Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Quan [2018] NSWCATOD 87 Hearing dates: 1 and 2 May 2018 Date of orders: 05 June 2018 Decision date: 05 June 2018 Jurisdiction: Occupational Division Before: Mr R Titterton, Principal Member Mr B Sheridan, Senior Member Dr E Collins, Senior Member Mr G Alder, General Member Decision: 1 Neither Complaint One nor Complaint Two is established. 2 The application for disciplinary orders is dismissed. 3 The Commission must pay the respondent's costs. Catchwords: TRADES AND PROFESSION –– Psychology –– Health Practitioner Regulation National Law Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 Cachia v Hanes (1994) 179 CLR 403 Farquar & Farquar (No. 2) [2008] FamCA 682 Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Health Care Complaints Commission v Cheung [2018] NSWCATOD 10 Health Care Complaints Commission v Ng [2015] NSWCATOD 85 Health Care Complaints Commission v Ovchinnikov [2017] NSWCATOD 62 Health Care Complaints Commission v Philipiah Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Ng v Health Care Complaints Commission [2017] NSWSC 53 Ohn v Walton (1995) 36 NSWLR 77 Onassis v Vergottis [1968] 2 Lloyd's Rep 403 Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mr Ted Quan (Respondent) Representation: Counsel: S Maybury (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent :self-represented File Number(s): 2017/00134142 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the name of Patient A and Patient A's friend XYZ is not to be published REASONS FOR DECISION Summary 1. This is the application of the Health Care Complaints Commission (the Commission) for disciplinary orders against the respondent Mr Ted Quan. The orders are sought pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) (National Law). 2. The Commission makes two complaints against Mr Quan. The first is that he is guilty of unsatisfactory professional conduct (Complaint One). The second is that he is guilty of professional misconduct (Complaint Two). The complaints relate to Mr Quan failing to maintain proper professional boundaries with Patient A, and poor record keeping. 3. For the following reasons, we find neither complaint proved. The Commission is to pay Mr Quan's costs. The Complaints 1. The background to each complaint is identical: At all relevant times [Mr Quan] was a psychologist registered in NSW. [Mr Quan] was employed at the Campus Wellbeing and Support Services at Macquarie University during 2010. At all relevant times [Patient] A was studying at Macquarie University. [Mr Quan] had his first consultation with [Patient] A on 5 January 2010. [Patient] A reported social anxiety, relationship problems and alcohol dependence issues. [Patient] A continued to see [Mr Quan] a further nine times at Macquarie University in 2010 between 7 January 2010 and 8 June 2010. In or around 2011, [Mr Quan] consulted with [Patient] A on at least one further occasion. 1. The five particulars of Complaint One are: 1 During a consultation with [Patient] A on 5 January 2010, [Mr Quan] failed to observe appropriate professional boundaries when he: a. asked [Patient] A about his genital development, stating words to the effect of "do you think you are developing properly compared to males of your age?"; b. asked [Patient] A to remove his pants and underpants; c. touched and purported to examine [Patient] A's penis, moving the foreskin of [Patient] A's penis back; d. said words to the effect of "everything looks normal" following his touching of [Patient] A's penis. e. by reason of actions a. to d. above, engaged in inappropriate behaviour of a sexual nature in relation to [Patient] A. 2. During at least one consultation with [Patient A] A in 2010 and/or 2011, [Mr Quan] failed to observe appropriate professional boundaries when he invited [Patient] A to attend a Ginseng Spa with him to help [Patient] A relax. 3. [Mr Quan] failed to observe professional boundaries when he sent [Patient] A personal text messages for his birthday on at least three occasions between 2010 and 2015. 4. Following January 2010, [Mr Quan] failed to observe professional boundaries when he sent [Patient] A text messages on more than one occasion, asking him how he was, in circumstances where he had engaged in the conduct the subject of: a. particular 1 of Complaint One; and/or b. particular 2 of Complaint One; and/or c. particular 3 of Complaint One. 5. [Mr Quan] failed to keep adequate clinical records in relation to [Patient] A, failing to record: a. the exact nature of the therapy process; b. the exact nature of [Patient] A's presenting problem; c. the treatment plan. 1. The two particulars of Complaint Two are: 1. Complaint One Particulars 1, 2, 3, 4 and 5 are repeated and relied upon cumulatively. 