Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Cox [2019] NSWCATOD 16 Hearing dates: 19, 20, 21 November 2018 Date of orders: 22 January 2019 Decision date: 22 January 2019 Jurisdiction: Occupational Division Before: O Shub, Principal Member J Haigh, Senior Member M Crowley, Senior Member B Radcliffe, General Member Decision: (1) The practitioner's registration is cancelled pursuant to s149C(1)(b) of the National Law. (2) The practitioner cannot reapply for registration for a period of at least one year pursuant to s149C(7) of the National Law. (3) The practitioner is prohibited pursuant to s149C(5) of the National Law from providing any of the following health services whether provided as a public or private service unless and until registered as a psychologist: (a) therapy; (b) counselling; (c) psychotherapy; (d) welfare services (as defined in s4 of the Health Care Complaints Act 1993); (e) any other mental health service; (f) clinical supervision or psychology students; and/or (g) any other alternative/healing healthcare/therapies. (4) That the Respondent pay the complainant's costs pursuant to clause 7 Schedule 5D of the National Law as agreed or assessed. Catchwords: Psychologist – Registered Health Practitioner – where practitioner concedes he is guilty of professional misconduct – failure to observe appropriate boundaries – allegations of drug and alcohol abuse Legislation Cited: Health Practitioner Regulation National Law (NSW) Drug Misuse and Trafficking Act 1985 Health Care Complaints Act 1993 Cases Cited: Briginshaw v Briginshaw (1983) 60 CLR 336 HCCC v Litchfield (1977) 41 NSWLR 630 Bannister v Walton (1993) 30 NSWLR 699 Gad v Health Care Complaints Commission (2002) NSWCA 111 at [55] Health Care Complaints Commission v Do [2014] NSWCA 307 NSW Bar Association v Meakes [2006] NSWCA 340 at [114] NSW Bar Association v Hamman (1999) NSWCA 404 Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441 and 471 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Jaimie Kelvin Cox (Respondent) Representation: Counsel: Ms L Thomas (Applicant) Ms Stevens (Respondent) Solicitors: L Cannon (Applicant) Colin Biggers & Paisley (Respondent) File Number(s): 2018/00205899 Publication restriction: The names of Patient A, Person A, B and C are suppressed. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2018] NSWCATAD 111 Date of Decision: 29 May 2018 Before: Emeritus Professor G D Walker, Senior Member File Number(s): 2018/00077198 REASONS FOR DECISION Background 1. The Practitioner obtained a Doctor of Philosophy with Specialisation Psychology in 1996 from the University of New South Wales. He was first registered as a psychologist in 1999. 2. He worked in a sole practice in Parkes NSW in premises located at his family home from 2004 until 2017 after which he was suspended as a result of proceedings held by the Psychology Council of New South Wales (the Council). 3. The Practitioner began a therapeutic relationship with Patient A on 20 April 2012. The Practitioner saw Patient A on 16 occasions and the therapeutic relationship ended on 27 June 2012. 4. It was alleged against the Respondent that either during the period of the therapeutic relationship, or within a very short time thereafter, a personal relationship developed between the Respondent and Patient A and, therefore, the Respondent is in breach of the observance of boundaries as required of a psychologist. 5. A complaint was brought to the Tribunal in terms of which the Commission complained that the Respondent, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (I) of the Health Practitioner Regulation National Law (NSW)("National Law") in that the practitioner has: i. 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 ii. engaged in improper or unethical conduct relating to the practice or purported practice of psychology. PARTICULARS OF COMPLAINT ONE Conduct occurring within the therapeutic relationship 1. Between 20 April 2012 and 27 June 2012, the practitioner breached professional boundaries during treatment sessions with Patient A in that he said to Patient A words to the effect of, "you are a very handsome man" and, "if you ever want a relationship I can give you whatever you want". 2. Between 20 April 2012 and 27 June 2012, the practitioner breached professional boundaries in that he drank alcohol during his treatment sessions with Patient A. 3. Between 20 April 2012 and 27 June 2012, the practitioner acted unethically in that he consumed alcohol in front of Patient A before consulting other patients of his practice. 4. Between 20 April 2012 and 27 June 2012, the practitioner breached professional boundaries by leaving cigarettes, two handwritten notes and a poem entitled, 'Can you hear me' in Patient A's letter box. 5. On 20 April 2012, the practitioner breached professional boundaries in that after the first treatment session with Patient A, the practitioner invited Patient A to his home for a social visit, and offered Patient A alcohol to drink in circumstances where Patient A had disclosed that he was previously a heavy drinker. 6. Between 20 April 2012 and 27 June 2012, the practitioner breached professional boundaries in that he saw Patient A in a social context at his home on several occasions whilst he was involved in a therapeutic relationship with Patient A. 7. Between 20 April 2012 and 27 June 2012, the practitioner breached professional boundaries in that he saw Patient A in a social context at his home on several occasions and drank alcohol with Patient A whilst he was involved in a therapeutic relationship with Patient A. 8. Between 20 April 2012 and 27 June 2012, the practitioner: a. inappropriately gave Patient A Dexamphetamine 5mg in loose tablet form without a prescription on approximately 10 occasions; b. supplied Patient A Dexamphetamine 5mg in loose tablet form on approximately 10 occasions in contravention of the Drug Misuse and Trafficking Act 1985. 9. On 27 June 2012, the practitioner saw Patient A for his final session. During that session, the practitioner failed to: a. discuss with Patient A his future needs; b. arrange for a referral for Patient A to a psychologist or psychiatrist to address any remaining symptoms. 