The Tribunal's findings Complaint 1
60The Tribunal is satisfied to the requisite standard in Briginshaw v Briginshaw [1938] HCA 34, that the Complaint of unsatisfactory professional conduct has been proven in this case. The practitioner admitted many of the particulars of the allegations made by Client A about the practitioner's failure to observe proper professional boundaries. These include that he asked Client A to massage his neck, that he hugged her and patted her back and that he discussed taking her on a fishing trip.
61There are some differences in the accounts given by the practitioner and Client A. This is hardly surprising, especially given the passage of time from when the consultation occurred (in the case of the practitioner's evidence.) In examining both Client A and the practitioner's evidence, the Tribunal considered that the differences were not so significant as to have detracted from the Tribunal's concern that the practitioner's conduct demonstrated a failure to observe proper boundaries. For example, whether the practitioner "patted" Client A's back as he asserts or "push[ed] her head on his shoulder and strok[ed] her hair" as she alleges, is not material.
62Similarly, whether the practitioner lay on the floor at Client A's feet during the consultation or crouched before her, the Tribunal finds the action unprofessional, unhelpful and confusing for Client A as found by Ms Gordon, albeit in the context of the practitioner allegedly lying on the floor.
63The practitioner denied most of Client A's allegations regarding his use of inappropriate language of an offensive and/or sexualised nature. He admitted playing word games which included "can't and cunt" and using similar language to that used firstly by Client A, which he recalled included "bitch" and "dickhead."
64The Tribunal notes that Client A's first statement, taken by Ms Apter on 15 November 2012, was approximately three weeks after the consultation with the practitioner. In contrast, the practitioner described what occurred during his 55 minutes session with Client A more than two years later, after a period he said was extremely difficult due to his daughter's illness and his own health issues. The Tribunal also notes there are some small differences in the evidence given by Client A in the 15 November 2012 statement taken by Ms Apter with the more detailed statement taken by the Commission on 23 April 2012 but does not consider these are material.
65There were detailed exchanges at the case status conference and the hearing about the practitioner's right to cross-examine Client A and Ms Gordon to test this evidence. The Tribunal also explained that if this evidence was not tested it would be admitted into evidence unchallenged. The practitioner decided not to cross-examine Client A or Ms Gordon.
66The Tribunal is satisfied that the practitioner used inappropriate language of an offensive and/or sexualised natured during his consultation with Client A. It notes his admissions to allegation 2(b) regarding the use of "cunt" and "matching" client A's language. The Tribunal finds this conduct to be totally unprofessional and accepts that it genuinely concerned Client A. It does not accept the practitioner's explanation to this allegation that he was simply "matching" Client A's language. Client A has been quite specific in particularising the language used by the practitioner and given she provided this detail far more contemporaneously with the consultation than did the practitioner, the Tribunal finds that this evidence is more credible.
67The practitioner denied that he suggested to client A that she should consult with his naturopath in Penrith using words to the effect that she should get her "arse on a train and get to see them." Rather he gave evidence that he recommended she attend a health food shop in Penrith and that he could drive her there with another friend who lived close to Client A. Again, the Tribunal does not view this variation in the facts to be significant in its consideration of determining whether the practitioner's conduct fell below the standard reasonably required of a psychologist with his level of skill and experience. However well-meaning his intent, the Tribunal considers this admission is contrary to paragraph 3.3 of the APS Guideline on the prohibition of sexual relationships with clients in its reference to the risks of shifting the psychologist-client relationship from the professional to the social. It also recommends against social interaction following appointments.
68The Tribunal also finds that the practitioner has engaged in unsatisfactory professional conduct due to his failure to provide appropriate or adequate psychology services to Client A and document and retain clinical records of the consultation. It notes Ms Gordon's opinion that at this first session he should have investigated a number of areas given the detail provided in the mental health care plan, including thoroughly exploring Client A's mood and sleep difficulties and whether Client A was at risk given the reference to "possible suicidal ideation" in the referral.
69It is also of concern that the practitioner did not appear to take any real history from Client A or make any attempt at evaluating the GP's assessment. The Tribunal found the practitioner's explanation for what he was trying to achieve in the consultation confused and troubling. Asking client A to sing, which the practitioner admitted he proposed, was considered by the Tribunal to be completely inappropriate especially in this initial session. Clearly, it was difficult for the practitioner to recall precisely the action he took with the absence of any records. Even allowing for this however, the Tribunal did not find the consultation was appropriately structured to allow him to make any sort of diagnosis about Client A's condition or her needs or to ensure she was not at risk of harm.
70The practitioner admitted that he should have kept records of the consultation. Clearly the failure to do so breached the detailed APS Guidelines on record keeping. The Guidelines set out the requirement to make and keep adequate records for a minimum of seven years since the last contact with the client.
71In summary, the Tribunal is satisfied, based on its members' experience, that the conduct found to have occurred was sufficiently below the standard expected of a psychologist with the practitioner's level of experience and training. It also accepts the evidence of Ms Gordon on this issue. Further, it finds the conduct was unethical and improper. The Tribunal notes the Court's reasoning in Chew v The Queen (1992) 173 CLR 626 that impropriety should be determined objectively not through the perception of the person alleged to have acted improperly.