Health Care Complaints Commission v Gorrell

NCAT Occupational|2022-05-06

ve Tribunal Act 2013, disclosure to any person or entity of the name of the client set out in schedule to the Complaint is prohibited.

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

On 16 March 2022 the Tribunal published Stage 1 findings in the application made by the Health Care Complaints Commission (the HCCC) for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Mr Philip Gorrell, a psychologist: Health Care Complaints Commission v Gorrell [2022] NSWCATOD 34 (the Stage 1 reasons). The following reasons relate to Stage 2 of the proceedings, and should be read together with the earlier reasons.

Protective orders sought

The HCCC seeks the following orders: 1. A finding pursuant to s 149C(4)(a) of the National Law that if the respondent were still registered, the Tribunal would have cancelled the respondent's registration and disqualified the respondent from being registered for a period of five years; 2. That the National Board record the fact that the Tribunal would have cancelled the respondent's registration, pursuant to s 149C(4)(c) of the National Law; 3. The respondent be prohibited from providing health services as defined in s 4 of the Health Care Complaints Act 1993, for a period of five years; and 4. Costs.
The HCCC submits that the practitioner grossly breached his duties to Client A, by taking advantage of her vulnerabilities for his own sexual gratification; to the Court, because he was tasked with providing an impartial expert opinion to assist the court; and to the psychology profession. The HCCC submits that cancellation and a period of non-review are appropriate and justified, as each order is directly relevant to the protective aims of the National Law, and maintains public confidence by signalling to the profession and members of the public that those whose conduct does not meet the required standards will not be permitted to practise. The HCCC submits that a prohibition order is required based on the risk that the respondent poses of opportunistically taking sexual advantage of vulnerable female clients, and the risk that if he returned in any measure to providing health services he could not be trusted to candidly disclose his misconduct.
The practitioner submits that he has already served a three year suspension and an appropriate period of suspension would be the existing time served of three years, backdated to 24 April 2019 when he did not seek to renew his registration as a psychologist. He submits that he has learnt from the situation with Client A, and will be more cautious in future and use an office, and possibly AVL, for client assessments, and will be very selective as to which clients to take on. He submits that the existing suspension has had a psychological and a financial effect on him.

Stage 2 hearing

The Stage 2 hearing was held on 6 May 2022. The practitioner provided a statement dated 25 April 2022 (ex R7), written submissions, and updated references (ex R8). The HCCC relied on the evidence provided in Stage 1, and provided written submissions and submissions in reply. The practitioner gave oral evidence, at the request of the Tribunal.