10. Between 20 April 2012 and 27 June 2012, the practitioner failed to maintain adequate records for his treatment of Patient A in that he failed to: a. refer to treatment goals or the methods used by the practitioner in his treatment of Patient A; b. include a sufficient level of specificity in order to evaluate Patient A's progress in relation to the stated treatment goals; c. record progress or change in Patient A's coping skills, self-regulation or behavioural strategies; d. refer to the DSMV criteria, to treatment provided, or progress made by Patient A regarding developing skills for managing mood and stress, when corresponding about Patient A to other clinicians including: i. Dr Wen (Jenny) Jing, General Practitioner, on 28 April 2012; ii. Dr Julian Short, Consultant Psychiatrist, on 24 May 2012; Conduct occurring after the therapeutic relationship had ended 11. Sometime after 27 June 2012, the practitioner inappropriately commenced a personal relationship (friendship) with Patient A in circumstances where the practitioner had recently ended a therapeutic relationship with Patient A. 12. Sometime after 27 June 2012, the practitioner inappropriately consumed alcohol at his home with Patient A on several occasions in circumstances where Patient A had disclosed to the practitioner that he had previously been a heavy drinker and where the practitioner had recently ended a therapeutic relationship with Patient A. 13. Sometime after 27 June 2012, the practitioner inappropriately smoked cannabis at his home in front of Patient A on several occasions in circumstances where the practitioner had recently ended a therapeutic relationship with Patient A. 14. Sometime after 27 June 2012, the practitioner inappropriately purchased food for Patient A to cook at his family home, including at the practitioner's father's birthday, in circumstances where the practitioner had recently ended a therapeutic relationship with Patient A. 15. Sometime after 27 June 2012, the practitioner inappropriately asked Patient A to purchase alcohol for him, in circumstances where the practitioner had recently ended a therapeutic relationship with Patient A. 16. Sometime after 27 June 2012, the practitioner inappropriately provided Patient A with his business banking details to allow Patient A to withdraw funds for his personal use. 17. Sometime after 27 June 2012, the practitioner inappropriately provided Patient A with the following in circumstances where the practitioner had only recently ended a therapeutic relationship with Patient A: a. cigarettes; b. plants; c. mobile phone credit; d. alcohol; e. a tattoo; f. jewellery; g. shoes; h. shirts; i. a flight to Cape Tribulation, Queensland in 2014; j. accommodation and transport for several short trips; k. cash payments. 18. Sometime after 27 June 2012, the practitioner breached professional boundaries in that he made arrangements for Patient A to be employed as a casual gardener for the practitioner's parents, in circumstances where the practitioner had recently ended a therapeutic relationship with Patient A. 19. In 2013, the practitioner unethically and improperly asked Patient A for around 25 tablets of Xanax which had been prescribed to Patient A, for his personal use. 20. Around June 2015, the practitioner breached Patient A's confidentiality in that he advised Person A to have an HIV test, after Person A had unprotected sexual intercourse with Patient A, in circumstances where Patient A had disclosed to the practitioner that he was HIV positive during his therapeutic relationship. Conduct in dealing with the Commission and the Council 21. On 4 September 2017, in correspondence to the Commission, the practitioner breached s99 of the Health Care Complaints Act 1993 when he attempted to mislead the Commission regarding the accuracy of the clinical records produced by Ochre Health Medical Centre, Parkes. 22. On 14 July 2016, during a Council Appointed Practitioner (CAP) assessment with Consultant Psychiatrist, Dr Anthony Samuels, the practitioner failed to disclose: a. his significant history of illicit drug use and dependency; b. his significant history and current issues with alcohol use; c. his significant history and current issues with benzodiazepines. Each of the particulars of Complaint One 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 Professional Misconduct is justified. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 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 As for Complaint One. PARTICULARS OF COMPLAINT TWO 1. Complaint One and the particulars thereof are repeated and relied upon both individually and cumulatively. Admissions 1. Prior to the hearing, the Respondent in his reply admitted a large number of the particulars of the complaint and admitted that his conduct constituted unsatisfactory professional conduct and professional misconduct. Onus 1. It is trite that the onus of proof rests with the complainant, the Commission. In considering whether the onus has been discharged, the Tribunal must be comfortably satisfied that that onus has been discharged. Briginshaw v Briginshaw (1983) 60 CLR 336. The Issues 1. The central issue in this matter is whether the Respondent is guilty of unsatisfactory professional conduct and/or professional misconduct. Having regard to the admissions by the Respondent that his conduct constitutes unsatisfactory professional conduct and professional misconduct, and having regard to the significant number of the allegations made against him, having been admitted by him, we are satisfied that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct. 2. The next issue which arises is the determination of the appropriate protective orders in the circumstances. A decision on appropriate orders requires consideration of all the alleged acts and breaches of boundaries by the Respondent to determine what orders are necessary for the protection of the public and the protection of the psychology profession both of which are fundamental in the determination of protective orders. In order to consider the seriousness of the behaviour of the Respondent and, therefore, appropriate orders, it is necessary for the Tribunal to address each allegation. The Tribunal will address only those particulars that are in dispute. 