Donnelly v Health Care Complaints Commission

Supreme Court of NSW|2011-06-10|Before: Fullerton J

The application to amend the pleadings 23In the course of the hearing I raised what appeared to me to be a disparity between the terms of the protective order made by the Tribunal, namely suspension for three years, and the order sought by the HCCC in its submissions, namely suspension for 18 months. Where it also appeared that the plaintiff had made no submissions on the question of penalty at all, I queried whether it was to be submitted that the plaintiff had been denied procedural fairness in his challenge to the making of the protective order. 24Neither of the plaintiff's counsel appeared before the Tribunal. They appeared pro bono after orders were made by Studdert J on 9 September 2010. Ms Graycar was not in a position to deal with the issue without instructions and without undertaking a review of the course of proceedings before the Tribunal. Although Ms Stern appeared for the HCCC on the appeal as she did before the Tribunal, because the issue was not raised directly by the pleadings she was also not in a position to deal with the issue. Both counsel sought an opportunity to consider their positions and, in the event that there was to be an application for leave to further amend the summons to include a ground claiming a denial of procedural fairness, it was agreed that a notice of motion would be filed and served and a further hearing convened. 25By notice of motion dated 10 June 2011 the plaintiff applied for leave to file a further amended summons to include a ground of appeal that the plaintiff was denied procedural fairness in the imposition of the protective order because the Tribunal did not afford him a reasonable opportunity to make submissions on the question whether a protective order should be made or its duration. The HCCC opposed the grant of leave. 26Relying upon the principles identified by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [94] - [102] the HCCC submitted that the plaintiff had a more than adequate opportunity to bring the appeal on grounds which he contended constituted error on the part of the Tribunal before the hearing commenced. In addition, even if the Tribunal did not afford him an opportunity to be heard on the issue of the making and duration of a protective order (which was not conceded), the HCCC submitted that his failure to offer any explanation for not having raised the issue of procedural fairness until it was raised for the first time at the hearing of the appeal was a factor weighted against leave being granted. It was also submitted that to permit an amendment after the hearing of the appeal was contrary to the administration of justice. The last submission was not developed. 27I am unable to discern how the administration of justice is prejudiced by the application for leave to amend since both counsel prepared detailed submissions directed both to the question of leave and, assuming leave was granted, to the substantive question. I consider that in the particular circumstances of this case the interests of justice dictate that the question whether the plaintiff was denied procedural fairness be determined in these proceedings despite the fact that it was not an issue identified by the plaintiff and that it was only because I raised it that an application for leave to amend was made. What persuades me to that view is the advice from the parties that the Tribunal is currently hearing an application by the HCCC for the plaintiff to be subject to a prohibition order under s 53(3A) of the Psychologists Act, an application which may only be made if a practitioner is already the subject of a protection order. Were the question raised by the application for leave not resolved in these proceedings the Tribunal's jurisdiction to consider the application for the prohibition order might be in doubt. Accordingly, I propose to grant leave permitting a further amendment to the amended summons in the terms sought by the notice of motion.

The relevant law 28Although the Tribunal's decision was handed down after the repeal of the Psychologists Act and the commencement of the Health Practitioner Regulation National Law (NSW) ("the National Law") on 1 July 2010, the complaint was dealt with under the Psychologists Act in accordance with the savings and transitional provisions in the National Law. However, the appeal to this Court is dealt with under the National Law as if the complaint had been decided under that statutory regime. 29Where a registered health practitioner has been the subject of complaint referred to a specialist Tribunal under subdivision 2 of Part 8, s 162 of the National Law provides what has been described as a "bifurcated right of appeal" to this Court: 162 Appeal against Tribunal's decisions and actions [NSW] (1) A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against - (a) a decision of the Tribunal with respect to a point of law; or (b) the exercise of a power by the Tribunal under Subdivision 6 of Division 3. 162A Powers of Supreme Court on appeal [NSW] (1) In deciding the appeal, the Supreme Court may - (a) dismiss the appeal; or (b) make the order it thinks proper having regard to the merits of the case and the public welfare, and in doing so may exercise any one or more of the powers of the Tribunal under this Law. (2) If the Supreme Court dismisses an appeal against an order of the Tribunal, the Court may by order direct that the Tribunal's order is to be taken to include provision that an application for its review under Subdivision 3 of Division 6 may not be made until after a specified time. 30The rights of appeal under the since repealed Pharmacy Practice Act 2006 were recently considered by Adams J in Ng v NSW Health Care Complaints Commission [2010] NSWSC 1220 at [48] - [50] where his Honour applied the analysis undertaken by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 of a similar provision under the since repealed Medical Practice Act 1992. Both decisions are instructive. The provisions under consideration in both cases had a similar, if not identical operation to the rights of appeal now embodied in s 162(1) of the National Law.

The right of appeal under s 162(1)(a) of the Health Practitioner Regulation National Law (NSW) 31The right of appeal in s 162(1)(a) mirrors what Basten JA described in Prakash as a common form of statutory language permitting an appeal where an error of law is identified in the procedure adopted by the Tribunal, or in its reasoning, an error which is material to the final and operative decision that the complaint is proved or not, or as to the disciplinary order made. His Honour observed that it would be unfortunate were there any significant distinction between the kinds of error which warrant quashing of a decision under s 69 of the Supreme Court Act 1970 and those justifying setting aside a decision in the exercise of the statutory appeal jurisdiction under the National Law with respect to a point of law. Of significance, neither of the statutory rights of appeal involves a general power to review the Tribunal's finding or to set it aside because the decision is unreasonable. His Honour said at [86]: Given the approach adopted in the relevant authorities as to the scope of an appeal against a decision with respect to a point of law, what is said to be protected against even a "perverse" result, are the findings of primary facts, so long as there is some evidence to support the finding. Although, in his much-cited three stage analysis in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, Glass JA linked, as the first stage, "determining the facts by way of primary findings and inferences", it may be necessary to separate the drawing of inferences from findings as to the primary facts, at least where the inferences involve the third stage identified, namely the application of the law to the facts found. An inference of the relevant kind in the present case would be a finding that particular conduct was sufficiently serious to justify a suspension or deregistration, and was therefore professional misconduct. On one view, such a finding would involve an evaluative judgment of the kind which may more readily be reviewed than primary facts, on an appeal by way of rehearing: see Warren v Coombes (1979) 142 CLR 531 at 551-552 (Gibbs ACJ, Jacobs and Murphy JJ). It is also arguably similar to the kind of opinion, described as capable of being set aside pursuant to judicial review if "arbitrary, capricious, irrational, or not bona fide" in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No. 2) (1944) 69 CLR 407, by Latham CJ at 432. An opinion so formed would not be an opinion of the kind required by the statute as a basis for an order suspending or deregistering a medical practitioner. 32Consistent with his Honour's approach to the scope of a statutory appeal he also noted that a finding of primary fact is protected against even a perverse result provided that there is some evidence to support it. It follows that no appeal lies under s 162(1)(a) from a claim that there was insufficient evidence before a Tribunal to ground a particular finding of fact. 33In Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [41] Sackville J emphasised the critical importance of distinguishing between points of law (which are subject to appeal) and questions of fact (which are not) such that where there is a challenge to the findings of a Tribunal which lead to an ultimate finding that a complaint has been proved, there must be an identified error of law. 34In Lucire v Health Care Complaints Commission [2011] NSWCA 99, an appeal under s 162 of the National Law against a decision of the Medical Tribunal, Basten JA again had occasion to emphasise that to make good a challenge to substantive findings of misconduct on the basis that the Tribunal had misapplied or misunderstood the evidence (as distinct from there being a complete absence of evidence to support a finding which his Honour noted was not contended for by the plaintiff and which I note is not contended for by the practitioner in this case), it was necessary to distinguish between errors with respect to facts and errors with respect to law. In order to identify an erroneous decision in point of law the facts must be established, or at least unchallenged, and the argument based upon them must have been clearly articulated and not addressed by the Tribunal. 35In the context of considering whether the identification of an error of law on an appeal to this Court from the Medical Tribunal under s 162 of the National Law should be approached in the same way as an error of law resulting from a failure to take into account a relevant consideration in administrative review, Basten JA said: [97]... [However] it is not possible to characterise the conduct of a Tribunal as erroneous in point of law unless, in effect, the Tribunal has misunderstood, in a substantial respect, the case put by the practitioner. Such a claim will not be made good simply by pointing to passages in the evidence which have not been referred to by the Tribunal in its reasons, or by suggesting that some evidence was given greater weight than it should have received, or that the Tribunal relied on some evidence to the exclusion of other elements. 36The plaintiff's written submissions offend against this stricture in a number of respects, one example being the asserted failure of the Tribunal to take into account the plaintiff's evidence that because Ms Dene was an exemplary student he did not see the need to closely supervise her. In dealing with a number of the submissions advanced in support of each of the grounds of appeal it will be necessary to refer back to the principled approach to an appeal under s 162(1)(a) mandated by the authorities.

An appeal under s 162(1)(b) of the Health Practitioner Regulation National Law (NSW) 37In Ng Adams J observed that the second statutory right of appeal (which for present purposes is that provided for under s 162(1)(b) and relied upon by the plaintiff in his challenge to the imposition of the protection order) is not limited in the same way as an appeal under s 162(1)(a). In a helpful distillation of the detailed analysis undertaken by Basten JA in Prakash his Honour said: [49] The second right of appeal is not so limited. His Honour cited with approval characterisations used by Priestley and Clarke JJA in Bannister v Walton (1993) 30 NSWLR 699 in respect of this second right of appeal, the former noting that it did not "extend to questioning the acceptance by the Tribunal of the facts comprising proof of the complaint (30 NSWLR at 734C) and the latter noting that in respect of this right of appeal, the Court acts on 'the basis that the factual findings underlying the "decision" of the Tribunal are not open to scrutiny', his Honour continuing by way of explanation (at 735A-B) - It may be, however, that the Tribunal may reach conclusions on a number of factual issues which, while not strictly relevant to the complaint, may be considered to be of importance in determining what is the appropriate [disciplinary] order.... In cases where this occurs it would seem to me that this Court would be entitled to examine those conclusions in exercising its power to review the order [in an appeal of this kind].... [50] Basten JA concurred that it had been recognised "that the exercise of power constituted by the making of disciplinary orders was discretionary in nature and that an appellant must identify an error of the kind specified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505 (Dixon, Evatt and McTiernan JJ). His Honour cited the oft-quoted passage from this joint judgment - It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. ... [51] In dealing with the situation where it is argued that matters were considered which should not have been taken into account whilst material considerations were ignored which should have been taken into account, his Honour observed - [88] A broader approach may be appropriate in considering an appeal against a discretionary judgment. Thus, a material consideration may involve any matter having potential relevance to the exercise being undertaken and may not be limited to legally mandatory considerations. In this sense, what is relevant will depend upon the particular circumstances of the case, as well as the scope and nature of the statutory power. However, the obligation of the Tribunal to consider such matters will not usually extend beyond those presented to it by the party seeking to resist the exercise of a particular power in circumstances where it had been engaged: ... [52] His Honour then turned to the tension between two lines of appeal - [89] It may be accepted then that the power of review of an order [imposing a disciplinary consequence]... even constrained by the principles in House v The King, is likely to permit a wider scope for review than that contained in [an appeal on a point of law].... Thus, at least in relation to findings of professional misconduct, where the complaint is found proved and not challenged, or the challenge is unsuccessful, the proper inference from the statutory scheme is that the challenge to the order of the Tribunal, so far as it does not identify an error of law, must identify an error of principle, but one which does not form a basis of the finding that the complaint has been proved. In the case of a finding of professional misconduct, this may be a serious constraint, because almost any circumstance affecting the severity of the misconduct, will be relevant to the finding that it was indeed "professional misconduct". Thus an appellant who is able to challenge only the order made by the Tribunal may well be effectively limited to such matters as a failure to give proper weight to prior good conduct or evidence of rehabilitation. [90] As a practical matter, it is almost inevitable that the findings which inform the conclusion that the conduct complained of is professional misconduct will also be of direct relevance in the exercise of the consequential power to make a protective order. Because these matters are not subject to review, there is a danger in describing the right of appeal with respect to the exercise of power as a "general appeal", without noting the constraints on the scope of the appeal imposed, at least implicitly, by its statutory and litigious context.