The practitioner's evidence

In his statement the practitioner acknowledged the Tribunal's Stage 1 findings, and acknowledged that he will be required to, and will, abide by the decisions of the Tribunal. He stated that most psychologists have very limited experience in assessing a mental illness; he has worked as a psychologist in the area of psychiatry since 1984. He stated that he had concluded that Client A was not acutely mentally ill but was attempting to convince him of that to support a section 32 application; and furthermore her treating psychiatrist concurred with his opinion that she required psychiatric treatment. He disputed that Client A is an alcoholic. He referred to the proceeding under s 150 of the National Law in 2016 in which no action was taken in relation to a complaint against him, noting that in financial year 2015-2016 he was one of only two psychologists out of 23 psychologists subject to s 150 proceedings who were not suspended. He stated that he conducted home visits to assess clients because he can learn more by observing them in their environment than in an office; that provides him with an opportunity to interview those with whom the client resides, and is appreciated by magistrates and judges.
The practitioner summarised the consequences of his suspension from 24 April 2019 as being that he has become depressed and isolated; and he has experienced financial difficulties, as it took him seven months to find other employment as an oversize truck pilot, and he was denied Working with Vulnerable People certification. The practitioner stated that while he disputed that he had a sexual relationship or consumed alcohol with Client A, he is stuck with the finding of the Tribunal. He acknowledged that his line of testing his hypotheses was inappropriate, despite leading to what he believes is still an appropriate conclusion. He regrets stating that Client A should return from the bathroom without wearing her underwear. He stated that he has learnt from this. His biggest regrets in being suspended are the agony he has caused to his family; that he was unable to raise money through co-ordinating an event for the Community Arts Centre, as he was unable to obtain certification for Working with Vulnerable People; and that he could not intervene with a distressed truck driver following a traffic accident as there was a condition on his suspension that he not practise psychology.
The practitioner stated that he had been offered help by a solicitor to educate him in relation to changes in the law and to consult clients in her office, or by AVL. He seeks an opportunity to reinvent himself if able to return to the practice of psychology, to allow him to return to being an active contributing member to the community and cease punishing himself and his family caused by his inappropriate behaviour.
In oral evidence the practitioner stated that he had identified two appropriate Ethics courses, one of which requires 50 hours of study at any time and the other is part of an undergraduate degree program. His lawyer suggested that the Tribunal might want to recommend something appropriate. He considers that the benefit of the first course would be an understanding of the philosophy of ethics, and at a practical level. The second course is more focussed on psychology and the ethics of research. The practitioner agreed that he could have been doing ethics courses while he was still working between 2016 to 2019. He stated that he had fulfilled the requirements of the Council which were extensive, and the Council did not require him to do so.
When asked how undertaking those courses would alter his practice, the practitioner stated that he would use strategies to help him address the situation, including using zoom or AVL, and if he needed to do an assessment in person, would do so in the presence of another person. It would ensure he is behaving in an appropriate way. When asked what he has learnt from the proceedings, the practitioner stated that he has learnt strategies to avoid a similar situation, and that he needs to be careful about comments he makes, and not see a client in their home any longer if it puts him at risk and puts others at risk. He needs to be very careful with the way he assesses people. He tends not to take a clinical or formal approach. He has complied with conditions previously put on his registration including doing courses and having supervision and quarterly reviews; and he is specific in his practice about what he is capable of doing, specialising in one area. The practitioner stated that he had put together a risk management plan following the Performance Assessment in December 2017.
The practitioner stated that he is scared to go back to seeing clients, because he got into trouble. He tends to be more friendly than others who work in this area. Once Client A started to raise issues of sexuality he should have walked away, and he should not have put himself in the situation of being vulnerable. Client A controlled the scenario and he was silly to fall into it; he wanted to assist the court and the client and went too far in trying to be helpful. He has to take responsibility for the situation and he could have taken different options such as asking questions differently or walking away. The discussion that occurred was led and directed by Client A.

Applicable principles

Having found the subject matter of the complaint proven, the Tribunal may, under s 149A(1) of the National Law: (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
If a practitioner is no longer registered, an order or direction under s 149A may still be given, but has effect only to prevent the practitioner being registered unless the order is complied with or to require conditions to be imposed when the practitioner is registered: National Law, s 149A(2).
As a consequence of the finding that the practitioner is guilty of professional misconduct, the Tribunal may suspend his registration for a specified period, or cancel his registration: National Law, s 149C(1)(b). If the Tribunal cancels his registration, it may specify the period before which he can seek review of the order, and apply for a reinstatement order under s 163B: National Law, s 149C(7).
Where, as in the present proceedings, the person is no longer registered, s 149C(4) of the National Law provides: (4) If the person is no longer registered, the Tribunal may - (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.
The power to make a prohibition order is conferred by s 149C(5) and (5A) of the National Law: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note - Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered.
The power to make any of the orders provided in Part 8 of the National Law is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held: 20. Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 21. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(a), to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The protection of the health and safety of the public must be the paramount consideration: National Law, s 3A.
In Health Care Complaints Commission v Do [2014] NSWCA 307 (Do) the Court of Appeal said: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [10] that "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the proper purposes of such an order".
In considering what, if any, protective orders should be made, the Tribunal has had regard to the seriousness of the practitioner's misconduct; the length of time since the misconduct and the practitioner's response; any remorse or reflection; the previous complaints against the practitioner; and what his referees say about him.

