Health Care Complaints Commission v Firth

Introduction

1. Exhibit A, which will be annexed to this decision, sets out the amended complaints against the practitioner. It alleges that at all times the practitioner was a registered psychologist in the State of New South Wales, that he conducted practice initially at a practice known as Bettalife Solutions in Port Macquarie from July 2008 until January 2012. At this time, the practitioner commenced to practise on his own in a practice known as Firth Psychological Services.
2. The complaint also sets out the fact as part of its background, that Patient A was referred to Bettalife Solutions initially in about December 2009 by her general practitioner for psychological counselling related to depression. Patient A it seems without contest, has a history of issues of anxiety, alcohol, low self esteem and self harming. The evidence also reveals that the practitioner observed early in his treatment of Patient A that she had borderline personality traits.
3. Patient A attended her first session with the practitioner on about 9 February 2010 and continued to see him once a month until August 2010 at which time she ceased because of her own anxieties, but then resumed in about February 2011 until January 2012 at which time the practitioner then left Bettalife Solutions as outlined above. When the practitioner set up his own practice, Patient A went with him and again had consultations with him whilst he conducted his own practice.
4. The complaint also refers to a second patient, namely Patient B. Patient B was born in 2006 and consulted the practitioner from February 2012 until April 2013. He would usually attend with his mother who will be referred to in this decision as Person C.
5. In strict terms, the complaint, that is complaint number 2, does not strictly involve Patient B but rather the interactions between Person C and the practitioner and a failure to record those interactions. It is said that they do not strictly involve Patient B but that is a slight misnomer in that clearly the behaviour of the mother of a patient has implications directly with the health and welfare of her son being Patient B.
6. The proceedings raise issues of what are called boundary issues or violations by a treating psychologist of these boundaries. Clearly there is a need for him at all times to maintain integrity in the therapeutic relationship by remaining focused on the interests of the patient and not to intermingle those interests with his own personal interests. It goes without saying that one of the most extreme violations of such boundaries is to engage in an inappropriate sexual relationship between the practitioner and his patient and/or engaging with the patient and then disclosing very personal information by the practitioner which has the effect of breaking the integrity of the therapeutic relationship. It is one of the core elements of a therapeutic relationship of this kind that of trust and not to use one's professional position to establish or pursue a sexual exploitative or other inappropriate relationship with someone under their care.
7. The proceedings also involve the nature of communications between a patient and a practitioner, of a type of recent times. The Tribunal is not surprised nor concerned by the use of text messages (SMS) as a means of conveying administrative detail between a practitioner and his patient, in particular for example, the days when appointments have to be cancelled or rescheduled and the like. Such communications obviously in respect of a patient who is a child such as Patient B, would involve similar types of communications between the mother of the patient and the practitioner.
8. However, given the nature of such technology, practitioners need to be careful not to use what could be said to be a potentially intrusive form of communication in an inappropriate way. It needs to be used at times of the day that reveals the business relationship, business administrative relationship, which the text messages are intended to convey. By using this type of technology sayh late at night or over the weekends there are clear dangers that such communication could spill over into a breach of the professional relationship. Obviously the messages themselves need to be appropriate and not breaching the integrity of the relationship previously referred to.
9. The first complaint involves Patient A. The conduct involved can be briefly summarised as follows: (a) a failure to observe appropriate professional boundaries during discussions at consultations, (b) sending inappropriate text messages, (c) unnecessarily revealing personal details about himself and his family and his wife's alleged sexual limitations, (d) allegedly terminating the therapeutic relationship in an inappropriate way, (e) meeting the patient at licensed premises and drinking and dancing with her and kissing her and having discussions of a sexualised nature, (f) having sexual intercourse with the patient, (g) maintaining inappropriate contact with the patient after allegedly terminating the therapeutic relationship and (h) failing to keep adequate clinical records.
10. The second complaint involves Patient B and in particular as outlined above the interactions between the patient's mother, Person C, and the practitioner. In this regard the allegations relate to (a) failing to maintain appropriate relationships by the sending of 112 text messages to Person C, (b) failing to maintain appropriate boundaries on certain dates and in respect of this it is to be noted that the practitioner by letter of 4 February 2015 (exhibit D) made certain admissions, (c) failing to maintain proper records of Patient B, either within the records of that patient himself or otherwise.
11. Finally the third complaint is an allegation of professional misconduct. In this regard the complainant relies on each finding of unsatisfactory professional conduct as individually amounting to professional misconduct, however, alternatively it relies on all of the findings of unprofessional conduct when considered together to amount to professional misconduct.
12. The practitioner in his solicitor's letter of 4 February 2015 (exhibit D) made certain admissions and indeed made further admissions during the hearing which his counsel adopted during his submissions to the Tribunal.
13. Could I just pause there and ask Ms Hartwell, I do not know if you have the complaint there, I have written on exhibit A that your client admitted to 3(a) and 4, and I just want to know if that is correct. Does anyone have any views on this?
14. MS HARTWELL: Can I confirm that afterwards?
15. PRINCIPAL MEMBER: My colleague has the same, so I will proceed on that basis, but we will be adjourning for morning tea at some stage and you might just confirm that. I mean they are not critical admissions but I want to make sure I have not, in a sense, verballed your client.
16. In respect of the admissions set out in the letter, the practitioner admits particulars 10(a) and 10(b) in that he inappropriately met with Patient A at licensed premises, drank alcohol with that patient and that his conduct was conduct that makes it appropriate for the Tribunal to find unsatisfactory professional conduct based on these particulars. In respect of the remainder of particular 10, the practitioner does not admit that he danced with the patient nor had discussions of a sexual nature with her nor kissed her and he does not admit particulars 10(c), (d) and (e).
17. In respect of particulars 15(a) to (c) the practitioner in exhibit D admitted that he failed to keep adequate (and the word adequate is in bold type) clinical records in relation to Patient A, in respect of discussions he had with that patient on 15 November 2012 and that he failed to keep adequate records, that he informed Patient A on 17 December 2012 that any relationship with her would be inappropriate and that he failed to keep any adequate record of his contact with the Australian Psychological Society in seeking advice in respect of contact with again Patient A.
18. The practitioner accepts in exhibit D that it would be appropriate in accepting those findings and admissions that such conduct would be unsatisfactory professional conduct in respect of these particulars.
19. During the hearing as stated above, the practitioner made some further admissions in respect of complaint 2. He admitted that text messages that he sent to Person C as particularised in particulars 2(i), (ii) and (iii) were inappropriate, in that he failed to maintain proper boundaries with Person C and that the content of those communications were personal in nature.
20. The exchanges took place on 17 January 2013, 4 March and 6 March 2013. The content of these exchanges are set out behind Tab 61A of exhibit F, and I will turn to this particular concerning the other exchanges not admitted to by the practitioner in due course. However, it should be noted that at the time of these exchanges, the practitioner had been and was in discussions with his supervising psychologist concerning the need to maintain boundaries with patients. This had been an ongoing discussion as one might expect, however, in particular it involved Person C.
21. Later the psychologist took the step of contacting the Australian Psychological Society after the events of 17 December 2012 involving Patient A, so thus in considering the significance of the admissions of transgressions which the practitioner has made thus far, the Tribunal would consider these exchanges and failures to be more serious than otherwise as it could not be said at the time of the transgressions that the practitioner was not fully aware of the need to maintain boundaries and the integrity of the process. Thus the practitioner was operating cognizance of the need to act otherwise than in the fashion in which he was acting.
22. The Tribunal now turns to the particulars not admitted.

Complaint 1; particulars 1 to 8.

