complaints of unsatisfactory professional conduct and one complaint of professional misconduct are made. The background to each complaint is as follows: At all relevant times the respondent was working in a private practice known as Lane Cove Psychology under the name of Dr Elise Lowick. Client A ([born] 1998) was referred to the respondent on 20 March 2015 for treatment of symptoms of depression. At all relevant times Client A was a student and a boarder at [School A]. The respondent first consulted with Client A on 25 March 2015 and provided psychological treatment to him during 2015 and 2016. The respondent diagnosed Client A with Major Depressive Disorder in the moderate to severe range, Generalised Anxiety Disorder (with panic symptoms) in the mild to moderate range, Narcissistic Personality Traits (not formally diagnosable in persons under 18 years) and Adjustment Disorder. On 18 February and 3 March 2016 Client A consulted with Psychologist A, a provisionally registered psychologist and employee of [School A], at the request of the School. Psychologist A's role was to provide psychology services to the School's students as well as performing a secondary supportive role to external psychologists. 1. Complaint One alleges that the respondent is guilty of unsatisfactory professional conduct under s 139B (a) and/or (l) of the National Law in that the respondent: 1. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the respondent in the practice of psychology is significantly below the standard reasonably expected of a respondent 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 Particulars of Complaint One are: 1. On 18 February 2016, the respondent failed to maintain proper professional boundaries in her communications via text message with Client A being: 1. Message 6: "Your welcome. I think they have to say hi so that they seemingly care about your well being." 2. Message 8: "it's sad but true. It's really all about you. Not." 3. Message 10: "Anyway nice that you like [Psychologist A]. You could probably play with her head! Ha! Told my family last, night at dinner about your latest meat meat trick. Oh they laughed!" 4. Message 11: "What do you mean by play with her head?" 5. Message 14: "If your planning on murder, can you come kill the jack hammer guy outside my house" 6. Message 16: "I'm just teasing you" 1. The respondent included content in her communications via text message with Client A that was unprofessional and capable of being misinterpreted, namely: 1. In Message 6, the respondent inappropriately suggested that Psychologist A and the School staff did not sincerely care for Client A and in doing so, implied triangulation between the practitioner, Client A and the School staff including Psychologist A; 2. in Message 10, the respondent inappropriately disclosed that she had talked about Client A with her family the previous evening; 3. in Message 12, the respondent suggested that Client A could engage in inappropriate and disruptive behaviour towards Psychologist A; and 4. in Messages 14 and 16, the respondent inappropriately joked about Client A planning a murder and told Client A she was teasing him. 1. On 21 February 2016, the respondent failed to maintain proper professional boundaries with Client A by sending a text message to Client A which stated, "I just realised that these text are coming from my daughters phone. That's a little awkward. You dr thinks the girl in the photos is cute. I am trying to fix my SIM cards up I've had Telstra dramas sorry. From Elise", in circumstances where; 1. the respondent represented to Client A that messages had been sent from her daughter's phone; and 2. the respondent presented a personal problem to Client A. 1. On 27 June 2016, the respondent sent a letter to the Health Care Complaints Commission in connection with the investigation into a complaint about her communications with Client A and attached to the letter emails between herself and Psychologist A which disclosed the names of three of the practitioner's clients and confidential information about those three clients' psychological treatment, contrary to Ethical Standard A.5 Confidentiality of the Australian Psychological Society (APS)'s Code of Ethics. 1. Complaint Two alleges that the respondent is guilty of unsatisfactory professional conduct under s 139B (a) of the National Law in that the respondent has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the respondent in the practice of psychology is significantly below the standard reasonably expected of a respondent of an equivalent level of training or experience. The particular of Complaint Two is that the respondent failed to maintain appropriate clinical records in relation to Client A in circumstances where her records did not include copies of text message communications she had engaged in with Client A, including those particularised in Complaint One. 2. Complaint Three is that the respondent is guilty of 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, 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 suspension or cancellation of the practitioner's registration. The Reply 1. In her Reply to the Application, the respondent admits the background to each of the complaints, and admits Complaints One and Two and the Particulars thereto. She does not admit Complaint Three. Findings 1. All the evidence was tendered without objection. In addition, Dr Lowick gave oral evidence to the Tribunal, as did the clinical psychologist qualified by the Commission, Mr Sam Borenstein. 