Health Care Complaints Commission v Dewar

Background 7The practitioner began working as a psychologist in his own practice from March 2008. During that time he primarily saw clients he described as suffering from anxiety, depression and post-traumatic stress disorder. He worked from his home where he had an office. He also conducted home visits. 8During the morning of 25 October 2012 the practitioner attended the home of Client A after being referred by a general practitioner. Kimba Apter, an employee from OSTARA Australia (OSTARA), a disability employment service, had taken Client A to the general practitioner. 9The practitioner's telephone records detail that after the home visit he called Client A twice during the afternoon of 25 October 2012. 10On or about 26 October 2012 Client A reported to Ms Apter in a telephone conversation that she had found the consultation with the practitioner "really strange and weird." 11On 15 November 2012 Client A attended Ms Apter's office and provided a statement describing her 25 October 2012 consultation with the practitioner. This resulted in OSTARA notifying the complainant of its concerns. 12The complainant wrote to the practitioner on 19 February 2013 advising him of the decision to investigate the complaint made by OSTARA. He was advised of the allegations and asked for his response and also to forward any contemporaneous records of the consultation. 13 A week later, the practitioner requested a two month extension to respond to the complainant's 19 February 2013 letter. He advised the complainant that his daughter had recently been diagnosed with aplastic anaemia and was extremely unwell. 14The complainant advised the practitioner that it required he provide some of the information requested including the telephone numbers he used in October 2012. 15The practitioner provided the requested information on 5 March 2013. 16On 5 April 2013 the practitioner wrote to the complainant and advised that he had surrendered his registration on 31 March 2013. 17Ms Apter provided a statement to the complainant on 9 April 2013. On 23 April 2013 Client A gave a detailed statement to the complainant. 18On 28 May 2013 the complainant wrote to the practitioner about his failure to fully comply with its request of 19 February 2013. The letter enclosed a notice to appear to produce documents and provide oral evidence on 26 June 2013 pursuant to the Health Care Complaints Act (NSW) 1993. 19On 26 June 2013 the complainant interviewed the practitioner. He advised that he had reviewed his records for 2012 and had provided approximately 900 professional consultations. He had no records for Client A. In answer to whether he had any recollection of the consultation, he advised that he did not. The complainant gave the practitioner a copy of Client A's statement dated 23 April 2012. The practitioner advised the complainant that "I have nothing to say on any comment you're about to make because I have no resource." (Line 45, page 11) 20In response to the particular allegations Client A made about the practitioner's conduct, he advised that he had "no record" and "no comment." In advising the complainant that he had no recollection or memory of the consultation the practitioner also said: "There is no way in the world I operate like this. I've had 10,000 interviews. No." (Line 24 page 13) 21The complainant's tendered material includes a statement from the Department of Human Services detailing that a search of the Medicare database did not reveal any records of medical services provided by the practitioner to Client A between 1 October 2012 to 31 October 2012. 22On 9 October 2013 the complainant advised the practitioner that after conducting an investigation it found the evidence indicated that his conduct and the standard of care provided to Client A was significantly below the standard reasonably expected of a practitioner with an equivalent level of training or experience and that the matter would be referred to a disciplinary body. The practitioner was invited to provide a submission within 28 days that could include responding to the expert report obtained by the complainant and provided to the practitioner. 23On 8 May 2014 the complainant filed the Complaints with the Tribunal. On 12 May 2014 the Tribunal advised the practitioner of a directions hearing on 27 June 2014. When the practitioner did not attend the directions hearing the Tribunal wrote to him on 30 June 2014 and advised him that the matter had been set down for hearing on 11, 12 and 13 November 2014. The letter also detailed directions made on the filing and service of material. The complainant served the practitioner with the evidence on which it relied on 27 August 2014. The respondent did not file or serve any material. 24The Principal Member conducted a case status conference on 3 November 2014 at which the complainant and respondent appeared. In accordance with usual Tribunal practice, this conference was recorded. After hearing the respondent and complainant, the Principal Member directed that the respondent could give evidence in person at the hearing.

