Civil and Administrative Tribunal New South Wales Medium Neutral Citation: HCCC v Stanton [2019] NSWCATOD 58 Hearing dates: 8 April 2019 Date of orders: 24 April 2019 Decision date: 24 April 2019 Jurisdiction: Occupational Division Before: J Millbank, Senior Member P Walker, Senior Member M Crowley, Senior Member R Kusuma, General Member Decision: (1) Pursuant to a finding of professional misconduct, under s 149C(4)(a), the Tribunal would have cancelled the practitioner's registration as a psychologist if he had still been registered; (2) The National Board is required to record the fact that the Tribunal would have cancelled the practitioner's registration had he still been registered per s 149C(4)(c); (3) The practitioner may not apply for a review of these orders for a period of 3 years from the date of the orders per s 149C(4)(b); (4) Pursuant to s 149C(5A) of the National Law, the practitioner is prohibited from providing any health services as defined by s 4 of the Health Care Complaints Act 1993 (NSW), whether on a paid or voluntary basis, until such time as this Tribunal orders that he may re-register as a psychologist; (5) The respondent to pay the applicant's costs of these proceedings as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW); (6) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) a prohibition on the disclosure or publication of the names of Patients A and B, listed in the schedule to the complaint, and of all other patients identified in the evidence. Catchwords: TRADES AND PROFESSIONS – Psychology – sexualised interactions with two patients – massaging one patient during a psychology consultation – sex with another patient Legislation Cited: Health Practitioner Regulation National Law (NSW) 2009 ('The National Law'); Health Care Complaints Act 1993 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; HCCC v Litchfield (1997) 41 NSWLR 630; HCCC v Bergmeier [2014] NSWCATOD 75; HCCC v Firth (No 2) [2015] NSWCATOD 84; HCCC v Karalasingham [2007] NSWCA 267 HCCC v Philipiah [2013] NSWCA 342; Sabag v HCCC [2001] NSWCA 411 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Daniel Stanton, also known as Daniel Rouse-Stanton (Respondent) Representation: Counsel: N Evans (Applicant) L Lloyd (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Kennedys (Respondent) File Number(s): 2018/00281051 Publication restriction: Non publication and non disclosure of the names of Patients A and B listed in the schedule to the complaint, and of all other patients identified in the evidence. REASONS FOR DECISION Background 1. The practitioner first registered as a psychologist under the name Daniel Stanton in 2005. He completed a Master of Psychology (Forensic) in 2009. Although he states that he has a certification qualification in massage therapy, the practitioner could not remember when he achieved it, or from what institution. 2. Sometime after 2011 the practitioner began using what is his current legal name, Daniel Rouse-Stanton, and so both names are referenced in this decision. 3. Mr Rouse-Stanton is 42 years old. After 10 years of practice within the Department of Corrective Services, Mr Rouse-Stanton entered private practice in 2014, originally practicing across three locations south of Sydney, later reducing to two and then, from 2015, one. In his career Mr Rouse-Stanton has specialised in the treatment of sex offenders. 4. These proceedings concern Mr Rouse-Stanton's sexual misconduct with two female patients, Patient A in September and October 2014 and Patient B in March 2016. 5. The practitioner at all times conceded the conduct concerning Patient B, save for one particular, but denied some of the conduct concerning Patient A. At the hearing the HCCC was granted leave to amend the complaint to a narrower range of conduct concerning Patient A, and the practitioner conceded the totality of that amended complaint. The Tribunal has disregarded any evidence relating to the original broader complaint, including passages of the peer expert report. 6. The conduct with Patient A comprises interactions over a number of days in late September and early October 2014. Patient A had twice consulted the practitioner about workplace difficulties, during which she also disclosed to him her marital difficulties and alcohol dependence. 7. At that time the practitioner had both a psychology practice and a massage business and his Facebook page referred to both services. Following the second psychology consultation, Patient A contacted the practitioner about his massage services through Facebook. 8. The practitioner exchanged a number of text and Facebook messages with the Patient of an increasingly sexualised nature concerning a proposed massage session scheduled for the evening of 3 October 2014. 9. On 28 September 2014 during the third psychology session the practitioner instigated an unplanned massage. During this massage the Patient was partially unclad and her breasts were exposed. That session took place on a Sunday afternoon within a Medical Practice setting. 10. Following that session the practitioner sent a series of messages concerning a proposed 'sensuous and indulgent' massage scheduled for 3 October at the Patient's home or other 'quiet' place, offering feathers, scented oils and silk for 'the most deeply satisfying and blissful night.' 