3. In respect of Particular 1, the Respondent denies that he breached professional boundaries in making certain comments about Patient A being a handsome man and if he ever wanted a relationship he could give him whatever he wanted. The Respondent denied this allegation and having heard the evidence of the witness and having weighed up the evidence of both the Respondent and Patient A we are not comfortably satisfied that that allegation has been proven. 4. In respect of Particular 2 that the Practitioner breached professional boundaries in that he drank alcohol during his treatment sessions with Patient A. We had available to us the evidence of the Respondent and the evidence of Patient A. Patient A's evidence was to the effect that the Respondent drank from a blue glass, an orange liquid which he stated was a vodka mix. The evidence of Patient A was that he knew it was alcohol as he could smell the alcohol that was being consumed. We were not satisfied that this allegation was proven as the Tribunal was concerned that vodka is known to be an alcohol which does not have a particular smell and accordingly could not find this allegation proved. 5. In respect of Particular 3, that the Practitioner acted unethically in that he consumed alcohol in front of Patient A before consulting other patients of his practice, we had available to us the evidence of the Respondent, Patient A and an employee of the Respondent, Ms Kimberly McLennan. She gave evidence to the effect that she has been employed by the Respondent since March 2008 and while she said that she cannot speak as to what the Respondent does when she is not at work, before or after hours, she has never known him to have a drink of alcohol during consultations with patients. She stated that she believes that she would have noticed this over the course of nine years if that were the position. In the circumstances, we are not satisfied that this particular has proven. 6. In respect of Particular 5, it was alleged that on the date of the first visit by the Respondent and after Patient A had left the Respondent's premises, the Respondent telephoned Patient A and invited him to make a social visit and offered Patient A alcohol to drink in circumstances where Patient A had disclosed that he was previously a heavy drinker. 7. The Respondent denied this allegation and gave evidence to the Tribunal, which was not challenged, that the appointment with Patient A and the alleged time of a telephone call to Patient A to attend his home for drinks that evening made it impossible for Patient A's allegation to be correct. 8. In information provided by the Respondent to the Commission in respect of this allegation, the Respondent pointed out that based on Patient A's version of events, he telephoned Patient A at around 5.30/6.00pm and that Patient A arrived at his premises for a drink at approximately 6.00/6.30pm. He stated that according to his records, the appointment with Patient A on 20 April was scheduled for 5.00pm and that an initial consultation would normally run for over one hour. As such, he stated that it is likely that Patient A's appointment ended at around 6.15pm on that day. He stated that he also recalled that Patient A left the premises immediately after his appointment on 20 April and did not return on that day. He stated that he did not have any further contact with Patient A until his second session on 23 April. This statement by the Respondent was not challenged and in the circumstances we are not satisfied that this particular has been proved. 9. In respect of Particular 8, that the Practitioner inappropriately gave Patient A dexamphetamine tablets on several occasions, the Respondent denies this allegation. We had available to us the evidence of the Respondent and Patient A. We had to balance the allegation by Patient A on the supply of dexamphetamine with the evidence given by the Respondent under cross‑examination when he denied that he had given Patient A dexamphetamine tablets in the period between 20 April 2012 and 27 June 2012. This evidence was to the effect that he did not have any dexamphetamine tablets at that time. He stated that the last prescription which he had for dexamphetamine was in 2011 and this evidence was not challenged in cross‑examination. In addition, the medical records provided to the Tribunal in respect of the Respondent do not indicate prescriptions for dexamphetamine post‑2011. Accordingly, we are not satisfied that this allegation is proven. 10. In respect of Particular 9, it is alleged that the Respondent saw Patient A for his final session and failed to discuss with Patient A his future needs or arrange for a referral for Patient A to a psychologist or psychiatrist to address any remaining problems. The Respondent denied this allegation in his reply but in his evidence under cross‑examination the Respondent was referred to the fact that there was no record on his notes relating to Patient A that indicated a discussion or referral to a psychologist or psychiatrist. The Respondent had indicated that at an early stage he had recommended that Patient A should see Dr Short, a psychiatrist, but that Patient A had not gone to see him. In cross‑examination on the fact that there was no record of such a discussion, the Respondent stated that he agreed that no note means that it was not discussed. Accordingly, we are satisfied that Particular 9 has been proven. 11. In respect of Particular 13, where it is alleged that the Practitioner inappropriately smoked cannabis at his home in front of Patient A on several occasions in circumstances where the Practitioner had recently ended a therapeutic relationship with Patient A, the Respondent denied this particular. 12. Patient A did describe in detail where the Respondent kept cannabis, and spoke about having gone to parties with the Respondent at which cannabis was consumed. He informed the Tribunal that the consumption of cannabis took place in front of him but that he does not smoke cannabis. He stated that he found it to be bad for him. We find that it is improbable that in the period of the whole friendship that existed between Patient A and the Respondent, the Respondent never used any cannabis when Patient A was present. 