Re Dr Parajuli [2010] NSWMT 3
Saville v Health Care Complaints Commission [2006] NSWCA 298
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Hugh Ian Joffe (Respondent)
Representation: Counsel:
R Britt (Applicant)
[2]
Solicitors:
Health Care Complaints Commission (Applicant)
Colin Biggers & Paisley (Respondent)
File Number(s): 2017/00379823
Publication restriction: Pursuant to cl 7 of Sch 5D of the Health Practitioner Regulation National Law NSW the name of the person referred to in these reasons as Patient A is not to be published.
[3]
Summary
By Application for Disciplinary Findings and Orders filed 15 December 2017, the Health Care Complaints Commission (the Commission) seeks orders, pursuant to s 149C of the Health Practitioner Regulation National Law NSW No 86a (the National Law), including that:
1. the respondent's registration be cancelled;
2. the respondent may not apply for a review of that order for a minimum period of three to five years; and
3. the respondent pay the Commission's costs of the application.
The four complaints agitated by the Commission are set out in Attachment A. For the reasons set out below we find each of Complaints One, Two, Three and Four established. In summary, we order that:
1. the respondent's registration be cancelled; and
2. the respondent may not apply for a review of that order for a minimum period of four years.
[4]
The Complaints
The Commission brings three complaints of unsatisfactory professional conduct (Complaints One, Two and Three) and one complaint of professional misconduct (Complaint Four) against the respondent. These are set out in full in Attachment A. The background to the complaints is that between approximately March 2011 and approximately October 2014 the respondent was Patient A's psychologist, and was being treated by him for depression and anxiety.
In summary, in Complaint One the Commission alleges that the respondent:
1. failed to provide appropriate care and treatment to Patient A;
2. failed to appropriately manage the therapeutic relationship with Patient A;
3. between approximately March 2011 and approximately October 2014 failed to make and keep adequate clinical records in relation to his consultations with and treatment of Patient A;
4. between approximately March 2011 and approximately October 2014 failed to keep and maintain appropriate clinical records for Patient A in that he discarded clinical notes he made in relation to his consultations with and treatment of Patient A;
In summary, in Complaint Two the Commission alleges that the respondent:
1. provided an excessive number of sessions per week for treatment in that he provided a cumulative total of approximately 713 sessions, of a frequency up to approximately five to six therapeutic sessions weekly; and
2. charged Patient A an excessive fee per session for treatment by a psychologist and placed an unreasonable financial burden on Patient A;
In summary, in Complaint Three the Commission alleges that the respondent is guilty of unsatisfactory professional conduct in that on various dates between approximately March 2011 and approximately October 2014 the respondent:
1. exchanged email communications with Patient A on various dates between approximately March 2011 and approximately October 2014;
2. engaged in telephone calls with Patient A while the patient was overseas;
3. engaged in Skype sessions with Patient A;
4. exchanged messages with Patient A using WhatsApp;
5. became inappropriately involved with Patient A's financial and/or business affairs;
6. became personally involved in Patient A's documentary filmmaking project from approximately mid-2012 onwards;
7. urged and/or encouraged Patient A to reconnect with Judaism and/or Orthodox Judaism, including encouraging the patient to attend the synagogue which the practitioner attended;
8. accepted an invitation from Patient A to attend Patient A's home for a significant personal life event (religious ceremony) and to introduce the practitioner to Patient A's parents, and accepted various gifts from Patient A.
Complaint Four is a complaint of professional misconduct. The Commission relies on and repeats each of other three Complaints and all of the particulars thereto save for particulars (2) and (3) to Complaint Three.
[5]
The Commission's evidence
The Commission's evidence is extensive, consisting of four volumes of over 1,500 pages of materials. The evidence included the complaint of Patient A to the Commission dated 29 October 2015, and its various attachments; various emails between Patient A and the respondent; various text messages between Patient A and the respondent; a CD-ROM containing video clips of the respondent's involvement in Patient A's documentary; correspondence between the respondent and the Commission of Psychology Board of NSW; the respondent's clinical notes for Patient A; the reasons for decision of the Psychology Council dated 27 April 2017 including the transcript of proceedings and related submissions; and the expert report of Dr Timothy Keogh dated 20 February 2017 and related materials.