11. When the Patient sent a text message indicating that she now felt uncomfortable about the unscheduled massage which had occurred, and cancelling the scheduled massage, the practitioner, among other things, invited her to meet him in a sauna to discuss it. 12. The practitioner learnt of Patient A's complaint on 10 October 2014. On 12 October 2014 he attended his GP and presented to Shellharbour Hospital. He was prescribed medication but not admitted to the hospital. 13. The practitioner commenced seeing a psychiatrist, Dr Victoria Kim, on a bimonthly basis in November 2014 with a diagnosis of acute stress disorder. At that time he undertook a small number of consultations with a psychologist, Ms Murray-Scherf, but did not pursue a regular course of treatment with her after January 2015. He states that he took anti-depressant medication 'on and off' over the following 18 months. 14. Following a complaint concerning Patient A the Psychology Council held a section 150 hearing on 9 January 2015. The Council did not have access to the text message exchange between the practitioner and patient. At that hearing the practitioner stated that Patient A had 'insisted' on a massage within the psychology session, and that he had reluctantly and hesitantly agreed to provide a brief therapeutic massage of about 10 minutes duration. On the basis of the practitioner's admissions in these proceedings, we now know this to be a false and self-serving account of what occurred. This finding is reinforced by the uncontested evidence that the practitioner had brought a kit of massage equipment with him, including oil, to the psychology consultation. 15. Furthermore, the practitioner's account to the Council of the text messages following the massage was that: the Patient sent him a text about her appearance which he had 'gently shut down'; he then had asked, as he always did with any massage patient by way of follow up the next day whether she had any pain or discomfort following the massage, and when the Patient responded 'saying yes she slept great and she feels relaxed and she feels good', 'That was the end of the conversation.' The record of text messages in evidence in these proceedings makes it is apparent that this account was false. Any fair reading of the lengthy exchange of messages over the following days is that the practitioner persisted in trying to engage with Patient A on an intimate level and to renew physical contact. 16. Based on the practitioner's account in the s 150 hearing, and his informal undertaking not to undertake massage therapy in the future, the Council determined that no immediate action was necessary for the safety of the public. The practitioner continued to practice psychology with no conditions imposed. The practitioner undertook supervision after this time and had regular meetings with his practice manager. 17. Patient B attended the practitioner between April 2015 and March 2016. She consulted the practitioner about depression and domestic abuse. 18. In early March 2016 a friend of Patient B's told her that she had met a man who was a 'counsellor' on a 'casual dating and hook up' site, 'Red Hot Pie'. The friend showed Patient B the man's profile and Patient B immediately recognised the practitioner from photographs. She stated that the profile also referenced tantric massage. The next day the friend reported that she had sex with the man who had also given her a massage. Patient B relayed this incident to her sister. 19. Patient B's sister then engaged in a series of sexualised text messages with the practitioner. She purported to have obtained Mr Rouse-Stanton's phone number from the friend, and the practitioner was initially unaware that she was Patient B's sister. At some later point Patient B made this clear. 20. In the following weeks Patient B had a consultation with the practitioner in which he discussed with her his use of the Red Hot Pie website. He did not document or disclose this conversation nor seek any advice or supervision about it. 21. Subsequently, Patient B texted the practitioner and over the following week they engaged in a series of sexualised text messages. On 29 March 2016 the practitioner visited Patient B at her home for a pre-arranged sexual encounter, which he scheduled in his lunch break between patients. The practitioner also texted Patient B afterwards concerning his enjoyment of the encounter. 22. Patient B discussed the sexual encounter with her sister, who disclosed that she had been in communication with Mr Rouse-Stanton that day and had received an invitation to meet him in a spa room. 23. Subsequently, Patient B communicated in a text message to the practitioner that she was feeling unhappy about the incident. In response the practitioner stated that he had resigned from the psychology practice, and, in more than one message, attempted to dissuade her from making a formal complaint by referencing his own mental health. Among other things he stated, 'I have already lost my job and career please don't destroy me and have me lose my family too.' He also stated that he had 'almost suicided 18 months ago and was hospitalised…' 24. On 31 March 2016 the practitioner went to his GP and was subsequently admitted as an involuntary patient at Shellharbour Hospital on the basis of a manic episode. He was subsequently diagnosed with Bipolar Disorder. On 8 April 2016 the practitioner transferred to a private hospital where he remained for 4 or 5 weeks. Those clinical records were not in evidence. 