Seriousness of the misconduct

As noted at [98] in the Stage 1 reasons, the allegations made in the complaint were serious, and were denied by the practitioner. The Tribunal was required to determine, in the face of the conflicting accounts as to what occurred during the period between October 2017 to September 2018, and in particular in the assessment visits to Client A's home on 28 October and 31 October 2017, whether the evidence of the practitioner or that of Client A should be accepted. Both the practitioner and Client A gave oral evidence and were cross examined. As discussed at [101]-[142] in the Stage 1 reasons, the Tribunal accepted the central elements of Client A's evidence, in particular as to the number of visits to her home and what occurred during those visits, and rejected the practitioner's evidence that what occurred, including the sexualised discussion and physical contact of a sexual nature, had a legitimate professional purpose in undertaking his assessment for the court report.
As the Stage 1 findings make clear, the Tribunal regards the practitioner's misconduct as being extremely serious. The Tribunal found that the continued contact with Client A by telephone and text messages beyond the period when such contact was appropriate for assessment and interim management purposes; the inappropriate personal and sexual relationship with Client A; and the breaches of proper professional boundaries, involved a fundamental beach of the trust inherent in the relationship between a psychologist and client. That conduct failed to recognise the power imbalance between psychologist and client. And as discussed at [173]-[174], that conduct was in breach of the requirements of the APS Code of Ethics: in particular, in encouraging a vulnerable client to consume alcohol, that conduct was demeaning (part A.2.1); in engaging in physical and sexual contact it was exploitative (part C.4.1); and the practitioner's conduct was in breach of the prohibition on sexual activity provided in C4.3 of that Code. The Tribunal was satisfied that that conduct was both improper and unethical, and was unsatisfactory professional conduct.
In finding the practitioner guilty of professional misconduct, the Tribunal characterised his behaviour as being not only an abuse of the trust and power imbalance inherent in the relationship between psychologist and client, and a breach of his professional obligations to Client A as reflected in the APS Code of Ethics, but as demonstrating a fundamental defect of character and a comprehensive failure to maintain professional standards and obligations.
Not only was the practitioner's misconduct serious, it was not confined to a single isolated event or occasion, but continued from October 2017 to August 2018. There were three visits to Client A's home while the practitioner was preparing the court report, during two of which (28 October and 31 October 2017) he purchased alcohol which he encouraged Client A to drink, despite knowing she had a reported history of alcohol abuse. As evident from the recording made by Client A during part of the second visit, during those two visits the practitioner made inappropriate sexualised comments to Client A, and engaged in inappropriate physical and sexual contact with her. He continued a relationship with Client A after the period in which he was conducting his assessment and preparing the court report finalised in December 2017, and after the period in which he provided case management for Client A until the treating psychiatrist Dr Lim could see her in January 2018.

Length of time since the misconduct

The conduct the subject of the complaint occurred between 2017 to 2018. The practitioner has not been able to practise psychology since 24 April 2019 when a condition was imposed on his registration in proceedings under s 150 of the National Law. In his submissions the practitioner characterised the period since then as a three year suspension. In Qasim v Health Care Complaints Commission [2015] NSWCA 282 the Court of Appeal rejected a submission that the Tribunal in that matter should have taken into consideration the period of time during which a practitioner has been suspended when determining the appropriate protective order: 73. …[I]t is submitted that, in exercising its discretion to make such an order, the Tribunal was required to take into account the fact that Dr Qasim had been suspended from practice for a period of three and a half years from December 2010. That submission proceeds on a wrong view as to the purpose of the disciplinary powers of the Tribunal. That purpose is not to punish the practitioner concerned but rather to protect the public and maintain proper professional standards: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [31]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]; see also National Law, ss 3(2) and 3A.
As noted by the Court of Appeal in Qasim at [74], a period of suspension may be relevant in considering the length of time likely to be required for the practitioner to change their conduct so as to be competent to practise without risk to the health and safety of the public. That aspect of the matter is considered below.