13. In respect of Particular 15, where it is alleged that the Practitioner inappropriately asked Patient A to purchase alcohol for him in circumstances where the Practitioner had recently ended a therapeutic relationship with Patient A, the Practitioner admitted that he had asked Patient A to purchase alcohol but denies that it was ever requested for him alone, rather that it was for both of them. We are satisfied, whether the request was for alcohol for both Patient A and the Respondent or for the Respondent alone, the requests made of Patient A to purchase alcohol are proven. 14. In respect of Particular 19, it is alleged that the Practitioner unethically and improperly asked Patient A for around 25 tablets of Xanax which had been prescribed to Patient A for his personal use. The Practitioner denied this particular and stated that he had stopped taking Xanax some considerable time before 2013. He stated that the last prescription that he had for Xanax was on 19 June 2012 and that this would have lasted him until he ceased taking Xanax. He was cross‑examined on the time when he would have no longer had Xanax tablets having received a prescription on 19 June 2012. The prescription was for 2mg which he stated was a very strong dose and he would occasionally take a 2mg but mainly would take Xanax once per day having divided a tablet into either half or a quarter. He was asked whether that prescription would have been exhausted by the end of 2012 to which he replied, yes, and confirmed that therefore during 2013 he would not have had any Xanax. The explanation given to us was in our view plausible and if the Respondent had been off Xanax from the end of December 2012, we are prepared to accept that it was unlikely that he would have requested 25 Xanax tablets in mid‑2013 when he could in that period of time have easily obtained a prescription from his own GP. 15. In respect of Particular 20, where it is alleged that the Practitioner breached Patient A's confidentiality in that he advised a person to have an HIV test after that person had unprotected sexual intercourse with Patient A in circumstances where Patient A had disclosed to the Practitioner that he was HIV positive during his therapeutic relationship. This particular caused the Tribunal some considerable difficulty. 16. Patient A alleged that he had been told that the Respondent had a discussion with a particular person who advised him that he had had unprotected sex with an unnamed person in Parkes and that the Respondent informed that person that he should have an HIV test as he had had sex with Patient A who was HIV positive. 17. The Respondent's version of the facts is that he had met that particular person who had informed him that he had had unprotected sex with an unnamed person in Parkes. The Respondent stated that he informed the person that if he had had unprotected sex with anyone he should have an HIV test but that he did not inform the person of the name of Patient A. The Respondent stated that he was aware that the reference was to Patient A because the particular person pointed in the direction of where Patient A lives in Parkes. 18. The Tribunal had available to it a statement by Person A whose statement indicated that the particular person had a discussion with Person A who informed him that he had heard that Patient A was HIV positive. He stated in his evidence that he asked who had told him that and then added "I feel like he said Jaimie but I am not sure". He went on to say that he believed that he was referring to the Respondent who was a person that Patient A had introduced him to as a friend and psychologist. 19. Whether or not the Respondent mentioned the actual name of Patient A, once he was aware that the discussion he was having with this particular person related to Patient A, the Respondent should have been extremely careful about what he said to the particular person about the status of a person of whose HIV status he was aware and that he had acquired that knowledge in his capacity as a treating psychologist of Patient A. In the circumstances, the Tribunal is satisfied that the allegation of a breach of confidentiality has been proven. 20. In respect of Particular 21, it is alleged that the Practitioner breached s99 of the Health Care Complaints Act 1993 when he attempted to mislead the Commission regarding the accuracy of the clinical records produced by Ochre Health Medical Centre, Parkes. The Respondent denies that he sought to mislead the Commission and in his evidence pointed out numerous examples of medical records that did not or could not relate to him. This position was taken by the Respondent right from the outset when he pointed out that there were a number of records which had nothing whatsoever to do with him. In some instances, the alleged consultations with the Respondent were when the Respondent was either not in Parkes or in meetings with his own clients or for various other reasons, and therefore could not relate to him. 21. In addition, the Respondent gave evidence of the fact that to his knowledge there is another person in Parkes named Jamie Cox who is also a patient of the Ochre Health Medical Centre. He came to this knowledge when a parcel was sent by a pharmacy with some prescription medicine for that person (Jamie Cox). It arrived at the address of his parents. When they saw that it was clearly not a prescription for their son, despite the name being similar, the medication was returned to the pharmacy. It was clear that the other 'Jamie Cox' lived at (street name) in Parkes and there were references in the records provided by the Ochre Health Medical Centre that related to the 'Jamie Cox' at (street name), whose date of birth and spelling is different to that of the Respondent. 