2. Complaint One Particulars 1(a), 1(b), 1(c), 1(d) and 1(e) are repeated and relied upon individually. Preliminary 1. We note that Mr Quan gave his evidence by video from the Czech Republic. The time difference was difficult for Mr Quan, in that he gave his evidence over two days from approximately 1am to approximately 6.30am. Given that Mr Quan was living in Europe, this outcome was unavoidable. We accept that Mr Quan would have experienced tiredness during the course of giving his evidence, and that this accounted for the delay in giving some answers. Nevertheless, it was Mr Quan's decision to give evidence, and to complete the hearing as quickly as possible. Mr Quan's evidence 1. Shortly before the hearing, Mr Quan provided a document to the Tribunal which he prepared on 14 April 2018. Part A of that document is described as his "statement". We set out the relevant parts below: My initial statement to you is that I absolutely did not have any extra ordinary interest in [Patient A], other than a strictly professional one. I say this because [Patient A]'s allegations appear to imply that I had some kind of extra ordinary interest in him. In the time since I first met [Patient A]: I never once had any conversation with [Patient A] outside of a professional session. I never approached him nor socialised in any way with him, even though he had been working in the same office at the university. Not even at campus or staff social functions, I never approached or spoke to him. If I passed him in the corridors or in the lunch areas, I simply nodded a polite hello. I never telephoned him. My interest in him was only professional. After his missed last session, I did follow him up (SMS) because I was concerned about his mood fluctuations, his severe high alcohol usage, and reported opiate usage. I had found a help group (recovery from substance abuse) for him which I wanted him to go to. Also importantly at the end of our last session, [Patient A] had revealed to me that he had suicidal thoughts. When this happens, I am always bound to make follow up. … The facts are: 1. [Patient A] made an initial appointment to see me at the Campus Wellbeing Centre on 5/1/2010. It was over 8 years ago, and it has been hard to cast back to that year (as I will later explain). At that time he was a staff member of Macquarie University in the same office. The service was open to any staff as well. At the time, I was lecturing/tutoring there part-time and had been asked to take on a part-time Maternity locum at the Campus Wellbeing Centre. 2 In all, [Patient A] had made 13 appointments to see me. After the first appointment (re: his main allegation), he made the next appoint for 2 days after. Patients were booked at reception on a first in basis. After his first 10 sessions at Campus Wellbeing, I had not heard from [Patient A] for almost a year when I received a message from him requesting appointments to see me at my other place of work. By this time, I had left my Maternity locum at Campus Wellbeing. And as [Patient A] said in his statement, he had googled to find where I was working. When I got [Patient A]'s request, I did not call him but texted 3 appointments time options for him. (I usually try to give clients 3 time options to make it easy for them.) 3 To my best recollection in all my sessions with [Patient A], I never did a physical examination. That is not the domain of a psychologist. 4 As stated in my earlier replies to the HCCC, my counselling room had no privacy where [Patient A] alleged a physical examination occurred. It had a full glass wall on one side facing a receptionist at her desk. The glass wall was along a busy hallway. Any of my colleagues could look in at any time, and they do. The opposite side of the room was a wide window opening to the main quadrangle with full view from the outside. On that first session, [Patient A] had come for counselling for relationship problems with his girlfriend, and said that he "did not feel normal". As with all first sessions at this service I did a DASS (Depression Anxiety Stress Scale -which I was required by the service to score during the hour session). I then proceeded after establishing rapport, with MSE (mini mental state exam), and psycho-social history. Here, I would have asked the question of [Patient A] if he felt that he had a normal development compared to his peers growing up. I note that in [Patient A]'s statement, his mind at the time took this to mean his physical development. When my question was about his psycho-social development. Nonetheless, as the notes indicated, we continued with the psycho-social assessment of schooling, home environment, siblings, girlfriend, football coaching, and alcohol and substance use. 5 Alcohol monitoring during the time I worked with [Patient A] indicated that he consumed 8 to 20 standards drinks per day, and more than 20 on weekends and at occasions. 