Applicant v Respondent

Supreme Court of Victoria|2010-12-13|Before: OSBORN J

ADMINISTRATIVE LAW - Leave sought to appeal VCAT decision - Appeal limited to questions of law - Reluctance to overturn a decision of an expert tribunal on questions of fact - Requirement for a vitiating error of law - If statutory words are used in their ordinary and natural meaning no question of construction arises - The meaning is a question of fact - Unchallenged finding conduct unprofessional conduct of a serious nature - Open to conclude not infamous conduct as a matter of fact - Discretion as to period of suspension not shown to have miscarried - Leave refused - Grounds of appeal must fail - S v Crimes Compensation Tribunal [1998] 1 VR 83 - Psychologists Registration Act 2000 ss 3, 48 - Health Professions Registration Act 2005 ss 163, 169.

1 The applicant seeks leave to appeal the decision of the Victorian Civil and Administrative Tribunal ('the tribunal') pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998. Such an appeal is limited to questions of law. By order of Zammit AsJ made on 9 July 2010, the leave question and the underlying merits if any, of the appeal are to be heard together.

2 The leave question is governed by principles which are articulated in the case of Secretary to the Department of Premier and Cabinet v Hulls,[1] but having regard to the view I have reached with respect to the substance of the matter it is unnecessary to deal with those principles further in this case.

3 The order of the tribunal which is in issue was set out on the first page of its reasons:

The respondent has engaged in unprofessional conduct of a serious nature within the meaning of s 48(1)(a) of the Psychologists Registration Act 2000, namely, unprofessional conduct within the meaning of s 3(a), (b) and (c) of the definition of "unprofessional conduct" of the Act. The unprofessional conduct relates to -
1. Transgression of professional boundaries by allowing an inappropriate personal relationship to develop between the respondent and ON.

As a consequence :

(i) pursuant to s 48(2)(c) of the Act the respondent is reprimanded.

(ii) pursuant to s 48(2)(g) of the Act the respondent is suspended from practising as a psychologist until 28 February 2011.

(iii) pursuant to s 48(2)(d) of the Act the respondent continue therapy at her own expense for a period of 12 months from this date by a clinical psychologist approved by the applicant Board and the clinical psychologist should provide quarterly reports to the applicant Board which state -

(a) a summary of treatment he/she is providing; and
(b) the respondent's capacity to work ethically and competently as a psychologist.

(iv) pursuant to s 48(2)(e) of the Act a condition is to be placed on the respondent's registration to the effect that at the time of the respondent commencing to practise, she is to be supervised, for a period of at least two years, by a psychologist approved by the Board at the expense of the respondent.

4 The tribunal's order was determinative of a proceeding instituted by a letter of referral which stated:

From on or about February 2006 until on or about June 2007, Ms Mair engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) and/or (d) of the definition of 'unprofessional conduct' in section 3 of the PR Act, in that she engaged in an inappropriate sexual relationship and/or inappropriate social relationship with her

(a) client, Mr X; and/or

(b) former client, Mr X, within an inadequate period of time after the termination of her professional relationship,

thereby entering and engaging in a dual relationship and transgressing professional boundaries.[3]

5 Unprofessional conduct is defined in s 3 of the Psychologists Registration Act 2000 ('the Act')[4] to mean:

"unprofessional conduct" means all or any of the following -

(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered psychologist; or

(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a registered psychologist by his or her peers; or

(c) professional misconduct; or

(d) infamous conduct in a professional respect; ...

6 The proceeding was governed by the Act by reason of the transitional provisions of s 169 of the Health Professions Registration Act 2005. Section 48 of the Act deals with the conduct of the panel, which for the purposes of this proceeding should be read as 'the tribunal'. Section 48 of the Act provides:

48. Findings and determinations of a formal hearing into conduct

(1) After considering all the submissions made to a formal hearing into the professional conduct of a registered psychologist the panel may find that -

(a) the psychologist has, whether by act or omission, engaged in unprofessional conduct of a serious nature; or

(b) the psychologist has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature; or

(c) the psychologist has not engaged in unprofessional conduct.

(2) If the panel finds that the psychologist has, whether by act or omission, engaged in unprofessional conduct of a serious nature, the panel may make one or more of the following determinations -

(a) require the psychologist to undergo counselling;

(b) caution the psychologist;

(c) reprimand the psychologist;

(d) require the psychologist to undertake further education of the kind stated in the determination and to complete it within the period specified in the determination;

(e) impose conditions, limitations or restrictions on the registration of the psychologist;

(f) impose a fine on the psychologist of not more than $2000;

(g) suspend the registration of the psychologist for the period specified in the determination;

(h) cancel the registration of the psychologist.