The third ground of appeal 38Although Ms Graycar acknowledged that findings of fact are matters quintessentially within the remit of the Tribunal, she submitted that there are limited and comparatively rare circumstances where a fact finding exercise can be shown to be so fundamentally flawed that conclusions drawn from those facts are also flawed, thereby giving rise to an error of law. She submitted that error of that kind is demonstrated in this case. She placed considerable reliance upon Sinha v Health Care Complaints Commission [2001] NSWCA 206 where Fitzgerald AJA referred to Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [45] and [50]. In that case the Court found that the Tribunal erred in law in failing to satisfactorily explain why it accepted a patient's account of a practitioner's sexual impropriety as credible when there was other evidence, favourable to him, which cast doubts on the veracity and reliability of his patient's account. She also submitted that the evidence upon which the Tribunal's elementary fact finding exercise was engaged was so insubstantial that, applying the approach in Briginshaw, the Tribunal could not have been reasonably satisfied of the facts that supported a finding adverse to the plaintiff such as to give rise to an error of law (see Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537 at [110] per French and Jacobson JJ, [126] per Branson J). 39Irrespective of whether there is any difference in principle between a submission that a fact finding exercise is flawed because of the approach of the fact finder or flawed because of the quality of evidence against which a finding of fact is made, the plaintiff must demonstrate that the Tribunal's findings concerning the timing and content of the initial disclosure were not reasonably open to it. 40The HCCC submitted that the Tribunal's approach to the evidence and the consideration it gave to resolving the conflict on the evidence, fell well short of the limited category of case of which Sinha is an example. The HCCC submitted that when viewed in its entirety the weight of the evidence probative of the initial disclosure being of inappropriate sexual behaviour was more than adequate to support the Tribunal's intermediate findings to that effect and more than sufficient to sustain its ultimate finding that both complaints were established in large part because of that finding. The HCCC submitted the appeal is in essence a challenge to the Tribunal's adverse factual findings, in effect a "merits review", without identifiable error of the kind to which Basten JA identified in Prakash. 41The HCCC also submitted that the Tribunal's reasoning in support of its findings was both clear and express and that there was nothing inherent in the reasoning to indicate that in resolving what it was agreed was a critical factual dispute, the Tribunal failed to apply an appropriate standard of persuasion in accordance with Briginshaw.

The therapeutic relationship between Ms Dene and Mr A 42Between 2001 and 2006, the plaintiff worked as a lecturer and clinical neuropsychologist in the School of Psychology at a university in New South Wales. From 2002 to 2005 Ms Dene was a graduate student in psychology at the same university during which time she completed two practical components, the first of which was supervised by the plaintiff and the second by both the plaintiff and Dr Margaret Brechman-Toussaint, a specialist child psychologist. 43In June 2003 the plaintiff was treating Mrs A, a woman who suffered from chronic multiple sclerosis dementia and a range of related psychological problems from a clinic associated with the university. In the course of treatment the plaintiff identified her husband as being in need of psychological support as a husband and father of two young daughters, Miss B and Miss C. 44At the plaintiff's invitation (and ostensibly under his supervision) Ms Dene provided treatment to Mr A directed to assisting him to deal with the stress of his wife's illness and her rapidly deteriorating health, and assisting him to deal with his sole parenting responsibilities for his two daughters. It was not in dispute that at least between October 2003 and November 2004 the plaintiff was obliged to supervise Ms Dene in the treatment she provided to Mr A by reason of her status as an unregistered psychologist undertaking postgraduate studies. 45In August 2005, after consulting with Mr A as a private patient over some months, Ms Dene reported his inappropriate dealings with and feelings for Miss B to the Department of Community Services ("the Department") pursuant to the CYPCP Act. This prompted a police investigation in the course of which Mr A admitted sexual abuse of children over many years. Ms Dene's report was made almost 11 months after she first decided a report of inappropriate sexual behaviour by Mr A should be made and 22 months after his initial disclosure of that behaviour. The initial decision to report Mr A's sexual misconduct was made in September 2004 while he was still a patient at the university clinic. The reasons why a report was not made at that time were discussed in the Discharge Summary prepared by Ms Dene and apparently signed by the plaintiff in January 2005.

The Tribunal's findings concerning the timing and content of the initial disclosure 46It was not in dispute that, in the course of a therapeutic session with Ms Dene, on 21 October 2003 Mr A disclosed having feelings for Miss B and having made physical contact with her pubic region. The question in serious contention was whether he disclosed a sexual dimension in the touching (as distinct from it being accidental in the course of a father's legitimate concern for the health and welfare of his young child), and/or whether his thoughts and feelings about her carried a sexual connotation. 47After considering all the evidence (including, in particular, Mr A's further disclosures of inappropriate touching and sexualised feelings towards his daughter noted in Ms Dene's clinical notes from October 2003 to November 2004, and the content of the Discharge Summary where those matters were the subject of summation and analysis), the Tribunal found that it was likely that on 21 October 2003 Mr A disclosed to Ms Dene that for some period of time he had deliberately touched Miss B's pubic region and had only recently ceased that behaviour, and that he had inappropriate sexual thoughts and feelings for her. 48In so finding, the Tribunal expressly adopted the submissions of the HCCC, which, as I have noted, were annexed to the decision. Those submissions were cross-referenced to the evidence with particular reference to the content of Ms Dene's clinical notes. 49The finding was contrary to what had been urged upon the Tribunal by both the plaintiff and Ms Dene. They each gave evidence (albeit with different emphasis) that the initial disclosure by Mr A was of accidental touching of the child's genital region while her stomach was being massaged to prepare her for sleep, and that the topic was only introduced into therapy as a "taboo subject" (the descriptor in Ms Dene's clinical notes) because of Mr A's concerns that his emotional needs for his daughter were crossing legitimate boundaries because of his wife's absence from the family home and her unavailability as a sexual partner. The plaintiff and Ms Dene emphatically denied that there was any suggestion in what Mr A disclosed in October 2003 that the touching of the child's pubic region was deliberate or that his feelings towards her were sexual. 50It was the common position of the plaintiff and Ms Dene that after she spoke with the plaintiff following her session with Mr A on 21 October 2003 the plaintiff spoke with him. They were, however, the only source of evidence as to what was said in that exchange. The evidence left unresolved whether the plaintiff sought to clarify or confirm with Mr A the accuracy of what Ms Dene relayed to him and whether he made his own assessment of the appropriate professional response in those circumstances. The plaintiff did not prepare any notes of the session with Mr A. Mr A did not give evidence.