6 Opiates (mainly painkillers) was another form of substance that [Patient A] told me he had been using in excess at the time, along with alcohol. He was not able to tell me the quantity. Knowing the variety and amount of drugs will help in directing him to the appropriate level of treatment. I did ask him to see the doctor about it, and to get a drug urine test done. (If he did get a urine drug test done, then a nurse may have taken it from him with gloves on.) [Patient A] looked drowsy, vacant and distant in affect at most of his initial sessions. I made plans to work on his substance usage. Along with working on his social anxiety and mood using a CBT approach, and on his relationship concerns. 7 During my early sessions with [Patient A] in January 2010, he had described to me experiences that was of an imaginary or hallucinatory nature. I was reminded of one in particular due to having written it down as a vignette for my teaching. I came across these vignette notes last year as I was moving. This instance of hallucination (or imagination) related to 6/1/2010, the day after [Patient A]'s first visit and main allegation. [Patient A] had told me the story about going to dinner at the local Chinese restaurant (Shun Shun Palace) with his family and his girlfriend. He said that his girlfriend was having a big "full on" fight with his mother. I asked him how long did this last? He said they are arguing for at least 20 minutes. I asked what did the other members of his family do? [Patient A] replied: Nothing. They did not notice it. Did anyone else in the restaurant notice the "full on" argument? [Patient A] replied no. [Patient A] had told me that he alone had witnessed the whole fight, but no one else did. According to my notes when he saw me on the following day for his second appointment, [Patient A]'s story of a fight between his mother and girlfriend had made him very uncomfortable during dinner at the restaurant. I was not sure what to make of this story at the time. But was more certain that it could be substance induced hallucination when later he told me a story of seeing his father stand in the doorway of his bedroom for 4 hours in the middle of the night, whilst [Patient A] was drinking alcohol. I asked him if his father said anything to him. [Patient A] replied nothing was said in all that time. He had no idea what his father was doing there. 8 As far as I am aware, [Patient A] and I had enjoyed a good and respectful professional relationship between January 2010 and May 2011. He cancelled his last appointment because he had to pick his mother up from the airport. I never saw him again, I cannot even remember what he looks like, and that is the case for most of my clients after a few months I may have no recall. [Patient A] still owes me payment for his last two sessions. Other than texts encouraging him to continue his treatment, and the chance of payment of his arrears. I absolutely did not and do not have any extra ordinary interest in [Patient A]. Even today, I pray that he has recovered from his problems and is now doing well. 1. Mr Quan swore to the truth of his statement. He was cross-examined at some length by Mr Maybury for the Commission about the following matters. Memory generally and events of 5 January 2010 1. Mr Quan: * agreed that his memory was not "great"; * said that it was "probably true" that he had no real independent recollection of his consultation with Patient A; * agreed that he said in his statement 2010 was not a happy year for him, his best friend died, his mother died and another very best friend was dying of heart failure, together with having trouble with painkillers; * agreed that the cumulative burden of personal stressors in 2009 and 2010 affected his behaviour and resulted in him going off work for extended period in mid-2010; * left open the possibility that by January 2010 he was already mentally and professionally overwhelmed and burnt out; * said he could not answer the question whether he was unfit mentally or emotionally to be working in 2010. 1. There was an extended examination about his memory of the location of his consulting room, its configuration the position of windows and the extent to which they were frosted or glazed. Mr Quan rejected the proposition that the answers he had given to his lawyers about these matters (in order to respond to questions from the Council) were designed to exculpate his alleged conduct. 2. He was also examined, and some criticism made in submissions, about his use of the phrase "to the best of his recollection" he could not recall any physical examination of Patient A as alleged, as opposed to outright denying the allegation. 3. Mr Quan agreed that he asked Patient A something to the effect of how he was developing compared with his peers. However, Mr Quan did not agree that * after asking Patient A about his comparative development, asked if he could have a look (at Patient A's genitals); * he asked Patient A to take down or remove pants and/or underpants; * he put on disposable gloves and touched Patient A's genitals; * that he said words to the effect of everything looked normal and that Patient A could get dressed. The hallucination issue 1. Mr Quan was asked about the reference in his statement that: During my early sessions with [Patient A] in January 2010, he had described to me experiences that was of an imaginary or hallucinatory nature. I was reminded of one in particular due to having written it down as a vignette for my teaching. I came across these vignette notes last year as I was moving. This instance of hallucination (or imagination) related to 6/1/2010, the day after [Patient A]'s first visit and main allegation. 