(3) If the panel finds under sub-section (1)(b) that the psychologist has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature, the panel may make any determination which a panel at an informal hearing is able to make upon making such a finding.

7 The respondent now seeks to challenge the tribunal's order on three general bases:

(a) it was not open to the tribunal to fail to conclude that the respondent was guilty of infamous conduct;

(b) the tribunal took into account irrelevant considerations in characterising the culpability of the respondent's conduct; and

8 The fundamental principles governing the capacity of a party to challenge decisions on the facts by way of an appeal on questions of law were summarised by J D Phillips JA in S v Crimes Compensation Tribunal.[5]

What is the proper meaning, as a matter of construction, of the statutory description which is relevant to the claimant's success or failure is a question of law.

What any statutory provision means will be more or less clear, depending upon what words are used, how they are put together and in what context. If the meaning of the relevant statutory description is clear (at least so far as relevant to the claim), no question arises; if the meaning is unclear, what is the proper meaning must be decided, as a matter of construction, and the first question is whether the words are used otherwise than with their ordinary and natural meaning. That is a question of law...

If the words are used with their natural and ordinary meaning, no further question of construction arises; for "[t]he common understanding of [the] words is not a question of law but of fact": Broken Hill South at 155 per Starke J; see also Brutus v Cozens [1972] UKHL 6; [1973] A.C. 854; Hope v Bathurst City Council at 7; Blue-Metal Quarries at 512; Franceschini at 290-4; Pozzolanic at 287; de Smith, para. 5-086.

...

Once the task of construction is over, the question whether the claimant's particular circumstances fall within the relevant statutory description is essentially a question of fact.

Where an appeal may be brought to the court only on a question of law, the question just identified is peculiarly the province of the tribunal below, not the court:

The determination of that question of fact may depend upon the acceptance or rejection of evidence that is led; it may depend upon a choice between witnesses, and an assessment of their credibility or reliability; or it may depend more directly upon the sufficiency or insufficiency of the evidence that is given. All these things are committed to the tribunal, and not to the court; and although I speak of evidence, the same is true where the tribunal is authorised to obtain information otherwise than from witnesses on oath or to act upon its own expertise. Essentially, the question whether the particular circumstances of the claimant are such as to bring his or her case within the statutory description is a question of fact, not law.

It is in this context that it is sometimes said that where the question is one of degree, involving some element of value judgment, the question is one of fact, not law: Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; [1956] A.C. 14 at 33 per Lord Radcliffe; de Smith, para. 5-084.

...

Nevertheless if, in determining whether the particular circumstances of the claimant are such as to fall within the relevant statutory description, the fact-finding tribunal arrives at a conclusion which was simply not open to it, that is an error of law; and the question whether it arrived at a conclusion which was not open to it is a question of law.

The result below may have been the product of the tribunal's misapplying the statutory description in a case where the facts that were found could have led only to the conclusion opposite to that reached by the tribunal (and the error in that regard may be exposed in the reasons given for the decision or it may lie hidden). Or it may have been that the tribunal's conclusion depended upon a finding of fact which was simply not open to it on the evidence (or other material, if relevant) in which case that conclusion was not open to it. It is this last that shows how something which is otherwise a finding of fact may become relevant on an appeal which can be brought only on a question of law.

...

9 The rationale of the proposition that if words are used in their ordinary meaning, no further question of construction arises was elaborated by Lord Reid as follows:

The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word " insulting " being used in any unusual sense. It appears to me, for reasons which I shall give later, to be intended to have its ordinary meaning. It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense diat no tribunal acquainted with the ordinary use of language could reasonably reach that decision.

Were it otherwise we should reach an impossible position. When considering the meaning of a word one often goes to a dictionary. There one finds other words set out. And if one wants to pursue the matter and find the meaning of those other words the dictionary will give the meaning of those other words in still further words which often include the word for whose meaning one is searching.

No doubt the court could act as a dictionary. It could direct the tribunal to take some word or phrase other than the word in the statute and consider whether that word or phrase applied to or covered the facts proved. But we have been warned time and again not to substitute other words for the words of a statute. And there is very good reason for that. Few words have exact synonyms. The overtones are almost always different.