We note in particular that there were a number of statements of Patient A, including the undated attachment to his complaint, Attachment A, and a statement of 8 November 2016 and the addendum thereto dated 30 January 2017.
We also note that the evidence before us included literally:
over 1,200 of pages of emails;
the text of 813 "WhatsApp" text conversations; and
360 pages of text messages,
between the respondent and Patient A during Patient A's treatment period of March 2011 to August 2014.
Also before the Tribunal was a report of Ms Lorraine Corne, a Consulting Psychologist, dated 14 September 2016. She said that at the commencement of Patient A's therapy on 9 July 2016, Patient A showed symptoms of depression in the severe range; anxiety in the moderate range; ongoing Obsessive Compulsive Disorder and excessive rumination; guilt; an out of balance work/life; relationship issues; and disappointment and shame in not completing his film project.
At a directions hearing prior to the hearing, the respondent's then counsel indicated that the respondent would not be filing a Reply to the application, would not be filing evidence and would not be attending the hearing. In a letter to the Tribunal dated Commission dated 1 June 2018, the respondent's solicitors indicated that the respondent did not admit the complaints against him.
The Commission has asked the Tribunal to draw, where necessary, adverse inferences against the respondent for his failure to appear or to provide evidence. We accept that we are entitled to draw inferences from the failure of the respondent to attend the hearing and from his "silence": Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323 at [42] - [50]; Lucire v Health Care Complaints Commission v Health Care Complaints Commission [2011] NSWCA 99 at [124] - [141].
In Wingate, the NSW Court of Appeal approved (at [47]) its earlier statement that in Bowen-James v Walton (NSWCA, 5 August 1991, unrep), that:
Nevertheless, we are of the opinion that if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts.
[6]
The respondent's evidence
During the course of the s 150 proceedings conducted by the Psychology Council, the respondent and his solicitors provided various documents to the Council including but not limited to statements, letters, submissions and Patient A's clinical notes. The Commission placed that material, together with a transcript of the s 150 proceedings and the evidence before the Psychology Council before the Tribunal.
In addition, the respondent provided two letters to the Tribunal. The first was a letter from his solicitors to the Commission dated 1 June 2018. That letter states that the respondent retired from practice on 27 April 2017 and does not intend to renew his registration in the future. The letter refers to a statutory declaration of the respondent declared on 29 May 2018.
The second was a letter dated 12 June 2018 concerning costs. We will refer to that at the conclusion of these reasons.
[7]
Expert evidence of Dr Timothy Keogh
The Commission relied on an expert report of Dr Timothy Keogh dated 6 February 2017. Dr Keogh is a Clinical and Forensic Psychologist and Psychoanalyst. His expertise is not disputed and the Tribunal did not require him to attend the hearing to assist it. His 39 page report is detailed, comprehensive and persuasive.
Dr Keogh notes that Patient A had three main areas of complaint being:
1. he had been over serviced by the respondent;
2. the respondent had breached professional boundaries. Specifically, Patient A claimed that the respondent had become inappropriately involved in his financial dealings and work projects (specifically a film documentary project); and
3. the respondent had charged excessive fees for his sessions with Patient A.
Dr Keogh says that the respondent responded to those allegations by:
1. asserting that Patient A "elected" to engage in intensive self-analysis (psychoanalytic treatment), initially three sessions per week and then increasing to five to six times per week;
2. denying the boundary violations, especially in terms of involvement in the project of the documentary and related expenditure;
Dr Keogh observed that the respondent did not comment directly on the issue of the fees he charged.
Dr Keogh states his conclusions as to the respondent's overall conduct at pp 38 and 39 of his report, which we reproduce below:
Having reviewed fully all of the evidence provided to me, I feel that the overall conduct of Dr Joffe in terms of his therapeutic relationship, his clinical care and his role and involvement in [Patient A's] documentary project, his religious activities and his family life are indicative of a practitioner who seems either seriously impaired in terms of his competence and who had allowed his own interests to eclipse those of his patient/client to the extent where the power imbalance in the therapeutic relationship was misused by Dr Joffe or deliberately abused his position.
In terms of possible impairment there was no information about Dr Joffe in terms of his physical or mental health or life circumstances that would allow me to speculate about other reasons for his conduct. In fairness to Dr Joffe I realise such factors could have influenced his conduct.