1. It is convenient to consider these particulars together as they all involve exchanges between Patient A and the practitioner. Not all exchanges took place during consultations as some were text messages sent obviously were outside any consultation. As already stated, the fact that the exchanges are adopting a relatively new form of communication does not change the ethical requirements to maintain boundaries and to restrict self-disclosure and engage in such disclosure that will only promote the therapeutic relationship and the needs of the patient. As already stated this form of communication has greater dangers to the treating psychologist leading to breaches of boundaries as it intrudes on the patient's time and space and private life and into some extent of the practitioner's private life.
2. Having said that, the Tribunal is not of the view that self-disclosure is automatically a boundary violation. It is often used as a way of communicating issues in the therapeutic relationship, however, it should only occur if it provides a service to a therapeutic goal and thus in the interests of the patient.
3. In considering whether a breach of such a boundary occurs, it is relevant to consider the motive of the practitioner as the words often can be ambiguous in such form of communication. As has been said by various experts during the hearing, things need to be seen in context and the Tribunal has sought to do that in respect of these communications.
4. When considering these particulars together, they provide an further insight as to the nature and purpose of these disclosures and assists the Tribunal in assessing the likelihood as to the purpose behind any one individual disclosure. Dr Pusey who was qualified on behalf of the respondent made it clear that he considered it important to consider the exchanges individually as it is sometimes difficult to move from one communication to another without at least first considering the contextual framework of the initial exchange and those that followed. Mr Borenstein qualified on behalf of the complainant was less reluctant to assess each individual communication.
5. However, in the end there were very few if any major differences between these two experts as to whether the exchanges between the practitioner and Patient A were violations of boundaries and were thus inappropriate. The Tribunal is of the view that some of the exchanges were so personal and sexual in nature that they were violations and the experts so agreed.
6. The source of the alleged exchanges as particularised is to be found in Patient A's recollection. These recollections are evidenced in her various statements to the Tribunal. The respondent appropriately adversely notes in his submissions that there is no explanation as to why the memory bank of Patient A's phone could not have been sourced and produced to the Tribunal (see submissions 37 and 38 of the respondent's submissions)
7. Such a source of material would have been most valuable and would have avoided what could be said to be an unnecessary contest as to whether these exchanges took place or not. We are of course referring to the text messages set out in the particulars and not to what was said during the consultations. On the other hand, whilst in no way suggesting that there was an onus on the respondent to prove anything in these proceedings, it should be noted that the respondent if it had chosen to, could have subpoenaed Patient A's phone records to establish if they wished to directly challenge whether the text messages were sent or not. However, having said this, it does not deny the failure by the HCCC and is of forensic significance. On the other hand one could not be critical of Patient A for not keeping notes of her consultations with the practitioner.
8. The respondent in his affidavit (at [85]) challenges the evidence provided by Patient A in her statement as to the communications referred to in these particulars.
9. At times he flatly denies some of the allegations and other times explains that he cannot recall and at other times accepts what was said but considers that what was said was professionally appropriate. Some of his denials are based on what he says is the fact that the conversations as recounted by Patient A could not be true because the facts revealed were not true. Of course it is not the truth of the exchanges which are in issue but whether they occurred or not, thus any denial by Mrs Firth (for example as to the lack of truth of the allegation) does not take the matter any further to the extent that it does not contest whether the exchange took place but rather simply the truth of the exchange.
10. In the end, the Tribunal has to consider whether the exchanges identified in these particulars did or did not take place based on whether it accepts the evidence of Patient A on the probabilities and in so doing, whether the denials by the respondent create sufficient doubt that Patient A cannot be accepted on the probabilities.
11. In considering this and other matters of evidence, the Tribunal has to keep in mind that the onus or burden of proof at all times is on the HCCC. It is well established due to the protective nature of the jurisdiction and the seriousness of the complaints if established, both for the practitioner and the public, that the standard of proof is on the balance of probabilities but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.In determining the level of satisfaction, the New South Wales Court of Criminal Appeal has cautioned against the use of the term "comfortably satisfied" (see Gianoutsos v Glykis [2006] NSWCCA 137; (2006) NSWLR 539 at 548 549 [51].
12. In considering whether or not the complaint is proved to the relevant level of satisfaction the discussion of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1962] HCA 66; (1992) 110 ALJR 450 at [2] is apposite:
13. "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found."
14. The Tribunal at all stages of making its decision has had these authoritative decisions in the forefront of its mind and even though it has used from time to time used the words "comfortably satisfied", it does so more as a shorthand method of an acknowledgment of what has just fallen from the Tribunal as to the evidentiary standards of proof in a case such as the present.
15. The Tribunal accepts on the balance of probabilities the evidence of Patient A in respect of the exchanges set out in the particulars presently being considered. In making this decision, the Tribunal has considered not just the evidence of the exchanges but the whole of the evidence given by Patient A, the whole of the evidence given by the practitioner, his brother and wife and also the exchanges as found that took place between Person C and the practitioner. It therefore as a matter of logic, is clear that the Tribunal does not accept the denials by the practitioner as to the exchanges, It accepts on the whole of the evidence that the exchanges were professionally inappropriate.
16. In making this assessment, the Tribunal has not only had regard to all of the evidence as just outlined but also the demeanour of the witnesses called. Those witnesses were Patient A, the practitioner, Mrs Firth and her brother. The Tribunal took other evidence by phone, it clearly could not and does not make any finding in respect of demeanour in respect of those witnesses.
17. In considering demeanour, the respondent took the Tribunal to the decision of the High Court of Fox v Percy [2003] HCA 22 at 31. As to the need of a trial Court or Tribunal to limit its reliance and the appearances of witnesses and defer to rely on the logicality and forcefulness of the evidence as given. However, in respect of Patient A who left the witness box on a number of occasions emotionally distressed, the Tribunal found her to be otherwise a forthright witness who did her best in very difficult circumstances to provide careful answers to questions asked of her. On the other hand, although the practitioner did leave the witness box on one occasion and told us that it was out of concern for his wife, the Tribunal found his evidence was given in a more guarded manner and in a manner that was consistent with rote learning and thus less responsive and less direct. Thus when it comes to the question of demeanour, Patient A's presentation gives confidence to the Tribunal in accepting her evidence unlike that of the respondent.
18. In summary in considering these particulars, the Tribunal finds on the probabilities to a comfortable level of satisfaction that 1. Patient A is a witness of truth, and her evidence was reliable over that of the practitioner. Her statements in respect of the exchanges identified in these particulars has been proven, 2. that the practitioner thus did not respect boundaries between himself and Patient A in these exchanges as they did not further the therapeutic process, 3. that the practitioner used his practice in respect of Patient A to sexualise the relationship between himself and her and did so as is subsequently found to an extent that led to sexual intercourse between the two of them, 4. at a more general level the practitioner's evidence cannot be accepted absent some independent and reliable corroboration.
19. The Tribunal therefore finds that these particulars are proven. As to the consequence of this finding, this will be made clear later in this decision.

