Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Metelerkamp [2018] NSWCATOD 62 Hearing dates: 26, 27, 28 and 29 March, 2018 Date of orders: 02 May 2018 Decision date: 02 May 2018 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member G Purkis, Senior Member J Berg, Senior Member Prof P McNeill, General Member Decision: 1. The respondent is reprimanded. 2. Mentoring: (a) 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. (b) the Psychology Council of NSW (the Council) is to consider and approve the mentor or any alternative mentor nominated by the practitioner; (c) the respondent is to provide her mentor with a copy of these reasons for decision; (d) the respondent and her mentor are to meet in person for one hour on a once-monthly basis; (e) the mentoring relationship is to focus on ethical and professional boundary issues, as well as any other clinical issues which may arise; (f) the mentor may from time-to-time recommend that the respondent undertake individual therapy with a clinical psychologist exploring and addressing any personal issues which may be impacting on her practice and the respondent shall undertake that therapy as recommended by the mentor; (g) 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; (h) the mentoring relationship is to continue for a twelve (12) month period. 3. The appropriate review body for any amendment or deletion of these conditions sought by the respondent is the Council. 4. The respondent is responsible for all costs associated with compliance with these mentoring conditions. 5. The mentoring conditions are to be monitored by the Council as it thinks fit. 6. The existing practice condition imposed on the respondent's registration is hereby removed. 7. Costs are reserved with liberty to apply Catchwords: Psychologist-social and financial relationship formed after termination of therapeutic relationship-held constituted unsatisfactory professional conduct-reprimand and practice conditions imposed-costs reserved Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: HCCC v Do [2014] NSWCA 307 Texts Cited: Australian Psychological Society. (2007). Code of Ethics Australian Psychological Society. (2018). Ethical guidelines for psychological assessment and the use of psychological tests Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Toni Metelerkamp (Respondent) Representation: Counsel: A Petrie (Complainant) R Mathur (Respondent) Solicitors: Health Care Complaints Commission (Complainant) Catherine Henry Lawyers (Respondent) File Number(s): 2017/00194860 Publication restriction: Non—publication order with respect to the name of any patient or former patient of the respondent or any information which might tend to identify such patient reasons for decision Backgound 1. These proceedings are constituted by a further amended complaint in the following terms; The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Psychology Council of New South Wales ("Council") in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr Toni Metelerkamp ("the practitioner") of [address suppressed] NSW being a psychologist registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) 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. BACKGROUND TO COMPLAINT ONE The practitioner was first registered as a psychologist in Australia on 16 January 2009. Patient A was diagnosed with Post Traumatic Stress Disorder ("PTSD") in January 2012 after having worked as a paramedic for the NSW Ambulance Service for approximately eight years. Patient A lodged a worker's compensation claim and received treatment for her PTSD from a number of different health practitioners. Patient A consulted the practitioner professionally for approximately 46 sessions between July 2013 and around 10 April 2014. PARTICULARS OF COMPLAINT ONE 1. The practitioner inappropriately commenced a personal relationship with Patient A sometime in July 2014 in circumstances where the long-term professional relationship was recently terminated on or around 10 April 2014. 2. The practitioner inappropriately commenced a personal relationship with Patient A sometime in July 2014 in circumstances where the practitioner had recently prepared a report for Patient A's application for partial permanent disability benefits on 19 June 2014. 3. The practitioner inappropriately maintained a personal relationship with Patient A in circumstances where in or around August 2014 the practitioner discussed her daughter's medical condition with Patient A and sought support from Patient A shortly after termination of the professional relationship around 10 April 2014. 4. The practitioner inappropriately maintained a personal relationship with Patient A in circumstances where on 2 December 2014 she entered into a significant financial arrangement with Patient A in that they jointly purchased the property [address suppressed] in New South Wales. 5. The practitioner inappropriately maintained a personal relationship with Patient A in circumstances where she failed to seek adequate supervisory advice or guidance in relation to this financial decision referred to at particular 4 above at any time prior to late November 2014, that is, shortly prior to the purchase; 6. The practitioner inappropriately maintained a personal relationship with Patient A in circumstances where in or around May 2015, she commenced co-habiting with Patient A and their respective daughters in their jointly owned property [address suppressed]. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: 1. i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 2. ii. 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 The background to Complaint One is repeated and relied upon. PARTICULARS OF COMPLAINT TWO 1. Complaint One particulars 1, 2, 3, 4, 5 and 6 are repeated and relied upon cumulatively. 2. Complaint One particulars 4,5 and 6 are repeated and relied upon individually. 1. It will be seen that the gravamen of the complaints brought against the respondent revolve around a relationship with a former patient, known for the purpose of these proceedings as patient A. The evidentiary material 1. The parties tendered into evidence a great deal of documentary material, and oral evidence was given by patient A and the respondent. In addition, expert oral evidence was given together with evidence from an experienced clinical psychologist who had provided some supervision of the respondent. We shall refer to this evidence as appropriate during the course of these reasons for decision. 