Moreover, the motivation for Dr Joffe's conduct is unclear, but it nonetheless appears to have had an injurious effect on [Patient A] who placed his trust in Dr Joffe as a professional. I feel there are serious indications in this regard that Dr Joffe may have possibly also misrepresented his level of competence and training and accreditation to [Patient A].
This, combined with Dr Joffe's involvement in [Patient A]'s documentary project and the demeaning and disrespectful way he at times communicated with [Patient A], raises a serious issue of whether his conduct represented wilful exploitation of him rather than incompetence and the related 'slippery slope' of boundary transgressions, compounded by pack of peer review and consultation on the case. This is not my role to determine, but in either case his conduct also reflects very poorly on the profession of psychology and psychoanalysis.
In conclusion I feel his overall conduct, therefore, falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of conduct (especially seen in the context of his other conduct with [Patient A]) and attracts my strong criticism.
We were greatly assisted by Dr Keogh's detailed report. We find those conclusions to be entirely justified. We set out further parts of his reasons below.
Relevant to Complaint One, Dr Keogh was asked his opinion of:
1. the appropriateness of the respondent's use of a psychoanalytic paradigm for the treatment of Patient A's presenting psychological issues;
2. the respondent's clinical management of Patient A's anxiety;
3. the adequacy of the respondent's clinical notes.
In all these aspects, Dr Keogh found the respondent's conduct to fall significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of conduct, and to attract his strong criticism.
Relevant to Complaint Two, Dr Keogh was asked his opinion of:
1. the appropriateness of the frequency with which the respondent provided therapeutic sessions to Patient A over three years between March 2011 and August 2014, namely three sessions weekly, increasing to five to six sessions weekly, with a cumulative total of approximately 713 sessions;
2. the appropriateness of the frequency and number of therapeutic sessions provided to patient A by the respondent, with reference to the cost of the sessions;
In relation to both matters Dr Keogh found the respondent's conduct to fall significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of conduct, and to attract his strong criticism.
Relevant to Complaint Three, Dr Keogh was asked his opinion of:
1. the respondent's conduct in exchanging the volume of emails with Patient A;
2. the appropriateness of the emails sent from the respondent to Patient A during the course of the therapeutic relationship;
3. the respondent's conduct in engaging in Skype sessions with Patient A while he was overseas;
4. the respondent's conduct in exchanging the volume of WhatsApp text messages with Patient A that he did during the course of their therapeutic relationship;
5. the appropriateness of the messages sent from the respondent to Patient A during the course of the therapeutic relationship, with reference to their subject matter, language, tone and familiarity. Dr Keogh was asked to include in his response his opinion of the therapeutic benefit or harm, if any, of the respondent's use of this medium to communicate with Patient A;
6. the appropriateness of the respondent in accepting various gifts from Patient A;
7. the appropriateness of the respondent allowing the making of the documentary film project (including becoming the focal point of Patient A's therapy; and the respondent's role as 'co-director, producer and writer of the film, or as 'a research assistant or consultant psychologist'.
8. the respondent's conduct in becoming involved with Patient A's financial and employment decisions in around August 2013;
9. the respondent's involvement in the making of Patient A's documentary, with specific reference to the APS Code of Ethics;
10. whether the respondent's involvement in Patient A's documentary project was therapeutically beneficial or harmful to Patient A;
11. the respondent's conduct in urging Patient A to reconnect with Judaism and Orthodox Judaism in particular and encouraging him to attend the synagogue where he worshipped.
Dr Keogh found the respondent's conduct to fall significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of conduct, and to attract his strong criticism.
We set out below some verbatim extracts of Dr Keogh's report we think appropriate to reproduce. In relation to the WhatsApp text messages, Dr Keogh stated:
In these messages I think Dr. Joffe demonstrates he has completely stepped outside of normal therapeutic boundaries with [Patient A]. His overly familial tone and use of language, suggest disrespectful, demeaning and unprofessional conduct. I think it is both demeaning to his patient/client and to himself as a psychologist. I would also argue that no competent psychologist or psychoanalyst would ever consider such a communication with a patient/client as representing anything therapeutic.