Or the court could frame a definition. But then again the tribunal would be left with words to consider. No doubt a statute may contain a definition - which incidentally often creates more problems than it solves - but the purpose of a definition is to limit or modify the ordinary meaning of a word and the court is not entitled to do that. [6]

10 The present case is concerned with questions of degree regarding elements of value judgment.[7]

11 The application of the relevant principles in the present case gives rise to three further matters which should be highlighted before I go to the facts which are in issue.

12 First, the Court will be reluctant to overturn the decision of an expert tribunal on questions of fact, in respect of which it has particular expertise. It is plainly the intention of Parliament that the expert tribunal decide the facts and not this Court. In the present case, the tribunal included two psychologists. Their understanding of the area of professional practice in issue must be given due deference.[8]

13 Secondly, the effect of the third principle identified by J D Phillips JA in the present case is that the applicant must show the tribunal was bound to reach the conclusion for which the applicant now contends. This is a heavy onus. As Brooking JA said in Ericsson (Australia) Pty Ltd v Popovski:[9]

It is a strong thing to reach such a conclusion in a case where the burden of proof lies on the appellant, who is therefore submitting not that an affirmative finding had no evidence to support it, but that the evidence was such as to necessitate an affirmative finding which was not made. [10]

14 Thirdly, an error of the type identified in the third category of cases to which J D Phillips JA refers will not vitiate a decision unless it is a relevant finding of fact critical to the decision.[11]

15 The fundamental question raised by s 48(1) of the Act was whether the psychologist had engaged in unprofessional conduct of a serious nature. The statutory scheme did not, in terms, require the tribunal to determine whether such conduct constituted infamous conduct in a professional respect. At least in a borderline case it may not be strictly necessary for the tribunal to definitively characterise the unprofessional conduct in terms of the alternatives offered by the statutory definition.

16 In the present case, the amended letter of referral[12] alleges the 'Unprofessional conduct' is constituted by the cumulative recital of all of the alternatives referred to in the definition. If the tribunal correctly characterised the conduct as unprofessional conduct of a serious nature and then imposed an appropriate penalty, it is difficult to see that a vitiating error of law could be said to be involved in the subsidiary characterisation of the alternatives provided for by s 48.

17 Insofar as the ultimate question for the tribunal, of whether or not there was unprofessional conduct of a serious nature, I have been referred to the observations of Kellam J sitting as the President of the tribunal in Parr v Nurses Board of Victoria.[13] His Honour commented that whether a person is found to have engaged in unprofessional conduct of a serious nature must depend on the facts of the case.

Clearly such conduct would not be serious if it was trivial or of momentary effect only at the time of the commission or omission by which the conduct was so defined. It must be a departure in a substantial manner from the standards which might be reasonably expected of a registered nurse. Departure from such standards must be blameworthy and deserving on more than passing censure.[14]

18 In Domburg v Nurses Board of Victoria,[15] Ashley J subsequently commented on this analysis:

There is always a question whether it is best to let the language of legislation - particularly where the language involves words in everyday usage - speak for itself; or rather seek to clothe it with meaning by recourse to other language. Bearing in mind that the particular language needs to be applied, if not often then at least not infrequently, by bodies consisting either wholly or in the main of non-lawyers, his Honour's analysis should be seen - bearing in mind always that it was tailored to the circumstances of the case before him - as an accurate and useful guide to the application of that legislation.[16]

19 As I have said, there is no dispute that the respondent's conduct in the present case was unprofessional conduct of a serious nature. But for reasons of completeness, I observe that in my view the observations of Kellam J do no more than seek to elaborate the ordinary meaning of the words which are in issue and, ultimately, the question of whether particular conduct falls within these words is a question of fact.

20 I turn then to the applicant's contentions with regard to the tribunal's failure to conclude that the respondent was guilty of infamous conduct in a professional respect. I do not rely, for the purposes of determining this case, upon the view I have already expressed that error in this regard may not necessarily constitute vitiating error.

21 The words, 'infamous conduct in a professional respect' are ordinary English words and in accordance with the principles explained by J D Phillips JA in S v The Crimes Compensation Tribunal,[17] their meaning is a question of fact. The word infamous is in this respect like the words 'offensive' and 'indecent'. It follows that although previous decisions of the courts which apply the concept may offer guidance and elucidation of the potential meaning of the words, their applicability to particular circumstances will always be a matter of fact for the tribunal.