2. The respondent was first registered as a clinical psychologist on 16 January, 2009. She holds a Bachelor of Psychology degree with honours and a Doctorate in Clinical and Health Psychology, both from the University of Newcastle. As a result of a notification made to the Psychology Council a practice condition was imposed on her registration from 30 July 2015 forbidding the respondent from providing diagnostic or case formulation reports or independent assessments to third-party decision-makers in certain circumstances. As it transpired, the rationale for the imposition of this practice condition evaporated, and is our intention that it be removed upon the making of orders in the disposition of these proceedings. 3. The respondent commenced working in private practice as a psychologist upon graduating in 2006. In 2007 she established her own private practice, which specialised in the treatment of first responders suffering from Post Traumatic Stress Disorder ("PTSD"). 4. The respondent first commenced treating patient A for PTSD in July 2013 and continued to treat her until around 10 April, 2014. During this period patient A had attended on the respondent on about 46 occasions for trauma-based therapy. Patient A then requested that she attend on Saturdays, which was not suitable to the respondent. Arrangements were made for patient A to continue therapy with another clinical psychologist in the respondent's practice. The respondent did not provide any treatment to patient A after 10 April 2014, although she did provide a report for patient A to enable her to be considered for benefits on the basis of partial permanent disability on 19 June 2014. 5. In her report of 19 June, 2014 the respondent diagnosed patient A as suffering from PTSD, which she stated was not curable, and was by definition "chronic, requiring lifelong management. Whilst therapy focuses on improving insight, developing skills to moderate symptoms and assisting with recognising the negative impact of particular behaviours, such as avoidance, PTSD symptoms are typically lifelong. Comorbid Depression makes the management of PTSD still more challenging… More likely now is a waxing and waning of symptoms both during and after trauma-based treatment. Even with treatment, reminders of original traumatic events, life stressors or new traumatic events can, and often do, trigger PTSD symptoms." The respondent concluded that patient A was totally and permanently disabled from returning to her pre-injury work as a first responder. 6. What is clear from this report is that as at April 2014 the respondent recognised that patient A continued to be vulnerable to "life stressors or new traumatic events." 7. There is evidence that during the period the respondent was providing intensive treatment to patient A, patient A on one occasion made brief reference to a coffee cup and that perhaps she and the respondent should have a cup of coffee sometime. The respondent, properly, did not respond to this suggestion and it was never raised again by the patient whilst treatment was continuing. The relationship between patient A and the respondent post treatment 1. The evidence concerning the relationship which developed between patient A and the respondent after therapy treatment had ceased consisted of statements and sworn evidence given by both of them. Patient A said that she did not see the respondent in any social context until July 2014 a couple of weeks after the report of 19 June 2014 had been provided by the respondent. She said that they ran into each other in a coffee shop and that this was not a pre-planned event. About a week later patient A telephoned the respondent at her rooms and said that she wanted to meet for a coffee to talk about undertaking a degree in psychology. Patient A said that she felt comfortable in doing so because she was no longer receiving therapy treatment from the respondent. They originally met to discuss whether patient A should commence a psychology degree and later met on a number of occasions over coffee and the occasional meal because they mutually found that they had many common interests. Patient A said that the relationship which developed was completely different to that of patient and therapist and that she had never sought additional support from the respondent during the course of these meetings. In the same way, the respondent said that she did not regard the subsequent relationship as being one of therapist and patient, but rather one of friendship. 2. At some stage the respondent shared brief details with patient A after her daughter had been diagnosed as suffering from cancer. Both of them were adamant that the respondent was not looking for support from patient A, and that no support was given other than, perhaps, an expression of sympathy. 3. Patient A was adamant that throughout the period whilst her friendship with the respondent was developing that she was "functioning well, I was receiving appropriate treatment from my psychologist and psychiatrist and I was improving. The suggestion that (the respondent) sought support from me or that the news about her daughter negatively impacted upon my psychological condition is simply incorrect." 4. After receiving a lump sum payout in October 2014, patient A decided to use it to invest in a property. However, the lump sum was not sufficient to enable her to purchase a property without borrowings, and she had insufficient income to justify the grant of a loan. She approached a friend who was unable to assist her, and then approached the respondent to see whether or not she would be interested in purchasing an investment property jointly. Patient A had found a property which was of interest to her, but it needed renovation. Subsequently, in early December 2014, patient A and the respondent jointly purchased the house property. 5. The purchase price was $900,000. Patient A invested a lump sum of $350,000. They jointly borrowed $590,000 which, on the basis of advice from a mortgage broker consisted of a fixed interest loan of $430,000 and a variable rate loan of $160,000. Although they do not appear to have entered into any formal written agreement, the understanding of each of them was that the loan of $430,000 was to be serviced by the respondent, and the loan of $160,000 by patient A. Their respective responsibilities reflected their available cash flow. Patient A kept records of all expenditure, both by way of capital costs and expenses. When the time came for the property be sold, each would be given credit for all monies paid by each of them, and the net proceeds would be shared equally. 