I think that it could also be seen to be provocative to [Patient A] to receive personalised messages about the details of an expensive overseas holiday when it was known that the patient was struggling financially to pay $1,800 per week for sessions.
I can think of no justification for communications such as these Whatsapp messages (and there many others that are similar) over the period 2011 -2014 as being part of a professional relationship between a patient/client and psychologist/psychotherapist/ psychoanalyst. Such demeaning communication can also be seen to be harmful to a patient/client with [Patient A]'s type of psychopathology because of the misuse of the power imbalance in the relationship, the confusion created by the familiarity and loosening of boundaries. . . .
With reference to all the above-mentioned issues and examples, the listed standards and taking into account the welfare of a patient/client with serious psychopathology, I find Dr Joffe's conduct in communicating in the manner in which he did in the Whatsapp message to [Patient A] fell significantly below that expected of a practitioner of an equivalent standard of training or experience, applicable at the time of conduct, and invites my strong criticism.
In relation as to whether Dr Joffe's involvement in Patient A's documentary project was therapeutically beneficial or harmful to Patient A, Dr Keogh stated.
In short, I cannot see any benefit accruing from Dr Joffe's involvement on the documentary project, but I can see that it appears to have caused harm given the deterioration in [Patient A's] condition, including the vocal tic ('barking') which appears to have worsened in relation to his levels of anxiety, which also seem to have increased from this point.
[8]
Factual findings
We have been greatly assisted by the Commission providing various schedules summarizing the respondent's conduct and cross-referencing the evidence to each particular of Complaint. While the underlying conduct of the respondent was not admitted, it was not contested. Accordingly, we state our relevant findings as follows.
The respondent holds a Bachelor of Arts, Master of Science and a Doctor of Philosophy, conferred by Capetown University in the period to 1980. He was first granted registration as a psychologist in NSW on 12 March 1991. During the registration period of 12 March 1991 to 30 June 2010 (to which the Psychology Council of NSW legacy registration refers), the respondent had not condition, reprimand or other order on his registration as a psychologist.
The respondent remained registered as a psychologist until the suspension of his registration by the Psychology Council on 27 April 2017.
Patient A first consulted the respondent in February 2011. Patient A was 37 years old at the time. He had a senior role at a major bank, and was in what he described as a toxic relationship. He had been to other psychologists over the years about his anxiety, which included catastrophising, rumination, obsessive traits and self-doubt. When he went to see the respondent for the first time, Patient A was taking medication for and experiencing new symptoms, being a vocal tic (that is, barking). He went to see the respondent as he had been told that the respondent specialised in issues that often impacted on Jewish families, such as guilt, trauma and intergenerational trauma.
All consultations were paid in cash, in the amount of $300 for each consultation. The respondent advised Patient A that the core of his issues concerned the past trauma of his family, in particular the Holocaust. The respondent advised Patient A that, through therapy, he would "build [him] into a man", and that he would no longer need medication. The respondent also advised Patient A that:
he was not independent enough from his parents (and that there was "fusion");
his brother and he were "over-mothered";
his father had not provided him or his brother with a strong father figure, as a result of which his brother had "become gay",
The respondent proposed that Patient A see him 6 days a week, Monday-Friday at 6am and Saturdays at 10am, knew what salary he was earning at the time, and that Patient A would need to borrow money to fund the therapy. Initially, Patient A borrowed money from his parents for this purpose. However, with the respondent's encouragement, Patient A borrowed against his property (which was unencumbered).
Overtime, Patient A considered that the therapy provided by the respondent encompassed all aspects of his life, and that his relationship with the respondent "was the most significant in [his] life and [that he] was seeing [the respondent] more than anybody", and "the primary relationship in [his] life".
Amongst other matters, the respondent:
urged Patient A to reconnect with Judaism, in particular Orthodox Judaism, and to worship at the same synagogue as him;
encouraged Patient A to stop eating non-kosher foods; and
attended Patient A's home for religious ceremonies.
In particular, the respondent proposed that he and Patient A participate in a film making project together about the impact of the Holocaust on third generation descendants. The film making project became the principal component of Patient A's therapy. The respondent actively participated in the film making, being interviewed as part of the film and was listed on the film trailer as "Producer and Psychological Consultant" and/or "Producer/Director".