Remorse and insight

The HCCC accepts that the practitioner was entitled to defend himself and put the HCCC to proof on all of the allegations made in the complaint; and that his having done so does not necessarily warrant a more severe disciplinary order: Gautam v Health Care Complaints Commission [2021] NSWCA 85, at [11] (Leeming JA). The HCCC does not submit that by defending the complaint a more severe disciplinary order is warranted, however its position is that in this particular case, and in a protective jurisdiction, the manner in which the practitioner defended the proceedings is relevant, submitting that the practitioner denied the misconduct in the face of cogent evidence showing otherwise, and externalised blame to Client A.
The practitioner submits that he facilitated justice by not seeking to exclude the voice recording made by Client A on 31 October 2017, which he alleged was recorded illegally. In reply, the HCCC submitted that while it was the practitioner's right to put the HCCC to proof, that meant that Client A had to give evidence and be cross-examined, and that there were findings of fact to be made in the face of cogent evidence contained in the recording.
The circumstances in which Client A recorded part of the assessment visit on 31 October 2017 and retained the recording on her phone are summarised at [49]-[52] of the Stage 1 reasons. As discussed at [21]-[22] in those reasons, the transcript of the recording and the audio recording were admitted without objection; and whether or not the recording was made in breach of s 7(1)(b) of the Surveillance Devices Act 2007, as maintained by the practitioner, or as submitted by the HCCC s 7(3)(b)(i) of that Act would apply, the practitioner accepted that the transcript of the audio recording was accurate. As discussed in detail in the Stage 1 reasons, the transcript and the audio recording supported the evidence of Client A as to the sexualised discussion and activity that occurred both at the practitioner's first visit on 28 October 2017 and on his second visit on 31 October 2017. As discussed at [135]-[136] in the Stage 1 reasons, having listened to the audio recording, the Tribunal rejected the practitioner's submission that the sexual discussion was led by Client A, concluding that Client A was not directing the flow of the conversation, or controlling the practitioner's responses to her.
In his evidence in the Stage 2 hearing the practitioner maintained his position that Client A had controlled the scenario, stating in oral evidence that the discussion was led and directed by Client A. His written statement maintains his contention that Client A was attempting to manipulate his assessment of her. While in that statement the practitioner acknowledged that his line of testing his hypotheses was inappropriate, the Tribunal regards it as significant that there was no consideration in that statement of any impact on Client A as a consequence of his conduct. In response to Tribunal panel questions the practitioner commented that if he had harmed Client A in any way that is something he regrets but he was providing her with help: and at some level he is not happy with Client A.
The Tribunal concludes that while the practitioner was entitled to deny the allegations and put the HCCC to proof, having done so, including in extensive cross examination of Client A in the Stage 1 hearing, it might be expected that he would have reflected on the Stage 1 findings. There is no indication that he has done so. He continues to deflect blame to Client A for a situation in which he, as a professional engaged in the important task of assessment and preparation of expert evidence to assist the court, engaged in inappropriate and improper behaviour. Other than his eventual acknowledgment in response to the panel questions that he contributed in some way to the way Client A chose to act, he has demonstrated no remorse for the harm he may have caused to a vulnerable client who had, to his knowledge, mental health issues, a background of sexual abuse, and past issues with alcohol, by engaging in sexualised language and conduct that had no relevance to the professional purposes of the assessment.