Ms Dene's clinical notes 51The dispute concerning the content and timing of Mr A's initial disclosure resulted from Ms Dene's failure to record the fact of the disclosure or its content in her clinical notes of the therapy session with him on 21 October 2003. Her notes of the session were not written up until 28 September 2004, at that time apparently prompted by Mr A disclosing what Ms Dene noted as "[the] duration of previous sexual transgressions [being] much greater than previously advised". 52The note of 28 September 2004 commenced with the statement "I want to record my thoughts about the ethical difficulties in this case". Against the date 21 October 2003 the following was recorded: [Mr A] disclosed that he had touched his daughter [Miss B] inappropriately about once a week (genital area) for about a few years. He said he would lie with her when he put her to bed and touch her until she pushed his hand away. He said he had stopped about two weeks ago, and had told her he was sorry and he would not do it again. 53It appears that at this time a separate clinical note dated 21 October 2003 was also created which recorded as follows: Behavioural Observations: [Mr A] looked worn and his shoulders sagged. He did not meet my eyes at the beginning of the session and seemed very troubled with a furrowed brow. He was highly emotional during the session, crying much of the time. He looked a spent and defeated man at the end of the session. Progress Notes: [Mr A] reported that he needed to tell me about something that was troubling him greatly and was taboo. He reported that he had inappropriately touched his elder daughter... about once a week for a few years. [Mr A] said he would give her a light massage which included fondling her pubic area. He reported stopping when she would roll over or indicate that she had had enough. He said that this behaviour had ceased about 2 weeks ago when he told her that he would not do it anymore and that he was sorry that he had done it. The session focused on this disclosure. I ascertained that there had been no penetration, coercion or physical violence. [Mr A] reported that he had been burdened with guilt for what he had done and was very concerned that she would be confused about her sexuality as she entered puberty. He said he was only attracted to touching her, he had not felt any inclination to touch his elder daughters, nor his youngest daughter. He also said that he had no sexual attraction to other children now or in the past. [Mr A] said that it was confusing for him to feel an attraction to [Miss A] and requested help to maintain appropriate behaviours with her. 54Ms Dene gave evidence that this note (and, it would seem, her other clinical notes) were inaccurate in critical respects. She said that in recording what Mr A had told her of his dealings with his daughter and his feelings towards her, she attributed to him a sexual dimension to his thoughts and conduct, when in truth he had not disclosed any inappropriate sexual touching or sexual thoughts at any time, and in particular in the session on 21 October 2003 when the so called inappropriate touching was first ventilated. She claimed that she had unconsciously allowed her own personal experiences as a victim of sexual abuse to "bleed through" her dealings with Mr A and the treatment she provided to him, and into the clinical notes. She said that she was unaware of the extent to which the notes were inaccurate until she reviewed them in preparation for the hearing. She claimed that she was "shocked and appalled" when she re-read the notes and realised that she had wrongly attributed to Mr A an admission of having sexually misconducted himself in relation to his daughter when this was not the case. 55The plaintiff urged the Tribunal to place no reliance on Ms Dene's clinical notes. He submitted that they not only suffered from a lack of contemporaneity, but Ms Dene's evidence that the notes were materially inaccurate completely neutralised their utility as a source of evidence as to what she was told by Mr A and what Ms Dene relayed to him. For that reason he submitted that his evidence of what he was told (and Ms Dene's evidence of what Mr A in fact told her) should be preferred to her notes. He also submitted that were the Tribunal to approach their fact finding exercise by disregarding the post-dated clinical notes, and to take into account (in his favour) that to the extent that the other clinical notes recorded contemporaneous disclosures of abuse he was unaware of them because he had not read them, the complaints against him should be dismissed. 56The Tribunal expressly rejected Ms Dene's evidence that her clinical notes were an inaccurate record of what she was told by Mr A whether because, as she claimed, her own emotional state was "bleeding through", tainting what Mr A had first disclosed to her in October 2003 and thereafter, during the ongoing course of therapy. 57Clearly enough, the terms of the initial disclosure recorded in Ms Dene's post-dated clinical note was critical evidence of what was disclosed at the time. However, it was not the only evidence upon which the Tribunal relied in rejecting Ms Dene's evidence that the notes were a gross exaggeration. They were satisfied that when considered in the context of all the available evidence, in particular the clinical notes considered in their entirety, the post-dated clinical note fairly reflected what Ms Dene was first told on 21 October 2003. The Tribunal accepted that although Ms Dene's notes were in some respects clinically poor, they recorded in a coherent and consistent manner the fact that Ms Dene was concerned with Mr A's conduct towards his daughter, the fact that she was at risk because of it and its potential for harm. 58In his examination in chief the plaintiff was asked what Ms Dene relayed to him concerning Mr A's initial disclosure. He responded: What she had disclosed she had said that Mr A disclosed to her that after stating he had something to talk to her about and he felt it was somewhat taboo that he had mentioned that he had been using massage in the past at night approximately once a week to help his daughter settle at night and he was feeling uncomfortable about it. He had described it or demonstrated it as stroking her abdomen lying on her back, stroking this way with contact with her pubic region with his wrist as he went by, and that based on Ms Dene's report she had queried whether it was any penetration and he denied any penetration. He denied that - any other kind of touching behaviour and he had ceased the massage behaviour. 59This is not only inconsistent with Ms Dene's note of the session on 21 October 2003 recorded in September 2004, it was also inconsistent with her clinical notes of a telephone session with Mr A recorded two days later on 23 October 2003 and inconsistent with what was recorded in the Discharge Summary, a document countersigned by the plaintiff. The Discharge Summary included the following: In October 2003, the therapeutic agenda was expanded as a consequence of a disclosure made by [Mr A]. He reported that he had recently ceased inappropriate behaviours towards his daughter [Miss B]. [Mr A] said that for several years he had given his daughter a gentle massage at bedtime about once a week. During the massage he had stroked her genitals. He reported stopping when [Miss B] indicated she had had enough, and denied coercion or penetration... Therapeutic interventions were also provided to [Mr A] in relation to inappropriate desire, thoughts and behaviour... In September 2004, further disclosure by [Mr A] about the length of time that the inappropriate touching took place provided grounds for a reassessment of reporting responsibilities and the prognosis in relation to future therapeutic requirements. The risk to [Miss B] was now considered low. The revised assessment was discussed with [Mr A] who responded with both agreement and concerns/fear. Unfortunately, the timeline from reporting was disrupted due to [Mrs A's] deterioration and it was assessed that it would be too difficult for [him] to deal with the intensity of both stressors at the same time... It is expected that at the appropriate time, a report to DoCS will be made and [Mr A] will be supported through the process. (emphasis added) 60When he was cross-examined about the Discharge Summary the plaintiff said: Q. But part of it was also inappropriate fondling of the pubic area? A. I don't like the word "fondling". I still think that's an overstatement. Q. No, I will use your other word, inappropriate stroking of the genitals, that was part of the A. I think it's a light massage with contact/occasional contact with the pubic region is what we should have written. 61In addition to the notes extracted at [52], [53] and [54] the material entries can be summarised as follows (italics are used for emphasis): (i) On 23 October 2003, in the course of a telephone call with Mr A two days after the session where the initial disclosure was made, Ms Dene recorded that she discussed the importance of providing support to Miss B and noted Mr A's concerns at her "shame and embarrassment and a possible unwillingness to talk". Ms Dene also discussed with him that were the Department notified they would be ensuring Miss B's safety by supporting her and monitoring the situation. She also noted that her continued work with him would be expanded to include "goals of not engaging in inappropriate sexual fondling of [Miss B]; assisting her to set safe boundaries for herself; unburdening her from the 'secret' and assisting [Mr A] to examine and change distorted cognition in relation to [Miss B]". The note also records that she advised the plaintiff of the outcome of the phone call with Mr A. (ii) On 10 November 2003 Ms Dene recorded that it had been a "good week" as on two occasions Mr A had "an awareness of an urge for inappropriate behaviour with his daughter". (iii) On 3 February 2004 Ms Dene noted "Relationship with [Miss B]" - emotional dependence/physical behaviours - instinct to touch". (iv) On 6 April 2004, under a subheading of "[Miss B]", Ms Dene noted Mr A reported "feeling the ease of subtle inappropriate touch in games" and a discussion as to how to effectively deal with it (inappropriate touching) in the moment from past transgressions. (v) On 6 May 2004 Ms Dene reported as follows: [Mr A] was dressed casually and looked relaxed. He cried when talking about the importance of apologising to Miss B, and his feelings of remorse. She noted that Mr A went on to say that during the holidays while playing with his daughter she fell and her tooth went through her lip. He described his distress at seeing his daughter hurt and said that the visual image of her being "damaged" increased his resolve to apologise to her for "past inappropriate touching". He said he tried to talk to her the next day and that she reportedly brushed him aside. (vi) On 15 September 2004 Ms Dene recorded the results of her meeting with Miss B at which Mr A was present. She noted that she told Miss B she was aware of what her father had done and that the child hid behind a hat and did not want to talk about it. She then went on to detail what occurred in the course of the session when Mr A apologised to his daughter and told her he would not "hurt" her again. She noted her belief that Miss B "took the first steps in healing the abuse today". (vii) On 20 September 2004 Ms Dene recorded that Mr A appeared deeply remorseful about his past actions and that most of the session was taken up with talking about his relationship with Miss B and how "he had begun transgressing her boundaries" and how one of his maintaining factors was a "personality trait of enjoying the taboo". 62The clinical notes were tendered on the appeal over objection however, since they were obviously critical evidence upon which the Tribunal placed considerable reliance for a number of findings adverse to the plaintiff, Ms Graycar accepted there was no legitimate basis for my not having access to them for the purposes of the appeal. The notes were also highlighted by Ms Stern in oral submissions on the appeal in meeting the plaintiff's contention that there was an insufficient evidential basis for the Tribunal to be satisfied that the content of the initial disclosure disclosed inappropriate touching and sexualised thoughts. 63I am of the firm view that the clinical notes (of which the above extracts are an example) are relevant for a number of reasons, not limited to the submissions advanced in support of the third ground of appeal. The Tribunal expressed the view that the pattern of Mr A's conduct (which I interpolate must have been by reference to the clinical notes) was a "textbook" pattern, in that he made incremental disclosures in therapy while recruiting the support and friendship of Ms Dene as the therapist. They went on to note that an important aspect of the practice of psychology is an awareness of the potentially manipulative nature of some clients to which a person in the plaintiff's position should have been alert. 64The clinical notes were also referred to by Dr Banks as the independent peer reviewer of the plaintiff's conduct. Despite Ms Graycar's submission that Dr Banks' wholesale and unrelenting criticism of the plaintiff proceeded from an uncritical reliance on the content of the clinical notes, I am satisfied that his reference to the notes was not for the purpose of resolving the dispute as to the content of the initial disclosure (plainly not his task as a peer reviewer) but for determining what conclusions concerning the plaintiff's conduct might be drawn on the assumed basis that the initial disclosure was of sexual misconduct and sexualised thoughts as contended for by the HCCC. 65There is an additional source of evidence the Tribunal took into account in support of its finding on the question of the terms and content of the initial disclosure and when the plaintiff became aware of it which I regard as significant.

The significance of Dr Brechman-Toussaint's evidence 66Although Dr Brechman-Toussaint's evidence went primarily to proof of Particular 2, it was also relevant to resolving the dispute about the timing and content of the initial disclosure. 67In November 2003, the plaintiff referred both of Mr A's daughters to Dr Brechman-Toussaint, a specialist child psychologist also in practice at the university clinic. She did not make a report to the Department. According to her evidence before the Tribunal and her handwritten notes of the terms of the referral, there was no suggestion that either of the children had been, or were at risk of being, physically or sexually abused or ill-treated. Having been told by the plaintiff that there was "minor" inappropriate touching, her handwritten note queried the possibility of sexual abuse. She then went on to note that: [The plaintiff and Ms Dene] claim no - but would like daughters to have opportunity to develop gain knowledge of sexually appropriate touch etc. Dangers of abuse?? not seen at risk by [the plaintiff or Ms Dene]. 68This note was in conflict with the plaintiff's correspondence with the university at which time his conduct as a member of the academic staff was called into question in the context of his treatment of Mr A in the university clinic and his supervision of Ms Dene as a postgraduate student. This was either prior to or at the same time as the HCCC's enquiry into his conduct as a psychologist. 69In correspondence with the university dated 20 September 2005 he claimed that to ensure that his decision not to notify the Department of what he then described as Mr A's "touching behaviour" was a fully informed and appropriate decision, he arranged for Dr Brechman-Toussaint to assess the two children and to obtain from her an objective evaluation of the extent of risk as required under s 27(2)(a) of the CYPCP Act. 70In her correspondence with the university and with the HCCC Dr Brechman-Toussaint vehemently denied receiving any request from the plaintiff for advice as to whether the children had been abused or were at risk of abuse, or any request for assistance with respect to the plaintiff's decision as to whether a report should be made to the Department. Rather, she understood the referral to be limited to the provision of three counselling sessions with the children, largely as a preventative measure following the plaintiff's independent risk assessment and after he had determined that the children had not been harmed and were not at any risk of harm. She reported that these sessions were convened in December 2003 and were attended by both of the children. She said the sessions included a cognitive behavioural approach to determine whether there was anything of note in the children's behaviour that appeared to coincide with the timeframe of their mother's illness and that necessitated some attention. She also said she provided assistance to the children with a view to them managing and understanding their emotions and actions and that a secondary focus of treatment involved discussing with Miss B changes that would likely occur in her body as she matured. She also provided strategies that the children could employ to protect themselves were they to encounter any inappropriate or abusive behaviour from anyone in the future. She said she was not invited to discuss her assessment or treatment of the children with the plaintiff. She did say that after the final session the plaintiff thanked her for seeing the children. 71The Tribunal found that rather than use the referral to Dr Brechman-Toussaint as an opportunity to recruit the assistance of an experienced psychologist to assist with the gathering of information relevant to the objective evaluation of the risk of harm as the plaintiff claimed in his correspondence with the university, the plaintiff took no steps to reassess the situation. 72I note that Particulars 2(a) and 2(b) of the complaint concern the plaintiff's failure to provide all relevant information to Dr Brechman-Toussaint in relation to the risk of harm to Mr A's children upon the occasion of the referral in November 2003, and his failure to adequately reconsider at that time whether the children were at risk. There is no challenge to the Tribunal's finding that both particulars were proved, or the related finding that it constituted unsatisfactory professional conduct.

Conclusions as to the third ground of appeal 73My review of the evidence comfortably satisfies me that this is not one of those rare or limited cases where a challenge based upon an insufficiency of evidence to support the Tribunal's findings (or a failure to take into account evidence, of which Sinha is an example) constitutes an error of law sufficient to meet the test identified by Basten JA in Prakash. 74Having regard to the evidence, including the Tribunal's reliance on Ms Dene's clinical notes and the rejection of her claim to have egregiously misquoted Mr A in them, the plaintiff has failed to demonstrate that the Tribunal's finding as to the timing and content of the initial disclosure was not reasonably open. The Tribunal was well aware that the critical clinical note recording that fact was prepared some time after the initial disclosure, equally as they were aware of a complex of other evidence which was corroborative of the position for which the HCCC contended and which they were ultimately persuaded was likely to be accurate. While it is accurate to say that when the Tribunal rejected Ms Dene's evidence that her clinical notes were an exaggeration, they did not identify the specific reasons for so doing, they did make adverse findings as to her insight and candour, as they did of her repeated attempts to deflect responsibility for her own failures onto the plaintiff and Dr Brechman-Toussaint. This, together with the Tribunal's express acceptance of the HCCC's submission that she has been "less than frank" in her written response to the HCCC enquiry about her clinical note taking, provide an adequate basis for a reasoned rejection of her attempt to distance herself from the record of Mr A's disclosure in her notes. 75The Tribunal was also entitled to take into account its criticism of the plaintiff's evidence and what it perceived to be his attitude of self justification and lack of candour. It formed no part of the plaintiff's case on the appeal that the Tribunal's findings offended against the approach to issues of disputed credibility in Fox v Perry [2003] HCA 22; 214 CLR 158. I am not satisfied that there is any basis for inferring that the Tribunal misunderstood the applicable standard of proof or misapplied it. 76The third ground of appeal fails.