During the course of three overseas trips for the purpose of the film, Patient A and the respondent were communicating constantly. In the period 1 March 2014 to 2 August 2014, Patient A attended consultations with the respondent up to six times per week, at a cost of $300 each session. The total cost of the respondent's treatment was $218,380.
In the period March 2011 to August 2014 over 1,200 of pages of emails, 813 "WhatsApp" text conversations and 360 pages of text messages were sent between the respondent and Patient A.
On 29 October 2015, Patient A lodged a complaint with the Commission about the respondent. The main issues identified by Patient A in his complaint were over servicing and the crossing of professional boundaries. Attached to and forming part of Patient A's complaint were three documents which included a detailed statement and a schedule setting out the payments amounting to approximately $220,000 which Patient A paid the respondent for his consultation services.
Patient A stated in his summary document:
This complaint is in regards to two aspects of the psychological services provided to me by Dr Hugh Joffe . . .
i) over-servicing; and
ii) making a documentary film with me
Over-servicing
I saw Dr Joffe from 2011-14 for the treatment of anxiety. I saw him for six days per week for most of that period at a cost of $300 per 50-minute session. The consultation sessions resulted in ~$220,000.
Making of a documentary film with Dr Joffe
From early 2012, Dr Joffe and I started making a documentary film together. The idea for the film and the ongoing production of it was discussed during my therapy consultations until August 2014. The therapy and the film project became inseparable.
I believe I was taken advantage of by Dr Joffe. I believe I was over-serviced by Dr Joffe and that he was wrong to enter into a film project with me and to encourage me to incur excessive costs, funded my mortgage.
My anxiety is now worse than prior to first seeing Dr Joffe.
I feel overwhelmed and ashamed due to the significant debt I have incurred (including ongoing interest) and also disappointment regarding not finishing the film project. I take up to five medications a day for my anxiety (see Annexure B). A history of consultations with Dr Joffe is attached (see Annexure C).
Key figures
The total amount i spent on therapy consultations between 2011-14 was ~$220,000.
The total film expenses between 2012-2014 was ~$140,000.
The total amount (therapy and film): ~$360,000 plus ongoing interest on mortgage payments.
Following an investigation into the complaint, the Commission wrote to the respondent. By letter dated 6 April 2017, the Commission indicated that it had concluded its investigation, and that the evidence indicated the respondent's knowledge, skill or judgment in providing treatment of Patent A was significantly below the standard required of a practitioner of an equivalent level of training or experience. The Commission also stated that there was evidence that the respondent's conduct was improper and unethical in attempting to minimize and conceal his involvement in the making of Patient A's documentary film. In view of these matters, the Commission proposed to refer the matter to the Director of Proceedings under s 39(1)(a) of the Health Care Complaints Act 1993 (NSW) (HCC Act) for determination of whether to prosecute a complaint before a professional disciplinary body.
the respondent's provision of psychoanalytic treatment, which it found that the respondent provided to Patient A for a period of three and a half years, despite not being a qualified psychoanalyst. The Council also noted that Patient A's psychological well-being, in particular his anxiety worsened during this period;
the respondent's provision of medical advice, which it found to be potentially unsafe;
the respondent's patient/client record keeping, in respect of which it found that the respondent's "redacted, summarized, quarterly clinical record keeping" was "entirely inadequate" for the purpose of documenting approximately 713 50 minute clinical sessions. The Council further found that the respondent's premature disposal of his Patient A's records to be a preach of professional and medico-legal requirements that all clinical records be retained for a minimum of seven years;
the respondent's clinical supervision of Patient A. The respondent told the Council that he received supervision from his wife, whom he described as a registered social worker. The Council noted that the respondent's wife was not a registered psychologist, nor was she an authorised Psychology Board of Australia clinical supervisor who had completed formal supervisor training. The Council stated that it held "serious concerns" that the respondent appeared not to be meeting the requirements for clinical supervision as a psychologist;
the respondent's over servicing of Patient A. The Council concluded that it was concerned that the extent of the respondent's treatment of Patient A was inappropriate and potentially harmful;
the respondent's over charging of Patient A. The Council considered that the stress of coping with the excessive fees charged by the respondent impacted significantly on Patient A, to his financial and psychological detriment.
the respondent breaching professional boundaries. Here the Council relied on an expert report. It is not clear from the material before us who prepared this report.