Complaint 1 particulars 9 to 14

1. These particulars are read together as they occurred chronologically together and because findings made in one of these particulars can impact on the findings to be made in respect of the remaining particulars. Further, it is clear that these particulars formed the focus of these proceedings as no doubt because any finding in respect of these particulars would lead to more serious consequences to the practitioner, thus in his oral and written submissions, counsel for the respondent centred his submissions on these particulars with little reference to the earlier particulars which have just been dealt with.
2. That is not to say the Tribunal in considering these particulars does not have regard to these earlier findings as just made in particulars 1 to 8 and to the lack of boundaries which the Tribunal finds has been demonstrated by the practitioner and the sexual nature of those exchanges.
3. These particulars commenced for consideration the consultation of 15 November 2012 although it is to be noted that the complaint refers to "2013". This day was the last day that is referred to in the practitioner's consultation notes in respect of his treatment of Patient A.
4. The question that the Tribunal has to consider is was the 15 November 2012 being the last entry was it intended that it be the last consultation, or did it become the last consultation by reason of events subsequent to 15 November 2012. If it was intended to be the last consultation, then did the practitioner appropriately terminate the therapeutic relationship? For these reasons, these particulars are considered together.
5. The practitioner stated that on 15 November and in two previous consultations on 9 and 23 October, the practitioner told Patient A that he would not be able to treat her on an ongoing basis as her personality disorder/traits were outside of his area of expertise. His notes of 15 November 2012 refer to "Discussion plan" behind tab 63. Beside that heading are the words, "Helen first appointment" which the Tribunal understands is a reference to another psychologist by the name of Helen Cooke. Next is a reference to "D.B.T. In Taree" which the Tribunal understands is a reference to dialectic behaviour therapy. The third reference under "discussion plan" is "change of therapist again visited", and the fourth reference is to "D + A needed?" which the Tribunal understands to be short for drug and alcohol.
6. In his statement at [18] the practitioner stated that he did not make any further appointment for Patient A and indeed has not treated the Patient A since 15 November 2012. At the time of making this statement the practitioner was unaware it seems of the existence of exhibit J. Exhibit J is the practitioner's professional card. It was produced it appears for the first time during a call by the respondent when Patient A was giving evidence concerning an appointments card that identifies appointments with practitioner in 2013. In fact, that card was never produced and we will return to that issue.
7. Exibit J demonstrated that the practitioner adopted a process whereby he (a) wrote down the dates of future appointments, and (b) crossed out such dates as when appointments had been cancelled or attended. There seems little dispute that the exhibit is in the handwriting of the practitioner. Critically, there is on this exhibit an appointment for 13 December 2012, clearly contrary to the suggestion that the last intended appointment was 15 November 2012.
8. Patient A during her evidence did in fact refer to another card with three appointments on it for 2013 commencing in about March 2013. This is consistent with particular 12. However, Patient A stated that she had in fact given this card that is the 2013 appointment card, to the HCCC only this card was never produced.
9. The evidence reveals through Patient A as to the circumstances by which the appointment on 13 December 2012 was cancelled. She stated that it was cancelled on Monday 9 December by the practitioner after a consultation which has been called a "debrief". The patient stated that at that consultation, the further unproduced card for 2013 appointments with three appointments for March and April was made. The gap between the consultation on the 9th and those in March and April 2013 was explained in part by the intervention of the Christmas period.
10. The respondent, however, maintained that the non-production of the second card would lead the Tribunal to find the patient's evidence dishonest (see para 12 of the submissions). The Tribunal does not make such a finding, rather it accepts that by reason of a level of emotional turmoil in the patient's life at the time of the the presenting of the new card on about 9 December 2013 by the Respondent, that this would more than explain why she has not been able to present the card, although does not explain her evidence that she gave it to the HCCC. She certainly did give one card to the HCCC but not the card with the evidence of the appointments of the 2013 dates. Whilst the Tribunal accepts that there is some forensic force in that there is a tension between the oral evidence to the Tribunal and the failure to produce the second card, the Tribunal does not accept that this has led to any lack of confidence in the Tribunal to the overall evidence of Patient A.
11. Patient A was clearly of the view that the consultation on 15 November 2012 was never intended to be the last session. There is another reason why the Tribunal accepts this to be the case: 1. The treating notes of the practitioner being annexure C to his statement, when read in their totality do not in any sense suggest a termination of the therapeutic relationship, rather they suggest an ongoing plan of treatment and uncertainty as to certain aspects of that treatment as revealed in the "discussion plan" just reported. 2. This conclusion is reinforced by the expert opinions of the two psychologists called as to how they would've expected the therapeutic relationship to have been not only terminated but also how it would've been reported in the notes of a practising psychologist and clearly there is nothing in these notes consistent with this expectation. 3. The fact that the practitioner had not received the report of Dr Jeseudeason of 3 October 2012 at the time of the alleged termination of the therapeutic relationship on 15 November 2012. The respondent indicated that he in fact never received the report as the report reveals it was sent to Dubbo rather than his then rooms. and he never received it, so whilst this of course is a reasonable explanation, it means that absent the report of a treating psychiatrist as to both diagnoses of a longstanding depression and anxiety and a borderline personality disorder and the need for ongoing CBT incorporating DBT principles, would, one would have thought, been critical to have available before one would terminate the therapeutic relationship. It makes little sense to make long term decisions absent such a report.Rather the practitioner sought to explain that what he did rely on in terminating the relationship was a report of the consultation by Patient A herself to him of the traits of borderline personality disorder. This defies common sense that a psychologist would rely on a verbal report of a technical matter through the eyes of an ill patient to make such an important decision as terminating a therapeutic relationship. 4. The practitioner referred to his "client" when he first made contact with the Australian Psychological Society on 18 December 2012. He did not refer to his "former" client but rather his client. This is not only consistent with the understanding of Patient A but is also consistent with further consultations having been organised for 2013. 5. In texts sent by Patient A to Person D on 8 December 2012, in circumstances that the Tribunal finds reliable, Patient A refers to the fact that she was in fact going to shortly attend the practitioner for some form of "debrief". In fact, Patient A says that such a debrief did take place. However, regardless of whether the debrief took place, the fact that on the morning of 8 December 2012 in circumstances that no one would have expected, would later be revealed in the manner they were before the Tribunal, Patient A was having ongoing contact with the practitioner in his professional rooms which is clearly inconsistent with having terminated the consultation on 15 November 2012. 6. The husband of Patient A and who was not cross examined, stated at [13 14] of his statement that on 10 December he believed that his wife indeed had an appointment with the practitioner and he believed that it was on this date that he was going to refer the Patient A to another psychologist. He adds that his wife had never mentioned to him that the practitioner would stop seeing her. Such a fact is not without significance from Patient A's husband as he had assumed the responsibility of paying for his wife's treatment. Such an expectation by Patient A's husband is also in another view, consistent with the "discussion plan" being simply that, namely "a plan", which had further professional work to be undertaken in the near future and in particular probably on 13 December 2012 as revealed in exhibit J.
12. For these reasons and again considering the totality of all the evidence, the Tribunal is comfortably satisfied that the therapeutic relationship between the practitioner and Patient A was not terminated on 15 November 2013. Indeed, the Tribunal finds that particulars 9(a), (b) and (c) did not occur, the reason being is the practitioner had not and did not intend to terminate the therapeutic relationship. The Tribunal is comfortably satisfied that the last consultation in fact was on 10 December, it being the "debrief", however, it was not intended to be the last consultation either, although no further consultation took place despite the provision of further dates by the practitioner.
13. Thus, particular 9 is not proven as it clearly presumes that the practitioner had or was intending to terminate the therapeutic relationship on 15 November 2013 which as the Tribunal has found, was never his intention in all the circumstances.
14. Particulars 10, 11 and 12 relate to the core contest as took place before the Tribunal and between the parties. As already mentioned, the practitioner made certain admissions in respect of particulars 10(a) and (b). Some form of chronology should be established at this point in time in order to understand both what happened during the evening of 7 December and the morning of 8 December, it being noted that 7 December was a Friday.
15. On the afternoon of 7 December the practitioner was at home looking after his children as it appears that his wife was attending an end of year work party. Patient A was at home initially with her husband when she asked her neighbour, Person D, whether she would like to go with her for some drinks in Port Macquarie. At about 7pm Patient A together with her friend was driven by her husband to Port Macquarie. Patient A informed her husband that they were intending to go to a club called Zebu which is occupied at the Rydge's Hotel in Port Macquarie.
16. Sometime after arriving at Zebu, Person D observed Patient A speaking to a man who she described as loud and boisterous and who was sitting with some women. She observed that he was being flirtatious with Patient A and also with every other woman at Rydge's that night. She stated that Patient A was being, "a little flirtatious back to him" and was showing him attention. She observed the man cuddling Patient A and kissing her on her cheek and at one point kissing her on her lips.