2. We make the following relevant findings of fact. 3. Dr Lowick was first registered as a psychologist on 6 April 1999. She is currently registered until 30 November 2018, and there are no conditions on her registration. She holds an approved endorsement of Clinical Psychology. 4. The subject of the complaints, Client A, was 17 years old at the time of his treatment by Dr Lowick. He was a student in Year 12 at School A. He had been suffering from depression and suicidal and homicidal ideations since he was in Year 7. During that period, Client A had been treated for those conditions by internal school counsellors, being psychologists, at School A and prescribed medication. 5. In March 2015, Client A was referred to a general practitioner by his then school psychologist as he required specialist or more intense therapy. The general practitioner in turn referred Client A to Dr Lowick, because of her experience in working with prodromal teenagers and complex cases. From March 2015 Client A continued to be treated by psychologists at School A as well as Dr Lowick. 6. Client A first saw Dr Lowick on 16 February 2015. At that time and in the following two sessions, Dr Lowick assessed Client A as having Major Depressive Disorder in the moderate to severe range, Generalised Anxiety Disorder in the mild to moderate range (with panic symptoms), Narcissistic personality Traits and Adjustment Disorder (due to familial discord). 7. Between 17 February and 3 March 2016 a number of text messages were exchanged between Dr Lowick and Client A. Those messages include the messages set out in Particulars (1) and (3) to Complaint One. Unsatisfactory Professional Conduct 1. Unsatisfactory professional conduct is defined in s 139B of the National Law relevantly as: conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the respondent in the practice of the practitioner's profession is significantly below the standard reasonably expected of a respondent of an equivalent level of training or experience. 1. The Tribunal can look at all the conduct found proven either separately or cumulatively when making a determination as to whether the conduct amounts to unsatisfactory professional conduct: Health Care Complaints Commission v Rahimpanah [2014] NSWMPSC 4. 2. Mr Borenstein notes that the Ethical Guidelines for the provision of psychological services and products using the internet and telecommunications technologies provided by the APS include the following warnings: 1. Misunderstandings may arise due to a lack of non-verbal cues; 2. When providing a psychological service to a young person, psychologists have a responsibility to both the young person and to the client-parent who contracts or engages a psychological service for the young person. Psychologists should take steps to establish the age and maturity of the client to avoid offering an inappropriate service to an individual who may not yet have the emotional maturity to benefit from it; 3. To maintain professional boundaries with their clients, psychologists should use professional language when sending text messages to clients. Psychologists should be aware that the use of informal and unprofessional language when communicating by text with a client blurs the professional relationship, and can create a more personal relationship or the impression of one; 4. When using internet and telecommunication technologies to provide psychological services to clients psychologists should use professional language to maintain appropriate boundaries; 5. Psychologists should be are aware that whatever personal information they post on personal social networking sites and as part of ongoing communications may be more broadly accessible and could even be in the public domain. Psychologists need to keep a boundary between the professional and personal. 1. Mr Borenstein held the following opinions in relation to the seven text messages the subject of Complaint One: 2. In relation to Message 6, ("Your welcome. I think they have to say hi so that they seemingly care about your well being"), Mr Borenstein considers that the content of the message: 1. implies triangulation (that is, Dr Lowick and the psychologists treating Client A at the School are not on the "same page"), the tone is impossible to determine and implies a personal connection to Client A, leading to ambiguity and the possible blurring of boundaries; and 2. represents conduct which falls significantly below the standard of a practitioner with the same training or experience as the respondent, the departure from the standard of appropriate conduct inviting his strong criticism. 1. In relation to Message 8, ("it's sad but true. It's really all about you. Not."), Mr Borenstein considers that the content of the message: 1. feeds triangulation (that is, Dr Lowick and Client A are joined together against those who provide psychological services at the School level), the tone is impossible to determine which contributes to the ambiguity and uncertainty of the intent of the message; 2. represents conduct which falls significantly below the standard of a practitioner with the same training or experience as the respondent, the departure from the standard of appropriate conduct inviting his strong criticism. 