As to question (2), the Council found that, having considered the expert report, the respondent's written and oral evidence, the respondent's conduct and/or performance posed a risk to the safety or health of the public.
As to question (3), the Council concluded that it was in the public interest to exercise "an abundant caution" in restricting the respondent from practicing.
Accordingly, the Council confirmed the suspension of the respondent's registration as from 27 April 2017.
The respondent has not worked as a psychologist in any capacity since 27 April 2017.
[9]
Complaints One, Two and Three - unsatisfactory professional conduct
We find that the evidence amply justifies findings that the conduct the subject of each of the particulars of each of Complaints One, Two and Three is established. In doing so, we relied on the uncontested evidence before us, and the schedule provided by the Commission were helpfully cross-referenced the evidence to each particular of each Complaint.
We are satisfied that the three complaints of unsatisfactory professional conduct are established.
In relation to Complaint One, we find that:
1. the respondent failed to provide appropriate care and treatment to Patient A as particularised (see in particular Vol 3 of the respondent's materials, Tab 31, pp 22-25; Vol 1 Tab 7 [13] p 13);
2. the respondent failed to appropriately manage the therapeutic relationship with Patient A (see in particular Vol 3 Tab 31, pp 35-36; Vol 1 Tab 3 [108] p 8; Vol 1 Tab 7 [8a][10] pp 3, 6);
3. between approximately March 2011 and approximately October 2014 the respondent failed to make and keep adequate clinical records in relation to his consultation with and treatment of Patient A, as particularised (see in particular Vol 3 Tab 34; Vol 3 Tab 31 Expert pp 19-20; Vol 1 Tab 3 [17] pg.3; Vol 3 Tab 34);
4. between approximately March 2011 and approximately October 2014 the respondent failed to keep and maintain appropriate clinical records for Patient A in that he discarded clinical notes he made in relation to his consultation with and treatment of Patient A (see in particular Vol 3 Tab 31 pp 19-21; Vol 3 Tab 40 p 10; Vol 3 Tab 45 pg.8).
In relation to Complaint Two, we find that :
1. the respondent provided an excessive number of sessions per week for treatment by a psychologist in that he provided a cumulative total of approximately 713 sessions, of a frequency up to approximately five to six therapeutic sessions weekly (see in particular Vol 1 Tab 3 [12][17] pp 2,3; Tab 7 [7][8a] pp 1, 3; Vol 1 Tab 8 p 2; Vol 3 Tab 33 p11; Vol 3 Tab 35; Vol 3 Tab 31 pp 7-10)
2. the respondent charged Patient A an excessive fee per session for treatment by a psychologist and placed an unreasonable financial burden on Patient A in that:
1. he charged that Patient A approximately $300 per session (see Vol 1 Tab 3 [38] pg.1, 4; Vol 1 Tab 5 pg.2-40; Vol 1 Tab 7 [7] pg.2; Vol 1 Tab 8 pg.2; Vol 3 Tab 40 pg.3; Vol 3 Tab 31 Expert pg.9-10
2. the amount paid in total by Patient A for the therapeutic sessions with the practitioner was approximately $218,380.00 gross, or $214,018.80 net (see in particular Vol 1 Tab 3 pg.1; Vol 1 Tab 5 pg.1);
3. the respondent was aware of Patient A's financial circumstances including that the costs were initially funded by loans from the Patient A's parents and subsequently by Patient A taking out a mortgage on his previously unencumbered apartment (see in particular Vol 1 Tab 3 [13][15][25] pp 2,3; Vol 1 Tab 7 [8b] p 3).