17. From the evidence it appears that this person was Mr Roger Firth, the brother of the practitioner. Mr Roger Firth who gave evidence is a legal practitioner registered in New South Wales and who provided a statement behind tab 1.4 of exhibit G. He presents a significantly different picture to that of Person D. The statement which he made was dated 14 January 2015 and it appears that this was the first occasion he had ever been asked to put in writing his recollection of the events of 7 December 2012, thus the statement represents his recollection of the events two years prior and thus it would be understandable that maybe there would be some inaccuracies in such a recollection.
18. The evidence confirms that Mr Roger Firth and Patient A did make contact with each other that night at Zebu Bar, however, it is the evidence of Patient A that it was Mr Roger Firth who made uncalled overtures to her which included kissing.
19. At one level of discourse is of little note as to what actually happened at Zebu between Roger Firth and Patient A. It becomes of significance because the practitioner in his typed statement at [20] seeks to rely on Mr Roger Firth's version of these events, as the practitioner was contacted by by Patient A lof her contact with his brother and the reason the practitioner then left home to go into town was to meet up with his brother (not Patient A) The practitioner would thus seek to use his brother's evidence of Patient A's emotional instability that night and perhaps further evidence of some promiscuity on her part.
20. It is not without significance that Mr Roger Firth is unable to remember any communication with his brother, concerning his interactions with Patient A , having only been told his brother of them some significant time later. The practitioner on the other hand seeks to rely on texts from Patient A [23] on the evening of 7 December as evidence of the fact of this event but also the fact of his brother presence at Zebu Bar that night.
21. As to what occurred between Mr Roger Firth and Patient A is only relevant to consider in terms of whether or not the text relied upon by the practitioner as having been sent to him by Patient A occurred in the terms in which he claims it did, rather than whether or not Roger Firth's actions that night did or did not occur.
22. Mr Roger Firth stated that the kissing by a stranger in these circumstances had never happened to him before as stated, he denied that he promoted the contact between himself and Patient A. On the other hand there was evidence that Mr Roger Firth had consumed significant amounts of alcohol that evening, it being his firm's Christmas party and that at that time of his life, he was not attached to anyone in particular. From this it can be inferred that his personal circumstances would not have prevented some form of amorous contact with females in the manner reported by Person D.
23. It is to be noted that Patient A reports in her written statement that she was told by the practitioner at the "debrief" on 9 December that all Roger Firth could remember as to the evening's events was talking to a blonde and could not remember much else, including who was at the table. This lack of memory clearly is inconsistent with the detailed memory Mr Roger Firth sought to establish in his evidence. On the other hand, the lack of memory reported to Patient A by the practitioner is consistent with the consuming by Mr Roger Firth of significant amounts of alcohol prior to the contact with Patient A.
24. Some confirmation of this conclusion is also made by Mrs Firth who described the general description of behaviour of Mr Roger Firth on the night, as not inconsistent with the "Roger Firth" she knew.
25. Of course it is not to be overlooked in assessing the evidence as to the fact that Person D is an independent witness. The respondent did not wish to cross examine her and it is not suggested that Person D had any motive to do anything other than tell the truth. Her version is consistent with that of Patient A.
26. In considering the conflicting evidence as to what occurred between Patient A and Mr Roger Firth, the Tribunal accepts the description of Person D of the events as being accurate and as described by her in her statement, exhibit B, tab 5. It should be said in fairness to Mr Roger Firth that he did admit to the Tribunal that he had had a number of drinks that evening and that his conduct could have been affected to some extent by alcohol although this does not seem to be an issue the Tribunal need to dwell upon.
27. In making the finding just referred to as to acceptance of Person D's account, the Tribunal has thus come to the conclusion that Patient A did not and would not have texted the practitioner on the evening of 7 December that "she had kissed him". She would not have done this because of the finding that the active participant in respect of that matter was Mr Roger Firth and not Patient A.
28. Many Texts were exchanged
29. Returning to the chronology, there were between approximately 8.42pm and 10.35pm on 7 December, eight text messages which the practitioner admits are sent to Patient A [20]. The Tribunal finds this number to be significant given the times they were sent and what followed. There is no mention of these texts in the practitioner's statement of 25 June 2013. The omission of this reference adds to the concern the Tribunal has of the practitioner's reliability.
30. There were also numerous text messages sent by Patient A to the practitioner during the same period. The practitioner says at [20] that he does not know what the content of these messages were other than his belief that they were an already mentioned reference to the one involving kissing by Patient A of his brother, Roger. The Tribunal has great difficulty in accepting such lack of recollection by the practitioner of the content of these texts, and at the same time having a selective memory of the message which supports his version of the events.
31. In part the lack of recollection arises from the erasing of the messages contained in the phone used by Mrs Firth in circumstances set out in annexure A of her affidavit. The justification for this given by Mrs Firth was that she was very concerned that the memory contained sensitive and graphic information about herself and family members which would or could be viewed by others and which she considered was a serious invasion of her privacy. In other words, Mrs Firth at the time seemingly knew that when she erased the messages, that the memory was being sought for the purposes of the investigation by the complainant. She stated that she took these steps on her own accord without the involvement of "my husband". The destruction of relevant evidence by a party is seen in the Courts as giving rise to significant adverse inferences as to what that information would have been but for the destruction, in fact see Allen v Tobias [1958] 98 CLR 376 and The Ophelia [1916] 2 AC 206 at 229 30.
32. Those cases are reliant on the destruction having been occasioned by a party to the action. In this case, the destruction has been occasioned by the wife of a party to an action namely the practitioner. There is, however, no evidence upon which the Tribunal could find that the actions of the wife were aided and abetted in any way by the practitioner. For this reason, the Tribunal is not in a position to draw the normal adverse inferences arising from the destruction of relevant evidence, even though the Tribunal is not bound by the rules of evidence.
33. It is of serious concern that Mrs Firth did what she did at a time when she knew the HCCC wanted the phone and its memory for the purposes of proof. Common sense would suggest that she might well have discussed the matter with the practitioner and indeed made some evaluation as to whether her actions would cause the practitioner any harm. There is no evidence that she undertook this common sense precaution, nor is it clear as to why the material of a private nature would have, in any event, been revealed when the sole purpose of seeking the information related to any forms of communications between Patient A and the practitioner and no one else.
34. The Tribunal considers that given these circumstances, it should approach Mrs Firth's evidence with some caution, if for no other reason than as to her self interest in having the practitioner maintain his professional registration and the consequences should he fail to do so. Similarly, the Tribunal approaches her evidence with some caution because of her preparedness to erase evidence at a time when she knew a lawful request had been made by the HCCC for reasons which make little sense.
35. Unlike the practitioner, Patient A does have a recollection of the contents of these texts that took place between them on the evening of 7 December. She states in general terms that they were seductive in nature and indeed the Tribunal finds this consistent with the events which followed. However, Patient A does not accept that the practitioner ever mentioned the need to establish the whereabouts of his brother. Thus the Tribunal, consistent with its earlier findings of credibility of Patient A, accepts what Patient A has written in her handwritten statement at p 6 as to the nature of the texts that took place between her and the practitioner.
36. At some point of time the practitioner's wife returned home and at some later point of time, at about 11pm, the practitioner told his wife that he was going to Port Macquarie, "to try and find Roger". This as a trigger for such a late departure from home makes little sense to the Tribunal. The only texts which the Tribunal finds took place were ones that were sent by Patient A to the practitioner seeking his attendance. Further, given the practitioner's alleged expressions during his evidence of the need to maintain boundaries, the last thing he will be seeking would be to try and find his brother Roger at a time when he knew he was allegedly with Patient A in some amorous situation.
37. However, even if the practitioner is accepted that his brother triggered some reason to attend Port Macquarie, the Tribunal does not find that such a late departure is consistent with what appears to have been reasonably regular contact at other times of the week or day between himself and his brother. The late departure is not consistent with a regular contactable relationship that seems to have existed between Roger Firth and the practitioner at that time.
38. The practitioner tells the Tribunal that his wife was "not happy" with his intention to go to town to look for his brother and told him that if he chose to go out and become intoxicated he should not come home. It should be noted that at this time the practitioner's wife was seven months pregnant. Such a departure at such a time of night would seem to be at least, if considered at the level of common sense, both unnecessary and provocative. It should be noted that no mention was made by the practitioner of these facts in his statement of 25 June 2013. In his earlier handwritten note, the practitioner refers to the fact he knew his brother was having an Xmas party on this night so he needed to find him. No mention of the text was or is made [tab 51B, exhibit E].
39. In her oral evidence, Mrs Firth told the Tribunal that the reason why she did not want the practitioner to come home was because she did not want her to wake her up as she already had a child at home who would wake her up three or four times a night and a further interruption was beyond the pale. This also makes little sense in the circumstances.