1. In relation to Message 10, ("Anyway nice that you like [Psychologist A]. You could probably play with her head! Ha! Told my family last, night at dinner about your latest meat meat trick. Oh they laughed!"), and Message 11 ("What do you mean by play with her head?"), Mr Borenstein considers that the content of the messages: 1. While well intentioned, the unprofessional language contributes to the blurring of boundaries and ambiguity, and 2. represents conduct which falls significantly below the standard of a practitioner with the same training or experience as the respondent, the departure from the standard of appropriate conduct inviting his strong criticism. 1. In relation to Message 14, ("If your planning on murder, can you come kill the jack hammer guy outside my house"), Dr Borenstein: 1. Notes that in her correspondence to the Commission Dr Lowick acknowledged that this message, "in an attempt to use humour, was both in poor taste and in poor clinical judgment"; 2. Considers that Dr Lowick's uses of humour in this instance, particularly to a young person who had expressed homicidal thoughts represents conduct which falls significantly below the standard of a practitioner with the same training or experience as the respondent, the departure from the standard of appropriate conduct, inviting his strong criticism. 1. In relation to Message 16, ("I'm just teasing you"), Mr Borenstein considered that the use of the word "tease" is not appropriate language in a professional relationship, being more personal than professional in response. He notes that psychologists do not "tease" their clients, they confront and probe but they do not tease. He considers that this was conduct which falls significantly below the standard of a practitioner with the same training or experience as the respondent, the departure from the standard of appropriate conduct, inviting his strong criticism. 2. In relation to the message of 21 February 2016 which stated, "I just realised that these text are coming from my daughters phone. That's a little awkward. You dr thinks the girl in the photos is cute. I am trying to fix my SIM cards up I've had Telstra dramas sorry. From Elise", 1. Mr Borenstein notes that when Dr Lowick realised the text messages were forwarded from her daughter's phone, she was left in a quandary and presented the problem to Client A, whose reply was "I have no idea what you really said. Thank you hope everything is okay". Mr Borenstein considers that the impression is that Client A feels he might have to assist Dr Lowick with her problem. Mr Borenstein considers that in presenting the problem to Client A Dr Lowick's conduct which falls significantly below the standard of a practitioner with the same training or experience as the respondent, the departure from the standard of appropriate conduct, inviting his strong criticism. 2. Dr Lowick has admitted that each of Particulars (1), (2) and (3) amount to unsatisfactory professional conduct. As the Commission rightly submits, the conduct the subject of those particulars is improper or unethical conduct relating to the practice of the profession. The content of the text messages were improper and unprofessional in nature of the texts. From a professional perspective they communicated uncertainty, were confusing and ambiguous, and blurred boundaries. In addition, Dr Lowick herself acknowledged that at least one of her texts was in poor taste and in poor clinical judgment. 3. The psychologist qualified by the Commission, Mr Borenstein, found that each fell significantly below the standard reasonably expected of a respondent of an equivalent level of training or experience as Dr Lowick, and the conduct attracted his strong criticism. 4. We agree with Mr Borenstein. We are satisfied and find that the conduct the subject of Particulars (1), (2) and (3) of Complaint is unsatisfactory professional conduct. 5. We are particularly concerned about Message 14. The reference to murder, and the suggestion to kill someone, to a 17 year old patient with homicidal ideation is not appropriate in any circumstances or for any reason. We find that the sending of this message in and of itself amounts to unsatisfactory professional conduct. 6. As to Particular (4), while the conduct is admitted, and therefore established, we do not consider that this amounts to unsatisfactory professional conduct. We accept Dr Lowick's explanation set out in her statement dated 11 December 2017. After referring to the Psychological Society's Code of Ethics, she states that: 9. At the time I produced the Documents it was my belief that I was required to produce all documents showing my professional relationship with Psychologist A. in accordance with that belief, I printed out all email correspondence with Psychologist A and I sent them to the HCCC noting them as, "All contact/correspondence with Interim Psychologist [Psychologist A]. I noted on the first document, being an email dated 16 October 2015, "Only contact with [Psychologist A] is in these Documents none pertain to [Client A]. These notations can be found behind Tab 26 of the documents served by the HCCC. 10. When I came to produce the Documents to the HCCC I did not appreciate the need to de-identify my other clients referred to in the Documents because l believed I was authorised to provide the Documents pursuant to the Health Records and Information Privacy Act 2002 based on the statement in the HCCC's letter referred to in paragraph 7 above. In addition, I believed that my conduct was consistent with clause A.5.2(b) of the Code because I believed I was under a legal obligation to produce the Documents. 