Mandatory reporting obligations 77The plaintiff submitted that even were the Tribunal to have accepted that Mr A's initial disclosure was in the terms contended for by the HCCC, it was obliged to consider whether he was a person obligated to report the matter under s 27(1)(a) of the CYPCP Act before finding Particular 1(b) proved despite the concession made in submissions filed on his behalf before the Tribunal that he was a person subject to the mandatory obligations to report under the Act. 78On the appeal the plaintiff sought to argue that on a proper construction of the CYPCP Act he is not a mandatory reporter either generally or as a result of the health care services he provided in this case. He submitted that the Tribunal was in error in proceeding to find the complaint of professional misconduct proved against him on this basis, particularly given its significance to a series of adverse findings against him. 79The plaintiff submitted that the Tribunal erred in law in its interpretation of the mandatory reporting obligations under the CYPCP Act and that this has resulted in a series of erroneous findings in respect of a number of particulars of both complaints. 80Particulars 1, 2 and 6 rely directly and indirectly upon the fact that the plaintiff did not report to the Department that Mr A's children (or at least Miss B) were at risk. The allegation in relation to a discrete finding of professional misconduct was that the plaintiff delayed in making a report to the Department from around January 2005 to August 2005 (Particular 6) as distinct from his failure to report in October 2003 (Particular 1). 81As at 21 October 2003, the relevant provisions of the CYPCP Act were as follows: 23 Child or young person at risk of harm For the purposes of this Part and Part 3, a child or young person is at risk of harm if current concerns exist for the safety, welfare or well-being of the child or young person because of the presence of any one or more of the following circumstances: (a)... (b)... (c) the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated, (d)... (e) a parent or other caregiver has behaved in such a way towards the child or young person that the child or young person has suffered or is at risk of suffering serious psychological harm. 24 Report concerning child or young person at risk of harm A person who has reasonable grounds to suspect that a child or young person is, or that a class of children or young persons are, at risk of harm may make a report to the Director-General. 27 Mandatory reporting (1) This section applies to: (a) a person who, in the course of his or her professional work or other paid employment delivers health care, welfare, education, children's services, residential services, or law enforcement, wholly or partly, to children, and (b) a person who holds a management position in an organisation the duties of which include direct responsibility for, or direct supervision of, the provision of health care, welfare, education, children's services, residential services, or law enforcement, wholly or partly, to children. (2) If: (a) a person to whom this section applies has reasonable grounds to suspect that a child is at risk of harm, and (b)those grounds arise during the course of or from the person's work, the person must, as soon as practicable, report to the Director- General the name, or a description, of the child and the grounds for suspecting that the child is at risk of harm. 82In its Reasons for Decision the Tribunal addressed the question of whether either or both the plaintiff and Ms Dene had mandatory reporting obligations under the CYPCP Act. The HCCC submitted that both Ms Dene and the plaintiff should be regarded as mandatory reporters. In so far as the plaintiff was concerned the HCCC submitted that his practice in general, and the treatment he provided in this particular case, readily permitted the conclusion to be drawn that he was a person who delivered health care or welfare services wholly or partly to children in the course of his professional work, and therefore a person upon whom mandatory reporting obligations are imposed under s 27(1)(a). 83While the Tribunal was urged by the plaintiff and Ms Dene to find that neither was obliged to make a report under the Act because there were no reasonable grounds to suspect that there was a child at risk as provided for in s 27(2)(a), if Mr A's disclosure was found to be reportable only Ms Dene addressed submissions as to whether she was a person within the class of person in s 27(1)(a). She submitted that she was not a mandatory reporter because she was not a person who delivered health care services to children in the course of any paid employment. The Tribunal found otherwise. 84It is unnecessary to consider the Tribunal's reasoning in coming to that conclusion since I am not persuaded that it impacted upon the findings the Tribunal made in regards to the plaintiff's reporting obligations. I am of this view despite Ms Garycar's submission that when considering whether Ms Dene had statutory obligations, the Tribunal elided its consideration of the scope of the Act so as to include the plaintiff when it should have considered his obligation to report as a separate question. It is not to the point for counsel to emphasise that it was only in its consideration of Ms Dene's case (and only in respect of the "paid work" aspect of the provision) that it did not refer to any extrinsic materials that may resolve ambiguity or uncertainty as to whether only those in paid employment should be subject to mandatory reporting requirements. The question is whether the Tribunal was in error in failing to separately consider whether the plaintiff was a person upon whom the section imposed mandatory reporting obligations when he openly conceded he was subject to the section as a mandatory reporter. 85While it is correct to emphasise that the Tribunal's findings as to the scope and operation of the Act were specific to Ms Dene's case, that was not because the Tribunal assumed, unquestioningly, that the plaintiff was also subject to the Act, but because the plaintiff's attitude to the question whether or not he was a mandatory reporter was different to the position she elected to argue in defence of her position. 86In his written submissions before the Tribunal the plaintiff accepted that in the event that the Tribunal were to find that the initial disclosure was reportable (because there were reasonable grounds to suspect that Mr A's children were at risk of significant harm) he was obligated under s 27 of the CYPCP Act to report the matter to the Department. He went further and conceded that were that the case he was in breach of his statutory obligations such that Particular 1(b) in its express terms was made out, and Particulars 1(a), (f) and (g), by extension, were also made out. In the Reasons for Decision the Tribunal went further than to simply note the plaintiff's acceptance of his statutory obligations, it found that the evidence accorded with the plaintiff's concession. For what I regard as entirely understandable reasons it did not elaborate upon that evidence. 87The plaintiff's position before the Tribunal was consistent with his position in his dealings with the university. While it is true that he made the point in correspondence with the university that the interpretation of s 27 was a matter for "a court of competent jurisdiction", it is clear from the context that this was not because he did not regard himself as within the class of persons identified in s 27, but because he did not consider his reporting obligations were triggered either by Mr A's disclosure in October 2003 (or by what he came to learn at any time thereafter) and that any liability to prosecution for his failure to report the matter to the Department was a matter for a criminal court. 88Despite the considered position the plaintiff took before the Tribunal, on the appeal he submitted that the Tribunal was obliged to make a determination that he was in fact subject to reporting obligations under the Act and that their failure to make a clear determination on this issue and/or their failure to provide clear reasons for finding that he was a mandatory reporter, constituted an error of law. 89The HCCC submitted that it is not open to the plaintiff to complain about the failure of the Tribunal to deal with a question of construction or interpretation of a relevant statute in circumstances where the position of the HCCC on that very question was, at least impliedly, conceded by the plaintiff to be correct, and where he could have been in no doubt as to the forensic consequences of his concession. It was further submitted that to then complain to this Court about the Tribunal's failure to give reasons for adopting both the HCCC's submissions and the plaintiff's concession is not a submission that this Court should countenance. There is considerable force in that submission. 90Ms Graycar submitted that the mere fact that the plaintiff made the concession that he was a mandatory reporter did not absolve the Tribunal from addressing the express terms of s 27 in circumstances where a finding that the plaintiff was obliged to report what was disclosed to him operated as a necessary statutory precondition to any finding that he breached his statutory obligations and which, in turn, had a direct impact on proof of a range of the particulars of unsatisfactory professional conduct and professional misconduct relied upon by the HCCC. 91Counsel relied upon Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 where Bowen CJ (with whom Fox and Deane JJ agreed) said the following (at 195): In my opinion a party is not necessarily precluded by the conduct of his case before the Tribunal from arguing on 'appeal' matters conceded below. If he is successful then the decision of the Tribunal may be overturned - found in some way to be wrong in law, even though that error may have been substantially contributed to by the conduct of the case by the party in question. In other words, the conduct of the party's case before the Tribunal goes to this Court's discretion as to what course it will take given that there has been an error rather than to the question as to whether the Tribunal really made an error. The case before this Court is not merely one of parties agreeing upon what facts should be decided by the trier of fact, nor a case of facts, peculiarly within the knowledge of the party, being conceded. Rather, there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties' submissions. In these circumstances it was an error of law not to consider and decide the issue of immigrant status [the statutory precondition]... (emphasis added) 92Counsel also relied upon Repatriation Commission v Warren [2008] FCAFC 64; 167 FCR 511 where Lindgren and Bennett JJ had occasion to consider whether in reviewing the decision of a primary decision-maker the Administrative Appeals Tribunal is bound by concessions made by the parties at first instance. At [78] their Honours set out the principles which they took to be established. Their Honours referred expressly to Kuswardana and also observed: ... (a) the matter is a pure question of law, such as a question as to the validity of a regulation (Kuswardana at 195; Tefonu at 367) or a question as to whether the tribunal had applied the correct standard of proof on the true construction and application of legislation (Ferriday at 527-528 per Lee J); (b) the matter goes to a misapprehension that was shared by the parties before the tribunal and therefore by the tribunal itself (Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue (1994) 50 FCR 405 at 418-419 per Wilcox J) such as a shared misapprehension as to the applicable law (cf Thomas at 120 per Beazley J); or (c) the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual (Kuswardana). 93There can be no doubt that in the context of the detailed complaints the construction of s 27(1)(a) of the CYPCP Act was of critical importance or that it involves a pure question of law. It cannot be said however that the parties shared a misapprehension or misunderstanding of the law, or that the application of the Act was in any sense a new issue, or that there was material before the Tribunal which raised the question of the application of the Act to the plaintiff independently of the concession by the plaintiff and his counsel that it did. These are all matters that bear upon the question whether I should allow the question of whether the plaintiff is a mandatory reporter to be agitated for the first time on the appeal. 94Despite some misgivings as to whether the discretion should be exercised in the plaintiff's favour, since I heard detailed argument on the question of construction, I propose to deal with it to dispose of it. I do not however propose to separately consider whether error is constituted by what is said to be the failure of the Tribunal to give reasons for finding that he was a mandatory reporter in light of his concession. 95The plaintiff's position is simply stated: he did not have mandatory obligations to report under the CYPCP Act because he was not a person who delivered health care services wholly or partly to children (the only construction of s 27(1)(a) that had any potential application in the circumstances of this case). He submitted that he did not deliver health care services to Mr A's children simply by having the responsibility to supervise Ms Dene in the treatment she delivered to Mr A or his children or for any other reason. The HCCC's position before the Tribunal that the plaintiff was also caught by the operation of the section because he supervised Ms Dene in the provision of services to the children under s 27(1)(b) must be rejected since, on a proper construction of that section, it only applies where the person holds a management position in an organisation which includes directly supervising others in the provision of services to children. The plaintiff's academic post within the university cannot be equated with a management position in such an organisation, despite his role as a supervisor of postgraduate students who might provide services to children as part of the practical component of their studies. 96That, however, is not the end of the matter. It was the plaintiff's case before the Tribunal, a position he did not seek to depart from on the appeal, that it was on his referral that Mr A's children were seen by Dr Brechman-Toussaint in her capacity as a specialist child psychologist. There can be no doubt that in the provision of treatment in the three counselling sessions convened in December 2003 Dr Brechman-Toussaint was delivering a health care service to a child. There is equally no doubt that but for the plaintiff's referral that treatment would not have been delivered. Ms Graycar submitted that if the plaintiff did not meet the children and/or treat them personally he did not deliver a health care service and that the referral to Dr Brechman-Toussaint, whilst effective to facilitate the delivery of a relevant service to a child, did not amount to the delivery of that service by him. 97I am of the considered view that the plaintiff's supervision of Ms Dene at the time of the initial disclosure by Mr A, in circumstances where Mr A was referred for therapy in part because of the plaintiff's concerns about his capacity to parent his children, and/or the referral of Mr A's children to a specialist child psychologist within weeks of that date, amounted to the delivery of health care services wholly or partly to a child for the purposes of s 27(1)(a) of the CYPCP Act. I do not accept that in order for a health care professional to be someone who "delivers" health care services those services need to be delivered personally by that person. In this case, however, I am satisfied that the referral to Dr Brechman-Toussaint was itself a delivery of a health care service. The delivery of services to which the section refers must be taken to include services delivered by another health care provider on referral. 98There were also health care services delivered to Mr A's children by Ms Dene with the plaintiff's express authority and under his supervision. I am well satisfied that by reason of Mr A's disclosure in October 2003, the health and welfare of Miss B became a therapeutic concern of the plaintiff even if he failed to respond appropriately to it. The CYPCP Act expressly provides in s 9(1) that it is to be administered under the overriding principle that the safety, welfare and wellbeing of the child is paramount. In my view, it would be a perverse construction of s 27 for the mandatory obligations to report a child who is at risk of harm to be imposed on the intern to whom the initial disclosure was made, and not upon the senior professional to whom the disclosure was relayed for the stated purposes of seeking guidance and advice as to whether the matter should be the subject of report (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355). 99The results of the therapeutic intervention by Dr Brechman-Toussaint were the subject of report in the Discharge Summary signed by the plaintiff as were the joint therapy sessions conducted by Ms Dene with Mr A and his daughters. This serves to reinforce the fact that Ms Dene was providing or delivering health care services to the children under the plaintiff's supervision. In this context it is irrelevant that the plaintiff's supervision of Ms Dene was deficient. The mandatory reporter cannot avoid his/her statutory obligations (or the responsibility for breaching them) by claiming that they had failed to provide appropriate supervision of the person with direct engagement in the provision of services to the children. I am also satisfied that the obligation to report is a continuing obligation such that the plaintiff's failure to report the matter to the Department in January 2005, when he no longer had any supervisory responsibility for Ms Dene, is irrelevant.