6. There is evidence that at the time of the purchase of that property it was intended that it be leased to provide an income. There is also evidence of difficulties in leasing the property because of its more remote location, and both the respondent and patient A discovered that the cost of renovation was greater than they had anticipated. Accordingly, they jointly agreed that they would each move into and live in the property, and this would enable them to carry out renovations themselves and save rental costs, because each of them was renting a property with a daughter. 7. Accordingly, they both moved into the property which, according to a layout diagram which became evidence in the proceedings enabled them to live in a separate wing at either end of the property and to share a communal kitchen located in the middle. Each of them commenced to reside in the property with a daughter. The allegation of a sexual relationship 1. In the course of managing patient A's workers compensation claim the claims manager, QBE Insurance (Australia) Ltd through its solicitors retained the Huxley Hill Group to conduct a period of observations concerning her activities. A copy of the investigator's report forms part of the evidentiary material in these proceedings. Included within this report are the "field operative's daily notes under the authorship of Stephen Catsicas. Those notes purport to cover a total of 45 hours' surveillance on the day-to-day activities of patient A. After a false start in which Mr Catsicas discovered that he was carrying out surveillance on the wrong person and at the wrong residential address he eventually made enquiries and ascertained that the claimant had jointly purchased a property with the respondent whom he named as her psychologist. He then said, in a report dated 12 June, 2015; "They had apparently been in a relationship for some time. Apparently the claimant's daughters live at this address with her." On 13 June, 2015 Mr Catsicas commenced observations at 6 am and ceased at 12 noon without sighting patient A. There is a notation that "further discreet enquiries revealed that the claimant is a part owner of the property. She does reside there and is in a relationship with (the respondent)." He noted that one of patient A's daughters lived in the same property. Mr Catsicas, in a report dated 16 June 2015 again confirmed that patient A and the respondent "are in a relationship" and that both the claimant's daughters reside at the residence. This was despite the fact that he said that he had observed patient A briefly only as she was driving toward and into the driveway of the property, and despite a notation that she was "not visible as the vehicle had tinted windows." 2. We observe that notwithstanding the declaration made by Mr Catsicas of the Huxley Hill group that patient A and the respondent were "in a relationship", he has not provided one scintilla of information which would justify in any way the conclusion which he stated on three occasions in his reports. Nowhere does he reveal the nature and extent of the source of the information. 3. As it transpired, the insurer through its solicitors forwarded that information to Dr Doron Samuell, a consultant psychiatrist, who had previously provided a report for the insurer. Dr Samuell then notified the Psychology Council that he had formed the reasonable belief that the respondent had behaved in a way that constituted notifiable conduct by having engaged in sexual misconduct in connection with her practice. He said this conduct came to his attention as a result of a factual investigation. He also indicated that there was "possible fraud" which we now know to have been asserted in connection with the issue by the respondent of the report of 19 June 2014. It is this notification that was the catalyst for the investigations concerning the conduct of the respondent which have led to these current proceedings. 4. We should add that we should not be taken to be in any way critical of Dr Samuell who was obliged pursuant to the provisions of the Act to make that notification. Of course, as is apparent from the narration above, the assertions made by Mr Catsicas had no stated factual basis. 5. For completeness, we note that the complainant now makes no allegation of any kind that the respondent engaged in any sexual or intimate relationship with patient A. Indeed, there would have been no basis for any such allegation which was strenuously denied by both of them. We accept that the relationship was one of friendship coupled with a business relationship in the nature of the joint ownership of the property. The erroneous and misleading report of Mr Catsicas does explain how it is that these proceedings came to be initiated. Dr Diane Bull 1. The respondent said that shortly before she entered into the purchase of the property with patient A she consulted and sought advice from Dr Diane Bull. Dr Bull provided three written statements which became evidence in the proceedings and also gave oral evidence. 2. Dr Bull is a Senior Psychologist with many years' experience and formerly held academic positions with the University of Newcastle. She has been in private practice since about 2000 and consulted with a number of practices including the respondent's practice. Dr Bull first met the respondent when she became a student and was her supervisor during her honours year at university. She had worked with the respondent from around 2008 to 2011 in different practices and sometimes in the same clinics but on different days. She had consulted at the respondent's practice two days a week since 2011. Notwithstanding this, Dr Bull described her relationship with the respondent as "professional and we have never socialised on a personal level." 