In relation to Complaint Three, we find that:
1. the respondent failed to observe proper professional boundaries in that on various dates between approximately March 2011 and approximately October 2014, the respondent and Patient A exchanged email communications as particularised (see in particular Vol 1 Tabs 12-16 and Vol 2 Tabs 17-18; Vol 1 Tab 3 [93] p 7; Vol 3 Tab 40 pp 6-8; Vol 3 Tab 31, pp 11-13);
2. the respondent failed to observe proper professional boundaries in that on various dates between approximately March 2011 and approximately October 2014, the practitioner engaged in telephone calls with Patient A while Patient A was overseas;
3. the respondent failed to observe proper professional boundaries in that on various dates between September 2012 and April 2013 and in around October 2013, the respondent engaged in Skype sessions with Patient A while Patient A was overseas;
4. the respondent failed to observe proper professional boundaries in that on various dates between approximately March 2011 and approximately October 2014, the respondent and Patient A exchanged messages using WhatsApp (see in particular Vol 1 Tab 3 [93] pg.7; Vol 2 Tab 19; Vol 3 Tab 40 p 9; Vol 3, Tab 31, pp 16-19), in circumstances where
1. the messages were non-therapeutic in nature (Vol 1 Tab 7 [11][19] pp 10, 17; Vol 2, Tab 19);
2. messages were of an excessive volume and/or frequency (Vol 1 Tab 7 [11] [19] p 10, 17; Vol 2 Tab 19);
3. the messages were disrespectful or demeaning in nature; (Vol 2 Tab 19 pp 7, 12, 14, 17) and
4. the messages were unprofessional and increasingly person and familiar in nature (Vol 2 Tab 19 pp 4, 5, 8, 10, 12, 13);
1. the respondent failed to observe proper professional boundaries in that on various dates between approximately March 2011 and approximately October 2014 he became inappropriately involved with Patient A's financial and/or business affairs see in particular Vol 3, Tab 31, pp 30-31);
2. the respondent failed to observe proper professional boundaries in that from approximately mid-2012 onwards, the respondent became personally involved in Patient A's documentary filmmaking project;
3. the respondent failed to observe proper professional boundaries in that on various dates between approximately March 2011 and approximately October 2014, the practitioner urged and/or encouraged Patient A to reconnect with Judaism and/or Orthodox Judaism, including encouraging the patient to attend the synagogue which the practitioner attended;
4. the respondent failed to observe proper professional boundaries in that on an unknown date between approximately March 2011 and approximately October 2014, the respondent:
1. accepted an invitation from Patient A to attend Patient A's home for a significant personal life event (being a religious ceremony) and to introduce the respondent to Patient A's parents (see in particular Vol 3 Tab 31 pp 37-38; Vol 1, Tab 3, [32] p 4; Vol 1, Tab 7 [13], p 12; Vol 3, Tab 33, p 16);
2. attended Patient A's home with an Orthodox Rabbi and Patient A's parents for a religious ceremony (see in particular Vol 1, Tab 3 [32], p 4; Vol 1, Tab 7 [13] pg.12; Vol 3, Tab 33, pp 22-23);
1. the respondent failed to observe proper professional boundaries in that on dates unknown between approximately 2012 and 2014 he accepted the gifts from Patient A (see in particular Vol 1 Tab 3 [69] pg.6; Vol 4 Tab 42 [46] p 7; Vol 3 Tab 33, p 25; Vol 4 Tab 40 pp 10-11; Vol 3 Tab 31, p 20).
[10]
Complaint Four - professional misconduct
Section 139E of the National Law (which is an additional provision for NSW), provides:
139E Meaning of "professional misconduct" [NSW]
For the purposes of this Law, professional misconduct of a registered health respondent means -
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration.
Whether and to what extent the misconduct of the respondent constitutes professional misconduct depends upon whether it is so serious in the aggregate as to justify suspension or cancellation of registration. This involves a consideration of the circumstances in which suspension or cancellation may be justified, albeit that such protective orders may not necessarily, as a matter of discretion, be made: Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [55].
Guidance as to the circumstances in which suspension or cancellation of registration is to be found in the judgment of Meagher JA in the NSW Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). His Honour stated:
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.
36. In summary, professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of the respondent's registration. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the respondent's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 638).
Whether conduct is sufficiently serious to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]). The Commission submits that, both individually and cumulatively, the particulars of Complaints One and Two has engaged in are sufficiently serious conduct, either individually or when taken together, to justify the suspension or cancellation of the respondent's registration.
We agree, but we also consider that the particulars of Complaint Three also satisfy the test for professional misconduct, both taken alone, or in conjunction with the other Complaints.
We accept the Commission's submission that the unsatisfactory professional conduct of the respondent as set out in each of Complaints One, Two and Three is unsatisfactory professional conduct of the most serious kind and warrants a finding of professional misconduct and is of a sufficiently serious nature to justify suspension or cancellation of his registration.