The statutory test for professional misconduct 100Section 24 of the Psychologists Act defined "professional misconduct" as "unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the psychologist's registration". Section 139E of the National Law is in almost identical terms: For the purposes of this Law, professional misconduct of a registered health practitioner means - unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 101Section 24 is identical to s 37 of the Medical Practice Act prior to amendments to that section in 2008. In Lindsay v Health Care Complaints Commission Sackville AJA at [159] held that s 37 of the Medical Practice Act (in its unamended form) was wide enough to allow a Tribunal to consider instances of unsatisfactory conduct cumulatively or collectively for the purpose of determining whether the medical practitioner has engaged in professional misconduct. In the present case it was not in dispute that the Tribunal was entitled to consider the particulars of unsatisfactory professional conduct cumulatively in determining whether the complaint of professional misconduct was established. 102The definition of "unsatisfactory professional conduct" in s 25 of the Psychologists Act provided as follows: For the purposes of this Act, "unsatisfactory professional conduct", in relation to a registered psychologist, includes any of the following: (a) any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the psychologist in the practice of psychology is significantly below the standard reasonably expected of a psychologist of an equivalent level of training or experience, ... (e) any other improper or unethical conduct by a psychologist in the course of the practice or purported practice of psychology. 103The definition of "unsatisfactory professional conduct" in s 139B(1)(a) of the National Law is in almost identical terms to s 25 of the Psychologists Act. 104The HCCC submitted that on the appeal the plaintiff has sought to add a "gloss" to the statutory test of professional misconduct in two ways. First in submitting that the Tribunal would need to be satisfied that the plaintiff's proven conduct evinced a level of infamy or disgrace before a finding of professional misconduct could be sustained as a matter of law. Ms Graycar submitted that the need for such a finding was borne out by tracing the origins of the contemporary doctrine of professional misconduct and its consistent evocation in a wide body of legislation directed to regulating the conduct of the professions, including the institution of disciplinary proceedings to prosecute professional misconduct. 105She referred to Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 as the seminal authority where, at 763, Lopes JL propounded what he described as a non-exhaustive definition of "infamous conduct in a professional respect" as including: ...if it is shewn that a medical man, in the 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... 106She also submitted that in giving shape and content to the statutory definition of professional misconduct it was necessary for the Tribunal to have been satisfied that each of the particulars identified in the complaint was a deliberate departure from accepted standards of a psychologist and that those departures have been the subject of professional reprobation by fellow practitioners of good repute and competence, or that the conduct displayed such serious negligence as would demonstrate indifference to an abuse of the privileges that accompany registration as a psychologist. In support of that submission I was referred to Pillai v Messiter (No 2) (1989) 16 NSWLR 197 (in particular what Kirby P noted at 200) and Qidwai v Brown [1984] 1 NSWLR 100. 107That submission overlooks that more recently, in Lucire at [84], after having referred to Qidwai which was decided under the Medical Practitioners Act 1938, Basten JA held that: ...When the somewhat archaic statutory language was replaced with the more contemporary concept of "professional misconduct", the language of moral obloquy was also abandoned and peers expressed their views in terms of strong criticism, rather than "strong reprobation"... 108While I accept that an error of judgment cannot amount to conduct attracting the strong reprobation of professional peers (see Qidwai at 105 per Priestley JA and Daskalopoulos v Health Care Complaints Commission [2002] NSWCA 200 at [59] per Hodgson JA), it is a serious understatement to regard any of the plaintiff's conduct which attracted an adverse finding by the Tribunal as amounting to nothing more than an error of judgment in this sense. That submission was put to the Tribunal on the plaintiff's behalf and rejected. To seek to revisit it in this forum is to invite a merits review. 109The HCCC submitted that in the absence of a statutory definition of what is or might be comprehended by "conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration", the question whether the particular conduct alleged against the plaintiff was conduct of that kind was a matter for the evaluative judgment of the Tribunal having regard to their assessment of the seriousness of the particulars of misconduct established by the evidence. Their assessment of the seriousness of the plaintiff's conduct was also obviously informed by Dr Banks' sustained and trenchant criticism of various aspects of the plaintiff's conduct he was asked to comment upon and the Tribunal's express reliance on his reported views tested under cross-examination. The five matters Dr Banks was invited to comment upon were an amalgam of the eight particulars relied upon by the HCCC in establishing both complaints. At the invitation of counsel I have read Dr Banks' report in detail. It suffices for present purposes to note that together with what he regarded as the plaintiff's failure to discharge his professional obligations as a psychologist in his dealings with Mr A, he was particularly critical of the plaintiff's conduct as a clinical supervisor to the extent that he was of the view that his complete defiance of his duty precipitated a series of actions in regards to Mr A's children that were "at best inept and at worst completely reckless and irresponsible". 110I am not persuaded that an analysis of the authorities dictates that the test that the Tribunal was obliged to apply is as contended by Ms Graycar. I am satisfied that after a detailed analysis of the evidence, including the focused report of the peer reviewer and the consideration given to the submitted positions of all parties, the experienced Tribunal members were well equipped to undertake an evaluative judgment of the seriousness of the particulars of misconduct they found proved to determine whether either individually or cumulatively the suspension or cancellation of the plaintiff's registration as a psychologist was warranted.

The Tribunal's findings of professional misconduct 111The Tribunal made a finding of professional misconduct in the following terms: [662] ...the Tribunal finds the conduct of Dr Donnelly as set out in Particular 4 constitutes professional misconduct. The Tribunal is also of the view that when the balance of the Particulars are considered together that the conduct amounts to professional misconduct in that the conduct was of a sufficiently serious nature to justify suspension or cancellation of his registration. 112The plaintiff complains that the finding suffers from the fundamental defect that the Tribunal has simply stated the statutory test for professional misconduct without providing reasons as to why the test was satisfied. 113The HCCC submitted that there can be no error in the Tribunal stating a conclusion based on the evaluative judgment required to be undertaken under the Act. 114The plaintiff also submitted, that the Tribunal's finding expressed in [662] and extracted at [111] above is inconsistent with other parts of the Reasons for Decision which purport to make a discrete finding of professional misconduct not only in respect of Particular 4 but also in respect of Particulars 3 and 6 which further exemplifies defects in the Tribunal's reasoning process. While it is clear enough that the Tribunal made a finding of professional misconduct when giving its reasons for finding Particulars 3 and 6 proved, and that it failed to restate that finding in the paragraph extracted above, I do not consider that it is illustrative of the error of law for which the plaintiff contends. It appears to me to be the simple result of a transposition error which in a reasoned decision extending over 200 pages barely warrants remark. 115The plaintiff did not submit that the conduct the subject of Particulars 3, 4 and 6 (if proved) was incapable of constituting unsatisfactory conduct, or that when that conduct was considered cumulatively with the conduct inherent in the balance of the particulars it was incapable of supporting a finding of professional misconduct. Error was said to result from the Tribunal's failure to give reasons for finding Particulars 3, 4 and 6 proved. 116There was a further challenge to its discrete finding that when isolated from the balance of the particulars they supported a finding of professional misconduct, an approach which was said to be demonstrative of irrationality and caprice such as to warrant that finding being erroneous in law. 117In Minister for Immigration and Citizenship v SZMDS Crennan and Bell JJ reviewed the jurisprudence in the context of administrative review founded on the basis of jurisdictional error. It was in this context that the use of terms such as "illogicality" and "irrationality" and "arbitrary" or "capricious" decision-making were considered. In essence, however, their Honours were concerned to emphasise that these concepts were not freestanding requirements in decision-making and that, in whatever way the particular challenge to a decision is expressed, reasonableness and rationality remain the touchstone underlying the established principle that a court will not lightly interfere with administrative decision-making. In their Honours view, allegations of illogicality and irrationality must mean more than an emphatic disagreement with a decision. 118At [130] their Honours said: In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. 119I am not persuaded that there is any basis at all to describe the Tribunal's reason for decision as capricious, arbitrary, irrational or illogical. 120I am satisfied (for the reasons that follow) that the criticism that the Tribunal's finding at [622] is unsupported by reasons is without merit. Not only did the Tribunal consider each of the eight particulars seriatim in paragraphs [582] - [640] of the Reasons for Decision, giving reasons at that time for finding each of them proved before providing a general statement of its findings (at [641] - [665]), but I am also satisfied that the adequacy of those reasons is in accordance with the test for adequacy articulated by McColl JA in Pollard. 121At [57] her Honour observed that the provision of adequate reasons lies at the heart of the judicial process providing a means of ensuring that both the fact and the appearance that justice has been achieved. Her Honour went on to note that the test of adequacy is relative and that the extent and the content of reasons depends upon the particular case under consideration and the matters at issue. Her Honour then observed: [58]... While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ. [59] The reasons must do justice to the issues posed by the parties' cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge "'enter into' the issues canvassed and explain why one case is preferred over another"; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J. 122On a considered reading of the Tribunal's Reasons for Decision, in which they undertake a lengthy exegesis of the evidence in the context of the competing submissions of the parties as to what the evidence established before considering the relative seriousness of the proven conduct, I am not persuaded that there is any room to speculate upon the basis for their findings, or for there to be any doubt that they regarded the plaintiff's conduct, viewed globally, as an abject failure in multiple respects to discharge his professional obligations to ensure against harm to those exposed to the risk of abuse as not simply reflective of a number of errors of judgment. 123While I acknowledge that McColl JA went on to say at [64] and [65] in Pollard that bald concubinary statements as to findings of fact in dispute and/or bald findings on issues of credit should be eschewed, and that a tribunal of fact is obliged to undertake an analysis of the competing evidence and the reasons for preferring or accepting one witness or body of evidence over another to ensure that someone reviewing the findings can be confident that all relevant matters have been considered, it does not follow that an evaluative judgment of the evidence might not be stated in bald or emphatic terms or by reference to a statutory test. The submission that to do so constitutes error must be rejected.