Particulars of the Complaint 25Complaint 1 alleges that the practitioner is guilty of unsatisfactory professional conduct under section 139B of the National Law as on 25 October 2012 he failed to observe proper professional boundaries when he:(a) Complained to Client A of a sore neck and asked her to massage him; (b) Requested that Client A sit next to him before pushing her head onto his shoulder, stroking her hair and hugging her; (c) Lay down on the floor at Client A's feet during consultation; (d) Requested that Client A accompany him on a fishing trip and then on return from the trip, he would stay the night at her place. 26Further, on 25 October 2012 during the consultation with Client A the practitioner used inappropriate language of an offensive and/or sexualised nature including:(a) When asking Client A about her mother he used words to the effect "is she a fucking bitch? Lots of kids, multiple fathers? That's usually how it goes"; (b) When asking Client A to sing, saying to Client A "can't not cunt and that's between your legs;(c) Using words to the effect that Client A had "nice tits";(d) Saying to Client A words to the effect "you are a horny little thing aren't you";(e) When Client A told the practitioner that she felt he was not taking her issues seriously, the practitioner said words to the effect "I can't get in if you won't let me in but if you let me in I'll be in like fucking Flynn";(f) when suggesting to Client A that she 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". 27Thirdly, Complaint 1 alleges that on 25 October 2012 the practitioner failed to provide appropriate or adequate psychology services to Client A in that he: (a) Failed to conduct an appropriate or adequate assessment or initial consultation with Client A; (b) Made recommendations or suggestions in an inappropriate manner that Client A consult with his naturopath. 28Further, Complaint 1 alleges the practitioner failed to keep any clinical records for the consultation with Client A on 25 October 2012. 29Complaint 2 alleges that the practitioner is guilty of professional misconduct under section 139E of the National Law. The particulars of Complaint 2 are the same as those relied upon for Complaint 1.

The Legislative provisions 30Pursuant to section 139B(1) of the National Law, "unsatisfactory professional conduct" of a registered health practitioner includes: (a) Conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. ...(l) Any improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 31The complainant asserts in relying on s139B(1)(a) of the National Law that the practitioner has engaged in conduct that demonstrates that the judgement possessed and care he exercised is below the standard reasonably expected. 32"Professional misconduct" under section 139E of the National Law means: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or(b) 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. 33Section 3A of the National Law sets out the objective and guiding principle to be applied by a Tribunal in New South Wales conducting an inquiry into complaints. The protection of the health and safety of the public is the paramount consideration.