1. Mr Quan told Mr Maybury that he no longer had the "vignette notes". Mr Maybury suggested to Mr Quan that this was a fabrication, and had not been mentioned before. Mr Quan said that he "definitely" denied that suggestion. 2. Generally speaking, the Tribunal considered that Mr Quan was trying to co-operate with the Commission, and we had no reasons to disbelieve him. By and large his evidence was consistent with his evidence to the Psychology Council (the Council) during the s 150 proceedings on 13 October 2015. As we have noted above, Mr Quan had to give evidence overnight his time. Evidence of Patient A 1. Patient A prepared a statement dated 10 June 2016. Relevantly he states: 4 In January 2010 I decided that I wanted to see a psychologist. I was having problems with my girlfriend at the time and I was struggling with social anxiety, as in I felt awkward in social situations when I was out and around my girlfriend and her friends, and I thought I had a drinking problem as I was drinking a lot of alcohol. I wanted to see a psychologist and my parents also encouraged me to see one. 5 I knew that there was a psychologist on campus at Macquarie University and it was a free service so I decided to go there. 6 At the first consultation with Mr Quan I explained to him that I was struggling with feelings of social anxiety and problems with my girlfriend. I can't recall everything he said to me but I do recall him asking me words to the effect of "do you think you are developing properly compared to males of your age?" I immediately knew he was referring to my physical development and I remember thinking it was weird to ask a question about my physical development. 7 I recall that Mr Quan then asked me words to the effect of "Do you mind if I have a look?" I felt uncomfortable in agreeing to let him examine me physically but I trusted his judgement and agreed. 8 I recall that he asked me to remove my pants and my underpants and with gloved hands he touched and examined my penis. He also moved my foreskin back. I remember Mr Quan saying words to the effect to of "everything looks normal." 9 I then got dressed. I also remember that at any time anyone could have walked into the room and also that the room had glass frosted panels and I felt uncomfortable that people could see in. 10 For the rest of the consultation we discussed my reasons for seeing him. 11. I had about nine further consultations with Mr Quan. I continued to see him because I trusted him. I can't recall any other occasions other than the first consultation when Mr Quan asked me to remove my clothes and physically examine me. 12 During some of the consultations Mr Quan suggested that I go along with him to what I think is called a ginseng spa as he thought it would help me relax. At the time I thought that his suggestion for me to socialise with him was strange. 13 In or around 2011 my social anxiety was getting worse and I decided that I needed to see Mr Quan again. I googled his name and found that he was located at a practice in St Leonards. I recall I had one or two consultations with him. 14 Since I first saw Mr Quan in January 2010 he has messaged me on my birthday. I recall that he messaged me on my last birthday but I have deleted the messages. I also recall that he has sent me other messages asking me how I am and I recall thinking that these messages were awkward. I have deleted those messages too. 15 It was not until a few years later that I started to question the appropriateness of Mr Quan's conduct in physically examining me as a psychologist. It had always stuck out to me as something unusual for a psychologist to do. 16 In or around September 2015 I saw my friend [XYZ]. I used to work with her at Macquarie University. I know she is a psychologist so I told her about Mr Quan physically examining me at my first consultation in 2010 and she told me that that conduct was not right for a psychologist. 17 [XYZ] encouraged me to make a complaint and so I did. I am also aware that [XYZ] made a mandatory notification about Mr Quan. 1. Patient A swore to the truth of the contents of his statements. He was then asked a large number of additional questions in chief by Mr Maybury. In particular, Patient A explained his delay in bringing a complaint, and his continued attendance at consultations with Mr Quan in the immediate aftermath of the alleged events, by reason of not knowing that there was anything "wrong" or unusual with Mr Quan's conduct. He said that he told XYZ, a personal friend, about the events in question "at a pub". He decided to tell XYZ because she was a psychologist, a personal friend, intelligent, and because he "wanted to know". 