Previous complaints

The documents in evidence include material relating to prior complaints against the practitioner (ex A1, tab 7): 1. An allegation made in 2004 of a sexual relationship with a client during and following formal therapy; 2. An allegation made in 2011 of inappropriate physically sexual behaviour with a client while alone in a car with her; and 3. A complaint made in April 2016 that the practitioner visited the home of a client's partner, who was identified as the victim in a domestic violence incident, alleging physical contact and smoking and consumption of alcohol.
The 2016 complaint resulted in s 150 proceedings in which the Council delegates noted issues with the practitioner's practice including informed consent, boundary issues and professional judgment, late night after-hours appointments for clients, and report writing (ex A1, tab 13). The delegates did not consider it necessary at that time to suspend or to impose conditions on the practitioner's registration, and referred the matter to the HCCC pursuant to s 150D of the National Law. That complaint did not proceed to a full investigation because the complainants did not wish to proceed (ex A1, tab 9, p 4).
The Tribunal acknowledges that the previous complaints are not proven allegations. However those complaints, and the s 150 proceedings in April 2016, are relevant in having put the practitioner on notice that as at the time he went to Client A's home to assess her in October 2017, concerns had been expressed about how he approached his practice. That included professional boundary issues in interviewing persons in their home after hours, and sending casual and inappropriate text messages; and inadequate risk assessments, especially when interviewing persons in a non-standard professional environment.
The Tribunal acknowledges that the condition prohibiting the practitioner from engaging in any home visits with clients was not imposed until 20 April 2018. However, the fact that the practitioner considered it appropriate to see Client A alone at night in her home on three occasions in October and November 2017, and to continue text message and telephone communications with her for some months during 2018 after such contact was appropriate (discussed at [145]-[152] in the Stage 1 reasons), demonstrates a lack of insight or reflection by the practitioner on his practice. That might have been expected in light of the comments made by the Council delegates in the s 150 proceedings in April 2016.
That lack of insight has, on the practitioner's oral evidence, continued, notwithstanding the concerns raised in the 2016 s 150 proceedings, the Performance Assessment in December 2017, and the Performance Review Panel decision of 19 April 2018. While the practitioner told the Tribunal that he needs to be careful about the way in which he assesses people, that concern was framed in terms of the putting of himself or others at risk, and avoiding complaints. His proposed strategies appear motivated to protect himself, rather than to protect his clients.

Referees

The practitioner provided an updated reference from Ms Monica McKenzie, solicitor (25 April 2022), stating that she is willing to provide the practitioner with training on the updated legislation, and has advised him on the availability of AVL facilities so that there is no need to have to see clients in person. She stands by her original assessment of the practitioner, that his character is beyond reproach. In an updated reference Ms Juliet Ardren, social worker (23 April 2022), states that she and the practitioner have had discussions concerning better strategies for assessing personality disordered women and how he could better keep himself safe from complaints. Ms Ardren states that the practitioner regrets his actions, and will abide by whatever conditions the Tribunal places on him.
The Tribunal gives those references limited weight. Ms McKenzie states that she is aware of the Tribunal findings, however the reference does not indicate that she is aware of the nature of the allegations found proven. While Ms Ardren refers to the practitioner having strategies for how he will assess clients in future to ensure no further complaints are made, there is no confirmation of what those strategies might be. Even if it can be accepted that measures such as AVL assessments have been suggested, neither referee appears to have reflected on the Tribunal's findings that the practitioner's conduct demonstrated a fundamental abuse of power.
The other references tendered as part of exhibit R8 in Stage 2 are those provided in 2019 during the course of the HCCC investigation, and others provided in 1999 in support of the practitioner's application to become an authorised report writer for the Victims Compensation Tribunal. The references by Monica McKenzie (4 September 2019), Max Cornwell (2 October 2019), Michael Bowe (3 October 2019), Juliet Ardren (21 October 2019) and Kimberley Glissan (2 October 2019) speak highly of the practitioner and his reports, however none confirm that its writer was aware of the detailed nature of the allegations made against him; and none have had regard to the Tribunal's Stage 1 findings. The Tribunal gives those references limited weight.
The Tribunal does not have the benefit of any evidence from the forensic psychologist who was appointed as supervisor of the practitioner in accordance with the conditions imposed by the Council on 19 April 2018. That would have been of assistance in confirming the practitioner's oral evidence that he had discussed with his supervisor the required matters, being professional report writing, professional responsibilities in accordance with the Code of Ethics, establishing firmer clinical boundaries with clients, and appropriate consent procedures. The practitioner stated that his supervisor had provided the required reports to the Council for 9 months, and did not want to get involved.