3. The respondent approached Dr Bull in either late November 2014 or early December 2014 seeking her opinion with respect to the proposed purchase of the investment property with patient A. The fact that there had been a conversation was recorded in a book held at the respondent's practice. The respondent told her that she was thinking of purchasing an investment property with a "past client" whom she did not name. Dr Bull was told that the respondent and this patient had been out for several coffees as friends since the cessation of their therapeutic relationship and that a period of about eight months had elapsed since the patient had been referred to another practitioner. Dr Bull advised the respondent "that she could not enter into another client relationship with this client again, if she was going to enter into a financial relationship." Because Dr Bull was aware of the identity of the practitioner who had taken over the care of the patient, she said that she knew the patient must have been a first responder of some kind. She said; "So although I did not know the identity, gender or issues of the particular client I knew the nature of the treatment." Dr Bull also took into account her assessment of the respondent as being scrupulous in advising her that she was satisfied that the respondent could enter into this investment. She said that the conversation probably lasted for 20 to 30 minutes. 4. Dr Bull's second statement was given in response to a report of an expert psychologist retained by the complainant, Mr Sam Borenstein. She asserted that she would have been more comfortable if the therapeutic relationship between the respondent and patient A had ceased 12 months to 2 years earlier but nevertheless she thought that six months was an appropriate interval in the circumstances. Dr Bull also emphasised that the focus of her discussion with the respondent and the basis for her advice was the financial aspect of the arrangement, and not the type of therapy that had been given to the patient. Because she assumed that the patient was a first responder and knew that the new therapist specialised in PTSD, she had sufficient information upon which to base her advice. 5. In elaboration of the matters discussed between them, Dr Bull said that they both referred to the APS Code of Ethics and considered its contents in dealing with the matter. We note that Dr Bull has had significant experience in dealing with matters concerning ethical practice. 6. In her third statement Dr Bull referred again to the timeline dealing with the prohibition of relationships post therapy in the APS guidelines. She said that that timeline was "unclear" as it applied to friendship or business partnerships, although it was explicit in terms of any sexual relationship. As a Program Director of Psychology and as a Deputy Dean of The University of Newcastle, Dr Bull said that; "I am aware that the issue of time-lines for business or other friendships is not covered in the curriculum. Certainly issues of sexual or financial exploitation are covered but there is no training or guidance as to an appropriate timeframe for entering into those relationships that are based on a mutual agreement." 7. Dr Bull also noted that practising in a regional area in NSW, albeit a heavily populated one, there was greater difficulty in maintaining a distance from patients than in a large city such as Sydney. Sometimes it was difficult to reject an approach from a former patient to have a cup of coffee. It was her practice to use her professional discretion to resolve issues, as referred to in the APS guidelines. 8. In oral evidence Dr Bull described her consultation with the respondent as a casual peer consultation rather than any form of supervision of the respondent. She emphasised that her principal concern was the financial arrangement itself and that she did not take into account any possible vulnerability that patient A might continue to suffer which might be exacerbated by a continuing relationship with the respondent, albeit not one of a therapeutic nature. Dr Bull was taken to a number of incidents affecting patient A which indicated from time to time that she was not coping with everyday events, including whilst being on holidays, and was avoidant of expressing her symptoms and was unlikely to list her difficulties, that she had expressed suicidal tendencies and had been admitted to hospital for a period of three weeks. Dr Bull said that if she had known of these matters she would have changed her opinion about the appropriateness of entering into the financial arrangement with the patient. She said that in that she had not enquired about the patient's condition and symptoms, and had not considered them at all that she had failed in her obligation to properly supervise the respondent concerning the proposed financial transaction. The expert evidence 1. Mr Sam Borenstein was retained by the complainant to provide an expert opinion. Mr Borenstein is a clinical psychologist of long-standing, has eminent qualifications and is clearly well-qualified to provide expert assistance to this Tribunal. He was furnished with a great deal of documentation as well as an outline of the history of the complaint and other historical matters in a letter dated 29 June, 2016. 2. In an initial report dated 4 July 2016 based on his review of the extensive documentation, but without apparently having interviewed the respondent Mr Borenstein assumed a number of factual matters. Included in these matters was the fact that the initial complaint was that the respondent was "in an intimate relationship with a former client…..which may have commenced during the therapeutic relationship." However, he noted that both the respondent and patient A denied being in an intimate relationship. He also noted that the complaint alleged that the respondent "may have been an indirect beneficiary of any financial gain to (patient A) as a result of the Workers' Compensation matter." 3. Mr Borenstein had been asked to comment on the circumstances in which the June 2014 report had been issued by the respondent concerning the condition of patient A. As this matter was no longer being pursued in these proceedings, that part of his report was excluded from the evidence. 4. Mr Borenstein described the commencement of a personal relationship between the respondent and patient A within a matter of a few weeks following 46 treatment sessions representing a long-term professional relationship as being "extremely problematic." He described the "professional clinical relationship" as encompassing "a power imbalance" and the transition to friendship from an intensive professional relationship was "contraindicated." He said that there was a potential to complicate patient A's "existing chronic complex psychiatric/psychological disorder, namely PTSD and recurrent Major Depression by allowing for the friendship to develop. I assume [patient A's] issues were well contained and managed in the context of a professional relationship. The progression to a friendship is potentially confusing for the clients, particularly those who are diagnosed with chronic and severe psychological disorders." He was strongly critical of the respondent in forming a friendship with patient A not long after cessation of the therapeutic relationship and thought that her conduct fell significantly below the standard expected of a practitioner with the same training or experience as the respondent. 