22. The Tribunal had considerable difficulty with the failure by the Commission to clarify the true position in respect of at least those number of records that were alleged not to apply to the Respondent. The only step which the Commission took to ask the medical centre was to confirm that the medical records were correct and having received that confirmation, proceeded without any attempt to prove what is their onus to prove, that records denied by the Respondent were in fact relating to the Respondent. The Tribunal is satisfied that where the Respondent denied that a record related to him, that that record should be rejected. The Respondent's position is extremely plausible. Of the multitude of records that were alleged to relate to the Respondent, the Respondent admitted at least 70‑80% of those records as being correctly relating to him and only denied the small balance. It should not have been difficult for the Commission to seek evidence to prove its allegation in respect of those few records that the Respondent denied. Accordingly, the Tribunal is not satisfied that in challenging certain records provided by the Ochre Health Medical Centre that the Respondent attempted to mislead the Commission regarding the accuracy of the clinical records produced by Ochre Health Medical Centre, Parkes. 23. In respect of Particular 22, where it is alleged that on 14 July 2016 during a counsel‑appointed practitioner assessment with consultant psychiatrist, Dr Anthony Samuels, the Practitioner failed to disclose his significant history of illicit drug use and dependency, his significant history and current issues with alcohol use and his significant history and current issues with benzodiazepines. The Respondent denies this allegation and in an attempt to explain his position in regard to the meeting with Dr Samuels, he states that he thought he was there only to answer questions. As he was not asked specific questions about those issues, he failed to give that information. While that explanation may be to some extent explicable as to why he did not give the information, the allegation is straight forward, namely that the Respondent failed to provide that information. There is no suggestion by the Commission that he had done that for the purposes of misleading the psychiatrist or the Commission and accordingly the Tribunal must find that particular proven. 24. It is clear from the above that a significant number of the allegations against the Respondent, which were in dispute, were proven by the Commission and that those allegations so proven constitute a serious breach of the standards expected of a practitioner of the experience of the Respondent. Expert Evidence 1. The Tribunal had before it the expert report of Ms Greta Goldberg in which she was asked to assume a set of facts and to opine on the Respondent's behaviour. In all respects, she stated that subject to proof of each allegation, the Respondent's behaviour fell significantly short of what could be expected of a practitioner of the experience of the Respondent and that it invited her strong criticism. 2. Ms Goldberg was called to give evidence before the Tribunal. In her evidence before the Tribunal she stated that in her view the Respondent lacked insight into his lack of knowledge in regard to boundaries and that if he were allowed to continue practising he would require intensive supervision. She did confirm that in espousing that view, it was based on the version of Patient A. She was asked whether she was aware that the Respondent had made significant admissions in respect of the allegations and was asked whether that would affect her view of his insight. She stated that to some extent it would. 3. Ms Goldberg was not asked to opine on whether the Respondent should be barred from practising as a psychologist. However, the report and the evidence which she gave indicates that subject to various stringent conditions, he could continue to practice. 4. The Tribunal had before it reports dated 14 July 2016 and 5 July 2017 by Dr Anthony Samuel who saw the Respondent on instruction from the Council. In the report of 14 July 2016, Dr Samuel opined that Dr Cox presented as highly anxious at the outset of the interview. His anxiety levels did seem to lessen as the interview progressed. He could find no clear evidence of major psychiatric disorder in the form of an affective or anxiety disorder. He could also find no clear evidence of alcohol abuse or dependence. The Respondent does, however in his view, drink outside Australian drinking guidelines, drinking at least seven standard drinks on Friday and Saturday nights and two or three standard drinks on a Thursday night. In Dr Samuel's view this does constitute a pattern of harmful drinking and he gave him advice in that regard. Dr Samuel noted a family history of mental illness and noted that the Respondent was seen many years ago with a presumptive diagnosis of ADHD by a psychiatrist and treated briefly with dexamphetamine. There is, however, no evidence of a pattern of self‑harming, no evidence of psychiatric admissions and as far as Dr Samuel could ascertain, he must have had some brief periods of depression and anxiety when he was prescribed anti‑depressants by GPs but he did not take those for a prolonged period and was not at that point referred to a psychiatrist. 5. In terms of the boundary violation, Dr Samuel expressed the view that the Respondent was well aware of the Australian Psychological Society guidelines in relation to boundaries involving patients. He refers to the fact that it seems that the Respondent tried to dissuade Patient A from forming a friendship with him but it seems that Patient A was quite persistent. The Respondent acknowledged that he was lonely and that it was nice to have another gay person to have as "a buddy". 6. Dr Samuel stated that it does seem clear that the Respondent is a somewhat isolated practitioner with few professional supports apart from telephone contact with a psychologist in Sydney. He noted that although he does some online CPD training, he seldom goes to conferences and does not often network with other professionals. It seemed that both his professional and personal isolation have contributed to the current situation. Dr Samuel noted that the Respondent seems to appreciate the fact that it was a mistake to have changed the nature of his professional relationship with Patient A and that apart from his denial of any sexual relationship ensuing between them, he also absolutely refutes a breach of confidentiality or any problem of alcohol abuse impacting upon his practice. 