Whether the practitioner's registration should be cancelled

While the Tribunal has found that the practitioner is guilty of professional misconduct, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the case: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. Whether or not the misconduct is sufficiently serious to warrant cancellation or suspension depends on the circumstances of the individual case.
In the present case, the practitioner's misconduct was serious, and sustained over some months and on more than one occasion. The practitioner was on notice that there were issues concerning how he conducted his practice, in particular his practice of seeing clients alone after hours in their homes, inadequate risk assessments, and the professional boundary issues identified in the 2016 s 150 proceedings. The practitioner has demonstrated no insight or genuine remorse for his conduct as found in the Stage 1 proceedings, which was an abuse of the trust relationship between himself and his client, and continues to deflect blame to his client. He has expressed minimal concern for the impact of his behaviour on his client. If a period of suspension from practice were imposed, the practitioner would be entitled to be re-registered at the end of that period, regardless of whether there had been any change in his understanding of or commitment to comply with his ethical obligations. There is no indication that the three year period since the practitioner was last registered, or any additional period during which he might be suspended from practice, might provide any confidence that the practitioner would change his conduct or approach to practice so as to be able to practise without risk to the health and safety of the public.
Having regard to the purposes of any protective order as explained in Do, namely in deterring a repetition of the conduct by the practitioner and deterring similar conduct in others, in reminding other members of the profession of the public interest in maintaining high professional standards, and in maintaining public confidence that those high standards will be maintained, the Tribunal concludes that cancellation of the practitioner's registration, and not a period of suspension, is the appropriate outcome. The Tribunal is satisfied that his conduct reflects what was described in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20] as "a defect of character", such as to require that he should not be allowed to practise unless at some future time he is able to satisfy the Tribunal that the defect has been overcome.
The Tribunal is satisfied that if the practitioner were still registered it would have cancelled his registration: National Law, s 149C(4)(a). Under s 149C(4)(b), the Tribunal may decide that the practitioner is disqualified from being registered as a psychologist for a specified period or until specified conditions have been complied with.
The HCCC submits that a period of five years disqualification should be imposed, on the basis that a long period is required to establish the change required. The practitioner submits that given his age and the three years already suspended, such a period of disqualification would be a crushing situation. He submits that no additional period beyond the three years suspension is required or appropriate, and he has identified some courses in ethics that might be undertaken.
Any period of disqualification is a period in which the practitioner is not able to practise his profession, thus sending a message to him, to the profession, and to the public, about the seriousness of his conduct. As discussed in Chen v Health Care Complaints Commission [2017] NSWCA 186 in the context of a non-review period specified under s 149C(7) of the National Law, specification of a disqualification period also holds open to the practitioner the possibility that he may, with demonstrated rehabilitation and reformation, be able to return to the profession at some time.
In considering what, if any, period of disqualification is required, the Tribunal gives little weight to the practitioner's personal circumstances, including his financial circumstances. The question is what period is required, in accordance with the principles of the national registration scheme, for the proper protection of the community, and for the practitioner to be in a position to demonstrate the changes required.
The Tribunal agrees with the HCCC that a long period of disqualification is required. The practitioner has demonstrated no insight or genuine remorse for his conduct, or reflection on the potential harm it may have caused to Client A, or on the harm done to public confidence in the maintenance of the standards of the profession. He was tasked with providing expert evidence to assist the court, and abused that position of trust. The practitioner failed to respond to the concerns of the professional regulatory authorities, in particular those raised in the 2016 s 150 proceedings, shortly before he undertook his assessment of Client A. In oral evidence in Stage 2 he preferred to take satisfaction in not having been suspended at that time. He was critical of the conclusions of the assessors in the Performance Assessment undertaken in December 2017, in which it was noted that the practitioner had made few changes to his practice in response to the previous complaint and the concerns raised by the Council. While telling the assessors that he was now attempting to have others present when he interviews clients in their home, that was not the case in October 2017. The assessors commented (at [12.15]) on the practitioner's poor reflective capacity demonstrated in that interview: a similar lack of concern for best practice standards, as opposed to minimal compliance with the supervision and other conditions previously imposed by the Council, was evident in his evidence to the Tribunal.
The Tribunal concludes that a long period of disqualification should be imposed under s 149C(4)(b) of the National Law. Should he seek to return to practice he would need to demonstrate, in an application under s 163B of the National Law for a reinstatement order so that he may be registered, that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13. The appropriate period of disqualification is five years.