22 The fundamental problem confronting the applicant in the present case is that the tribunal carefully addressed the case which was presented on behalf of the applicant to it, carefully addressed the whole of the evidence before it and made findings of fact which it appears to me are fatal to the primary basis of the appeal.

23 Proposed Ground of Appeal 1(a) is that the tribunal erred in reaching 'a conclusion which no reasonable tribunal might come to, namely that the Respondent's conduct was not such as to constitute "infamous conduct in a professional respect." '

24 The sequence of negatives in this proposed ground of appeal means that the applicant contends the tribunal was bound to affirmatively reach a conclusion which it did not. As I have said, such a contention is difficult to make out.

25 Dr Freckelton has emphasised before me that the respondent's conduct was a breach of her duty as a psychologist to her client, and in particular her duty as a psychologist employed by Corrections Victoria, and owed by her towards a prisoner on parole.

26 The applicant relies particularly upon the following matters. First, and most significantly, the client was particularly vulnerable. Second, the relationship extended over a significant period of time; and third, the relationship was characterised by extensive interactions. As the tribunal's decision records, Dr Freckelton made the following submissions to the tribunal:

Dr Freckelton submitted that ON was extremely vulnerable and while he was in that vulnerable state, the respondent took advantage of him by having a romantic and sexual relationship with him.
Dr Freckelton cited a number of factors that both made ON vulnerable and gave the respondent specific knowledge of his history and medical (including psychological) condition. At paragraph 38 of Dr Freckelton's submissions, he summarises a number of factors which were known to the respondent as a result of her treatment of ON. He states :

Ms Mair learned many intimate things about ON during therapy, including

a. His extensive criminal history

not feeling validated by his family and his history of neglect

c. the divorce of his parents before he was a teenager

d. his reluctance to take prescribed medication

e. his social isolation

f. his attractions to various women

cognitive distortions that he might form in relation to women to whom he was attracted

h. his sense of victimisation

i. his propensity to catastrophise

j. his lability of mood

his tendency to manipulate people and situations to try to retain control over situations he experienced as threatening

his difficulties in managing his emotions by putting up fronts, being very closed and having low self-esteem

m. his poor ability to read

n. his having suffered various traumas to his head.

Further, Dr Freckelton also at paragraph 40 of his submission set out a number of psychiatric factors which made ON vulnerable and the respondent was conscious of this vulnerability. At paragraph 40, Dr Freckelton stated :

Ms Mair was conscious of the potential for ON to have a Borderline Personality Disorder, underlying dysphoria and a potential brain injury. She also formed the view that he might have or be developing problematic drinking behaviour, as well as having an anger management problem. He was significantly labile in his moods.[18]

27 As against these matters I accept that, as the respondent submits, the evidence was that the client initiated the romantic relationship. The relationship lasted approximately six weeks. The therapy sessions which the respondent provided to the client had stopped at the time the relationship commenced. There was no evidence of harm or distress caused to the client. The client did not make a complaint or give evidence. Other than the personal sexual relationship between the respondent and the client the therapy that was conducted was otherwise appropriate. The relationship was a one off transgression which developed gradually. The respondent did not act with predatory purpose or intent. This was a situation of transference between the respondent and the client in which the respondent lacked the tools to deal with what occurred.

28 The tribunal responded to Dr Freckelton's submissions concerning vulnerability as follows:

While the facts relied on by Dr Freckelton are in fact correct, we are of the view that stating the facts in the way Dr Freckelton has, does not give a true picture of the situation. We accept the fact that the respondent's behaviour was not predatory and that she did not set out to have an emotional affair with ON. While not excusing the respondent's conduct in any way, it is important to note that her feelings for ON grew over a period of time. Clearly, when the respondent first noticed she had feelings for ON, she should have referred him on to another psychologist immediately and stopped treating him. However, unfortunately she did not take that course.
There has been no evidence put before us as to the effect that the respondent's conduct had upon ON. When we say this, it is not a criticism of the applicant because the applicant subpoenaed ON to give evidence. However, ON refused to obey the subpoena and thus, we were deprived of the advantage of knowing what effect, if any, the relationship with the respondent had on ON. In our view, we should not accept the fact that ON's psychological state worsened in any way because of the respondent's behaviour. It is not suggested, in any way, that the lack of evidence as to any causal relationship between the acts of the respondent and ON's psychiatric state excuses the respondent for her wrongful conduct.
However, it is very difficult for us to look at the conduct of the respondent in isolation without having the benefit of whether such conduct was detrimental, of benefit or otherwise to ON.[19]

29 In these paragraphs the tribunal accepted that the facts relied on by Dr Freckelton were correct, but concluded they were not a full picture of the situation, and that there were other factors relevant to the consideration of this factor. Ultimately the tribunal gave detailed reasons for its characterisation of the respondent's conduct at [54] following of its reasons. In my view its conclusions were open to it on the evidence, and it was not bound to reach the conclusion for which the applicant contends.