7. Dr Samuel was asked whether the Respondent should enter the Council's health program and, if so, what conditions he would recommend. Dr Samuel expressed the view that there is no clear indication for him to enter the impairment program at this time. The only recommendations Dr Samuel made from a psychiatric perspective are that the Respondent should modify his drinking behaviour. He also stated that he would strongly recommend that he engages in a robust CPD program involving attendance at peer review groups perhaps in Dubbo, Orange or another nearby centre and that he does become involved in doing CPD activities that allow him to have interaction with other professionals, particularly conferences. 8. In the report dated 5 July 2017, Dr Samuel stated that he had been asked to conduct a further examination of the Respondent as the Commission had identified medical records during their investigation which indicate a possible health issue and that the Respondent may not have been entirely transparent with Dr Samuel during his first health assessment. 9. In this report and based on the other information gleaned from the records and the consultation with the Respondent, Dr Samuel opined that he can find no clear evidence that the Respondent is currently depressed or anxious or suffering from post‑traumatic stress disorder. There is little doubt from the additional information that he has a significant history of substance misuse. He was dependent on heroin between 1996 and 2000. He was dependent on Benzodiazepines for a prolonged period between at 2007 and probably 2012. There is no objective evidence that he used Benzodiazepines again until a year ago or so when he took some Benzodiazepines on a one‑off basis to deal with dental phobia. 10. There is clear evidence of a pattern of harmful drinking. Dr Samuel stated that the Respondent acknowledged that until a few weeks before his visit, he was drinking 20 standard drinks per week which certainly is way beyond recommended guidelines and does fall into the category of harmful drinking. Dr Samuel noted, however, that the Respondent denied that he was ever intoxicated in the workplace but given his history, Dr Samuel had some doubts about that. In respect of the Respondent withholding of information, Dr Samuel stated that this does raise some questions about his veracity and makes the entire complaint somewhat difficult to accurately assess. 11. In answer to a question of whether the Respondent suffers from impairment within the meaning of the law, Dr Samuel stated that his view is unchanged. At this point, he stated that the only evidence of an impairment within the meaning of the law relates to his pattern of harmful drinking which certainly has the potential to affect his physical and mental health in the longer term. Dr Samuel did, however, note that he was advised that the Respondent has not used alcohol or cigarettes for two weeks and stated that he has completely ceased Benzodiazepine use and has not used heroin since the year 2000. 12. Dr Samuel was called to give evidence. In his oral evidence he stated that in the first assessment he would only have delved into detailed questioning of drug and alcohol issues if that was the core issue and that where the core issues were boundary issues, he would not delve further into drug and alcohol questions. 13. Dr Samuel was asked to comment on the risk that the Respondent might be to the public in the future and what conditions might be appropriate if he were allowed to continue practising. Dr Samuel referred to his first report and added that the Respondent is an isolated practitioner. He thought that some of his answers were glib and that he would have known what things he should have told Dr Samuel about earlier drug use. Dr Samuel expressed the view that the Respondent has some personality traits which make one question how reliable his answers are. Dr Samuel stated that there are risks with him working in an isolated environment without other practitioners around and that if he is allowed to continue practising a range of conditions should be placed on his registration to remove potential risk to the public. 14. The Tribunal had available to it a statement of Margaret Johnson which confirms that she has been providing peer consultation to the Respondent face‑to‑face between 9 October 2018 and 15 November 2018 and that it is her intention to continue providing peer consultation to the Respondent fortnightly for as long as it is required and to continue to address the issues raised in the complaint in those sessions. 15. She was called to give oral evidence and was asked to comment on Ms Goldberg's evidence where she supplied recommendations on conditions of supervision, namely putting a cap on the number of patients per day and wanting to know of all patients' vulnerability. 16. She confirmed that that is her approach to supervision, particularly with a new psychologist. She stated that she could give that type of supervision and subject to client permission, the Respondent's sessions should be recorded and they could go through the recordings in supervision. She stated that she has never had a problem getting client permission and added that even if the Tribunal did not require it, if she was to continue with supervision of the Respondent, she would require it. She also added that role playing is also done particularly in the process of training and it is quite usual. 17. She was asked whether she is aware of the Respondent's history of drug and alcohol abuse. She confirmed that she is and that is one of the issues they would need to work on. 18. In her oral evidence, she stated that she could provide the supervision in her rooms in Orange or remotely or a mix of both. She also stated that she would go to Parkes to inspect the Respondent's rooms and assess his practice systems. 19. In respect of conditions to be placed on the Respondent's registration, if any, she stated that he should have more one‑on‑one supervision, that he should be required to convey more detailed information on each of his clients and in that regard, she stated that she has worked in remote areas on a fly‑in fly‑out basis and that she always ensures that she has documented detailed information of potential dual relationships to disclose to a supervisor. She would also require a risk assessment on every client. 