25. After April 2016 Mr Rouse-Stanton changed to a different (named) treating psychiatrist whom he stated he sees monthly. No other evidence was provided of this treatment. 26. It appears that the practitioner discontinued his supervision relationship and did not respond to communications from the supervisor in April, July and August 2016. 27. Mr Rouse-Stanton states that he is currently taking mood stabilising medication. There are no clinical records regarding Mr Rouse-Stanton's past or present medication. 28. On 16 May 2016 the Council imposed the condition that the practitioner not practise, and in February 2017 the practitioner's registration lapsed. At the present time Mr Rouse-Stanton works full time as a personal trainer. He states that he has no current intention of returning to psychology practice. The Hearing and Evidence 1. The evidence submitted by the HCCC included statements by Patients A and B, the former practice manager, and a peer expert report by Dr Timothy Keogh; none of whom were required for cross examination. 2. The respondent submitted a statement and the report of an independent medical examination by Dr Peter Whetton, who was also not required. 3. Mr Rouse-Stanton attended the hearing and gave oral evidence. He was represented by Counsel with regard to Patient A only. 4. The peer expert report noted that: In considering these issues and in providing an opinion, I am mindful that the therapeutic relationship between a psychologist and a client is regarded to contain a power imbalance. A possible implication of such situation is that the client can be influenced by the opinion and suggestions of the treating psychologist in a way that she may not in her ordinary relationships. 1. Dr Keogh gave the opinion that the multiple boundary violations evidenced in the text communications prior to the massage of Patient A were part of a 'slippery slope' that suggested 'an inadequate appreciation of her psychopathology and management of this and a disregard for the guidelines concerning boundaries and multiple roles with a client…' In his view the text messages both before and after the massage were intimate and sexually suggestive in nature. 2. It was Dr Keogh's opinion that the massage was a 'misuse of a designated consultation' involving the 'introduction of a non-psychological technique of a highly physically intrusive nature' which indicates 'a serious lack of understanding of boundaries or a deliberate intent to disregard those boundaries' on the part of the practitioner. The report notes further: Asking a psychologically vulnerable person to remove her [top and] bra during a psychological consultation who had difficulties of the type that [Patient A] presented, suggests a serious lack of care and respect for her and a serious lack of clinical judgement. 1. The peer expert was strongly critical of the practitioner's conduct and opined that it fell significantly below the required standard. He also noted that none of it was documented in the practitioner's clinical records. Dr Keogh took note of Mr Rouse-Stanton's documentation from the s 150 proceeding, which stated that he was overworking, stressed and burnt out at the time of events with Patient A. He noted that Mr Rouse-Stanton had not sought any form of guidance, supervision or assistance at that time, and so also failed in his professional duty of self-monitoring. 2. Dr Keogh provided a second report concerning Patient B. Again the Tribunal only had regard to that part of the report which concerned the conduct in the amended complaint. In that report Dr Keogh expressed the view that the practitioner had: Stepped completely outside his professional role as a psychologist; Engaged in serious professional boundary violations; Abused the power imbalance inherent in the therapeutic relationship; and Engaged in behaviour which suggests that he had allowed his own needs to dominate, in a trusted professional situation, where the welfare and wellbeing of the client should be paramount. 1. Dr Keogh was strongly critical of the conduct. He noted that: Mr Rouse-Stanton also apparently had expertise in assessing and treating sex offenders, so one would assume that he would have been more likely to be aware of such issues. It is hard to imagine, therefore, that he did not have awareness of the potentially deleterious effects of engaging in sexual behaviour with someone that he was currently treating. The conduct of having sex with a patient whom one is currently treating is clearly prohibited in the Code and represents one of the most potentially damaging things a psychologist could do to a client, whose welfare ought to have be[en] the psychologist's clear priority. There can be NO justification for such conduct ever and it represents one of the most serious boundary transgressions. 1. Dr Keogh was particularly critical of the practitioner's conduct in response to Patient B's subsequent communication that she was distressed about their sexual contact. In Dr Keogh's view this put an improper and harmful burden onto the patient, asking her to understand his mental health and to take care of him because he was at risk of some sort of major breakdown if she did not take care of him (i.e. by not reporting him). 2. The practitioner's position at hearing was that, while he conceded the complaints, his conduct should be viewed in the light of his mental health history and in particular in light of the diagnosis of Bipolar Disorder which he had not received until after the conduct occurred. 