2. However, as Mr Quan was not represented, Patient A was not cross-examined by a legal representative. However, Mr Quan asked some limited questions, as did the Tribunal itself. Findings 1. We make the following relevant findings. Background 1. Mr Quan's first language is Cantonese. He has spoken English since second grade. 2. Mr Quan holds a Bachelor of Arts (Psychology) from Macquarie University (1986), a Master of Studies in Psychology from the University of Wollongong (1989) and a Graduate Certificate in Transcultural Health from the University of Technology Sydney (2003). He has been registered as a psychologist continuously from 1 October 1996 to 31 December 2017, at which time he did not renew his registration. He has not had any reprimand or other order recorded on his registration. 3. Mr Quan has been a member of the International Early Psychosis Association since 1996, a member of the Australian Psychological Society since 1997, and has been an accredited Clinical supervisor for the Psychology Board of Australia since 2005. He was a Council Member of the Area Health Advisory Council for the Sydney West Area Health Service from 2005 to 2011, and a Council Member of the Clinical Excellence Commissions from 2008 to 2011. 4. Mr Quan has held various positions over a long career, including Senior Psychologist, Sunnyfield Disability Services (2012 to 2015); Consultant Psychologist, Abode Centre (2006 to 2015); Adjunct Supervisor and Honorary Associate, Macquarie University (2005 to 2015); Senior Psychologist/Head of Team, The Hills Private Hospital (2010 to 2012); and Clinical Supervisor McKesson Asia-Pacific (2006 to 2008). 5. At the time of the alleged incidents the subject of the Complaints, Mr Quan was working at the Campus Wellbeing Centre of Macquarie Hospital, in addition to his teaching responsibilities in the Post Graduate Diploma program in psychology at that university. He took on the clinical responsibilities at the request of the Head of School. 6. It is common ground that Patient A first attended Mr Quan for a consultation on 5 January 2010. Mr Quan's notes for that consultation state: Date: Tuesday, 05/01/2010 12:57 PM Provider: Quan History: Inappropriate for service False Living circumstances with others: Yes Details of living environment: with family (brother 18, sisters 16,12) Employed: Yes Number of employment hours: 35 Current Student: Yes Student Status: Full Time Faculty and or course: B Bus Admin & BA Psych Presenting Problem and history: PP 1. Pattern of mood fluctuations 2. Drinking problem: * drinks/day every second day. 3. Alcoholics in family: dad 4. Anxiety: cannot eat before seeing [girlfriend]: [XXXX], in the past Hx (medical history] Dad aloof Mum warm Do not talk to siblings Sleep: "OK" sleep usually at 3am. Average 4 hours when working, When off: 9 hours. CLINICAL INDICATORS Level of severity 0=None; 1=mild; 2=moderate; 3=Severe; 4=Extremely Severe Risk of harm to self: 1 Effect on functioning: 1 Clinical Plan: 2 Contacted Senior Staff: No PLAN/ACTION Next appointment made: Yes Date of next appointment: 00/00/00 Awaiting client contact,: False Actions: 1. Explore codeine addiction 2. Addictive personality 3. Social approval 4. ETOH counselling ˃reduction 1. Patient A then subsequently attended on Mr Quan on 7 January, 14 January, 21 January, 28 January, 2 February, 9 February, 11 February and 16 February 2010. There was then a break of approximately four months until Patient A saw Mr Quan again on 8 June 2010. The following year Patient A saw Mr Quan on 26 March and 8 April. 2. Mr Quan's clinical notes for 21 January 2010 note an alcohol "problem'. His notes of 8 June 2010 refer to Patient A consuming "10 standard [alcohol] drinks per night; binge once a week on Thurs ([and] sometimes on Saturday as well): 20 drinks+". 3. Patient A first mentioned the alleged incident of 5 January 2010 to a friend, XYZ, at a social event on 22 May 2015. Patient A did not identify Mr Quan at the time, but did so XYZ raised the matter on 18 September 2015. Patient A told XYZ that he intended to make a notification in a few days. He did so on 21 September 2015. XYZ filed her own notification to the Australian Health Practitioner Regulation Agency on 30 September 2015. 4. On 13 October 2015, a hearing of the Council was held pursuant to s 150 of the National Law. At the conclusion of the hearing the Council: * took the view that Mr Quan's practice was well-supported (Transcript, p 26); * considered that there was no risk to the safety of the public (Transcript, p 26); * thought that Mr Quan had "very good" references (Transcript, p 26), and * decided that no urgent action was required at the time (Transcript, p 27). 