5. Mr Borenstein elaborated on this matter in the course of his oral evidence. He described the role of the relationship between the psychologist and the patient in the course of therapy as being the most important ingredient in securing a successful outcome. It is in this context that there is a potential for transference and countertransference to occur. He said that the impact that the therapist has on the patient can persist over many months and over years. A short period of time between the end of a therapeutic relationship and the commencement of a personal relationship can create a potential for confusion for the patient and the power imbalance which is a feature of the therapeutic relationship can continue and may lead to problems for the patient. In particular, if the social relationship were to come to an end or, presumably, encounter difficulties the patient may be more vulnerable because of the pre-existing power imbalance. As we understand his evidence, which is consistent with the generally accepted norm in the practice of psychology, it is this potential for harm that militates against the forming of any relationship between a therapist and a former patient until an appropriate interval has passed. 6. Mr Borenstein was also asked to comment on the assistance sought by the respondent from Dr Bull. In his opinion the respondent should have sought that assistance before engaging in any form of relationship with patient A, she should have disclosed to Dr Bull the nature and extent of patient A's condition and treatment, and should have again sought advice before entering into the financial partnership. The property transaction 1. The complainant asserted that in some way, the respondent had taken advantage of patient A in entering into the purchase. This assertion is based to some extent on a misunderstanding of the nature and extent of the transaction. It is clear from the evidence that patient A had capital available to her which she wished to invest which was insufficient for her to purchase a property on her own. Because of her limited income she was unable to secure a loan because she could not adequately service it. She and the respondent agreed to acquire the property in joint names and enter into an agreement whereby there would be an accounting for all expenditure, and any income, and an equal share of net profits on the sale of the property. On this basis, there can be no criticism that the respondent did not put in to the transaction any of her own capital, because her income was sufficient to sustain their joint borrowing capacity. 2. It seems on the evidence that patient A took the initiative in arranging the transaction. It was she who had located the property, retained a mortgage broker to secure a loan, and a conveyancer to act on the purchase. Unfortunately, whether through naïveté or otherwise, no written agreement was entered into to reflect the financial arrangements made between them concerning accounting for and the credit to be given for all expenditure incurred, and which was to be reflected in the quantum of any ultimate payout on the dissolution of what was, at law, a partnership. Furthermore, presumably because a conveyancer and not a solicitor was retained, the property was purchased in joint names as joint tenants. We were initially concerned about the joint tenancy situation, because if patient A were to die, then the property would be owned solely by the respondent as survivor of the joint tenancy. The absence of any partnership agreement may have compromised the capital contribution which patient A had made. In evidence, it seems that neither the respondent nor patient A had understood this impact of buying the property as joint tenants, but both protested that their respective daughters would never allow the survivor to have compromised the estate of the other, because of the inherent trust which they had for each other. However, at the conclusion of the evidence the respondent attested to the fact that she and patient A intended seeking legal advice with a view to formalising the arrangement between them and, as a consequence, severing the joint tenancy. 3. We are satisfied that there is no evidence that the respondent sought to take advantage of patient A in any way in entering into the property purchase. Nor is there any evidence to suggest that the narration of what occurred leading up to the decision to purchase the property, the intention to derive income from letting it, and the circumstances in which they both determined to live separately in the property sharing facilities such as a joint kitchen given by both of them is anything other than true and plausible. 4. We reject any suggestion that in some way the respondent took advantage of patient A in entering into this transaction, and any suggestion that she was financially disadvantaged in any way. The Code of Ethics and Ethical Guidelines 1. The Australian Psychological Society Ltd has developed and published an APS Code of Ethics ('The Code') and complementary Ethical Guidelines ('Guidelines') which became evidence in the proceedings. They are important in two respects. These guidelines can be used to provide assistance in understanding and applying the standard of conduct expected by psychologists generally to be applied by psychologists. Secondly, the respondent and Dr Bull jointly had recourse to these guidelines when seeking to determine the appropriateness of the respondent entering into the property transaction with patient A. 2. The Code requires psychologists, inter alia, to take responsibility for the reasonably foreseeable consequences of their conduct and to take reasonable steps to prevent harm occurring as a result of their conduct. Whilst these responsibilities are obviously directed to current patients, there seems no reason why they should not also apply to former patients. The Code also requires psychologists to refrain from engaging in multiple relationships, but this is obviously directed to current patients. There is explicit reference to a prohibition from engaging in sexual activity with a patient or former patients within a period of two years from the termination of treatment. In this latter case psychologists who wish to engage in sexual activity with a former patient after a period of two years from termination of the service are required to "first explore with a senior psychologist the possibility that the former client may be vulnerable and at risk of exploitation, and encourage the former client to seek independent counselling on the matter." Whilst this matter is obviously directly irrelevant to the circumstances of these proceedings, we note the emphasis on the question of ongoing vulnerability and the risk of exploitation. These latter factors were emphasised by Mr Borenstein in his evidence, and must apply generally to the circumstances of any relationship between a psychologist and a former patient. 