1. As to Complaint Two, the complaint is admitted, and Dr Lowick concedes that the conduct the subject of the complaint is unsatisfactory professional conduct. 2. Mr Borenstein was asked to consider whether Dr Lowick should have retained a copy of the text messages sent to and received from Client A in her clinical notes. He states that the issue of record keeping is addressed in the APS Ethical Guidelines, "8. Record Keeping". The Guidelines requires the psychologist to make and keep adequate records for a period of seven years and, in the case of records collected while the client was less than 18 years old, at least until the client attains the age of 25 years. Relevantly, the Guidelines require psychologists to keep records of text messages (par 8.1), and a record of all electronic communications with clients so that there is an accurate account of what transpired in sessions (par 8.3). Mr Borenstein considers that Dr Lowick should have retained copies of text messages send and received from Client A, and that not doing so represented conduct which falls significantly below the standard of a practitioner with the same training or experience as the respondent, the departure from the standard of appropriate conduct inviting his strong criticism. 3. We agree with Mr Borenstein, and are satisfied that the admitted conduct the subject of Compliant Two is unsatisfactory professional conduct. Complaint Three - Professional misconduct? 1. We now turn to consider whether the conduct the subject of Complaints One and Two, either individually or cumulatively, amount to professional misconduct. 2. Professional misconduct is defined in s 139E of the National Law as: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. 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": Health Care Complaints v Perroux [2011] NSWDC 99 at [18]; Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103 at [278]. 2. The Commission submits that professional misconduct is established. In making this submission, the Commission relies on the totality of the evidence. The Commission submits that the evidence discloses highly unprofessional conduct that is unethical and improper, with the seriousness and gravity of the conduct well supported by the evidence. 3. Whilst the Commission relies on the opinion evidence of Mr Borenstein as to unprofessional conduct, the Commission submits the Tribunal ought to also judge the nature of the texts and related issues itself, and find that the conduct of the respondent represents very serious departures from the conduct expected. The Commission submits that the conduct was seriously improper and unethical, having particular regard to Client A's vulnerable status given his age and clinical diagnoses. 4. The Commission submits that the communications via text message, and related conduct, represent very serious and fundamental errors of judgment that go to the heart of the skills and knowledge and ethical practice of a psychologist. 5. Dr Lowick accepts that professional members of the Tribunal are entitled to apply their own specialist experience to the evidence in forming opinions about whether there has been a departure from the relevant standard of conduct, with appropriate attention to the expert evidence if there is a genuine difference of view: Health Care Complaints Commission v Fraser [2014] NSWCATOD 29 at 238. Dr Lowick submits that the level of seriousness required for a finding of professional misconduct must be something more than mere incompetence and can include a deliberate departure from accepted standards, indifference to them or serious negligence and an abuse of the privileges which accompany registration: Pillai v Messiter [No. 2] (1989) 16 NSWLR 197 per Kirby J at 200D. 6. Dr Lowick submits that on analysis the cumulative nature of her conduct as a whole shows that whilst it was undoubtedly unprofessional, it does not fall within the above categories. 7. We agree. We do not consider that the respondent's contraventions, when considered as a whole, are of a sufficiently serious nature to justify suspension or deregistration: Health Care Complaints Commission v Perroux [2011] NSWDC 99. Her conduct was misjudged, and unprofessional. As Mr Borenstein notes, Dr Lowick's use of text messages could have led to misunderstandings due to a lack of non-verbal cues and synchronicity in communication, leading to ambiguity and a clouding and blurring of professional boundaries due to the lack of professional language. However, we do not consider that the totality of conduct amount to professional misconduct as claimed. 8. Dr Lowick's conduct, while unprofessional, does not warrant a finding of professional misconduct. It was the result of misjudgement, rather than incompetence in her diagnostic formulation. It involved no breach of the position of trust as between psychologist and patient, and did not occur over a long period of time. There has been a proper acceptance of responsibility for the conduct, and appropriate steps taken to address the failings and improve Dr Lowick's practices. These are all factors which militate against a finding of professional misconduct. 