Evidence in support of the Complaints 34The complainant tendered one volume of material. This evidence included documents detailing: the practitioner's registration, its investigation of the complaint; witness statements; an expert report from Ms Amanda Gordon; copies of the practitioner's telephone records and correspondence from the practitioner including a letter from one of his daughter's treating practitioners. The bundle also included a copy of the Australian Psychological (APS) Code of Ethics, adopted by the Psychology Board of Australia; the APS' Ethical Guidelines on the prohibition of sexual relationships with clients and the APS Guidelines on record keeping. Finally the bundle contained copies of Client A's medical records. 35The practitioner did not file any evidence in reply. At a case status conference on 3 November 2014 the practitioner advised the complainant that he wished to provide further evidence to that which he gave during the interview on 26 June 2014. The Principal Member directed that the practitioner be able to give evidence at the hearing. 36Client A's version of the 25 October 2012 consultation with the practitioner was noted in a statement made by Ms Apter at her office on 15 November 2012. It describes eight specific actions or comments allegedly made by the practitioner during the consultation. 37In her statement of 9 April 2013 Ms Apter described her telephone call to Client A on 26 October 2012 and that client A reported that the consultation was "really strange and weird." When she took a statement from Client A on 15 November 2012 she noted that the practitioner had tried to contact client A by telephone after the consultation. 38In a statement taken by the complainant on 23 April 2013, Client A provided more extensive detail about the consultation with the practitioner on 25 October 2012. 39Ms Gordon provided a report to the complainant dated 13 September 2013, after the complainant sought clarification of her report on 3 and 11 September 2013. She has endorsements in the areas of practice of Clinical and Health Psychology. Ms Gordon reviewed the material that was included in the complainant's investigation in providing her report. She extensively referred to the APS Code of Ethics and the APS Guidelines on the prohibition of sexual relationships with clients. 40In considering the practitioner's visit to Client A's home, Ms Gordon referred to the APS' Ethical Guidelines. She noted that psychologists should be wary of conducting home visits for clients and that a client in Client A's apparent health, appeared able to have attended an appointment in professional rooms. 41In reviewing Client A's statement of what she alleges transpired at the consultation on 25 October 2012, Ms Gordon opined that the practitioner contravened General Principle A: Respect for the Rights and Dignity of People and Peoples; General Principle B: Propriety; and General Principle C: Integrity. Ms Gordon considered that the practitioner's request that Client A massage his neck was exploitative, confusing, demeaning and could harm Client A. She also found that the conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited strong criticism. 42Ms Gordon also found that giving Client A a hug was in breach of general Principle A and C. She opined that the conduct had no psychotherapeutic value and belonged in a personal relationship. In his use of "bad language" Ms Gordon considered that the practitioner fell below the standard reasonably expected of practitioner of an equivalent level of training or experience and invited strong criticism. The practitioner should have behaved as a professional and not spoken in a manner that was shocking or hurtful to Client A. Further, in making sexual and offensive remarks to client A, the practitioner breached General Principle A and B. 43Ms Gordon found the practitioner's alleged act of lying on the floor to be unprofessional, unhelpful and indeed off-putting for the client and in no way beneficial to her. Ms Gordon found that the practitioner's request to Client A to sing in an initial assessment was entirely inappropriate and breached standard B3 which requires that psychologists act with the care and skill expected of a competent practitioner and take reasonable steps to prevent harm occurring as a result of their conduct. 44Ms Gordon considered the practitioner's alleged suggestion that Client A should attend his naturopath in Penrith was confusing and was a recommendation that caused Client A to consider her troubles were not psychological in nature and that the practitioner dismissed her real concerns. For both reasons she is critical of the conduct and said it again fell below the standard reasonably expected of a psychologist with the practitioner's level of training and experience. 45Ms Gordon referred to the APS Ethical Guidelines and noted the requirement: "psychologists do not engage in solicitation, physical advances, or verbal or nonverbal conduct that sexualise the relationship with clients. In all professional contexts, psychologists do not engage in behaviour that is unwelcome or offensive." She opined that much of the description given by client A of the consultation in her home breaches this Guideline. 46In commenting on the assessment undertaken by the practitioner during the consultation with Client A, Ms Gordon noted that an initial psychological consultation with a new patient is usually quite structured no matter what sort of therapeutic interventions are later used. She stated that registered psychologists are required to use Focused Psychological Strategies in order to access Medicare Better Access items. 47The expert considered psycho-education, explaining both the assessment and the likely further intervention, should occur at the beginning and the end of the session. Given the detail in the mental health care plan provided to the practitioner by the referring general practitioner, there were a number of specific areas of investigation needed in the first session. For example, a thorough exploration of Client A's mood and sleep difficulties were areas Ms Gordon thought should have been explored. She also referred to the "possible suicidal ideation" notation in the referral and considered there should have been very gentle exploration of that risk within the first session. She also thought a thorough family history should have been taken and that it would be quite common for structured psychological questionnaires such as the DASS to be administered so that a clear diagnosis could be made. Ms Gordon found that the practitioner's initial consultation deviated significantly from this and was significantly below the reasonable standard expected of a practitioner of his skill level. 48The failure to have any notes of the consultation also resulted in strong criticism from Ms Gordon. Without the notes, colleagues could not build on the practitioner's work with client A and she considered the practitioner could not usefully continue treatment in any further sessions. The conduct also contravened clause B.2.1 of General Principle B requiring that psychologists make and keep adequate records. In concluding, Ms Gordon considered "there was no mere error of judgement" on the practitioner's part, rather, the behaviour, as described by Client A, was outside the bounds of propriety for any psychologist.