30 Proposed Ground of Appeal 1(b) is that 'in arriving at the decision that the Respondent had not engaged in "infamous conduct in a professional respect", [the tribunal] failed to have regard to whether the Respondent's conduct was "exploitative" in the broad sense of that term as set out by Justice Harper in Morris v Psychologists Registration Board.'[20]

31 This ground and the other grounds of appeal attacking the tribunal's conclusion with respect to infamous conduct go to subsidiary aspects of the tribunal's reasoning, and in my view they must all fail because none of them provide a basis for concluding that the tribunal's decision in this respect was not open to it.

32 Insofar as exploitative conduct is concerned, the tribunal directly addressed the factors relied on by the applicant at [34] - [36]. The tribunal reached conclusions as to this issue at [37] - [39]. These conclusions were open to it. The tribunal was not bound to consider that the matters advanced by the applicant in this regard were determinative of the ultimate issue before it or the subsidiary issue, whether the respondents conduct should be characterised as amounting to infamous conduct in the relevant sense.

33 The decision of Harper J was a decision on appeal by way of rehearing. The terms in which it was expressed must be understood in this context. The passage to which the applicant referred the tribunal, and to which it has referred me, was concerned with what I have identified as the fundamental issue of whether a practitioner who had a sexual relationship with a former patient had engaged in serious professional misconduct.

34 It was not directed to the question of the further characterisation of the conduct as infamous conduct in a professional respect. As I have said the respondent concedes that her conduct constituted unprofessional conduct of a serious nature and that the relationship that she maintained was wrong and potentially harmful to the client. I am not persuaded by reference to Morris that the tribunal did other than consider the issue of exploitation in an appropriate way in the present case.

35 Proposed Ground 1(c) is the tribunal 'reached a conclusion which no reasonable tribunal could come to (at [63]), that the Respondent's conduct did not amount to "gross incompetence" and thus did not constitute "infamous conduct in a professional respect".' Proposed Ground 1(e) is the tribunal 'reached a conclusion which no reasonable tribunal might make, namely that (at [65]) the Respondent did not act with "reckless indifference'" or a "high degree of negligence" towards her client with whom she had a romantic and sexual relationship.'

36 In my view it was open to the tribunal to reach the conclusions which it did with respect to these matters. It set out detailed reasons for these conclusions on the facts and it is unnecessary to repeat them. The matters I have referred to with respect to Proposed Ground 1(a) are sufficient to demonstrate that the tribunal was faced with a complex factual matrix and required to balance considerations in reaching the conclusions which it did.

37 The view it reached as to the appropriate balance was open to it.

38 The tests stated in Allinson v General Council of Medical Education and Registration[21] ('Allinson') and Basser v Medical Board of Australia,[22] ('Basser') which were relied on by the applicant before the tribunal, illustrate aspects of the concept of infamous conduct in a professional respect.

39 In Allinson, Lopes LJ of the Court of Appeal stated more than 100 years ago:

"If it is shown that a medical man in pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency," then it is open to the General Medical Council to say that he has been guilty of "infamous conduct in a professional respect."

That is at any rate evidence of "infamous conduct" within the meaning of s.29. I do not propound it as an exhaustive definition; but I think it is strictly and properly applicable to the present case.[23]

40 It can be seen that the test was formulated as reflecting a basis for making a finding as to the underlying concept in the circumstances of the particular case. As I have said I respectfully agree that this is the appropriate approach.

41 The relevant passages from the judgments in Allison and Basser were specifically referred to by the tribunal at [59] and [60] of its decision. The tribunal's decision as to the application of these tests to the facts of the matter were in turn open to it. Its reasons at [61] - [67] do not disclose other than a rational examination of the evidence leading to conclusions which were open upon it. The tribunal properly looked at the whole of the circumstances of the case in forming the conclusions which it did.