3. Dr Whetton's report gave the opinion that Mr Rouse-Stanton 'presents as a significantly unwell man warranting the diagnosis of Bipolar Disorder with probable Complex Post Traumatic Stress Disorder.' 4. Dr Whetton noted that such disorder 'is highly likely to have affected' the practitioner's conduct in that 'his judgement would be lacking, impulsive behaviour may be part of his disorder and lack of foresight and judgement with regards to his actions and possible consequences.' 5. Mr Rouse-Stanton gave evidence that he had not engaged in massage on a professional or paid basis since October 2014, and that he had dissolved the company through which he had conducted that business, Integrative Mind-Body Solutions Pty Ltd. He stated that he does not offer or undertake massage with any of his personal training clients. Issues 1. The practitioner conceded all bar one of the particulars of the complaint, and also conceded that his conduct amounted to professional misconduct. The Tribunal is independently satisfied that all of the conceded particulars are proved to the required standard. The one outstanding particular concerned the practitioner hugging Patient B at the end of a psychology session sometime prior to March 2016. 2. The issues to be determined are: * Did the practitioner hug Patient B at the end of a psychology session? * Is the conduct of such seriousness as to be professional misconduct? * What role, if any, does Mr Rouse-Stanton's belatedly diagnosed mental health condition play in (a) our assessment of the seriousness of his professional failures? And (b) in determining the appropriate protective orders? * What are the appropriate protective orders? Submissions 1. Ms Evans for the HCCC submitted that the practitioner's evidence was unreliable, there were occasions on which he demonstrably lacked candour, and by his own admission his memory was very poor. When there was conflict between his account and that of any other witness, the Tribunal should favour the other account over that given by Mr Rouse-Stanton. 2. The HCCC submitted that the conduct plainly amounted to misconduct warranting cancellation of registration by virtue of the grave boundary violations involving two patients, 18 months apart, and the abuse of a position of trust. 3. In the HCCC's submission the practitioner's oral evidence demonstrated very limited insight in that his focus was largely upon himself and upon the impact which the proceedings had on him; he demonstrated very little understanding of, or concern for, the harm done to the two patients. 4. The HCCC sought a period of three years before the practitioner should be allowed to apply for review of the cancellation order on the basis of both general deterrence message concerning the seriousness of the conduct and because it appeared likely based upon the limited medical evidence and practitioner's own account of his mental health condition that he would be unfit to practice for a considerable period. 5. In the HCCC submission, while all cases of sexual misconduct are serious, this one fell at the more serious end because it involved elements of pre-planning and grooming conduct; it was not a spontaneous, isolated or once-off event. The significant period of time between the complaints, in which the practitioner sought supervision and some treatment but did not remedy his approach to boundary violations, and indeed engaged in even more serious subsequent misconduct, meant that the Tribunal should conclude that there was a very real risk of repetition of the conduct in the future. For this reason the higher threshold of substantial risk to the health and safety of the public, warranting a prohibition order, was also met. 6. The largely unresolved mental health issues of the respondent also meant that the practitioner posed a substantial risk in the practice of other unregulated health services, such as counselling. The lack of evidence from the practitioner's current treating practitioners meant that the Tribunal could have no confidence that his condition was being appropriately managed. 7. Mr Lloyd for the respondent accepted that cancellation and prohibition orders were appropriate in all the circumstances of the case, but argued that a non-review period should be set at two years. This period was said to be appropriate as general deterrence, given the unclear period required for the practitioner to fully regain his mental health, and would be consistent with other cases such as HCCC v Firth (No 2) [2015] NSWCATOD 84 and HCCC v Bergmeier [2014] NSWCATOD 75. 8. The practitioner should be given credit for his admissions and for the fact that, by making them, Patient A was spared cross examination in the proceedings. He had cooperated fully and made appropriate concessions. These admissions should be taken as evidence of his contrition. 9. In the respondent's submission the practitioner's diagnosis in the unchallenged medical evidence should be taken into account as an explanatory factor in his conduct. In particular the 2016 hospital admission should be seen as a powerful mitigating factor concerning the particular that the practitioner had not made treatment arrangements for his patients at the time he abruptly ceased practicing at the end of March 2016. 10. The practitioner should not be judged for failing to diagnose himself in the period between the complaints, as he suffered from a complex condition which also impaired his judgement and ability to assess his own state. 