The practitioner's evidence 49The practitioner did not file any material prior to the hearing. At the hearing he gave sworn evidence. 50The practitioner said that he could now recall the consultation with Client A. He said that during the 26 June 2013 interview he had been suffering brain confusion and memory loss due to health issues he had and also due to the shock and stress of his daughter's condition. He said that as he reversed his car out of his driveway to attend Client A's house he hurt his neck. As he approached her door he was in agony and explained to Client A what had happened. He asked her to apply pressure to an area of his neck. He said she did this for about 30 seconds. He said this request was "a total error" on his part. 51In response to the other allegations made in paragraph 1 of Complaint 1 detailing his alleged failure to observe proper professional boundaries, the practitioner said that due to Client A "bursting into tears" he gave her "a supportive hug" and "patted" "the back of her head." He denied that he stroked her hair. In cross-examination, the practitioner said that "he may give a hug three or so times" to the twenty clients he saw at that time each week. He said he wished to "support and help people achieve their goals." He did not admit it was a breach of professional boundaries to hug and pat the back of a client's head in her own home. 52The practitioner gave evidence that he was planning to organise a fishing group for some of his female clients and that he raised this with Client A. The practitioner denied that he lay at Client A's feet as she alleged. He recalled crouching near her to try and have eye contact as she was looking down at the time. 53In response to the allegations of the practitioner using inappropriate language of an offensive and/or sexualised nature in paragraph 2 of Complaint 1, the practitioner denied that he said anything about Client A's mother. The practitioner alleged that he "matched" the language used by Client A. He claimed that she had used words like "bitch", "bastard" and "dickhead" and so he had repeated them. He admitted the allegation regarding the use of the word "cunt" and said this arose from a wordplay with "can't" with "a risqué implication". He denied commenting on Client A's breasts or saying that she was "a horny little thing." 54In response to the Tribunal's questions about whether he conducted a mental state examination or had considered a care plan, the practitioner said he did not undertake the first and would have prepared a care plan at the follow up session. He did not assess whether Client A was at risk of self-harm because of her depression. 55 The practitioner said he intended to "fill in forms" at his next session with Client A. In cross-examination, he admitted that he had no notes or case formulation after meeting Client A and that he usually made notes but omitted to on this occasion due to being "in agony." He admitted that he is required to make notes and that it was "a mistake" not to have done so. The practitioner understood Ms Gordon's criticism for his failure to do so. 56In response to being asked what he understood to be proper professional boundaries, the practitioner said he should not have asked Client A to have pushed a pressure point in his neck. He said there were "no indications to him" from Client A that the session "was not right", he thought they had built a "rapport" and that the "session had been good." He advised the Tribunal that he always rang clients after consultations to see how they were. He refuted the suggestion that given two years had passed, his memory may be unreliable, insisting he could visualise the consultation very accurately. 57When asked if his conduct fell below the standard of a psychologist with his training and experience, the practitioner said "I have to agree." Further, when asked if he admitted his transgression was serious given Client A was lonely and vulnerable and had been referred for her depression, the practitioner said at the time he did not see this. If it had happened now he would have made notes and had a meeting with a peer. 58In response to the Tribunal's questioning on why the practitioner called Client A twice during the afternoon of 25 October 2012, he said that he was inviting Client A to attend a health food shop in Penrith to which he was driving with a friend who lived close to Client A. He did not consider this was a boundary violation when asked. 59Even allowing for the anxiety the hearing may have caused the practitioner, the Tribunal found his evidence was at times confused and conflicted with earlier statements he made. For example, he said that due to the pain in his neck on 25 October 2012, after he left Client A's house he saw his naturopath and then went to sleep for the rest of the day. When asked then about the telephone calls to Client A during the afternoon on 25 October 2012, the practitioner admitted he had called her.

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.

The Tribunal's findings Complaint 2 72The Tribunal also finds that the practitioner is guilty of professional misconduct under the National Law as the unsatisfactory conduct in which he has engaged is of a sufficiently serious nature to justify suspension or cancellation of his registration. 73In the recent New South Wales Court of Appeal decision of Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA with whom Basten JA and Emmett JJ concurred, discussed both the value of deterrence and the importance of public confidence and noted: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining the standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." [35] 74Accordingly, The Tribunal finds that the practitioner is guilty of unsatisfactory professional conduct under section 139B of the National Law and professional misconduct pursuant to section 139E of the National Law. 75The Tribunal orders:

1. The practitioner may adduce evidence and submissions on the appropriate orders consequential to the Tribunal's findings by lodging such material with the Registrar of the Occupational Division, New South Wales Civil and Administrative Tribunal by 10 December 2014. He should also advise the Registrar at this time whether he would like to appear in person to make submissions to the Tribunal or whether he agrees with the Tribunal considering protective orders and costs on the basis of any evidence and submissions he may have filed and those of the applicant.
2. In the event the respondent does not file any material or advise the Registrar by 10 December 2014 in accordance with order 2, the Tribunal will consider the submissions on protective orders and costs filed by the applicant.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2014