In this particular instance, we find that the respondent in having a romantic and sexual relationship with ON did not conduct herself with reckless indifference to the possible consequences of her acts.
This was a situation where, at this point, the respondent admits was wrongful. However, at the time of the conduct, the conduct fell far short of reckless indifference and it also falls short of what can be said to be "recklessly indifferent to their (the acts) consequences". There is no evidence to show that the respondent made a habit of having personal relationships with her clients. Her relationship with ON was a "one off". It was clearly a situation where the respondent should have known better. However, she became involved in a situation that grew upon her gradually. She had no initial intent to have the type of relationship with ON that occurred. What in fact happened was that the respondent let her feelings get the better of her. It was something that we find was out of character.
Further, we find that the respondent's conduct was not so negligent as to amount to gross incompetence. The word "gross" would suggest almost the worst type of conduct. This does not fall into that situation. This is not a situation where the respondent used her practice for predatory purposes and did so with intent. While it is not necessary to find that the respondent's actions were the worst conceivable wrongful conduct, it is necessary for a finding of "infamous conduct" to find that the respondent's actions were at the higher end of the scale.
In this particular instance, the respondent's conduct while being serious was not conduct at the higher end of the scale. There is no predatory aspect to her conduct and she did not commence treating ON with the purpose of developing a personal relationship. In fact, for some considerable time during the treatment when ON tried to hold the respondent's hand, she withdrew her hand immediately.
Further, we do not find that the respondent acted with "reckless indifference" or a "high degree of negligence". As we have stated, the respondent's personal relationship with ON was something which eventuated over a period of time. Of course, that does not excuse the respondent. However, in our view, it is insufficient to find that her conduct was "reckless indifference" or a "high degree of negligence". There is nothing to suggest that at the time the conduct was being perpetrated, the respondent was aware of the harm it was doing to ON. In fact, at this particular moment, we still do not know whether the conduct has harmed ON or otherwise.
Thus, after having made these findings, we have come to the conclusion that the respondent's conduct falls short of what can be described as "infamous conduct".
In coming to the conclusion that the respondent's conduct was not infamous, we have taken account of a number of facts :
1. Other than the personal sexual relationship between the respondent and ON the therapy that was conducted was otherwise appropriate. This is not to downplay the serious nature of the respondent's conduct, but it is a matter that must be taken into account.
2. While the therapy between ON and the respondent had not been brought to a formal conclusion, the therapy had stopped at the time that the personal relationship had commenced and it was not sought by the respondent to have that therapy continue after the relationship commenced.

We also note that there is not always formal closure of a therapeutic relationship between the client and the therapist. While there should in fact be formal closure, there are often circumstances that prevent such formal closure happening. Clearly, the circumstances of this proceeding are one of those types of matters.

The conduct of the respondent was a one off type of conduct even though it continued for a number of months. Further, it is noted that the only way that the applicant was able to make its case, was through the words of the respondent. As we have mentioned, ON did not make a complaint and did not appear to give evidence.

This is a situation of transference between the respondent and ON. It was a situation where the respondent did not have the "tools" to deal with what happened.[24]

42 The Proposed Ground 1(d) of appeal postulates that the tribunal 'wrongly regarded (at [63]) predatoriness or intent as necessary as a matter of law for "gross incompetence" and therefore wrongly concluded that the Respondent's conduct did not amount to "gross incompetence" and therefore "infamous conduct in a professional respect".' Proposed Ground 1(f) is that the tribunal 'wrongly regarded (at [65]) it had been necessary for the Respondent to have been aware that her conduct was doing harm to her client for her conduct to have been classified as action with "reckless indifference" or a "high degree of negligence", before it could determine that she had engaged in "infamous conduct in a professional respect".'

43 The tribunal's decision at [63] - [65] shows that it had regard to the facts as a whole in considering whether the respondent acted with reckless indifference or a high degree of negligence. I do not accept that it found that predatoriness or intent was necessary as a matter of law for gross incompetence. What it did was to have regard to the absence of these matters as relevant to a judgment on the facts as a whole. There was no error in this.

44 The same analysis applies with respect to the allegation that the tribunal concluded it was necessary for the respondent to have been aware that her conduct was doing harm to her client in order for that conduct to be classified as action with reckless indifference or a high degree of negligence. The tribunal's finding at [65] does not support the view that it approached the matter on this basis. What the tribunal did was make findings as to the respondent's state of mind on the facts and conclude that they did not amount to conduct of the culpability alleged.

45 The proposed notice of appeal also alleges that the tribunal had regard to the irrelevant conclusions. The particular matters identified in the notice were not urged in detail upon me today, but I have considered them and I do not accept that any of the matters of which the applicant complains as being irrelevant considerations were other than relevant contextual circumstances.