9. We do not find Complaint Three established. Protective Orders 1. The Commission submits that, even if both unsatisfactory professional conduct and professional misconduct are established, the Tribunal should reprimand Dr Lowick, and place conditions relating to mentorship, supervision, record auditing and training and education on her registration. That is to say, even if we had found professional misconduct established, the Commission accepts that deregistration or suspension of Dr Lowick's registration was not necessary, and that the public would be adequately protected by the imposition of a reprimand and the placing of conditions on Dr Lowick's registration. 2. For her part, Dr Lowick accepts that that the appropriate orders on her admission of unprofessional conduct would be a reprimand and the ordering of the continuing of the present regime of mentoring and review with Professor Menzies and other colleagues together with attendance on further courses on ethics and note keeping practices. 3. In determining the appropriate order the Tribunal is guided by a number of principles. 4. First, the Tribunal is required to consider the whole of the practitioner's conduct: Gad v Health Care Complaints Commission (2002) NSWCA 111 at [55]. The Tribunal has a wide discretion relating to disposition of a complaint establishing professional misconduct. The circumstances of the particular case will determine the appropriate disposition: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. Accordingly, a finding of professional misconduct might not automatically lead to cancellation of a practitioner's registration, although deregistration may be required to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thus maintaining public confidence in the profession: Health Care complaints Commission v Litchfield (1977) 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3; Saville v Health Care Complaints Commission [2006] NSWCA 298; Prakash v Health Care Complaints Commission [2006] NSWCA 153. 5. Secondly, no order should be made which has more serious consequences for the respondent than is reasonably necessary to promote the protective purpose: NSW Bar Association v Meakes [2006] NSWCA 340 at 113. 6. Thirdly, a finding of professional misconduct does not automatically lead to cancellation of a practitioner's registration: Health Care Complaints Commission v Hanna (No 2) [2017] NSWCATOD 178. 7. In a statement dated 20 November 2017 provided to the Tribunal, Dr Lowick, in summary, states: 1. As a registered psychologist, she has always strived her best to provide the highest level of care possible for my patients, as well as at all times in keeping with the Code of Conduct and Ethics of the APS; 2. The complaint which forms the basis for these proceedings has given her significant cause to review her practices. She viewed this process as a learning experience. She has taken steps to improve her practices in three broad areas: 1. increasing supervision/peer consultation, 2. improving her record keeping, and 3. adopting changes to her communication patterns with clients. 1. Since receiving the initial complaint, she has actively sought to review her clinical practices with her supervisor Professor Ross Menzies. As Professor Menzies does not specialise in treating adolescents, she has taken steps to increase peer supervision from clinicians that treat similar clients, that is, adolescent clients at high risk of suicide suffering complex and multiple presenting issues; 2. She has enrolled in the APS Ethical Decision Making Course, a refresher course for psychologists on the models of ethical decision making and the APS Code of Ethics and Ethical Guidelines; 3. She reviewed and considered the report of Mr Borenstein dated 31 August 2016. She accepts Mr Borenstein's criticism of the text messages which she sent to Client A, including that her language was unprofessional, the absence of tone (in text messages) could lead to blurring of boundaries and misunderstanding and that her use of humour in a text message open to misinterpretation. Therefore, she has reduced the use of texting as a means of communication outside of the therapeutic setting, unless it is required due to safety reasons or for making appointments with patients. When she communicates via text messaging she avoids sarcasm and adopts precise, clear, professional language so as to avoid misunderstandings or misinterpretation. 4. In relation to poor record keeping, she now understands that text messages to clients were not forming part of her clinical records. She now subscribes to Decipher Text Message which saves her text messages to her computer to ensure all messages can be incorporated into my clinical notes. This ensures compliance with the APS Ethical Guidelines. 5. She has also changed her record keeping practices from handwritten notes to the use of electronic note-taking so that there are no issues with the clarity of her handwriting and short note noting. Conclusion 1. We accept Dr Lowick's expressions of remorse and contrition as genuine. Since the complaint Dr Lowick has undertaken changes to her methods of practice. She has ceased using text messaging other than in the formal manner for the communication of appointments and other administrative matters or in circumstances where her patient is unable by reason of distance to attend consultations or in matters of urgency. 