The particulars supporting a discrete finding of professional misconduct 124Particular 3 is as follows: On 15 September 2004, [the plaintiff] encouraged and/or permitted Ms Dene to involve [Miss B] in the therapeutic process she was undertaking with Mr A notwithstanding that this was: (a) beyond her competence; (b) inappropriate in the circumstances; and (c) without any steps being taken to assess or to ensure [Miss B's] welfare in relation to this process. 125Particular 4 is as follows: [The plaintiff] failed to exercise appropriate supervision of Ms Dene in her treatment of Mr A. 126Particular 6 is as follows: From around January 2005 - August 2005, [the plaintiff] delayed making a report to the Department of Community Services. 127The Tribunal found Particulars 3(a) and 3(b) established but, so far as (a) was concerned, only to the extent that the plaintiff permitted Ms Dene to involve Miss B in the therapeutic process with Mr A knowing that it was her intention to do so, not that he encouraged her to do so. The Tribunal went on to find that he was aware that Ms Dene intended to have the child confronted with the fact of her father's misconduct towards her in Mr A's presence and that in those circumstances the only appropriate advice was that the session should not be convened at all. 128A finding of unsatisfactory professional conduct was made in respect of 3(a), 3(b) and 3(c) and a further finding of professional misconduct in respect of 3(c) inherent in the Tribunal's finding that particular conduct justified suspension or cancellation of the plaintiff's registration. Although the reasoning in support of the differentiated findings is not as elaborate as it might have been, the Tribunal's express acceptance of the HCCC's submissions on the issue (albeit with what I accept was a misstated reference to the paragraph number in the submissions), namely that to expose the child to a joint session with her abuser was conduct exposing her to harm, was the obvious basis for it. In that connection I note that the HCCC referred to Dr Banks' opinion as to the appropriateness of the joint session. He said: In the field of sex offender treatment, the reasonable standard is that a therapist who is providing treatment to the offender does not simultaneously engage in the provision of treatment to the victim. To do so would not just be significantly below the standard, it would also be considered completely unconscionable conduct. 129With regard to Particular 4, the Tribunal was satisfied that during the time Ms Dene was treating Mr A the plaintiff's supervision of her was irregular at best and for a period of approximately two months during 2004 was by telephone only. In addition, the plaintiff's failure to record the fact that supervision had occurred in a log book format, or any record at all of the supervision he was providing, was a significant departure from the standard of supervision expected of any registered psychologist. The Tribunal was also satisfied that the plaintiff's total failure to review Ms Dene's clinical notes was a more fundamental departure from the standard reasonably expected of a registered psychologist with supervisory responsibilities. Given the clinical novelty for Ms Dene in having a long-term client, and her florid emotional reaction to Mr A's disclosure of inappropriate touching, together with what the plaintiff himself described as Mr A's "complicated clinical presentation", the Tribunal was satisfied that there was no scope to depart from a diligent supervision regime. 130In the result the Tribunal was satisfied that the plaintiff's supervision of Ms Dene was "extremely deficient" in many respects, that it was unethical and improper and that it fell significantly below the standard reasonably expected of a psychologist of an equivalent level of training and experience, thereby supporting a finding of unsatisfactory professional conduct in accordance with s 25 of the Psychologists Act (s 139B(1) of the National Law). There is no challenge to that finding. The challenge is to the Tribunal finding that the plaintiff's manifold failures as a supervisor were of a sufficiently serious nature to justify suspension or cancellation of registration thereby supporting a finding of professional misconduct in accordance with s 24 of the Psychologists Act (s 139E of the National Law). In that connection the Tribunal said: [622] Tribunals exercising protective jurisdictions frequently frame criticism in terms of the potential for harm of particular conduct. This flows from the protective rather than punitive nature of the jurisdiction. In this matter the potential for harm appears to have been, by and large, realised. This matter should act as a reminder to practitioners who accept the responsibility of supervision to discharge their professional obligation with a high degree of diligence. 131Consideration of the Tribunal's treatment of Particular 6 can only be sensibly undertaken in the context of its findings in regard to Particular 1. In that connection the Tribunal was satisfied that what the plaintiff knew as at 21 October 2003 was sufficient to trigger his reporting obligations under the CYPCP Act. The Tribunal's view that the plaintiff totally misconceived the nature of his mandatory reporting obligations and what they described as his "ethical obligations to ensure safety of the vulnerable and the moral obligation to protect them", was a repeated theme in the Tribunal's adverse findings concerning the plaintiff. 132It also made the express finding that when Ms Dene relayed to the plaintiff Mr A's disclosure of inappropriate touching of his daughter and his inappropriate sexualised thoughts concerning her, whether because of the plaintiff's ignorance of his obligations under the CYPCP Act and/or his own professional guidelines, or his determination to ignore them in what he perceived as Mr A's interests, he decided not to report the matter to the Department. The Tribunal considered that the plaintiff's failure to respond appropriately to the disclosure at that time was compounded by his failure to assess the child as being exposed to current risk from her father because of what the Tribunal regarded as the misplaced and undue weight he gave to what he saw as Mr A's voluntary disclosure, the fact that he sought assistance in dealing with his actions and feelings and his claim that the behaviour had ceased. 133The Tribunal also found that the plaintiff's failure to properly apprehend the risk to Mr A's daughters was compounded by his view that it was in Mr A's interests that the therapy continue, and in the family's interests that the disruption necessarily occasioned by the involvement of the Department be avoided. 134The Tribunal noted that although the plaintiff and Ms Dene said that they gave consideration to reporting obligations under the Act, there was no reference to any particular legislative provision in Ms Dene's contemporaneous handwritten notes of the supervision session she had with the plaintiff following the disclosure, although the notes did contain some loose photocopies of the relevant legislative provisions. The Tribunal were most critical of the fact that the plaintiff made no notes of this session, or any of the supervision sessions with Ms Dene before 21 October, or after that date. The only reference in Ms Dene's notes to discussing mandatory reporting responsibilities was in the context of a discussion (presumably with the plaintiff) about the fact that risk would only be established if the child had disclosed sexual abuse or the situation was revealed by a third person and, further, that the risk of harm to Miss B was mitigated because of Mr A's voluntary disclosure and his stated determination to keep his actions and feelings in check and to participate in therapy sessions at the clinic. 135The Tribunal extracted a portion of the plaintiff's evidence as confirmatory of what it described as his theme of "universal risk" which he volunteered in justification of his decision not to report Mr A to the Department: There is always discretion - every kid's at risk - every kid's at risk. To suggest that we have no discretion, that we should report every child case we have contact with is absolutely ludicrous. We tried to make an informed decision because contacting DOCS in rural New South Wales can have devastating consequences - that's truly the reality, so we had to make an informed decision and we tried to inform ourselves as best as possible with multiple sources of information. 136He also gave evidence that: ... I was looking in the paper in Bellingen where we've got someone hanging out at preschools there, technically all of those children in that preschool are at risk, what are people doing about it? There's a level of risk that we just have to accept and try to manage as effectively as possible and that's what we tried to do in this situation. 137The Tribunal expressed its concern with the plaintiff's evidence on more than one occasion in the course of its Reasons for Decision. In regards to the central question of the plaintiff's reporting obligations, they criticised his evidence for the overriding concern he expressed for the wellbeing of Mr A as distinct from his children, and what the Tribunal described as "distracting and unsupported propositions". One example cited by the Tribunal was his evidence as to the appropriate use of massage in dealing with children with psychosomatic disorders when there was no evidence before the Tribunal that Miss B suffered from any psychosomatic symptoms of any kind. In the Tribunal's view, appropriate massage of a child, no matter what the symptoms, would not involve a hand being brushed or moved over the child's pubic area. On the appeal the plaintiff did not submit that this was not a view reasonably open to the Tribunal having regard to its composition and professional expertise. 138In summary, the Tribunal considered that the plaintiff had attempted in his evidence to provide a rational explanation for his conduct despite a considerable body of evidence that objectively supported the proposition that throughout the entire course of Mr A's treatment the plaintiff ignored the ongoing risk of harm to the children by a flawed supervisory regime and his own flawed clinical judgment. 139These findings have to be considered together with the Tribunal's criticism of the plaintiff in designating Ms Dene as the therapist to provide ongoing support to Mr A despite what he knew of her emotional vulnerabilities which were evidenced by her distressed and tearful reaction to what Mr A told her of his dealings with his daughter in the October 2003 session and her wholly inappropriate disclosure to him at that time that she had been the victim of child sexual abuse. The fact that Ms Dene conducted herself in this way was something that the Tribunal also took into account as tending to confirm that Mr A's disclosure had patent sexual connotations. 140Consistent with its findings on the question of the adequacy of his supervision, the Tribunal identified the contradiction inherent in the plaintiff's claim that he was unaware of the content of Ms Dene's clinical notes (and therefore unaware of Mr A's incremental disclosures) when he was obliged to review her notes in discharge of his role as supervisor. While it is true that he could not have known of the note of the 21 October 2003 session because it was not prepared at the time, other notes of the kind extracted above would have alerted him to serious questions about the course of therapy after the initial disclosure in October 2003 if he had read them. In the context of a section of the Reasons for Decision entitled "Findings Generally - Dr Donnelly" they not only accepted the HCCC's submission that he can claim no protection from his failure to have read Ms Dene's clinical notes at the relevant time, they said: [646] The Tribunal magnifies the submission made by the HCCC in paragraph 16 and is of the view that Dr Donnelly cannot in any way be given the benefit of his claim that he had not read the clinical notes made by Ms Dene at the relevant time. Part of the responsibility of a supervisor of a provisionally registered psychologist is to be satisfied that they have a comprehensive understanding of the work of the supervisee. Ignorance of matters such as the content of the clinical notes cannot be a defence. 141It was in the context of these findings that the Tribunal found that the plaintiff had delayed in making a report to the Department in 2005 when he signed the Discharge Summary. They regarded his failure to report at that time as a serious breach of the ethical obligations placed upon all health care professionals, and that it demonstrated that his knowledge, skill and judgment and the care he exercised in the practice of psychology was significantly below the standard reasonably expected by a psychologist of an equivalent level of training or experience. The Tribunal was satisfied that this constituted unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration thereby justifying a finding of professional misconduct. They went on to say that: [627] ...This would be so if the conduct considered was either his conduct in not acting after becoming aware of the nature of the disclosure made on 21 October 2003 or not acting when he signed the Discharge Summary. The Tribunal has already given reasons for not accepting that the clinical notes of Ms Dene were not tainted in the manner Ms Dene described in her evidence. With respect to the Discharge Summary, it was incumbent upon Dr Donnelly to ensure the document he was signing was accurate. He cannot have the benefit of making a claim that the document was defective because of Ms Dene's interpretation of the situation when in was his responsibility to take steps to minimise the possibility of this occurring. 142And further: [655] No matter what the circumstances of the signing, it is indeed disturbing that Dr Donnelly signed the Discharge Summary for Mr A given the content thereof without making a report to DoCS. Indeed, if this was the only matter before the Tribunal a finding of professional misconduct would be made. 143In short, in my view the Tribunal's reasons are clear and express and the basis for the more egregious finding of professional misconduct on the basis of its finding that all the particulars were proved together with the individual Particulars 3, 4 and 6 is made patent in that reasoned analysis. 144Accordingly, the first and second grounds of appeal are not made out.