20. She expressed the view that it is not recommended to live and work at the same place. It is not the ideal environment. 21. She indicated that the Respondent should undertake further professional development which can be done through the Australian Psychological Society Institute to include education on private practice and ethics in psychology. Ms Johnson said that one of the things which she would contemplate would be for the Respondent to undergo training as though he were an intern and tick the boxes of everything that an intern would need to learn. That could be for a period of three months and thereafter starting with one or two clients at a time. 22. In light of the evidence that the Respondent has been working in an isolated and less than ideal environment, she was asked about employment opportunities for the Respondent in Orange. She indicated that there is currently a position going with an organisation "Like Minds" and added that there is always an opportunity for psychologists to work in private practices. 23. The Tribunal had a statement from Serena Couchi in which she stated that she commenced providing peer consultation to the Respondent in May 2011 and had continued to provide such peer consultation approximately once per month until the present time. Typically, the consultation sessions with the Respondent were conducted over the phone due to the fact that the Respondent resides in Parkes, however, on occasion she would meet the Respondent for face‑to‑face peer consultation sessions. The sessions are sometimes scheduled but more often the Respondent contacts her as required when he has issues to discuss. However, if she has not been contacted by the Respondent within a month of a previous session, she would contact him to see how he's going. During sessions with Ms Couchi, the Respondent would raise challenging cases which he wished to discuss and would consult with him on issues arising. She stated that the Respondent had previously disclosed to her his past drug addiction problems and struggles with alcohol but he did not state that he had consumed alcohol during or before sessions with clients. He did not discuss Patient A with her at any time between April 2012 and June 2012. She only became aware of the situation with Patient A after the complaint had been brought against the Respondent. 24. She was called to give oral evidence and said that she could continue with her peer supervision and that she could work something out between herself and Ms Johnson. She was asked whether the fact that he did not discuss Patient A with her until the complaint was made was a failure of the peer supervision. She conceded that it was and that it should have come out in supervision. It was put to her in cross‑examination that peer review is dependent on two factors, namely the psychologist needs to be aware of what to discuss and needs to be truthful with a supervisor. She conceded that that would be a correct analysis. 25. She was asked whether in the seven year period of her supervision she had ever inspected some his notes or reports. She did not see any of his notes but had seen some medicolegal reports. Other Witnesses 1. The only other witness called to give evidence was the Respondent's father whose evidence largely supported that of the Respondent although there were differences in some respects. Submissions of the Applicant 1. In summary, the Commission's submissions call on the Tribunal to find that the evidence of Patient A was truthful honest and correct and that the evidence of the Respondent should be discarded. In the protective orders which the Commission were seeking, the Commission stated: 2. The principles to be applied in determining the appropriate protective orders are not controversial and set out in, amongst others, HCCC v Litchfield (1977) 41 NSWLR 630 and Bannister v Walton (1993) 30 NSWLR 699. They include: 1. The protection of the public is of paramount consideration; 2. The maintenance of the high standards of the profession; 3. Deterring not only the particular practitioner but others who may stray from the appropriate standards; a reminder to the profession; 4. To emphasise the unacceptability of the conduct involved. 1. In determining the appropriate order the Tribunal is required to consider the whole of the Practitioner's conduct. Gad v Health Care Complaints Commission (2002) NSWCA 111 at [55]. 2. In Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA with whom Basten and Emmett JA agreed said: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar 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. 1. The jurisdiction of the Tribunal is not punitive, but is protective of the public and the profession: Health Care Complaints Commission v Litchfield at 637. The protective effect of an order may operate either by its direct effect on the Practitioner, or by acting as a deterrent to repetition: NSW Bar Association v Meakes [2006] NSWCA 340 at [114]. The object of protection of the public includes deterring the Practitioner from repeating his or her misconduct and deterring others who might behave in a similar way: NSW Bar Association v Hamman (1999) NSWCA 404. 2. To ensure that the public can place its confidence in the profession, "one element of deterrence is providing an assurance to the public that serious lapses in the conduct of ... practitioners will not be passed over or lightly put aside, but will be appropriately dealt with": Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441 and 471. 3. In considering whether to cancel the Practitioner's registration, it may assist the Tribunal to consider what conditions it would impose on the Practitioner if it did not do so. Some conditions may be so restrictive as to indicate that the appropriate order is cancellation of the Practitioner's registration. In HCCC v Litchfield, the Medical Tribunal suspended a doctor and imposed conditions upon his practice following suspension, including a condition preventing him from seeing female patients without a chaperone. The doctor appealed to the Court of Appeal. Gleeson GJ, Meagher and Handley JJA said: The proper order is that the doctor's name be removed from the Register ... With the greatest of respect the necessity for imposing such conditions on the appellant's registration demonstrated that he was unfit to practice medicine and in those circumstances the only appropriate order was one dismissing his appeal: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 639. 