46 The respondent's prior professional history was relevant to a contextual judgment of the culpability of her behaviour. The manner in which the respondent developed a relationship with the client was also relevant. The lack of complaint or evidence of harm to the client was contextually relevant.

47 A judgment as to the behavioural skills which the respondent possessed at that stage of her professional career was also relevant. Accordingly, there is nothing in these proposed grounds.

48 I come then to the second substantial proposed ground of appeal, which is that 'the suspension of the Respondent's registration as a psychologist for a period of only 9.5 months was a manifestly inadequate determination to protect the public in light of the seriousness of her conduct.'

49 I accept that transgressions of sexual boundaries by health practitioners raise very serious issues and that the transgression of professional boundaries of which the respondent was guilty in the present case was, as the tribunal found, unprofessional conduct of a serious nature.

50 Nevertheless, I am not satisfied that the period of suspension imposed upon the respondent was manifestly inadequate. Such a judgment is in part necessarily one of impression, but the tribunal gave detailed and compelling reasons for the sentence which it imposed, and in my view they articulate relevant considerations of principle and apply them directly to the facts of the matter in a way which was open to the tribunal. It should be noted that suspension was one element only of the orders made by the tribunal

51 One contextual matter which is not acknowledged in the way the proposed ground of appeal is formulated is the fact that the respondent's suspension was preceded by a substantial disruption of the respondent's career. A second contextual consideration which it seems to me counsel for the respondent were correct to highlight is the fact that the tribunal's decision was accompanied by public and professional denunciation and opprobrium. When these matters are had regard to, it seems to me that it could not be said that the basket of orders imposed by the tribunal was in any way a token penalty.

52 Turning more specifically to the consideration of protection to the public, which the applicant highlights and which it quite properly regards as central to the proper administration of the Act, I note that at [76] of its reasons, the tribunal stated:

The authorities are clear that the purpose we must bear in mind when making our determination is the protection of the public, deterrence, maintenance of proper ethical and professional standards, and maintaining the reputation and integrity of the profession in the eyes of the public. Clearly our determination should not be punitive in nature, but must be framed with the considerations referred to above in mind.[25]

53 The authorities to which counsel for the applicant has referred me confirm that the purposes identified by the tribunal were relevant purposes guiding the exercise of their discretion. The tribunal went on to emphasise the importance of protection of the public by reference to the main purpose of the Act, the basis on which registration may be refused, and other decisions of the tribunal dealing with the regulation of persons involved in the health professions. It is apparent that the tribunal made clear that protection of the public was at the forefront of its considerations.

54 At [91] of its conclusions the tribunal stated:

Thus, in our view, it is appropriate in this situation that the respondent's registration as a psychologist should be suspended for a period of time rather than cancelled. We have come to this conclusion largely because of the professional evidence of Dr List and Ms Dolieslager, who are both of the view that the respondent is unlikely to re-offend and that she is fully remorseful and gained insight. We accept their opinion. In these circumstances, we see no benefit in cancelling the respondent's registration which would force her at a later time to re-apply to the Board. We believe that the matters that the Board would need to consider when determining whether to re-register the respondent, have been put in evidence before us. We are of the view that the suspension that we will impose and the conditions that we will put on the respondent will be sufficient to fulfil our obligations in dealing with matters such as these. Those obligations have been referred to above.[26]

55 In my view this conclusion was open to the tribunal, in particular it was open to consider the question of rehabilitation as being directly relevant to protection of the public.

56 Further it was open to the tribunal to accept the evidence of the highly qualified witnesses who appeared before it and addressed this question. Once these matters are accepted this proposed ground of appeal must fail. For completeness I would add that in my view it was also open to the tribunal to conclude with respect to the question of general deterrence as it did at [85]:

It is important that a message to other practitioners that the type of conduct engaged in by the respondent is not acceptable. In sending a message such as this, we do not believe it is necessary for the respondent's registration to be cancelled. We are of the view that the suspension we will impose will be of a sufficient length of time for other members of the psychology profession to "get the message".[27]

57 It was also open to the tribunal to conclude, as it did with respect to the issue of public confidence at [86]:

Further, we are of the view that it is not necessary to cancel the respondent's registration in order for the public to maintain confidence in the psychological profession. Again, we are of the view that the period of suspension that we will impose will in fact be sufficient for the public to maintain confidence in the psychological profession and confidence that wrongful conduct will not be tolerated. [28]