Was the plaintiff denied procedural fairness in the making of the protection order? 145In order to appreciate the submissions of the parties it is necessary to set out the course of proceedings before the Tribunal. 146In correspondence initiated by the Chairperson in May 2009 it was proposed that the hearing be taken in "a staged approach" whereby the parties would first put their respective cases as to whether any of the particulars of unsatisfactory professional conduct and professional misconduct were proved, and that the Tribunal would then determine that question before the parties called evidence or made submissions directed to the characterisation of the conduct and whether protective orders ought to be made and in what terms. The plaintiff submitted that arrangement was ultimately the subject of orders made by the Tribunal on 9 June 2009 which have not been varied or rescinded. 147On the first day of the hearing the staged approach was varied to allow for the evidence and submissions as regards the proper characterisation of the conduct particularised in support of the complaints to be advanced within the first phase of the hearing but without the Tribunal making any reference to the penalty phase also being incorporated in a single hearing. 148On both 17 and 19 June 2009, the matter was raised again and the Tribunal made it clear that the hearing would be conducted in two phases. 149On the final day of the hearing, the HCCC informed the Tribunal that the written submissions that it would file and serve would include submissions as to the protective orders appropriate to a finding of professional misconduct. 150The Chairperson then said: I suspect if it is the position of all the parties that submissions can be made with respect to appropriate orders, in those written submissions, that we will not need to relist the matter however I am granting leave to relist if that is the case because I think it is important that I leave that opportunity open if the need arises once you have read the written submissions . However if leave is not applied for to have the matter relisted for hearing what will happen is, the tribunal will meet, we will make our decision and we will either hand down which we will give you notice about or we will just publish our reasons by getting it to the legal advisers and I don't anticipate that until probably towards the end of November. (emphasis added) 151While the Chairperson did not indicate to the parties what would be the subject of the "decision" it is difficult to see how it could be interpreted otherwise than a decision both as to the particulars of the complaints and the question of penalty. 152The HCCC filed and served its written submissions on 18 September and the plaintiff on 5 November 2009. 153The HCCC addressed the issue of penalty on the assumption that the complaint of professional misconduct would be established by reference to the following conduct which it was submitted was readily established on the evidence: (a) Dr Donnelly's failure to review Ms Dene's clinical records relating to Mr A; (b) The failure to protect the welfare of a child whose circumstances were such that the vulnerability inherent in childhood was severely exacerbated; (c) Dr Donnelly's failure to conduct any proper risk assessment as regards Miss B; (d) Dr Donnelly's failure to revisit his risk assessment as regards the risk to Miss B; (e) Dr Donnelly's encouragement to Ms Dene to continue treating Mr A when he ought to have known that this would carry considerable weight with her; (f) Dr Donnelly's willingness to leave Ms Dene in a position of considerable professional vulnerability without ensuring vigilant and thorough supervision; (g) The inadequacy of the referral to Dr Brechman-Toussaint; (h) Dr Donnelly's inadequate risk assessment; (i) Dr Donnelly's failures properly to reassess risk or his initial decision not to report Mr A, including having read and signed the Discharge Summary; (j) Dr Donnelly's actions in causing or permitting the joint session with Miss B and Mr A. 154The written submissions of the plaintiff's counsel in response were as follows: 131. Dr Donnelly notes that the HCCC has submitted various wide ranging orders consequent on its assessment and articulation of the case against Dr Donnelly. 132. It is clear that there are many matters in dispute between Dr Donnelly and the HCCC on the factual matters the subject of these proceedings. Further, both parties accept that the characterisation of the initial disclosure by Mr A on 21 October 2003 has significant consequences for the Complaints against Dr Donnelly. 133. In light of the above, and given the significant discrepancy between Dr Donnelly's position and that of the HCCC on the various factual matters, in Dr Donnelly's submission it is not possible at this time for him to make detailed submissions on whether any orders should be made and, if any orders are appropriate, the scope of those orders . 134. If the Tribunal was to find for Dr Donnelly on the matters he sets out above, in his submission, the Complaints should be dismissed and the HCCC ordered to pay his costs. 135. However , if the Tribunal were to make some findings against him as submitted by the HCCC, although not all , then the appropriate approach is for Dr Donnelly (and the HCCC if necessary) to be granted leave to make further submissions based upon the Tribunal's findings of fact. (emphasis added) 155The question that arises is whether the plaintiff's position, as set out in the quoted paragraph 135 above, was that he would not seek leave to make any further submissions on the question of penalty if all of the findings urged upon the Tribunal by the HCCC were made. If this was what counsel intended by that submission, there can be no complaint that the plaintiff was denied procedural fairness. It might be inferred that the plaintiff adopted this position, seeking leave to make further submissions only if some of the particulars were not proved, well aware of the material before the Tribunal and of the possibility that the Tribunal would make a decision adverse to his interests if all were established. 156On 29 June 2010 the parties were advised that the Tribunal expected to hand down its Reasons for Decision the following week. 157On 1 July 2010 a directions hearing was convened by telephone before the Chairperson at which the parties were advised that the Tribunal had found the plaintiff guilty of professional misconduct but not the basis for that finding. Although there was no transcript of the proceedings, it was accepted by counsel that the Chairperson invited the parties to make further submissions on the question of whether a prohibition order should be made. A prohibition order could not be made unless the Tribunal had made an order suspending or cancelling registration (s 53(3A) of the Psychologists Act). 158The HCCC submitted that in these circumstances the plaintiff and his legal advisers must have been aware that the Tribunal intended to make an order either cancelling or suspending his registration and, further, that since the Reasons for Decision had not been published at that time he had ample opportunity to seek leave to have the matter re-listed to make submissions as to the type and duration of the protective orders. Having failed to do so he cannot, so it was submitted, now complain of a denial of procedural fairness. The HCCC also relied upon the fact that there was no complaint about any denial of procedural fairness in the summons and/or in the amended summons which supports an inference that the plaintiff did not genuinely believe that he had been denied an opportunity to make submissions, because he did not intend to make a submission beyond the position taken in his written submissions, a position which was in turn contingent on some of the particulars of the complaints not being proved, such that no practical injustice can be said to result. 159Although neither the plaintiff nor his legal representatives gave evidence on the appeal of his or their understanding of the situation on or after 1 July 2010, or for that matter what his counsel intended to convey in the inherently contradictory written submissions he put in response to the HCCC's submissions on penalty, the plaintiff maintained the submission that he was entitled to a reasonable opportunity to make submissions on penalty once he had been apprised of the Tribunal's findings on the complaint in accordance with the Tribunal's order that the proceedings be conducted in two stages. 160The principles of procedural fairness are well established. While the issue of penalty arises only if guilt is determined, there is no procedural requirement that a separate hearing on penalty must be convened. 161As Basten JA observed in Lucire at [60], whether or not a separate hearing is required in order to ensure that a person has a reasonable or adequate opportunity to present a case on penalty depends, inter alia, on: ...such factors as the number and complexity of the complaints or particulars thereof, the manner in which the case is conducted and the wishes of the parties in respect of further evidence and submissions on protective orders. 162The relevance of possible mitigating or aggravating factors and the appropriateness of a range of penalties is also of significance. In some cases these matters can only be addressed by reference to the findings of fact explained in the Reasons for Decision on the substantive issue (see Sakalo v Medical Board of Western Australia [2002] WASCA 178 at [45] per Wheeler J; Sydney United Football Club Pty Ltd v Soccer New South Wales Ltd [2005] NSWSC 474 at [75]-[76] per McDougall J). 163The critical question in this case is whether the plaintiff was given a reasonable opportunity to tender evidence and make submissions on penalty in all the circumstances of the case. This obliges me to make an assessment of what Basten JA described at [61] as "practical and strategic considerations and not merely an assessment of abstract possibilities". 164In addition to emphasising that the order for a two-staged hearing was never varied the plaintiff pointed to the fact that there were two separate complaints both involving a number of particulars giving rise to a range of factual findings and a range of possible outcomes in respect of each of the two complaints. The fact that the Tribunal indicated at the very end of the final day of the hearing, that the inquiry would no longer be conducted in two phases but that, if the plaintiff wished to re-list the matter after reading the HCCC's submissions but before any decision is handed down by the Tribunal, he was free to do so, does not, so it was submitted, overcome the problem identified by Basten JA in Lucire where at [65] his Honour said that a practitioner should not be expected to anticipate the Tribunal's findings before addressing the question of penalty particularly where (as here) there were two separate complaints but only one which attracted the power to suspend or cancel a practitioner's registration. 165Were the Tribunal to have formed the view that the plaintiff's conduct did not constitute professional misconduct but did constitute unsatisfactory professional conduct, there were more limited protective orders available. Even were the Tribunal to have made a finding of professional misconduct (as it did), there were a range of protective orders available other than suspension or cancellation and, even if imposed, the duration of suspension or cancellation is a most material consideration. 166Even if the hearing on 1 July should have alerted the plaintiff to the fact that he was at risk of severe protective orders being imposed, the plaintiff submitted that procedural fairness would have required the Tribunal to advise him in what respect(s) his conduct constituted professional misconduct. In the plaintiff's submission, this could only have been done if a decision were made first as to the particulars of the complaints and the characterisation of the plaintiff's conduct, and a copy of the Tribunal's Reasons for Decision provided to the plaintiff, before inviting the parties to make submissions on penalty. 167Given the ambiguity in counsel's submitted position on the question of penalty, compounded by the relative complexity in the way the complaints were prosecuted and the potential for a range of findings even after a finding of professional misconduct was notified, I am satisfied that the Tribunal has failed to accord procedural fairness to the plaintiff in respect of the making of the protection orders and their duration by not affording him a reasonable opportunity to be heard on the question, thereby erring in law.

Orders 168Accordingly, the orders I make are as follows:

The appeal is upheld in part.
Order 1 made by the Psychologists Tribunal on 8 July 2010 is set aside.
Order 2 made by the Psychologists Tribunal on 8 July 2010 is set aside.
Further consideration of the issue of costs before the Tribunal (as reflected in Order 3 made by the Tribunal on 8 July 2010) and the costs of this appeal is reserved.
Liberty to restore on 3 days notice.