3. The Guidelines contain a significant discussion of boundary violations and boundary crossings. In discussing risk factors for boundary violations there is a reference in paragraph 3.3.2 dealing with former clients which is in the following terms: In the case of interactions with a former client, psychologists consider: the extent to which they and the former client can establish an equal relationship whether the client is dependent on the psychologist whether the former client may want to re-establish a professional relationship in the future. Important considerations would include the nature and duration of the psychologist/client relationship. Ethically, the new role must not undo the good of the old role. 1. Whilst, on the evidence, the respondent gave consideration to the above matters before she entered into a social arrangement and became friends with patient A, it is clear, as she conceded, that such consideration was superficial and insufficient in all the circumstances 2. More specifically, in dealing with business partnerships with current or former clients paragraph 3.2.2 of the Guidelines provides that: Psychologists avoid relationships with clients which have the potential for conflict of interest that may interfere with good practice. There is also an elevated risk for a vulnerable former client to be exploited if a psychologist enters into a business relationship with them. We regard this as a significant statement of principle. We observe that guidelines are there to assist in an understanding of a particular matter, but should not necessarily be regarded as constituting a comprehensive and all embracing statement which can be applied to all circumstances. The relevance of paragraph 3.2.2 is to firstly, an elevated risk, secondly to a vulnerable former client, and thirdly to exploitation. We would regard these matters as applying, in principle, to the adverse impact of matters arising out of, or in relation to, the business relationship in addition to any exploitation in the sense of financial or strategic disadvantage. 1. Finally, we note that the Guidelines contain references to boundary management and dual relationships in the context of small communities where it is more common for a psychologist to encounter patients or former patients. Whilst the regional area in which the respondent practices has a large population, we understand on the evidence both of the respondent and Dr Bull that it was not unusual to meet patients and former patients in shopping complexes, coffee shops and the like. Nevertheless, the appropriate professional boundaries need to be maintained to the extent possible. The respondent's case 1. Before considering the respondent's evidence and her response to the complaints made against her, we note by way of background that once the complaint had been received from Dr Samuell the Psychology Council of NSW convened a hearing under section 150 of the National Law. The substantial hearing took place on 30 July, 2015 and the respondent appeared and gave evidence to the Delegates of the Council. At that stage she was faced with allegations that she had been in an intimate relationship with patient A, and that she had been conflicted in furnishing the report in June 2014 because of a "potential for financial gain." The Delegates determined for the purpose of those proceedings that it was inappropriate for the respondent to have written the report in June 2014 at a time subsequent to the termination of the therapeutic relationship. As a result, they imposed a practice condition which, in effect, precluded the respondent from providing diagnostic or case formulation reports or independent assessments to third-party decision-makers "for the purposes of determining issues such as liability, diagnosis, and levels of impairment in relation to work injury damages and other personal injury claims." Without denigrating in any way this decision of the Delegates, we note that subsequently any basis for any criticism of the respondent for having written that report in June 2014 evaporated once all of the relevant factual matters had been revealed to Mr Borenstein. 2. Nevertheless, this practice condition has continued in force and still continues to this day. We are unsure whether the complainant informed the Council that this aspect of the complaints brought against the respondent had been abandoned, but we observe that it is to be regretted that the respondent continued to be burdened by this practice condition in circumstances where it was clear that it was no longer justified. 3. We note also that the respondent was required to respond to certain enquiries initiated by the Council and to provide a great deal of documentation and explanation. We accept the respondent's assertion that all of this has constituted a huge burden on her. 4. The proceedings were amended so that they are constituted by the Amended Complaint in its current form, and the nature and extent of the amendments will become relevant at a later stage when we consider a cost application made by the respondent that part of her costs thrown away by reason of the amendment should be paid by the complainant. For present purposes we observe that on 16 October, 2017 the respondent filed a detailed Response to the Amended Complaint. The respondent admitted that she had engaged in unsatisfactory professional conduct. 