1. In its written decision dated 3 November 29015, the Council stated, in relation to the acceptability of Mr Quan's conduct, that: If any of the allegations were true, then this would represent unsatisfactory conduct and behaviour for a psychologist. However, the delegates are of the opinion that until such time as more substantial information to support the allegations is available, the delegates are not satisfied that Mr Quan's conduct has been of an unacceptable standard. 1. In relation to whether or not there was a risk to the health and safety of any person/s because of Mr Quan's alleged conduct issues, the Council noted that Mr Quan appeared to have had a long career and an active involvement in many professional and voluntary activities mainly involving work with adolescents and underprivileged people, and stated: Mr Quan gave a detailed description of the protocols for the mobile assessment teams which includes that there are always two clinicians in a room together with any client for safety purposes. The mobile teams may attend hospitals, homes and community mental health centres. Mr Quan reported that he has regular clinical supervision both in a group and individual peer supervision. His current peer supervisor is a psychologist with whom he had previously worked at Sunnyfield Disability Services. Mr Quan emphasised that he is very conscious of the potential for the work he is doing to impact on his own emotional health and well-being and stated that he takes time out from work when he is feeling "down" or "burnt out". Mr Quan indicated that as a result of the impact of the current complaint he is feeling that he would benefit from some "time out" and would be happy to do so if that was the Council's decision. 1. As to whether there were any restrictions required, the delegates were of the opinion that there was insufficient information currently available to be satisfied that any restriction on Mr Quan's practice was justified at this time. The Council noted that Mr Quan had had a long and apparently successful career and stated: The only complaints regarding Mr Quan's practice, of which the Council is aware, were made during the same period in the same workplace. Mr Quan has provided plausible explanations relating to both complaints. The delegates noted that the second complaint was made by a third party and was primarily based on information provided by a colleague at a social event. Mr Quan's current clinical practice is in an environment where policy and procedures dictate that two clinicians always interview clients conjointly. In such circumstances Mr Quan's current clients do not appear to be vulnerable to any risk of harm, notwithstanding his culpability or otherwise of the current complaint. Mr Quan appeared to be open and forthcoming with the delegates and appears to have appropriate professional arrangements in place for on-going group co-consultation and peer supervision. Complaint One, Particular (1) 1. The critical issue in this matter is whether or not the acts the subject of Particular (1) are established. 2. My Maybury for the Commission placed great emphasis on Mr Quan's failure to a make a "flat out denial" of the alleged events. He contrasted Mr Quan's equivocal "I don't recall" and "I don't agree" responses with what he described as Patient A's "very clear and impressive version" of events. Mr Maybury submitted that it was a remarkable feature of the application that despite having the opportunity on any number of occasions to deny the allegations, he has not done so. Mr Maybury submitted that, at best, Mr Quan does not recall, and has attempted to reconstruct events from clinical notes in an attempt to exculpate himself. 3. Mr Quan, for his part, submitted that he had seen thousands of patients over time, and "would be lying" if he said he could remember all his consultations. 4. That said, it is up to the Commission to prove the complaints, it is not up to Mr Quan to disprove them. As the Tribunal noted in Health Care Complaints Commission v Ovchinnikov [2017] NSWCATOD 62 at [8]: The Commission bears the burden of proving the matters particularised in the Complaint on the balance of probabilities. In cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences the more they will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities. 1. This decision was referred with approval in Health Care Complaints Commission v Cheung [2018] NSWCATOD 10 at [23]. 2. And, as the Appeal Panel stated recently in Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [18]: A court or tribunal is informed and persuaded only by the presentation of evidence. Evidence is material which tends to persuade the court or tribunal of the truth or probability of the facts being alleged. Evidence may be photography, documentary or testimonial. But it will only succeed in persuading the tribunal if it appears as being truthful, reliable and cogent. In civil cases the standard or proof depends on the balance (or preponderance) of probabilities. This simply means that a party must prove that their case is more likely than not to be true. If the scales tip in favour of the party, however slight, they have proved their case. But if the probabilities are equal, they have failed to prove their case. In criminal cases the law imposes a higher standard of proof – and that is proof beyond reasonable doubt. 