2. We accept that Dr Lowick has undertaken a further APS course in ethics. She has undertaken note-keeping courses. She has obtained a software package that allows her to save text and other forms of electronic communication. 3. We accept that Dr Lowick has demonstrated both insight into why the activities she engaged in were unprofessional, that she has remorse for her actions and that she has a commitment to ensuring that to the extent that is capable by consultation with peers and mentors, undertaking courses and instituting further practices, hopefully ensuring that the circumstances giving rise to the complaints will not occur again. 4. The references of Professor Ross Menzies, speak amply of Dr Lowick's core competency as a psychologist, whom he describes as "being among Sydney's most effective child clinical psychologists in managing complex presentations". 5. We accept that Dr Lowick's conduct and attitude since the complaint have involved a proper regard for appropriate acceptance of wrongdoing, the need for retraining and the understanding of the need to engage in professional forms of communication in electronic media. 6. We accept that there is evidence by reason of her acknowledgement of her past errors and her adoption of changed practices in respect of electronic forms of communication that Dr Lowick will safely and skilfully perform her professional duties in the future and that as such her patients in particular and the public in general would have confidence that she will safely and skilfully perform her professional duties. 7. In the circumstances, we consider that the public is sufficiently protected by a public reprimand and the impositions of conditions on her registration. These will appear on the National Register maintained by the Australian Health Practitioner Regulation Agency. As was stated in Hanna (No 2) at [52]: The imposition of a reprimand is a serious matter. It is a public record that a practitioner's conduct has fallen below the standard expected of such a professional. It sends a message of deterrence to other practitioner's and upholds the reputation of the profession. A reprimand can only be removed from the Register on application by the respondent to the National Board. 1. We will impose the conditions substantially in the form sought by the Commission. We note that, at least in relation to mentoring, Dr Lowick accepts that conditions should be placed on her registration. Costs 1. It is well established that this is a costs jurisdiction and that costs follow the event: Qasim v HCCC [2015] NSWCA 282; Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182; Health Care Complaints Commission v Philipiah [2013] NSWCA 342. 2. Clearly, the Commission has been successful in establishing Complaints One and Two, and is entitled to its costs in relation to those complaints. However, the conduct the subject of Complaint Three was the conduct the subject of Complaints One and Two. On the other hand, one of the critical debates at the hearing and in the oral submissions was whether the admitted conduct the subject of Complaints One and Two amounted to professional misconduct. It was suggested during the hearing by the respondent's counsel that the Tribunal consider, if Complaint Three was found not to be established, that the Tribunal order the respondent a percentage of the Commission's costs. 3. We will allow the parties the opportunity to reach an agreement as to the appropriate costs order, and to advise the Tribunal accordingly. If the parties cannot reach an agreement, the Commission is directed to file submissions as to costs within two weeks, the respondent may respond within a further two weeks, and the Commission may reply within a further week if necessary. 4. Our preliminary view is that the question of costs should be determined "on the papers", and without a further hearing. A further hearing would add to the costs already incurred, lengthen the proceedings and not facilitate the just, quick and cheap resolution of the real issues. However, if either party considers it appropriate for a hearing to be held on the issue of costs, their submissions should address that issue. Other 1. The Australian Health Practitioner Regulation Agency (AHPRA) maintains a Register of Practitioners for each health profession. The Register can be searched and allows the reader to see publicly available information including the practitioner's qualifications and whether the practitioner has been reprimanded or conditions have been placed on their registration. This is information that informs and protects the public. 2. The respondent has been identified by the Commission as Ms Catherine Elise Denshire, as this is the name under which she is registered. However, the respondent actually practices under the name of Dr Elise Lowick. We were concerned to realise that a search of the Register in the name of LOWICK, will not reveal the conditions we will impose on her registration. 