Amendments 16 May 2012 - word 'not' inserted into the last phrase of paragraph Amended paragraphs: 39 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: 16 May 2012

Judgment 1On 8 July 2010 the Psychologists Tribunal of New South Wales ("the Tribunal") found that the plaintiff's conduct as a registered psychologist constituted both unsatisfactory professional conduct within the meaning of s 24 of the since repealed Psychologists Act 2001 ("Complaint 1") and professional misconduct within the meaning of s 25 of the same Act ("Complaint 2") ( HCCC v Dene & Donnelly (No 2) [2010] NSWPST 4). 2In exercise of its statutory power to make a protective order under s 53 of the Psychologists Act , the Tribunal also ordered that the plaintiff's name be removed from the Register of Psychologists and that he not reapply for registration as a psychologist for a minimum period of three years from 7 August 2010. 3The proceedings against the plaintiff were commenced by the Health Care Complaints Commission ("the HCCC") on 26 June 2008. On 9 June 2009 the Tribunal ordered that the complaints be heard concurrently with proceedings involving Ms Dene, a provisionally registered psychologist who was at the relevant time a graduate student in psychology at the university where the plaintiff held an academic post in the School of Psychology. Ms Dene was subject to the plaintiff's supervision in the therapeutic sessions she provided to patients referred by the plaintiff as a part of the practical component of her postgraduate studies. 4The complaints against both the plaintiff and Ms Dene arose in the context of her treatment of a person, hereafter referred to as Mr A. The complaints were laid following a report to the HCCC from the Program Director of a Pre-Trial Diversion of Offenders Program concerning Mr A. Mr A was inducted into the program following a police investigation in which he admitted sexually abusing children, including one of his daughters hereafter referred to as Miss B, over a number of years. 5The complaints concerned the failure of both the plaintiff and Ms Dene to report the fact that Miss B was at risk of significant harm under s 27 of the Children and Young Persons (Care and Protection) Act 1998 ("the CYPCP Act") after Mr A disclosed inappropriate touching and sexualised thoughts about her during the course of therapy with Ms Dene, the nature of the interventions that were employed after that disclosure, and issues relating to the scope, content and standard of the supervision Ms Dene received from the plaintiff as her supervisor. 6Both the plaintiff and Ms Dene were alleged to be guilty of unsatisfactory professional conduct and professional misconduct although in different respects necessarily reflective of the differences in their professional status at the relevant time. The particulars relied upon in proof of both complaints laid against the plaintiff (although in identical terms) were more extensive than those relied upon in proof of the complaints alleged against Ms Dene. Subject only to some minor qualification, the Tribunal was satisfied that each of the particulars of unsatisfactory professional conduct alleged against the plaintiff were established. It also found the plaintiff guilty of professional misconduct by an aggregation of those particulars and, in addition, in respect of some particulars a discrete finding of professional misconduct was made. 7I am also conscious of this Court's commentary on the form of pleadings that have been adopted by the HCCC in the past where complaints of unsatisfactory professional conduct and professional misconduct have been laid in reliance on the same set of particulars. Where a pleading of this kind is the basis of a prosecution for complaints of unsatisfactory professional conduct or professional misconduct Basten JA identified certain risks in Lucire v Health Care Complaints Commission [2011] NSWCA 99. His Honour said at [43]: ...Whether any particular which is upheld constitutes unsatisfactory professional conduct, individually or in combination with other particulars, and whether any such particular constitutes professional misconduct, either individually or in combination with others, must be carefully identified in the findings of the Tribunal. As a result, the findings are likely to be complex, with a further risk that interested parties will not be able to identify readily and with precision what conclusions have been reached by the Tribunal and, where protective orders are made, to which breaches of conduct they relate. 8I am satisfied that the risks that his Honour identified did not materialise in this case. I am of that view despite the complexity inherent in the joint proceedings brought by the HCCC against the plaintiff and Ms Dene and the fact that the complaints against each of them were prosecuted by reference to some shared particulars. 9That said, because of the way the appeal was prosecuted it is necessary to set out the particulars relied upon by the HCCC in support of both complaints laid against the plaintiff in full: Between June 2003 and November 2004 the psychologist provided therapy to Mr A and/or his daughter KA himself and/or through his supervision of Ms Kerri Dene, a provisionally registered psychologist providing treatment services under his supervision. The psychologist:

In October 2003, upon becoming aware that Mr A had disclosed to Ms Dene during a therapy session that he had been touching his daughter KA in an inappropriate manner for the last few years, a) failed properly or at all to understand the legal and professional obligations upon him in cases of potential child abuse; b) failed to make a report to the Department of Community Services of those disclosures as required by section 27 of the Children and Young Persons (Care and Protection) Act 1998; c) did not voluntarily report the disclosures to the Department of Community Services; d) failed to take adequate steps to assess whether or not KA or her sister HA were at risk; e) failed to appreciate the risk to KA and HA; f) failed to take appropriate action to protect the safety and welfare of KA and HA; g) failed contrary to B5 of the Board's Code of Conduct to communicate the fact of Mr A's disclosures to appropriate professionals or organisations; and h) caused or permitted Ms Dene (a trainee under the psychologist's supervision) to continue to provide treatment services to Mr A notwithstanding that this was beyond her competence and experience. i) caused or permitted Ms Dene to continue to provide treatment services to Mr A notwithstanding that she had disclosed her own past history of sexual abuse to Mr A.
Failed on or around November 2003, upon the occasion of making a referral to Dr Brechman-Toussaint: a) to provide all relevant information to Dr Brechman-Toussaint in relation to the risk of harm to KA and HA; b) adequately to reconsider the question of whether or not KA and HA were at risk; and c) to make a referral to the Department of Community Services.
On 15 September 2004, encouraged and/or permitted Ms Dene to involve KA in the therapeutic process she was undertaking with Mr A notwithstanding that this was: a) beyond her competence; b) inappropriate in the circumstances; and c) without any steps being taken to assess or to ensure KA's welfare in relation to this process.
Failed to exercise appropriate supervision of Ms Dene in her treatment of Mr A.
Failed to take steps to safeguard the welfare of Ms Dene in relation to her therapeutic relationship with Mr A.
From around January 2005 - August 2005, delayed making a report to the Department of Community Services.
Did not keep any appropriate and/or accurate clinical records in relation to the psychological treatment provided to Mr A.
Caused or permitted Ms Dene to provide 42 sessions of therapy to Mr A as an intern. 10The hearing before the Tribunal extended over seven hearing days. Both Ms Dene and the plaintiff gave evidence as did two expert witnesses called by the HCCC to give peer review evidence. Dr Banks, a clinical and forensic psychologist, gave evidence in the case against the plaintiff. Much of the documentary evidence was relevant to proof of each of the complaints against both the plaintiff and Ms Dene. While they gave evidence in defence of the complaints laid against them individually, their evidence was not in conflict. In critical respects the plaintiff expressly relied on Ms Dene's evidence. 11The Tribunal's Reasons for Decision extended over 200 pages. It included a comprehensive review of the evidence identified by subject headings in the index to the decision. Its findings generally, and its findings in respect of each of the particulars relied upon in proof of each of the complaints, were identified by paragraph numbers in the index. The parties filed detailed written submissions which were annexed to the decision. The submissions dealt with all matters of fact in dispute, the conclusions that should be drawn from a resolution of the matters of fact in dispute and the findings the Tribunal should make on the ultimate issue as to whether either or both complaints were established against either or both the plaintiff or Ms Dene. The Tribunal referred to the submitted position of the parties in the Reasons for Decision by paragraph number without replicating the submissions in full. 12The structure of the Reasons for Decision is not unimportant in light of what the plaintiff claims to be the failure of the Tribunal to give reasons for its decision and its failure to expose the reasoning by which it resolved disputed issues of fact adverse to the plaintiff.

The grounds of appeal 15The first ground of appeal contends that there was error in the approach the Tribunal took to considering Particulars 4 and 6 and in its finding that they each supported a distinct finding of professional misconduct. Particular 4 concerned the adequacy of the plaintiff's supervision of Ms Dene and Particular 6 his delay in reporting the matters Mr A disclosed to Ms Dene in the course of therapy. (I note that while it is "delay" in reporting that is identified in Particular 6 the plaintiff at no time reported Mr A's sexual abuse of his daughter. It was not reported until August 2005, and only then by Ms Dene.) The plaintiff did not submit that proof of the conduct the subject of Particulars 4 and 6 was not supported by the evidence, or that they were incapable of supporting a finding of unsatisfactory professional conduct. The challenge was to the conduct meeting the statutory test for professional misconduct as a matter of law. 16It was also submitted that the finding of professional misconduct based on the same two particulars was infected by error in the Tribunal's failure to give reasons to support its finding and, further, that to isolate these two particulars as constituting discrete evidence of professional misconduct without giving adequate reasons for so doing, is eloquent of an error of law and an example of what is said to be the Tribunal's arbitrary, capricious and irrational approach to its statutory responsibility to provide reasons under s 115 of the Psychologists Act (s 167F of the Health Practitioner Regulation National Law (NSW)). In support of this submission counsel relied upon the joint judgment of Bell and Crennan JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [121]-[131]. 17The second ground of appeal contends that the Tribunal also failed to give reasons (or adequate reasons) for finding that the conduct the subject of the balance of the particulars, when viewed in aggregate, constituted professional misconduct. It was submitted that this was error of the kind identified by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]-[67]. 18The third ground of appeal contends that there was an insufficient evidentiary basis for a finding of professional misconduct in any event and, further, that the Tribunal failed to resolve the critical factual disputes raised by the evidence by reference to the civil standard of proof in accordance with the approach in Briginshaw v Briginshaw (1938) 60 CLR 336. This submission was advanced despite the Tribunal recognising that because of the seriousness of the allegations and their consequences it had to be reasonably satisfied that the particulars of the complaints had been established by evidence of sufficient quality and weight before considering whether those particulars constituted unsatisfactory professional conduct or professional misconduct or both. In this connection the Tribunal cited Polglaze v Veterinary Practitioners Board of New South Wales [2009] NSWSC 347 at [31]. 19It was submitted that even were the finding of professional misconduct undisturbed, by cancelling the plaintiff's registration for a period of three years the Tribunal failed to properly exercise its statutory discretion on the question of penalty thereby committing an error of the kind specified in House v The King (1936) 55 CLR 499 at 504 - 505 per Dixon, Evatt and McTiernan JJ. 20Submissions in support of the third ground of appeal were principally (but not exclusively) directed to what the plaintiff submitted was the insufficiency of the evidence bearing upon the timing and content of Mr A's initial disclosure of inappropriate behaviour towards his daughter. It was common ground before the Tribunal that this was a critical factual issue in dispute. Proof of the fact that the plaintiff was aware that Mr A had disclosed sexual behaviour towards his daughter in October 2003 in the terms contended for by the HCCC was central to proof of Particular 1(b), and underpinned other particulars of the plaintiff's conduct relied upon by the HCCC in proof of both complaints. 21The HCCC's case before the Tribunal depended to a significant extent upon the Tribunal's assessment of Ms Dene's evidence and the clinical notes of the therapy sessions she conducted with Mr A between October 2003 and November 2004. On the appeal the plaintiff challenged the Tribunal's finding that the information that Ms Dene relayed to the plaintiff in October 2003 constituted a reportable matter under s 27 of the CYPCP Act. He also challenged the Tribunal's finding that he was a person upon whom the CYPCP Act imposed mandatory obligations to report. 22Given the significance of the Tribunal's findings concerning the timing and content of the initial disclosure, I propose to deal with the third ground of appeal before considering the first and second grounds.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Cases Cited (36)

Cited By (8)