5. The respondent also admitted that it was inappropriate for her to have entered into the personal relationship with patient A and that she accepted, having read the report of Mr Borenstein, that she misjudged the timeframe required between ending a therapeutic relationship and agreeing to meet with patient A "to discuss a matter of mutual interest." However, the respondent denied that she had sought support from patient A when she discussed her daughter's medical condition with her, and that such support was given. We accept this denial on the basis of the evidence given in these proceedings by both the respondent and patient A. 6. The respondent denied that in entering into the joint purchase with patient A she had intended in any way to take advantage of her, or that she had disadvantaged her. These allegations were made by the complainant, particularly in the course of cross-examination of the respondent. There is no substance to them for the reasons which we have discussed, and we do not take allegations of this kind into consideration in determining these proceedings. 7. The respondent also relied on the fact that she had sought advice and consulted with Dr Bull before entering into the purchase of the property. Whilst, on the evidence, the motivation of the respondent in seeking such advice and counsel was exemplary, it was clear as it emerged in the evidence that Dr Bull was at a disadvantage because the respondent had not made her aware of the nature and extent of the condition and symptoms from which the patient was suffering to enable Dr Bull to consider whether there was any ongoing vulnerability and susceptibility to adverse effects in entering into this arrangement. Whilst on the one hand it might be thought that Dr Bull should have sought that information, as she conceded, the primary responsibility for furnishing it was that of the respondent. 8. In essence, although conceding that she was guilty of unsatisfactory professional conduct, the respondent denied that she was guilty of professional misconduct. 9. We also wish to refer to a written statement of the respondent dated 29 March 2018 tendered to the Tribunal on the last day of the hearing in response to a request that we had made for information concerning her insight into her admitted misconduct and any expression of contrition and remorse. The respondent gave sworn evidence as to the truth of the contents of this statement. As is clear from the statement itself, it was prepared by the respondent on the evening of 28 March, 2018. The respondent said that she prepared it without access or recourse to her solicitor or barrister. 10. The complainant suggested that the statement might smack of "recent invention" in that it had been so recently prepared. We reject this suggestion. We have had the opportunity of listening to the respondent give evidence in these proceedings for one and half days, much of that time being exposed to cross-examination. We have also read the transcript of evidence which the respondent gave in the course of the section 150 proceedings and statements and information provided by her after initiation of the original complaint. We have no doubt as to the sincerity of the respondent, her integrity and her genuine desire to express the regret which she assuredly feels for having entered into any relationship of any kind with patient A. In stating this we are confining our remarks to considerations of misconduct in the practice of a psychologist. We do not wish any of our comments to be taken by the respondent, and especially patient A, as impacting adversely on their undoubted friendship. We wish to avoid any suggestion that patient A might have of feelings of regret or guilt in having entered into a relationship with the respondent. 11. We set out hereunder, in summary form, the contents of the respondent's statement; * she will never again engage in a relationship of any kind with a former client, and now more fully appreciates "the potential risk of harm to the former client that any non-therapeutic relationship could pose." * she is "deeply ashamed" that she misjudged the situation with patient A and that she was "so naïve. I am now a more humble and self-aware clinician because of the lessons I have learned and I am confident that I will be better able to judge when issues of potential boundary violations arise with existing or former clients in future." * she now recognises that the APS Code of Ethics, although comprehensive, is not "all-encompassing, and therefore it alone cannot offer definitive answers." She said that she should have used that Code in conjunction with her own clinical judgement to appropriately evaluate the situation. * "I now fully understand that potential harm to former clients is difficult, if not impossible, to predict. Even when considering a single aspect of a relationship, where that aspect of the relationship appears equal at one point in time, there is no certainty that the equality will continue. I felt confident in my ability to never harm the patient but I didn't appreciate my inability to control the situation." * she was remorseful that she had unwittingly put patient A at greater risk of harm by forming a friendship with her and subsequently entering into a financial relationship. * she will seek regular supervision and mentoring aimed specifically at identifying situations where the blurring of professional boundaries with current and former patients could arise to avoid problems of this nature occurring in the future. * she believes that her practice could benefit by broadening "my caseload to treat a wider range of client presentations, so that my perspective is more balanced." This observation was made in the context of a practice which specialised in treating first responders. * she will immediately take steps to regularise the financial arrangement concerning the property, and in particular by taking action to sever the joint tenancy Findings on misconduct 1. In order to deal with the question of whether the respondent is guilty of misconduct as alleged, it is necessary to have regard to the statutory definitions contained in the National Law. These are, relevantly, as follows; 139B MEANING OF "UNSATISFACTORY PROFESSIONAL CONDUCT" OF REGISTERED HEALTH PRACTITIONER GENERALLY [NSW] (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following— (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 139E MEANING OF "PROFESSIONAL MISCONDUCT" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means-- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. The respondent conceded that she was guilty of unsatisfactory professional conduct as defined in section 139B(1)(a). There is no doubt that she was correct in making this concession because, as she acknowledged, and as Mr Borenstein said, in entering into the relationships with patient A, both social and financial, at the time that she did her conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. We are so satisfied to the relevant Briginshaw standard. We formally find that the respondent is guilty of unsatisfactory professional conduct. 