3. We note that the AHPRA website warns readers that the registration name of a practitioner may be different to the name they use to practise. This appears to us not to be in the best interests of the public, or the profession, and we would have thought that there should be a requirement that any practitioner inform AHPRA of the name under which they practise, so that the Register best informs and assists the public in seeking information about their health practitioner or potential health practitioner. Orders 1. For the above reasons the Tribunal makes the following orders: 1. Complaint One is established in relation to Particulars (1), (2) and (3). Particular (4) is not established; 2. Complaint Two is established; 3. Complaint Three is not established; 4. The respondent is reprimanded; 5. The following conditions are placed on the respondent's registration in relation to mentoring: 1. the respondent is to nominate a registered psychologist who is senior to her, in terms of years spent practicing as a clinical psychologist, to act as her professional mentor, within 21 days of this order being made. 2. the Psychology Council of NSW (the Council) is to consider and approve the mentor nominated by the practitioner; 3. the respondent is to provide her mentor with the written judgment of the Tribunal in respect of this matter; 4. the respondent and her mentor are to meet for one hour on a once-monthly basis; 5. the mentor is to provide the Council with written confirmation of the regularity, duration and content of meetings once every three months and the respondent is to authorise the release of this information; 1. The following conditions are placed on the respondent's registration in relation to supervision: 1. the respondent is to practice under Category B Supervision in accordance with the Psychology Council of NSW's Compliance Policy – Supervision; 2. the respondent must nominate a supervisor who is senior to her, in terms of years spent practicing as a clinical psychologist, and who specialises in treating adolescents within 21 days of the date of this order being made; 3. the Council must consider and approve the specialist nominated by the practitioner; 4. the respondent is to provide her supervisor with the written judgment of the Tribunal in respect of this matter; 5. the supervisor is to monitor the Respondent and provide indirect supervision; 6. the supervisor is to be readily available to provide advice, assistance or indirect supervision as required; 7. the supervisor may practice at a location separate to where the respondent practices but must be contactable by phone to provide advice or assistance as required; 8. the supervisor and the respondent are to engage in hour-long meetings on a fortnightly basis; either in person or via an electronic application that facilitates audio and visual contact (for example, Skype); 9. the supervisor is to provide written reports to the Council on the frequency, duration and content of the meetings with the respondent once every three months and the respondent is to authorise the release of this information; 10. the supervisor is to determine the content of the fortnightly meetings, although focus should be given to the respondent's engagement with adolescent clients; 11. the respondent is to provide the supervisor and the Council with a list of all adolescent clients she currently treats in her practice of clinical psychology who are aged between 12 and 18. The supervisor is entitled to review the respondent's conduct of her adolescent cases on a random basis and without advance notice to the respondent; 1. The following conditions are placed on the respondent's registration in relation to record auditing: 1. the respondent is to submit to an audit of her practice by a person or persons nominated by the Council: 2. the auditor is to examine and assess the practitioner's clinical record keeping; 3. the respondent is to authorise the auditor to provide the Council with a report on their findings; 4. the audits and subsequent reports are to occur at intervals as determined necessary and appropriate by the Council. 1. The following conditions are placed on the respondent's registration in relation to training and education: 1. the respondent is to provide the Council with written evidence of her compliance with Psychology Board of Australia's Continuing Professional Development Registration Standard on an annual basis; 2. the respondent is to provide the Council with written evidence of her completion of the online course "Professional Boundaries" offered by Davaar Consultancy within 6 months of this order being made; 3. the respondent is to complete within six months of the date of this order, an appropriate professional development course/seminar on child/adolescent clinical psychology, to be approved by the Council and: 1. Within three months, the respondent must provide evidence to the Council of enrolment in the course; 2. Within one fortnight of completing the course, the respondent is to provide evidence to the Council of satisfactory completion; 1. The appropriate review body for any amendment or deletion sought by the respondent in respect of the conditions set out at paragraphs (5) to (8) above is the NSW Civil and Administrative Tribunal; 2. The respondent is responsible for any and all costs associated with compliance with the conditions set out in paragraphs (5) to (8) above; 3. The conditions set out in paragraphs (5) to (8) above are to be monitored by the Council; 4. The reprimand particularised in paragraph (4) and the conditions set out in paragraphs (5) to (8) above are to be placed on the public register; 5. The conditions set out at paragraphs (5) to (8) above are to be in place on the respondent's registration for a period of 12 months from the date of this order. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2018