40. The Tribunal is satisfied that given the evidence that the practitioner departed home at such a late hour and after receiving the texts sent by the Patient, home at that time was with the intention of a forbidden sexual liaison and consistent with Patient A's desires. The Tribunal relies on the general sexualisation of the relationship as revealed in the texts and consultations referred to in the earlier proven particulars.
41. The Practitioner leaves home at 11pm and goes to Port Macquarie.
42. The practitioner arrived at Zebu Bar at about 11.30pm. Despite being told on arrival that his brother had left, he still lingered at the bar, allegedly to make contact with his friend a Mr Jackson who worked at the restaurant next to Zebu Bar. The practitioner claims that he sought to arrange to see Mr Jackson, to have a drink with him sometime after he finished work. Mr Jackson who gave evidence by phone confirms such contact with the practitioner. However, Mr Jackson in his evidence was very vague as to this, as well as other events surrounding this evening. Such vagueness given the nature of the communication, the time of night and the nature of the relationship between the two of them, is at one level certainly understandable. However, because of the nature of the evidence given by Mr Jackson, the Tribunal is unable to accept there was in fact direct communication between the practitioner and Mr Jackson. It is not irrelevant to note that the practitioner in his handwritten statement behind tab 51B makes no mention of such communication with Mr Jackson.
43. The Tribunal is satisfied that the practitioner did make one contact with Mr Jackson on the morning of 8 December. At 1.33am the practitioner sent a text to Mr Jackson in the following terms: "Fuck, I can't answer my phone. I'm in town at Downunder. Come see you and brother." (See annexure A to the statement of Mr Jackson).
44. This is to be contrasted with the recollection made by the practitioner through his solicitors, that the text sent to Mr Jackson was "He could not wait any longer and left Zebu Bar as a former client was present" (see p 60 of annexure H behind tab 1.7 of exhibit G).If nothing else, the Tribunal finds that these two versions demonstrate the self-serving nature of the practitioner's evidence, the text of course annexed to Mr Jackson being by far the more reliable version of its content.
45. From limited evidence given, it should be noted that there was some form of "lock out time" in operation at Port Macquarie which limited the opening hours of certain venues, however, the Tribunal knows little else about this matter.
46. The Tribunal considers that the text sent to Mr Jackson at 1.33am is however not consistent with the overall force of the practitioner's evidence, that he was trying to meet up with Mr Jackson. The reason for it is firstly the hour the text was sent, namely at 1.33am, well after the closing hour of the Zebu Bar which appears to be at around about midnight, and it appears that on the night of 7 December, the practitioner was present at the Zebu Bar during the "last call" that evening. If that is the case, then the practitioner at that time, was well and truly close to Mr Jackson. If he wanted to meet him after Zebu Bar had closed he was there and then available. Yet the practitioner left the bar looking for his brother whom he had already known had left that bar earlier rather. He did not seek out Mr Jackson at closing time.
47. It also seems to be highly unlikely that given the hours that Mr Jackson worked and the closing time of the restaurant that there would have been any reasonable expectation on the part of the practitioner that Mr Jackson was still around at 1.33am looking to have a drink with the practitioner. Thus the Tribunal finds that it is unlikely that the practitioner ever actually wanted to meet up with Mr Jackson and that the text was sent at a time when the practitioner had other motives and intentions in mind of which the text was a cover.
48. The Tribunal is satisfied that the version of events as to what took place at the Zebu Bar and communications between the practitioner and a security guard as to the whereabouts of Mr Jackson are more reliable. It is clear that Patient A without any understanding as to the reason perhaps, observed that the practitioner was making a lot of noise to attract attention with the security officer to establish an effort on his part to appear to want to meet up with Mr Jackson that evening. The Tribunal thus comes to the view that the more likely reason for the practitioner to seek others that evening and that these attempts to make contact with Mr Jackson were heard, was to ensure that this would provide some corroboration as to his whereabouts that evening and early the next morning. It is obviously relevant that the practitioner never saw Mr Jackson that evening, and that he never saw his brother that evening.
49. The practitioner leaves Zebu Bar and arrives at the Downunder Bar
50. The practitioner stated that he does not recall how long he remained at the Zebu Bar. It seems clear on the evidence that it closed about midnight or soon thereafter the last customers left. The statements of Patient A show that she was still present there at about midnight (tab 9, exhibit E).
51. The practitioner left Zebu Bar for reasons and purposes of which there is significant vagueness. On the one hand the practitioner stated that he went looking for his brother "at the pubs" even though he had been told sometime before that his brother had left the Zebu Bar with a female making it less likely that he remained in town. There is a conflict as to how and in what circumstances the practitioner and Patient A both arrived at the next nightclub called "The Downunder". Patient A stated that she convinced the practitioner to go with her from Zebu Bar to the nightclub, and on the way they attended a store known as "Snacks Eatery" to which there is a reference in her statement as having made a purchase shortly after midnight.
52. It appears that during the walk from the Zebu Bar to the Downunder, that Patient A and the practitioner became amorous, intimate and discussed their attraction to each other. On the evidence Patient A stated that they remained at the Downunder for two hours dancing together and being amorous (see particular 10(c) (d) and (e).) The act of dancing importantly is corroborated by a statement obtained from Person E dated 20 November 2013 wherein she states that she saw Patient A dancing with a man who she knew not to be her husband and for this reason, did not approach Patient A who was known to her. The Tribunal accepts this independent evidence to the effect that the practitioner was dancing with Patient A as particularised in 10(c).
53. The practitioner alleges that he did have discussions with Patient A following an 'unintentional' meeting at the Downunder. He claimed that this conversation related to problems involving the client/therapist relationship and the need to maintain boundaries as having been discussed in therapy.
54. The Tribunal considers this evidence lacks credibility. Not only do these events arise in a social setting, but they arise at a time of the morning when no doubt alcohol had been imbibed. Further, in considering the credibility of this evidence, the Tribunal is of the view that given what appears to have been the practitioner's lack of understanding of these boundaries as evidenced in his exchanging at a later date, inappropriate messages with the mother of a patient, that it's unlikely on the morning of 8 December that a discussion of the type described by the practitioner would have taken place.
55. A further disturbing feature of the facts is the knowledge of the practitioner that the Patient A had an alcohol issue and the Tribunal finds, and indeed the practitioner admits, that he drank alcohol with this patient (particular 10(b).)
56. The practitioner stated that rather than immediately attending the Zebu Bar, he in fact went looking for his brother at various places, including a place known as the Town Green. He states that he attended the Downunder between 1 and 1.30am when Patient A came in and sat next to him. He alleges, "I had no idea that she was going to be at the Downunder Bar and did not make any arrangement to meet here there" [30 of his statement].
57. In his statement of 25 June 2014, the practitioner claimed that he made it quite clear to Patient A at that point in time, that because of the professional relationship they had, it was not appropriate that they be intimate despite her wishing that fact. After this interchange, the practitioner claims that he left the bar and went looking for a taxi which he then abandoned because of the "massive line up" and after "trying to ring for a taxi" as well as the fact that he was sick of waiting for a taxi. He therefore went to Rydge's (at about 3am) where he took a room to stay there and be by himself.
58. The Tribunal rejects this version. This version does not explain hours between leaving Zebu at about midnight and arriving at Rydge's at about 3 o'clock. The short description of events just revealed do not explain up to approximately three hours of activity or non-activity.
59. The practitioner was cross examined by the complainant as to numerous recordings, and the variances between his handwritten "diary entry" annexure B behind tab 51 of exhibit D, and his typed statement, tab 8 annexure B of exhibit E, and his final Court typed statement behind tab 1 of exhibit G. The handwritten statement was seemingly made at the encouragement of his then supervising psychologist, Ms Wendy Oxley.
60. The fact that there are differences between these various statements is in one sense not unexpected given that the different times at which these documents were created and the different circumstances in which they were created. Suffice to say they were all created however at a time when the practitioner knew there was a potential allegation of unprofessional conduct, and thus there was a clear motive in presenting the facts in the most favourable light possible to him. As the facts reveal, such as text messages, phone records and bank statements, changes were needed to accommodate the revelations when these documents were produced.
61. The complainant helpfully annexed to its written submissions schedules identifying various conflicts in these statements as well as conflicts in versions recorded by Ms Oxley in her notes. To these various versions ought to be added versions given to the Australian Psychological Society and the typed statement of 22 June 2013 to which reference has already been made, and in particular the absence of reference to critical facts found in subsequent documents of the practitioner.
62. There is little to be gained in disclosing inconsistencies revealed in each document in turn, however, the annexure provided by the complainant and other evidence as well as independent evidence given by lay witnesses has led the Tribunal to be satisfied of the unreliability of the practitioner's evidence generally, and again the need for there to be independent and reliable corroboration before accepting it.
63. The Tribunal does not accept the submission made by the Respondent that the patient had a motive to lie to the Tribunal. Might she well have had a motive to lie initially to her husband and others to protect herself and indeed the practitioner, she had no motive to lie to the Tribunal, and indeed she displayed to the Tribunal some reluctance in giving adverse evidence concerning the practitioner. The Tribunal accepts this reluctance as consistent with lack of motive.