2. However, there is no evidence of any misconduct of any kind occurring during the course of the treatment of patient A by the respondent. All of the misconduct occurred sometime after the therapeutic relationship had ended. Accordingly, that part of her conduct which was significantly below the standard reasonably expected of her was so confined. In these circumstances paragraph (i) of Complaint One has been established. 3. However, paragraph (ii) of Complaint One is clearly framed by reference to conduct "relating" to the respondent's practice of psychology, and alleges improper or unethical conduct. It is arguable that the use of the words "relating to" may be confined to conduct which occurred in the course of the respondent's work as a psychologist, rather than conduct which, for example, might be said to "arise out of" her practice of psychology. This is a matter which was not argued before us, and in view of our understanding that paragraph (i) applies, it is not necessary that we troubled the parties to make further submissions concerning this matter. Whichever of either, or both of these allegations apply, they clearly arise out of the same conduct, and would attract the same protective orders whether singly or in the aggregate. Accordingly, the unsatisfactory professional conduct which we have found is limited to paragraph (i) of Complaint One. 4. We are not so satisfied that the respondent is guilty of professional misconduct. Whilst clearly the establishment of the relationship constituted an error of judgement, and whilst the respondent had not sufficiently diligently applied herself to a consideration of all of the multiple matters which attended to the commencement of any relationship with patient A, she had attempted to act with some diligence in discussing the matter, albeit insufficiently, with Dr Bull and had been cognisant of the need to consider boundary issues. Furthermore, this happened in the context of an otherwise unblemished practice. There is no suggestion of any deficiency of any kind in the professional services provided by the respondent as a psychologist, and there is every suggestion that otherwise the respondent attended properly and appropriately to all other aspects of her practice. As was said by her counsel, there was a disjunct between the respondent's character and the boundary violation which is the subject of these proceedings. 5. We reject any suggestion that the admitted misconduct of the respondent was such that it would, in any circumstances, justify a protective order in the nature of cancellation or suspension of registration. In these circumstances, there can be no justification for a finding that the respondent is guilty of professional misconduct. Protective orders 1. It is now necessary that we consider what protective orders are appropriate to be made consequent upon the finding of unsatisfactory professional conduct which we have made. In considering such orders we are guided by well-established principles. 2. Some guidance as to these principles is to be found in the judgement of Meagher J in the NSW Court of Appeal in HCCC v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour said: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. Accordingly, in considering the appropriate protective orders, we take into account the misconduct itself, the need to deter other psychologists from engaging in similar conduct, the need to deter the respondent in her practice, and the enhancement of the integrity and reputation of the practise of psychologists in the eyes of the public. We apprehend that the nature of the misconduct is of primary significance in this regard. 2. Having regard to the nature and extent of the misconduct as we have found it, the acknowledgement made by the respondent, the respondent's professed insight and her expression of contrition and remorse, we are satisfied in the circumstances that an appropriate primary protective order should be one of a reprimand. Having regard to the need to ensure that the respondent continues to gain further knowledge and experience concerning professional boundaries, as conceded by her, and her need to expand her experience as a psychologist by venturing into other areas of practice, we propose to formalise arrangements for mentoring which she herself suggested would be appropriate. 3. We note that the complainant sought a costs order, and that the respondent through her counsel has foreshadowed an application for her own costs order. We shall reserve costs with liberty to apply and we note that we have already established a timetable with the parties on the last hearing day to enable this matter to be ventilated before us. Orders 1. Having regard to the finding of unsatisfactory professional conduct which we have made, and the other matters concerning the disposition of these proceedings to which we have referred, we make the following orders; 1. The respondent is reprimanded. 2. 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 or any alternative mentor nominated by the practitioner; 3. the respondent is to provide her mentor with a copy of these reasons for decision; 4. the respondent and her mentor are to meet in person for one hour on a once-monthly basis; 5. the mentoring relationship is to focus on ethical and professional boundary issues, as well as any other clinical issues which may arise; 6. the mentor may from time-to-time recommend that the respondent undertake individual therapy with a clinical psychologist exploring and addressing any personal issues which may be impacting on her practice and the respondent shall undertake that therapy as recommended by the mentor; 7. 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; 8. the mentoring relationship is to continue for a twelve (12) month period. 1. The appropriate review body for any amendment or deletion of these conditions sought by the respondent is the Council. 2. The respondent is responsible for all costs associated with compliance with these mentoring conditions. 3. The mentoring conditions are to be monitored by the Council as it thinks fit. 4. The existing practice condition imposed on the respondent's registration is hereby removed. 5. Costs are reserved with liberty to apply ******** 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 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: 02 May 2018