1. In this respect, we bear in mind the guidance of the High Court of Australia in Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 which stated: 10. . . . The "clarity" of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved: see Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 , per Dixon J. (1938) 60 CLR, at p 362 . . . 11. But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge: see Helton v. Allen [1940] HCA 20; (1940) 63 CLR 691 per Dixon, Evatt and McTiernan JJ. (1940) 63 CLR, at p 714. 1. The Tribunal has had to consider "I said/she said" matters in other decision in this Division. In Health Care Complaints Commission v Ng [2015] NSWCATOD 85 the Tribunal had to consider a complaint which alleged digital penetration by Mr Ng of a patient during a consultation. There was expert evidence supporting the practitioner's version of events, that is that the penetration did not take place as alleged and that what the patient "felt" was a referred sensation resulting from manipulation of the abductor muscles. However, the primary task for the Tribunal was to decide whether or not it accepted the patient version of events. The Tribunal said: 128. We found the recent discussion by Sackar J in Campbell v Campbell [2015] NSWSC 784 at [73] to [79] to be of considerable assistance. To paraphrase his Honour: (1) Where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence is of primary importance: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477. (2) The rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation: Camden v McKenzie[2007] QCA 136; [2008] 1 Qd R 39 at [34] Keane JA; referred to with approval by Leeming JA in New South Wales v Hunt [2014] NSWCA 47 at [56]. (3) A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]. 1. The Tribunal also referred at [75] to the dissenting speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd's Rep 403, who stated at 431: a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." 1. (Emphasis added) 2. In Ng there was an abundance of contemporaneous evidence, which we summarised at [139]: … the conduct of Patient A on the day of the consultation, ringing her husband, ringing her work colleague, ringing her sister in law, attending the police station and then attending the sexual assault unit of the hospital, is all consistent with the events as claimed by her taking place. We have set out the evidence of these events above. We note that neither Patient A's husband, her work colleague, her sister in law or any of the hospital staff were required for cross-examination. We accept that their evidence is not determinative of whether or not the acts as alleged by Patient A actually took place, but we find them very supportive of her account, particularly when no malice or improper motive has been suggested by Dr Ng. 1. In the event, we found the complaint established. An appeal by Mr Ng to the Supreme Court was dismissed: Ng v Health Care Complaints Commission [2017] NSWSC 53. 2. In this case, there is no contemporaneous evidence. It may be understandable that Patient A did not want to tell his parents, or the police, or the Commission, or even any friend. But the fact remains that all there is before us is the conflicting accounts of both Mr Quan on the one hand and Patient A on the other. It is one of those cases where the scales have not "tipped" in favour of the Commission, but are in fact balanced. 3. In Campbell, Sackar J at [72] also referred to Evans and Braddock [2015] NSWSC 249 at [70] - [77], a decision of Hallen J. Justice Hallen had noted that Emmett J (as his Honour then was) stated in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 at [48]: When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2). (Emphasis added) 1. Those words are apposite in considering Particular (1). We do not feel an actual persuasion, on the balance of probabilities, that the events the subject of Particular (1) are established. Particular (2) 1. There is a similar issue with Particular (2), that is the allegation that Mr Quan invited Patient A to attend a Ginseng Spa with him to help Patient A relax. The allegation is denied by Mr Quan, who hypothesised that Patient A was confusing his recommendation that he drink ginseng tea to relax, with an invitation to a ginseng spa. It was suggested to Patient A that he might be mistaken. In response he said that "Retrospectively I might have got it wrong". 