11. The respondent submitted that there was no formal complaint that the practitioner had misled the regulator and he did not give false answers in the s 150 proceedings. Further, his unblemished record for 10 years of practice prior to the events should be taken into account. Findings and Reasons 1. We find that the practitioner was a poor witness, with limited recollection of important events. He also gave evidence which did not sit well with his own admissions, the evidence of other witnesses, and the documentary evidence. For instance while admitting the particular that he had instigated the massage with Patient A and that her breasts were exposed, he then claimed in oral evidence that it was she who had asked for the massage and that her breasts were not exposed. He also claimed that there was no identifying information about him on the Red Hot Pie website and that there was only one photograph of him on the site which did not include his face. Yet Patient B's statement was that she had immediately identified him from the photographs, and no other explanation was offered as to how she came to know of his use of the site. 2. More significantly, Mr Rouse-Stanton gave an account of himself as isolated, paranoid, hypervigilant and cautious at the time of events with Patient B. He stated that he felt at the time like he was 'fighting for his life' in desperately trying to placate and 'win over' the three women he was texting with (Patient B, her sister and her friend), whom he feared were trying to entrap him, possibly in league with the HCCC. In fact he went about arranging sexual encounters with all three women, without even knowing who one of them was, while working full time and in regular contact with his practice manager who saw nothing out of the ordinary in his behaviour at the time. While the text messages are incomplete, there is nothing in them or in the evidence as a whole to support this picture of the practitioner as a desperate and fearful supplicant to the multiple women hounding him. 3. Taken together with our observations of the deeply misleading nature of his account of what occurred with Patient A to the s 150 inquiry, and the misrepresentations he made to others about his 2014 'hospitalisation', discussed below, there is ample basis for our conclusion that Mr Rouse-Stanton is not a witness of truth, despite his admissions concerning the complaints. Did the practitioner hug Patient B at the end of a psychology session? 1. Patient B's account of events was clear, cogent and unchallenged. The practitioner did not deny that the hug occurred, rather he could not recall it. On this basis we have no hesitation in preferring the evidence of Patient B and finding the particular proved to the required standard. Is the conduct of such seriousness as to be professional misconduct? 1. We find that the conduct as proved constitutes a grievous abuse of the therapeutic relationship with Patient A and Patient B, and of the trust placed in psychologists to care for and treat their patients. 2. The totality of practitioner's conduct with both patients is so far below the standard to be reasonably expected of any practitioner of the same training and experience as to be unsatisfactory professional conduct. 3. The sexual relationship with Patient B was improper and unethical, as were his attempts to dissuade her from a complaint. The Tribunal is strongly critical of the practitioner's grossly manipulative conduct in attempting to persuade Patient B not to make a complaint by referring to his mental health in terms that referenced suicidality and hospitalisation. 4. By virtue of the sexualised context in which the massage occurred, and the practitioner's subsequent sexualised communications with Patient A, we find that his conduct towards her was also improper and unethical. 5. Both women were patients under the practitioner's care and both were plainly vulnerable for a number of reasons that were disclosed to him by virtue of the therapeutic relationship. 6. In the circumstances of this case and in light of our findings above, we have no hesitation in determining that the conduct was of such inherent seriousness as to be professional misconduct. 7. While every determination of the gravity of a breach of professional conduct in the context of the National Law must turn on its own facts, it would be a rare case in which a psychologist commencing a sexual relationship with a current patient did not amount to professional misconduct. This is because of the profound seriousness of such a breach, by reason of, among other things: the inherent power imbalance in the treating relationship, the emotional vulnerability of many, if not most, patients seeking mental health assistance, the higher than average proportion of violence and abuse survivors within such a patient population, the breach of trust entailed in the therapeutic relationship when a practitioner places their own emotional and sexual needs at the forefront and loses sight of the patient's needs, and the very high potential for serious harm to patients arising from such a breach. What role, if any, does Mr Rouse-Stanton's diagnosed mental health condition play in (a) our assessment of the seriousness of his professional failures? And (b) in determining the appropriate protective orders? 