1. The Commission sought orders that: 1. the practitioner's registration is cancelled pursuant to s149C(1)(b) of the National Law; 2. the practitioner cannot reapply for registration for a period of at least two years pursuant to s149C(7) of the National Law; 3. the practitioner is prohibited pursuant to s149C(5) of the National Law from providing any of the following health services whether provided as a public or private service unless and until registered as a psychologist: 1. therapy; 2. counselling; 3. psychotherapy; 4. welfare services (as defined in s4 of the Health Care Complaints Act 1993); 5. any other mental health service; 6. clinical supervision or psychology students; and/or 7. any other alternative/healing healthcare/therapies; 8. that the Respondent pay the complainant's costs pursuant to clause 7 Schedule 5D of the National Law as agreed or assessed. Submissions of the Respondent 1. The Respondent made lengthy submissions in respect of each of the particulars of claim in essence arguing that the Respondent's version of events should be accepted and that it should be found that the Respondent was open and upfront in admitting the major portion of the allegations made against him. 2. In addressing the question of insight, it was submitted that the Respondent has clearly transgressed boundaries and that he has had severe difficulty coming to terms with that. But at the time of filing of his statement, he filed his reply admitting to a large number of the allegations which he has come to over time. It was submitted that the Respondent's admissions of liability in respect of unsatisfactory professional conduct and professional misconduct are very important. It was submitted that the Respondent is prepared to comply with any requirements of protective orders or conditions placed on his registration. Decision of Reasons 1. Having heard and considered all of the evidence presented to the Tribunal including the factual and expert evidence and having heard and considered the submissions made by both parties, the Tribunal is faced with serious conflict between the evidence of the Respondent and the evidence of Patient A. In addition, within the evidence of each of the Respondent and Patient A there is significant conflict between information that was available prior to the hearing and information that became available to the Tribunal through the oral evidence. There are areas where the Tribunal is inclined to accept the version of Patient A and areas where the Tribunal is inclined to accept the version of the Respondent. The Respondent has, however, made significant admissions and accordingly the Tribunal does not have to determine whether the Respondent's is guilty of unsatisfactory professional conduct and professional misconduct but is satisfied that the Respondent is so guilty. In respect of protective orders, the Tribunal is fully aware of the requirements of s3 of the National Law in terms of which the protection of the public is paramount. The tribunal is concerned that the Respondent's behaviour was such that his ability to practice without risk to the public cannot be guaranteed without significant training, both ethical and practical. As such the tribunal is satisfied that it is appropriate to cancel the registration of the Respondent and for it to make significant recommendations to the Respondent as to how to prepare for an application for reregistration. 2. Having considered the risks to the public and what potential exists to eliminate such risks if the Respondent were allowed to continue to practice as a psychologist, the Tribunal is comfortably satisfied that it is appropriate to make the following orders: Orders 1. The practitioner's registration is cancelled pursuant to s149C(1)(b) of the National Law. 2. The practitioner cannot reapply for registration for a period of at least one year pursuant to s149C(7) of the National Law. 3. The practitioner is prohibited pursuant to s149C(5) of the National Law from providing any of the following health services whether provided as a public or private service unless and until registered as a psychologist: 1. therapy; 2. counselling; 3. psychotherapy; 4. welfare services (as defined in s4 of the Health Care Complaints Act 1993); 5. any other mental health service; 6. clinical supervision or psychology students; and/or 7. any other alternative/healing healthcare/therapies. 1. That the Respondent pay the complainant's costs pursuant to clause 7 Schedule 5D of the National Law as agreed or assessed. Recommendation to Respondent 1. The Tribunal recommends to the Respondent that in the period before he is eligible to apply for re‑registration he undertake the full list of conditions which would have been imposed on his registration if he had been suspended: 1. The Respondent should in the coming year attend appropriate courses approved by the Council in respect of ethics, and professional boundaries. In addition, in that period the Respondent should commit to and undergo a full training program with Ms Johnson or some other psychologist approved by the Council equivalent to an intern training program. 2. The Respondent should sit and successfully pass the National Psychology Examination. 3. On application for re-registration, the Respondent should undertake to continue supervision by Ms Johnson, psychologist, or such other psychologist approved by the Council on at least a two weekly basis and that such supervision should be divided between face‑to‑face sessions and sessions which may be held by video or skype. 4. The Respondent should undertake not to conduct his practice from his residence and should undertake to operate his practice from offices where there are at least two registered psychologists. 5. The Respondent should initially undertake to limit consulting to between two and three patients per day escalating over a period of time as approved by the supervising psychologist. ********** 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: 22 January 2019