2. In those circumstances, on the balance of probabilities, we do not find Particular (2) established. Complaint One, Particular (3) 1. Particular (3) states that Mr Quan failed to observe professional boundaries when he sent [Patient] A personal text messages for his birthday on at least three occasions between 2010 and 2015. 2. These text messages were not in evidence. Patient A was not able to give persuasive evidence of their contents, save that the messages coincided with his birthdays. Mr Quan accepted that these messages were sent, but stated that they were sent to follow up on Patient' A's health, and to see whether he needed or wanted another appointment. He accepts that this was not good practice and has ceased to do so. He does not remember the exact working of the texts; neither did Patient A. 3. While we find that the particular is established, we do not find that the conduct amounts to unsatisfactory professional conduct as defined. In short, we are not satisfied that this conduct is conduct is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or expertise. Had we the content of the text messages before us, we may have come to a different view, but the evidence is that these follow up messages coincided with the patient's birthday. Complaint One, Particular (4) 1. Particular (4) is the curiously worded: 4. Following January 2010, [Mr Quan] failed to observe professional boundaries when he sent [Patient] A text messages on more than one occasion, asking him how he was, in circumstances where he had engaged in the conduct the subject of: a. particular 1 of Complaint One; and/or b. particular 2 of Complaint One; and/or c. particular 3 of Complaint One. 1. We have found Particulars (1) and (2) are not established. While we have found Particular (3) established, we have not found this to amount to unsatisfactory professional conduct. 2. It follows that we do not find Particular (4) established. Complaint One, Particular (5) 1. We have set out the text of the clinical note for 5 January 2010 above. The notes for the other consultations were of similar length and detail. 2. In substance, Mr Quan accepted that his clinical notes were brief and inadequate. However, he gave an explanation about this in his statement. This was, in summary that: * time restraints: each psychologist at the Wellbeing Centre was required to greet the client, assess, conduct a session with them, and then complete a DASS. [1] This left 5 minutes to log on the computer to enter notes in a set format; * unfamiliarity: Mr Quan was new to entering notes into the computer, and the computer format was difficult to use. When he saw patient A in January 2010, he had just recently started there; * the hand written notes of Patient A's last two sessions (namely 26 March and 8 April 2018) which were not entered on the Wellbeing Centre system, reflected Mr Quan's usual, more extensive note taking. 1. We have considered the notes clinical notes before us. While brief, we do not accept the expert Mr Borenstein's opinion that their content falls significantly below the standard expected of a practitioner with the same training or experience as Mr Quan. 2. We do not find Particular (5) established. Complaint Two 1. Complaint Two is based on Complaint One being established. As the Commission has failed to establish Complaint One, it follows that the Commission has also failed to establish Complaint Two. Costs 1. The Commission correctly submitted this is a costs jurisdiction, and that ordinarily costs should follow the event: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; Ohn v Walton (1995) 36 NSWLR 77; Health Care Complaints Commission v Philipiah [2013] NSWCA 342. 2. The Commission has been unsuccessful. It must pay Mr Quan's costs. However, as we noted at the hearing, this is generally understood to mean Mr Quan's legal costs. Mr Quan was not represented at the hearing, but there may be costs of advice he has incurred that of which the Tribunal is unaware. 3. We note that: 1. the "costs" that the Tribunal can order to be paid will not include compensation for time spent by a litigant who is not a lawyer in preparing and conducting his or her case: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [107] to [108], referring with approval to Cachia v Hanes (1994) 179 CLR 403 at 409. 2. a self-represented party can recover expenses that they would have been able to recover had they been represented: Farquar & Farquar (No. 2) [2008] FamCA 682 at [8]; cited with approval in Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 at [20]. Orders 1. We make the following orders: 1. Neither Complaint One or Complaint Two is established. 2. The application for disciplinary orders is dismissed. 3. The Commission must pay the respondent's costs. ******** Endnote 1. DASS, the Depression Anxiety Stress Scales, is made up of 42 self-report items to be completed over five to ten minutes, each reflecting a negative emotional symptom: https://en.wikipedia.org/wiki/DASS_(psychology) [accessed 29 May 2015] 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: 05 June 2018