Did sexual intercourse occur?

1. In considering the evidence on this aspect of the complaint, the Tribunal relies on its above findings on both fact and credit. The only direct and relevant contemporaneous document as to the booking into Rydge's is that of the hotel's registration form behind tab 68 of exhibit F. It records a room being booked on the morning of 8 December in the name of the practitioner. There is no cross examination of those who made the entry as to the accuracy or inaccuracy of this document, however, again the evidence of proof is on the complainant if it seeks to rely on it as it does.
2. Some features of this document should be noted. First, it is that the phone number which is entered is the private phone number of the practitioner not a number to which Patient A had access. Secondly, there is a reference to the fact that the number of "adults" to accommodate the room is namely "2". Further, the time of check in was recorded as 3am. Further and finally, there does not appear to be any dispute that the practitioner paid for this booking on his own credit card.
3. The practitioner seeks to explain away the incriminating details concerning both the phone number and the number of adults to use the room on the basis that he and his wife had previously stayed at this hotel and that somehow the information from the previous booking had contaminated this fresh entry. Absent direct evidence to this effect and given the Tribunal's concern as to the credibility of the practitioner generally, the Tribunal cannot accept this interpretation absent some acknowledgment of this possibility by those who made the entries.
4. Further evidence as to the attendance at Rydge's by Patient A is evidence that Patient A gave of some of the personal physical characteristics of the practitioner which is alleged could only have been obtained by having observed him undressing and seeing his naked body. Some of these physical details have been challenged both by the practitioner and his wife. Further, Mr Roger Firth challenged the type of underwear described by Patient A as having been worn by the practitioner. He suggested in his evidence that the practitioner only wore briefs as underwear and never had seen boxer shorts either on him or having been on his clothesline which Mr Roger Firth stated he had observed.
5. Whilst not seeking to diminish the relevance of this evidence as to its implications and while the Tribunal has considered all of the evidence, it does not find that even if there were some errors by Patient A in her descriptors of the body parts of the practitioner such as the nature and extent of the tattooing on his body, these variances can be explained either by the circumstances on the night or by changes that may have occurred in the practitioner's body since this event which occurred over two years ago. Thus, for example, Patient A's recollection as to the nature of the practitioner's pubic hair, as to whether it had been shaved or was bushy, clearly is a fact that can change from month to month and its existence at the present time might be a total irrelevancy.
6. However, in some instances the descriptors by Patient A were in fact supported by the evidence, thus Mrs Firth acknowledged her husband did in fact wear boxer shorts whilst not as a form of underwear, but at least to bed, Patient A having observed them on the night. The fact that the practitioner was wearing boxer shorts on the night is, however, consistent with the practitioner leaving home on an understanding that he be not sleeping at home that night but elsewhere and thus took with him his usual sleeping gear.
7. Patient A also provided a diagram as to the layout of the room in which she states she stayed at Rydge's. Although there was some minimal cross examination as to accuracies of this diagram, it seems to be generally accepted that the diagram is a reasonable depiction on how the room at Rydge's was laid out as at 7 and 8 December 2013.
8. The Tribunal is satisfied that the evidence which Patient A gave of the personal details of the practitioner, was her honest belief. It also finds it reliable. To this extent, the Tribunal finds that her evidence of the descriptors of the practitioner supports her version that she was with the practitioner, naked at the hotel room on the morning of 8 December. This of course supports her version that sexual intercourse took place.
9. The Tribunal rejects any submission that would suggest that the recollection of Patient A was so erroneous as to be unreliable.
10. The practitioner relies on motives for him staying at Rydge's on his own consistent with there not having occurred sexual intercourse, and for Patient A not to have been with him in that room. Reference has already been made as to his circumstances of leaving home and the professed declaration by his wife that he should not come home if intoxicated. The practitioner on the other hand in his statements expresses the reason for him obtaining the room for himself at Rydge's was because of problems obtaining taxis at whatever time he had decided he was ready to leave. In other words, he was, it appears, prepared to go home only if a taxi became available.
11. There is a reference to a phone call having been made by the practitioner at 2.29am on 8 December to a taxi company which is the same number which the practitioner called earlier on his arrival at Port Macquarie at about 11.30pm. However, the entry does not inform the Tribunal as to whether or not contact was made with the taxi company and indeed the Tribunal has some doubts as to the likelihood of there not being available a taxi at such an hour.
12. The practitioner also told the Tribunal of there being a "long line" for taxis and this also was a reason for him abandoning his desire to go home at that time and thereby taking a room at Rydge's. However, given its findings as to the lack of credibility of the practitioner, the Tribunal cannot accept that this alone was or could have been the reason for staying at Rydge's and more so given the evidence of Mrs Firth, that at the time the family budget was stretched.
13. Are events after leaving Rydge's consistent with sexual intercourse having taken place?
14. In considering the probability as to whether or not sexual intercourse took place between the practitioner and Patient A, the Tribunal considers it relevant to assess the conduct of each party to that alleged encounter post the event. The Tribunal finds that text messages annexed to the statement of Person D are very compelling and are totally consistent with sexual intercourse having taken place between the practitioner and Patient A. The value is assessed by the following facts: 1. They were sent shortly after the event. 2. The actual words support Patient A's version of intercourse. 3. The reticence which Patient A expresses as to who the other party was is totally understandable in all the circumstances. 4. That when Patient A revealed to Person D later that day at a barbecue that the other participant was the practitioner, she requested of Person D that she keep it confidential.
15. The Tribunal considers the conduct of the practitioner post the alleged event was also consistent with sexual intercourse having occurred. Despite his alleged reporting of conversations with Patient A in the early hours of 8 December as being about a need to maintain boundaries, the practitioner admitted he made a call to Patient A after leaving Rydge's, that is, at 8.29am on Sunday 8 December (see [35] of his typed statement and also annexure A [13]). In this later reference, the practitioner refers to the fact that Patient A sent him a text message requesting a phone call and she making a reference to "feel guilty about having kissed his brother". The Tribunal has already rejected that fact as a reporting given by Patient A to the practitioner at any time. In any event, the Tribunal cannot accept that such a request by Patient A for contact at this time on a Sunday accords with reality. It rejects that as an explanation as to the reason for either Patient A contacting the respondent, or for that matter, as to why the respondent contacted Patient A by phone.
16. The practitioner's wife allegedly saw Patient A's message that she sent to the practitioner prior to him making the phone call. Mrs Firth describes the message as "concerning guilt". The practitioner claimed that he told his wife that the message was "something about feeling guilty" ([13] of Mrs Firth's statement). This of course would be consistent with sexual intercourse having occurred between the practitioner and Patient A and also consistent with the text messages of concern that Patient A had expressed to Person D. Mrs Firth's support of the practitioner's version as to his explanation to her, again might well be the fact that the explanation given by the practitioner is as recorded by his wife, however, the Tribunal does not accept that that is the terms of the text.
17. The alleged return phone call by the practitioner lasted over 30 minutes. As this was a Sunday morning, this provides additional information as to the nature of the call, that is it seems to have been of a serious nature, yet kissing the practitioner's brother does not suggest to the Tribunal that a call of this length on this day of the week would explain a 30 minute phone call. What is more understandable, given its length and given the various texts the Tribunal has found took place between the practitioner and Patient A is the explanation of sexual relations provided by Patient A.
18. She stated that in the phone call the practitioner expressed "guilt" and was scared the patient was going to cause him problems knowing she had issues with men. As explained by Patient A, he was "terrified" for his career. Not only was a phone call made on this day but the practitioner sent four text messages to Patient A [37]. The records of these text messages are also not available as they have been "lost" by the practitioner "during a back-up on his phone sometime in January 2013" [11] (annexure A of the practitioner's statement).
19. The Tribunal finds the various contacts made between the practitioner and Patient A on 8 December is only consistent with firstly an ongoing therapeutic relationship and also and alternatively, something having occurred just prior which was out of the ordinary and which required an urgent level of contact.
20. On Monday 9 December, there is a reference and it does not seem to be disputed, that Patient A purchased at the Settlement City Pharmacy at Port Macquarie for $29.95, a drug to which she referred to as "the morning after pill". The Tribunal may only infer that the pharmacy was not open on the Sunday. However, the purchase of course is only consistent with Patient A having had sexual intercourse with a male but it has to be seen in light of all the other evidence as to the whereabouts of both the practitioner and Patient A on the evening of the 7th and morning of the 8th at both Zebu and at the Downunder, and the consumption of alcohol.
21. As referred to above, the practitioner sent a text to Mr Jackson in the early hours of 8 December and on the accepted evidence of Patient A went to some lengths to try and ensure that someone knew of his being at the Zebu Bar. Further, the Tribunal has accepted Patient A's evidence of the content of the text messages she sent to the practitioner prior to his leaving home on the 7th.
22. Thus the Tribunal cannot accept the description by the practitioner that their meeting at the Downunder Bar was unexpected, rather the Tribunal accepts that a course of conduct is best explained by two parties seeking to meet each other for a sexual liaison which both knew ought not to have taken place.
23. With this in mind, the Tribunal has to consider a text provided by Mr Jackson as having been sent to him by the practitioner at 3.48pm on the afternoon of 8 December. The terms of that text are as follows, "Fuck knows what I was doing trying to have a beer last night", in bold, "kept running into clients". Clearly the terms of this text are intended to create the impression that the meeting that took place between Patient A and the practitioner was some sort of accident. As already described above, and as found by the Tribunal, nothing could be further from the truth. Their contact on the evening of the 7th and morning of the 8th could not in any way be described as "running into" Patient A.
24. However, it is of note that the text refers to "clients" in the plural and further it is to note that it does not refer to "former clients" as is now alleged by the respondent.
25. Finally is the reference in the text to "bailed quickly", which as the chronology reveals above is inconsistent with the evidence as found by the Tribunal. Even the sort of contact between Patient A and the practitioner between 11.30 and approximately 3am would hardly be consistent with anything happening quickly. The Tribunal is of the view that this text was an early attempt of deception by the practitioner to explain away what he knew was his serious breach of professional standards as found.
26. The text was sent at a time when there was certainly no indication, no clear indication, on the part of Patient A that she intended to raise in any public way what she stated had occurred at the Rydge's Hotel, yet at that time, the Tribunal finds the practitioner was then preparing his possible "defence". This is a matter of considerable concern for the Tribunal.
27. The husband of Patient A at [13] of his statement stated that on Monday 10 December Patient A indeed had an appointment with the practitioner. He was not cross examined at all. Patient A had told her husband the practitioner was going to refer her to another psychologist. This is consistent with Patient A believing that given what had occurred at Rydge's, she could not remain a patient of the practitioner. This is also consistent with the texts between Patient A and Person D. However, it is not consistent with the patient having received the card for three further appointments for 2013. It may be consistent with the uncertainty which was being played out in the immediate period after the events of 7 and 8 December, for example, Patient A stated clearly that she did not want to lose the practitioner from her life.
28. Patient A in her statement refers to the fact that she did Monday 10 December attend the practitioner's practice for a 15 minute "debrief" at about 9.15am. Such an appointment does not appear on the practitioner's appointment records which is also a matter of concern to the Tribunal. The practitioner does not refer in his statement to any attendance by Patient A on Monday 10 December. To do so would in effect be to admit that the therapeutic relationship had not ceased on 15 November. For the reasons expressed above the Tribunal does not consider that the relationship did terminate on this day. Consistent with that finding will be that a consultation would take place on 9 December in the form of a "debrief" and that this is consistent with the events as described by Patient A as occurring before and during the attendance at Rydge's.
29. It is also consistent with the text messages sent by Patient A to Patient D earlier in the day when at 15.44 on 9 December, she texted that she was to have "debrief tomorrow with him, took the morning after pill so will be fine".
30. The Tribunal obtained by summons, some (but not all) entries from the Australian Psychological Society in respect of contacts made on 18 and 19 December by the practitioner with that Society. The terms of the first entry are instructive. The entry reads in the following terms:
31. "Request advice after breaking professional boundary by drinking with a client while drunk. Psychologist was also unable to recall some aspects of the night, but believes he did not sleep with the client. Client was also away overnight but also states she did not sleep with the psychologist. Client currently diagnosed by another professional as having been PED. Client's husband now involved in sending emails and threatening calls to psychologist. The client is distressed. Psychologist will not continue with client."
32. There are significant disclosures in this entry which are clearly inconsistent with the practitioner's version of the events and his present recollection. These include: 1. Practitioner stated to the Society that he was unable to recall some aspects of the night. This appears to be inconsistent with the detailed recollection the practitioner now presents in his various statements and where critical facts are able to be recalled. 2. The practitioner states to the Society that he "believes" he did not sleep with Patient A. That is a relatively unbelievable recall compared to what he now states in his various statements which is an unambiguous flat denial including a denial to the fact that the patient was never, ever in his room at Rydge's. 3. That the practitioner to the Society refers to "his client" and not "former client". Consistent with Patient A remaining his client as of 18 December is the entry that "the psychologist will not continue with the client", suggesting that the client as of that time remained his client but would not continue to be his client.
33. The entry also refers to the fact that the husband of Patient A attended his office alleging sexual relations on 17 December 2012. In his statement the practitioner stated that he told Patient A's husband that he had done nothing with his wife and that he had seen her at the pub and gave limited revelations because he considered Patient A some duty of confidentiality ([43] of his statement). The incongruity of this position is obvious.
34. The Tribunal considers the practitioner's approach and revelations to the Australian Psychological Society is of little assistance in assessing what in fact the practitioner alleges took place and given that at that very time, he knew and had been confronted by the husband of Patient A the previous day in respect of the allegations.