1. While Dr Whetton's opinion was not challenged by the HCCC we give it limited weight in our analysis of the seriousness of the practitioner's misconduct for the following reasons. Dr Whetton's report was prepared based upon a single consultation, undertaken very shortly before the proceedings, and based almost entirely upon Mr Rouse-Stanton's own account in that consultation of his mental health history. We have expressed our reservations about the candour and credit of the practitioner, whose account formed the basis of much of the opinion. Dr Whetton's report notes that he had access to Mr Rouse-Stanton's 'clinical records' but these were limited to: clinical notes from Ms Murray-Scherf and those from another practice where the current psychiatrist practices. There are no dates given for these records. We note that the practitioner's evidence was that he saw Ms Murray-Scherf on a few occasions in 2014 in the lead-up to the s 150 inquiry and no longer sees her; it is unclear what records were available from the practice where Mr Rouse-Stanton's current treating psychiatrist works. Dr Whetton did not have access to any of the hospital or GP records. In all it appears that Dr Whetton may not have had a current or comprehensive picture of the clinical records. 2. In Dr Whetton's view the practitioner's condition was 'highly likely' to have affected his conduct by reason of impulsiveness and lack of foresight. Dr Whetton also concluded that the practitioner was fragile and had poor self-esteem. 3. The Tribunal formed a very different view of the practitioner's motivation, state of mind and conduct. In its assessment of the totality of the evidence, including Mr Rouse-Stanton's performance in the witness box, the Tribunal, which is also expertly constituted, concluded that the practitioner's conduct was calculated, pre-meditated and predatory in nature. It was not impulsive. Moreover we found that the practitioner's almost exclusive focus on himself coupled with his inability to articulate any real concern for the patients, even after repeated prompting from his own Counsel and the Tribunal, betrayed a very concerning lack of insight or remorse and an almost narcissistic lack of empathy. For example the patients, in his words, 'probably felt foolish, and angry', whereas the impact upon himself had been 'horrific', 'stressful', 'incredibly distressing' and something which he had 'thought he might not survive'. 4. While there is no contest concerning the accuracy of Mr Rouse-Stanton's diagnosis, we are also concerned as to the manner in which, in the past, he has been prepared to make use of his mental health to achieve his own ends. In particular we note that he misrepresented to both Patient B in March 2016 and to his former practice manager in November 2014 that he had 'almost suicided' and 'was hospitalised' in late 2014 (i.e. following Patient A's complaint.) In fact he had presented to hospital, been assessed and given medication, and left. That is to say that, on two separate occasions over a year apart, Mr Rouse-Stanton exaggerated this mental health episode in order to elicit sympathy and support in the context of having to account for his conduct in the face of a complaint. 5. In oral evidence the practitioner attempted to reconcile this issue by saying that he had absconded from the hospital in October 2014 after he realised that he was about to be admitted as an involuntary patient. We do not accept this account as truthful based upon our assessment of the practitioner's poor credibility, and also upon its inherent unlikelihood in the context of the evidence as a whole (including the practitioner consulting with his regular GP the following day for referrals without any attempt to hospitalise him on either a voluntary or involuntary basis, and the fact that the practitioner's wife was a mental health professional who did not appear to take any action to return him to hospital). Even if his account were accurate, we find that it would still be a significant misrepresentation for Mr Rouse-Stanton to describe it as 'being sectioned' or 'hospitalised'. 6. Based on the above findings, we do not accept that his diagnosed mental health conditions mitigate the seriousness of Mr Rouse-Stanton's misconduct except in regard to one particular. That, is, that on 30 March 2016 he terminated his provision of psychological services with immediate effect without making adequate provision for his existing clients. Although he had one day, or at most two days, in which such arrangements could have been made before he entered hospital (where he remained for 5 weeks or so), it is unlikely that the practitioner was in any state to see patients or make referrals, or that he could have done so for his entire full-time client load within that short period. It is not a professional failing that he was unable to undertake such responsibilities while an in-patient himself. Thus while that particular was conceded by the practitioner, we are not critical of his conduct in relation to it. 7. In terms of the protective orders, the practitioner's heath condition was the subject of submissions by HCCC who relied upon Dr Whetton's characterisation of it as 'chronic' and treatment as 'only partially successful'. Although there was no formal complaint of impairment, both parties submitted that the practitioner was currently unfit to practice by reason of his mental health. 