Whether a prohibition order should be made

The HCCC seeks an order under s 149C(5) of the National Law to prohibit the practitioner from providing any health services for the same period.
The Tribunal must be satisfied that the practitioner poses "a substantial risk to the health of members of the public". That is a risk that is material, and real or apparent on the evidence, and not a risk that is without substance or speculative: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75]. The question of whether a person poses a substantial risk to the health of the public has to be assessed by evaluating the risk posed if the person were to be involved in the provision of health services: Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172.
The practitioner's practice was primarily based on undertaking assessments and providing expert evidence and reports. In his statement of 25 April 2022 he stated that between 2000 to 2019 he would have prepared more than 2000 court reports. That work provided the practitioner with access to vulnerable persons, including many within the criminal justice system. Having regard to his serious breach of trust and abuse of power, and the absence of any real insight or demonstrated reflection on his conduct, the Tribunal is satisfied that the practitioner poses a real and material risk of opportunistically taking advantage of vulnerable female clients if placed in a similar situation in future; and that risk would continue notwithstanding that the practitioner is no longer a registered health practitioner, in particular if involved in provision of health services such as mental health or welfare counselling settings. The Tribunal is satisfied that an order under s 149C(5) is required. Such an order should continue until the practitioner can demonstrate, in a review application under s 163B of the National Law, that he can be trusted to practise in a manner that presents no risk to the safety of the public.

Costs

The HCCC seeks an order for costs. The relevant principles were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282, and are that ordinarily costs should follow the event unless there are reasons to conclude otherwise. The purpose of these proceedings is protective rather than punitive, as mandated by the principles stated in ss 3 and 3A of the National Law. The financial circumstances of the practitioner are not relevant to whether a costs order should be made: Health Care Complaints Commission v Philipiah [2013] NSWCA 342. The complaints of unsatisfactory professional conduct and professional misconduct were established, and there is no disentitling conduct on the part of the HCCC in how it conducted the proceedings. It is appropriate to order that the practitioner pay the costs of the HCCC, in the usual form, that is as agreed or assessed.

Orders

The orders of the Tribunal are: 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW), if the respondent were still registered the Tribunal would have cancelled his registration; 2. Pursuant to s 149C(4)(b) of the Health Practitioner Regulation National Law (NSW), the respondent is disqualified from being registered in the profession of psychology for a period of five years; 3. Pursuant to s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW), the Psychology Board is to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board; 4. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW), the respondent is prohibited from providing any health services including provision of mental health, psychological or counselling services unless and until the Tribunal makes a reinstatement or other order in relation to the practitioner under s 163B of the Health Practitioner Regulation National Law (NSW); 5. Pursuant to cl 13 of Sch 5D of the Health Practitioner Regulation National Law (NSW) the respondent is to pay the Health Care Complaints Commission's costs of the proceedings, as agreed or assessed.

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: 16 June 2022

Mental Health (Forensic Provisions) Act 1990(NSW)

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Judgment (17 paragraphs)

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Legislation Cited (4)

Cases Cited (15)