Further consideration of the Practitioner's submissions

1. Reference has been made perhaps indirectly and not directly to the diagnosis of Patient A's borderline personality disorder. The diagnosis it appears to the Tribunal to be of little relevance to her general credibility. This is supported by the evidence of the experts called by both parties being in answer to a direct question concerning the relevance of the borderline personality disorder to assessing the credibility of Patient A. They jointly expressed the opinion that it is only really relevant to the fact that such a person will have swings of emotion but that the condition itself does not present as being an indicia of truthfulness. It is in this way the Tribunal has had regard to the diagnosis, explaining as it does the swings in the patient's viewpoint as to whether she should or should not take part in the complaint and whether she should or should not be part of a process that could harm a person whom she has had regard to.
2. Counsel for the practitioner referred to some parts of the practitioner's treatment notes of Patient A, that could be said to be consistent with a tendency on the part of Patient A to be "unfaithful" to her husband and as a consequence thereof, suffers guilt as a result thereof and explains some of the conduct of Patient A after the events of 7 and 8 December.
3. However, Patient A denies any unfaithfulness in terms of engaging in sexual intercourse outside of marriage. Whether this is an appropriate definition is really of little note other than to say that the references in the patient notes has not assisted the Tribunal to determine where in the probabilities the likelihood of complained of acts had or had not taken place.
4. The practitioner relies not unexpectedly on the fact that Patient A has since the events of 7 and 8 December, admitted that her evidence was a "fabrication" and indeed expressed the view that she wished to discontinue involvement in any litigation of the practitioner. In this regard, the Tribunal specifically was taken to exhibit P which is a file note dated 30 April 2013 in the following terms:
5. "On 27 April I telephoned and left a 101 message on her home phone number. On 30 April Patient A returned my call and left a message on my machine saying she wants the matter dropped. I then telephoned her back later that evening and explained that the matter was before the commission. I read out part of the complaint that says she told" and I will delete the reference to the name of the doctor "her treating psychiatrist that she had a sexual relationship with Mr Firth. I asked her if she could tell me whether she had a personal relationship. She said, 'I don't want to participate at all', after this she said, 'I had inappropriate feelings for him, but he acted professionally'. After a long pause, she said, 'The matter did not happen'."
6. This document is the evidence at its most stark as to a number of positions Patient A has taken in respect of this complaint, does give the Tribunal, of course, concern as to the reliability of a witness who is telling the HCCC that the matter did not happen.
7. In addition to that aspect of her conduct, the respondent also relies on the fact that at around about the same time the practitioner had taken out an apprehended violence order against Patient A and at the time Patient A first made her handwritten statement, she was aware of that fact. These two matters can be dealt with together with the following comments. 1. It should not be overlooked that Patient A did not trigger the investigation by the complainant, rather it was the report of her treating psychiatrist to the complainant which triggered this complaint. 2. Given the circumstances of the events and referred to by the experts of emotion that Patient A has towards the practitioner, the Tribunal has approached the expressions of exasperation that might be said to underscore exhibit P with some circumspection. That is not to say that someone who admits that the facts that she has recounted in the past were not the truth, does give rise to a concern as to reliability. Not to do so would run contrary to common sense. 3. When an allegation of "spite" was put to the patient in cross examination, her response in the Tribunal's mind was both clear and acceptable. She did admit that she did not want to harm the practitioner and that at various times she did not want him to lose his capacity to practise, and in this regard was prepared to avoid confrontation with him. On the other hand, she did express and acknowledge that his conduct had done her harm as a result of the sexual relationship, in particular by his denials of it. Further, his conduct in her opinion had increased her psychological problems, being the very problems which she first attended the practitioner, namely her lack of confidence in relationships with males.The Tribunal notes that the patient was admitted into hospital a month or so after the alleged sexual encounter. Although the Tribunal has the notes of these admissions, it does not form an opinion as to the cause of those admissions in the context of these complaints. Nor can the Tribunal ignore the conflicts in Patient A's evidence as to whether or not she did or did not have sexual intercourse with the practitioner, if for no other reason than there would be serious consequences to her in revealing to her husband an out of marriage sexual encounter and the need to (at least initially) deny that which had occurred. 4. It is to be noted that the husband had texted the patient in the early morning of 8 December asking where she was and that Patient A had advised by text that she was at a friend of hers. However, it is clear that this friend had been contacted by Patient A to "cover for her" should she be asked of where Patient A had been during the early hours of 8 December.
8. These changes in Patient A's evidence have been considered by the Tribunal and they are not to be lightly disregarded. However, there was clearly on the part of the patient, uncertainty as to what position she should take in respect of the behaviour of each of them on the morning of 8 December and this emotional confusion has led to the inconsistencies in her past behaviour and recollections to various persons. Indeed, the patient when asked by her husband whether she had spent the night at Rydge's with the practitioner, she said that she had but they had both kept their clothes on. This limited disclosure has a similar ring to what the practitioner in fact told the Australian Psychological Society the previous day. It is clear at that time that Patient A was trying to support not only the practitioner but no doubt to some extent herself.
9. There are inconsistencies in the practitioner's description of the night's events, in particular, on this occasion he spoke to Wendy Oxley, his supervisor. In her statement of 11 January 2013, the practitioner had indicated to her that he met with a patient at a bar known as "Finnigans" and that this had been coincidental. Of course, there is no evidence from any party to that evening's events, that the practitioner nor Patient A attended Finnigans. Thus the question arises as to why more shortly after the event would the practitioner tell Wendy Oxley the same.
10. Ms Oxley was recalled on the telephone by the Respondent to try and suggest to her that her reference to Finnigans was a mistake on her part. She made it quite clear that she doubted it and she also said she has reasons for saying this, although she was never asked what those reasons were. This disclosure with a person who was the practitioner's supervising psychologist, raises significant credibility issues but also professional issues, given that this is a discussion taking place between two professionals and truthfulness between two such persons in the conduct of one's profession of course is essential. However, it is noted that this is not a particular of a complaint, but remains part of the overall credibility of the practitioner from the viewpoint of the Tribunal.

Conclusion

1. Having regard to not only the evidence but the submissions made and the credibility findings made above, the Tribunal finds on the probabilities and to a comfortable level of satisfaction that particulars 10(c), (d) and (e) are proven, and that particulars 11 and 12 are also proven to that level of satisfaction.

Conduct in 2013 Particulars 13 and 14

1. Particulars 13 and 14 relate to conduct in 2013. Again, given the events that have given rise to the last findings, and their consequences, the parties have paid little attention to these particulars during the hearing and during the submissions. This is understandable. It becomes unnecessary to detail the precise evidence giving rise to these particulars, as when the conduct is considered and is viewed through the prism of the earlier findings by the Tribunal, the conclusions become rather obvious. However, that is not to say that the conduct found is insignificant given the events, but more importantly the mental state of the patient at the time. Thus this would not turn on whether Patient A remained a patient or was indeed a "former patient" at the time of these alleged particulars.
2. The Tribunal in this instance has the texts between the practitioner and Patient A from 2013 (behind tab 55). They exhibit a high level of disturbance in Patient A and also a significant level of engagement by the practitioner. They also refer to the evening at Rydge's. Regardless as to whether the therapeutic relationship had been terminated in November of 2012 or not, given the practitioner's knowledge of the patient's psychological problems and that he had been treating her over a fairly long period of time, the number and content of these texts were clearly inappropriate. Similarly the phone calls as alleged.
3. The practitioner seeks to explain these communications [57 to 69] on the basis that Patient A had initiated these communications and that he finally ceased to respond [61]. The fact that he continued to remain in constant contact until then knowing that Patient A had been admitted into hospital and knowing her anguish and her psychological problems, and as the Tribunal has found, knowing that the cornerstone of this torment was in fact that the two had had sexual relations.
4. Further, the practitioner knew that he had been advised by his supervisor, Ms Oxley, not to communicate with Patient A but yet continued to do so at a remarkable level of consistency. While the explanation for such communications is obvious, namely to try and keep Patient A on side, its inappropriateness is also obvious.
5. The Tribunal therefore finds on the probabilities to a comfortable level of satisfaction, on all the evidence and findings made, that particulars 13 and 14 are proven.