58 Lastly, complaint is also made with respect to the reference by the tribunal at [82] of its reasons, to the fact that:

Psychologists are an important component of the mental health system in Victoria and the wellbeing of Victorians. This is something that must be balance[d] against the behaviour of the respondent.[29]

59 This statement falls to be considered in the context of express acknowledgment of competing public interests which precedes it at [77]:

In considering the public interest, it is important to note that the public interest in the practitioners continuing to practise and serve the community must be weighed against the public interest in protecting clients from any repetition of the conduct exhibited by the respondent. Preserving the public's confidence in the profession must also be taken into account.[30]

60 In this regard I note the observations of Kirby P in the case of Kotowicz v Law Society of New South Wales,[31] to which Dr Freckelton has drawn my attention:

Because the jurisdiction is for the protection of the public, regard also may be had, to the public's interest in the restoration to the Roll of such persons as have demonstrated, including by their work, activities and life, a fitness to be restored. For cultural and historical reasons, redemption and forgiveness are important attributes of the shared morality of our society. In part, this is because of the teachings of religious leaders who have profoundly influenced our community's perception of justice and fairness, reflected from earliest times in the courts. In part it derives from the self interest which any community has to encourage the rehabilitation of those who lapse and to hold out to them the hope that, by diligent and honourable efforts over a period, their past may be forgiven and they may be restored to the good opinion of their family, friends, colleagues and society. The public's interest also includes the economic interest which is involved in utilising, to the full, the skills of talented people who have undergone years of rigorous training but who, having misconducted themselves, have had to be removed for a time from positions of responsibility and trust.[32]

61 It was for the tribunal to consider what aspects of the public interest were of significance to its decision, and what weight it placed upon them. I am not persuaded that it took into account an irrelevant consideration in this regard. Once again, the real complaint seems to me to be one about the weight that should be accorded to relevant factors. The weight to be accorded to relevant factors in reaching an evidentiary conclusion is not a question of law. Likewise the relative weight to be given to relevant factors bearing on the exercise of a discretion does not raise a question of law unless the conclusion reached is not reasonably open.[33] It was open to the tribunal to reach the conclusion it did with respect to the requirements of the public interest.

62 For the above reasons, no leave should be granted, and the proceeding should be dismissed. The proposed grounds of appeal must fail.

[2] Psychologists Registration Board of Victoria v Mair (Occupational and Business Regulation) [2010] VCAT 534 (4 May 2010).

[4] This Act was repealed on 1 July 2007 by s 163(1)(k) of the Health Professions Registration Act 2005. As the conduct in issue occurred between February 2006 and June 2007, the Act was the relevant instrument regulating the professional conduct of registered psychologists.

[6] Brutus v Cozens [1972] UKHL 6; [1973] AC 854, 861 (Lord Reid) a decision which is the subject of exposition in the judgment of Tadgell J in Franceschini v Melbourne and Metropolitan Board of Works (1980) 57 LGRA 284, 290-94.

[7] See S v Crimes Compensation Tribunal [1998] 1 VR 83 as quoted at [8] above and Myers v Medical Practitioners Board of Victoria [2004] VSC 532, [15] (Kaye J) which was affirmed on appeal in Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48. These cases highlight the fact that judgments of the type in issue are ones of opinion as to the facts which may be informed by expert evidence in cases such as the present.

[8] See the decision of the Court of Appeal in the case of Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 and the decision in Basser v Medical Board (Vic) [1981] VicRp 88; [1981] VR 953.

[11] See the observations of His Honour at page 90 of that decision.

[17] (1998) 1 VR 83: see [8]-[15] above.

[18] Psychologists Registration Board of Victoria v Mair (Occupational and Business Regulation) [2010] VCAT 534 (4 May 2010), [34]-[36].

[20] Unreported, Supreme Court of Victoria, 19 December 1997.

[24] Psychologists Registration Board of Victoria v Mair (Occupational and Business Regulation) [2010] VCAT 534 (4 May 2010), [61]-[67].

[31] [1986] NSWCA 392 (7 August 1987).

[33] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40-42 (Mason J).

Registration Act 2000

Professions Registration Act 2005

Civil and Administrative Tribunal Act 1998

Psychologists Registration Act 2000

Professions](/cgi-bin/viewdoc/au/legis/vic/consol_act/hpra2005356/) Registration Act 2005

At a glance

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Judgment (128 paragraphs)

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Legislation Cited (5)

Cases Cited (3)