8. Mr Rouse-Stanton has sought treatment sporadically and selectively. He presented to hospital on two occasions, both two days after learning of a formal complaint of sexual misconduct. Following the second incident of sexual misconduct he ceased seeing the psychiatrist and the clinical supervisor whom he had seen following the first incident. He presented no evidence of his current treatment or treatment plan apart from naming a psychiatrist whom he says he sees 'roughly' monthly. 9. There is no basis for the Tribunal to have any confidence that the practitioner's mental health is adequately managed, in the sense that there is no evidence before the Tribunal of any continuity of care or any treatment plan. In this context, and in light of our findings as to the seriousness of the misconduct, his condition must be considered as posing a substantial risk to the health and safety of the public. What are the appropriate protective orders? 1. We accept the general proposition advanced by Mr Lloyd that admissions by the respondent, even belated ones, ought to be credited favourably, especially if in doing so they spare witnesses cross examination on potentially distressing subjects. We note however that, apart from one or two details, the practitioner's admissions were limited to matters that could all be confirmed from the documentary evidence, mostly text messages by his own hand. In this light, the credit to be given to the practitioner is diminished somewhat. 2. The Tribunal has found that this is misconduct of a very serious kind. The practitioner has displayed a profound, wilful and repeated disregard of his duties and responsibilities as a psychologist. A finding of misconduct does not automatically lead to removal from practice, a decision about whether the conduct is sufficiently serious to warrant suspension or cancellation of registration is a question of degree and judgment in every case: Sabag v HCCC [2001] NSWCA 411 at [82]; HCCC v Litchfield (1997) 41 NSWLR 630 at 638C; HCCC v Karalasingham [2007] NSWCA 267 at [67]. 3. As is clear from the findings above, the Tribunal concluded that the practitioner showed very little, if any, insight into the gravity of his conduct, and little remorse. The tenor of his evidence was that Mr Rouse-Stanton saw these proceedings as a 'horrific' thing that had happened to him; not a terrible thing that he had caused through his own improper and unethical actions towards two of his patients. 4. Cancellation of registration is the only appropriate order to protect the health and safety of the public in these circumstances. A period of three years before any review application will be permitted is required both because of the general denunciation or 'deterrence signal' that such a period sends to the profession of psychology (and registered health practitioners practicing in mental health fields more broadly), and because the practitioner will likely require a considerable period in which to rehabilitate and reform himself. 5. The conduct occurred with two separate patients 18 months apart. We have found that it was predatory in nature. We have expressed a poor view of the practitioner's candour and his insight. As such we do not have any confidence that the conduct would not be repeated in the future. The higher threshold of substantial risk to the health and safety of the public is therefore met, requiring the imposition of a prohibition order on the provision of health services until such time as the practitioner should bring a successful review application to this Tribunal. 6. For the avoidance of doubt, we note that health services include the provision of any form of massage services and any form of counselling, life coaching or 'talk therapy', whether undertaken on a paid or volunteer basis. 7. It was the position of the parties, and the understanding of this Tribunal, that Mr Rouse-Stanton's current employment in a gym as a personal trainer (in which no form of massage is offered or undertaken by him upon clients) would not fall within the definition of health services captured by the prohibition order. 8. It was the position of both parties that an order of costs against the respondent would follow from the success of the Applicant's case. There are no factors that would militate against such an order: HCCC v Philipiah [2013] NSWCA 342. Orders 1. Pursuant to a finding of professional misconduct, under s 149C(4)(a), the Tribunal would have cancelled the practitioner's registration as a psychologist if he had still been registered; 2. The National Board is required to record the fact that the Tribunal would have cancelled the practitioner's registration had he still been registered per s 149C(4)(c); 3. The practitioner may not apply for a review of these orders for a period of 3 years from the date of the orders per s 149C(4)(b); 4. Pursuant to s 149C(5A) of the National Law, the practitioner is prohibited from providing any health services as defined by s 4 of the Health Care Complaints Act 1993 (NSW), whether on a paid or voluntary basis, until such time as this Tribunal orders that he may re-register as a psychologist; 5. The respondent to pay the applicant's costs of these proceedings as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 6. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) a prohibition on the disclosure or publication of the names of Patients A and B, listed in the schedule to the complaint, and of all other patients identified in the evidence. 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: 24 April 2019