Complaint 2

1. As stated above, the practitioner admitted to some of the particulars of this complaint before and during the hearing being particulars 2(i), (ii) and (iii). There is no dispute as to fact of communications between the practitioner and Person C, rather it's the characterisation of the communications (see tab 61A as finally produced, the original having not all the communications on it). The practitioner in his statement at [102] refers to his earlier statement (annexure Z) and denies any inappropriate conduct on his behalf. In considering this denial, it would involve a rejection of common sense, not to consider the denial in this complaint, but also considering all the evidence and findings made by the Tribunal above including the rejection of the practitioner as a reliable witness.
2. There is a significant difference in this complaint from the first complaint which needs to be acknowledged. In this complaint, the Tribunal has not heard nor seen Person C. She does not wish to give evidence. All the Tribunal has is the text messages. However, and as has been referred to above, texts need to be read in context and not alone. On the other hand, the denial by the practitioner of a fail to maintain appropriate boundaries in each instance is difficult to maintain in the context of his other failures found above. A brief reading of the texts between the practitioner and Person C demonstrates an obvious level of sexualisation discussions between both persons. The explanation given by the practitioner to the HCCC (tab 48A) that in part he continued to maintain contact with Person C because of his duty to the Patient B rings hollow, given all the evidence and findings made by the Tribunal. More so when it appears that the problematic nature of this relationship had earlier been raised as a matter of concern by Ms Oxley, his supervising psychologist, on about 20 June 2012, (tab 8 [7]).
3. As to the inappropriateness of the communication, the Tribunal accepts the unchallenged evidence of Mr Borenstein on this matter, of this there could be no dispute. The Tribunal finds proven to a comfortable level of satisfaction that given the context of the texts, the repetitive nature of these communications and the context thereby revealed and the limited admissions made by the practitioner that particulars 1 and 2 not otherwise admitted, are proven.
4. Particular 3 seeks to raise lack of adequate records as to "consultations with Person C". Of course, the practitioner did not have consultations with Person C. She was the mother of Patient B, however particular 3(a) is admitted.
5. However, in considering the remaining particular, the Tribunal is of the view that particulars 3 (a) and (b) should be read together, in essence, the failure to record interactions between the practitioner and Person C whilst the practitioner was having consultations with Patient B.
6. The background to this particular arises because of the recording of the patient's supervising psychologist already referred to, namely Ms Wendy Oxley, on about 20 June 2012 concerning an inappropriate interaction with the mother of one of his patients. The issues of boundaries with this very person had been raised by the practitioner. In view of other conduct by the practitioner, the Tribunal considers that such raising of the matter with Ms Oxley might well have been a form of defensive behaviour.
7. It seems that Ms Oxley does not have any record of any further issues being discussed concerning Person C with the practitioner. The practitioner stated that the mother of Patient B attended consultations with the practitioner, with Patient B also being present for the purposes stated, and providing him with feedback/tools to assist with the management of Patient B. Seemingly on one of these occasions, the mother of Patient B said words to the effect that she had an itch that needed scratching. The practitioner claims that his response was guided by the needs of Patient B, namely the need to continue providing him with therapy and he conceded the approach of the mother as a "one off approach who at the time was going through a separation".
8. Further the practitioner admits to seeing the mother of the patient in a social contact, which of itself the Tribunal is not critical.
9. The report of Mr Borenstein records his opinion that the failure to record "the proposition" from the mother is inappropriate. There was some interchange of opinions between the experts as to whether this recording should take place on the patient's file or not, the concern being that the patient might at some stage later on obtain access to his own file and thereby revealing what might be thought to be unbecoming conduct of his mother. However, clearly the experts were of the view that some form of recording could take place, and ought to have taken place, and that it need not have been on the patient's records as such, and therefore would not have been made available to the patient should he see his records.
10. The need to record such events is obvious, not just in terms of protecting the practitioner from wrongful allegations but so that a true understanding of issues relevant to the treatment of the patient could be established by perhaps another practitioner who takes over the treating of this patient at a later date. In all the circumstances, the Tribunal finds clearly to a comfortable level of satisfaction particular 3(a) (which is admitted) and 3(b).
11. In respect of particular 4 this is also admitted and thus it will be considered in short form. The various records referred to in the allegation speak for themselves, and indeed are inadequate, given that the practitioner treated Patient B from February 2012 to 11 April 2013. He was holding sessions on a fortnightly to monthly basis and in particular Medicare records indicate six visits by Patient B with the practitioner commencing 14 February 2012 till 3 May 2012 of which there is very little record. Given the state of the records themselves and the opinion of Mr Bowenstein, the Tribunal is satisfied to a comfortable level of satisfaction that particular 4 is proven.

Conclusions and Complaint 3

1. The Tribunal has found all particulars except particular 9 of complaint 1 proven. The Tribunal has not, to this stage, addressed in terms the nature of the conduct so found. In particular, whether the findings support a finding of unsatisfactory conduct in respect of complaint 2, and in respect of complaint 3, whether they support a finding of professional misconduct.
2. Given some of the findings made above, there is no doubt in the Tribunal's mind that the practitioner should be found guilty of professional misconduct in having sexual intercourse with his then Patient A (see HCCC v Litchfield [1997] 41 NSWLR at 630).
3. However, further considerations need to take place in respect of the other particulars. The definition of unsatisfactory professional conduct of a registered health practitioner generally (NSW) is to be found in s 139B of the National Law: "Unsatisfactory professional conduct involves an objective assessment of the practitioner's' conduct against the standard of conduct reasonably expected of the equivalent practitioner."
4. The complaints admitted and those found proven by the Tribunal in complaints 1 and 2 demonstrate a lack of proper or unethical conduct relating to the practice or purported practice of psychology and therefore amounts to unsatisfactory professional conduct.
5. As observed in the complainant's submissions there is no definition of "improper" and "unethical" as used in s 139B(1)(l) of the National Law. However, the Tribunal sits here constituted, and its constitution includes that of two experienced psychologists and the Tribunal has also had the benefit of hearing from 2 experienced psychologists. They both gave their evidence in an open and forthright fashion and both making concessions when required.
6. The experts were asked to assume a number of different assumptions but two in essence; one is that Patient A's evidence is totally accepted and the second is the practitioner's evidence is totally accepted, and then asked what conclusions they draw from that, although it must be said it was mainly Dr Pusey who was asked these questions. This does not provide the Tribunal with a great deal of assistance as it is inevitable that some of the evidence of both the practitioner and Patient A are not without some concerns. However, the Tribunal has accepted in essence Patient A's evidence and has in essence rejected the respondent's explanations.
7. In considering whether or not conduct is "professional misconduct" again the Tribunal is directed to that meaning through s 139E of the National Law which connects the unsatisfactory professional conduct to concepts that it was of sufficient serious nature as to justify suspension or cancellation of the practitioner's registration, or there was 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.
8. When coming to a decision of whether the conduct is "sufficiently serious" to justify the sanction of the registration, circumstances which bear on that objective assessment of that conduct may properly be taken into account and the Tribunal so does.
9. The complainant at [42] of its submissions, submits that complaints 1 and 2, that the conduct was professional misconduct. On all of the facts found above as to what occurred both before 7 December and on 7 and 8 December and thereafter, the conduct when seen in its totality can only be characterised as a gross breach of the practitioner's duty as a psychologist to his patient. Of course this is not in any way affected or infected by the fact that Patient A considered herself a consenting party. The breach is made more severe by reason not only of Patient A's vulnerability but her particular psychological traits and disclosures as disclosed to her psychologist in consultations. Thus the characterisation remains a gross departure of the duty of a psychologist and even if it be accepted that the events of 7 and 8 December occurred at a time when Patient A was an ex patient. The reason for this is clear, but the fact that the relationship had only recently ceased does not provide to a psychologist an opportunity to treat an ex patient as if they were never a patient.
10. The emails, phone calls and meetings and text messages between the practitioner and Patient A whilst she remained a patient, and thereafter, were also grossly inappropriate. This conduct is considered more serious by the Tribunal given that it has found that much of that communication was a form of manipulation by the practitioner of Patient A in order to save his career and the impacts that its loss would have.
11. The failure to keep adequate notes would not normally be considered a matter of professional misconduct, however, the particulars here found proven involve poor record keeping which would be considered a worse violation of professional standards than otherwise because it involved material which could or would have put the practitioner in a poor light. Thus the failure was not simply one of administrative failure, be it shortness of time or lack of opportunity to make notes, but rather an extension in the Tribunal's mind of what was manipulation of the records to assist the ends of the psychologist.
12. Mention has already been made as to the experts' concern as to the manner as alleged by the practitioner, by which he terminated the therapeutic relationship. Such conduct goes to the future welfare of the patient, however, given the nature of the particular was based on a particular day, the Tribunal makes no further comment as to that failure, even though it more likely than not occurred on about 10 December 2012, although whilst offering the patient hope of further consultations in 2013.
13. Considering the findings of the Tribunal, the Tribunal finds that the practitioner guilty of professional misconduct, proven to the requisite degree of satisfaction in respect of the following particulars alone, namely in respect of complaint 1, particulars 8, 10, 11, 12, 13 and 14 and in respect of complaint 2, particulars 1 and 2 being conduct which amounts to unsatisfactory professional misconduct which is of sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
14. Alternatively, the Tribunal finds the practitioner guilty of professional misconduct when all the proven particulars of complaints 1 and 2 when considered together as the proven conduct is of sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 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: 22 October 2015