As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation". His Honour further notes:
"[t]here is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal".
As submitted by the Commission, it is a key component of ethical practice that the care of the patient be the health practitioner's primary concern. Proper care, the maintenance of patient trust and the avoidance of patient abuse depend upon the observance of professional boundaries with patients. We accept and find that the respondent has acted inappropriately having regard to the clear boundaries that exist in the psychologist/patient relationship. The respondent's conduct amounts to boundary violation of the utmost seriousness. The nature of the relationship between Patient A and respondent remained a psychologist/patient relationship outside the treatment setting.
Patient A was a vulnerable individual and repeated conduct out of the treatment room setting should be considered over-involvement by the respondent regardless of whether they were initiated by Patient A or the respondent and regardless of the respondent's motivation.
We do not accept the respondent's claim that he had always acted in Patient's A's best interests or that his conduct was solely motivated by a desire to assist Patient A with his mental health issues.
We accept the evidence that Patient A's psychological well-being, and in particular his anxiety, worsened during this period. We have concluded that the respondent's actions, far from being therapeutic, were detrimental to the patient's physical and mental health, and undermined the patient's financial well-being.
We have come to the view that much of the respondent's conduct was aimed at his own gratification; was egregious in that it was an extreme and invasive manipulation of Patient A's life at many levels; and that it took advantage of Patient A's weaknesses that he, Dr Joffe, as therapist, had a unique insight into.
The respondent held a position of trust in relation to Patient A, and should not have taken advantage of the power imbalance inherent in his professional relationship with him. The respondent, either knowingly or through lack of the requisite knowledge of a psychologist of his experience, exploited these circumstances.
We accept the Commission's submissions that the conduct complained constitutes boundary violation of the most serious kind and exploitation of a vulnerable patient, and breaches all relevant codes of conduct in relation to the maintenance of trust and confidence in the psychologist/patient relationship. The Tribunal finds that the respondent has consistently displayed a concerning lack of insight into the seriousness of his conduct.
[11]
Conclusion
In summary, we accept the submissions of the Commission that:
1. the respondent's repeated conduct over a number of years indicates a concerning lack of insight or interest in the welfare of Patient A as well as putting himself before the interests of Patient A; and
2. the conduct of the respondent is unsatisfactory professional conduct of the most serious kind and warrants a finding of professional misconduct and is of a sufficiently serious nature to justify suspension or cancellation of his registration, and a finding of professional misconduct.
In the circumstances, we find Complaint Four established.
[12]
Disciplinary Action
The Commission submits that the appropriate disciplinary action is that the respondent's registration be cancelled for a period of three to five years.
The Tribunal has a wide discretion relating to disposition of a complaint establishing professional misconduct. The circumstances of the particular case will determine the appropriate disposition: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67].
As such, a finding of professional misconduct may not automatically lead to cancellation of a practitioner's registration. However, deregistration may, in serious cases, be required to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thus maintaining public confidence in the profession: Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission [2006] NSWCA 298 at [45]; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [64] (Santow JA) and [101] (Basten JA).
In determining the appropriate order the Tribunal is required to consider the whole of the practitioner's conduct: Gad v Health Care Complaints Commission (2002) NSWCA 111 at [55].
The protection of the health and safety of the public must be the paramount consideration of the Tribunal.
We agree that cancellation of registration and other protective orders are appropriate.
The importance of considering a practitioner's digressions on a case-by-case manner is indicated by the Court's observations in Litchfield at 638C (Gleeson CJ, Meagher and Handley JJA):
The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal' (emphasis added).
Here the Commission rightly submits that the respondent's conduct is a serious breach of the standards that the public have a right to expect of a practitioner. The objective seriousness of the conduct of the respondent, the fact it was deliberate, the fact it occurred over a period of time and the lack of proper acceptance of responsibility for the conduct on the part of the respondent all militate strongly in favour of an order cancelling or suspending the respondent's registration.
It does not follow that, because we have found that the conduct proven is sufficiently serious to justify the suspension or cancellation of the respondent's that an order under s 149C must be made: Health Care Complaints v Jamieson [2014] NSWCATOD 56 at [100]. That order is but one of a suite of orders available where a health practitioner has been found guilty of professional misconduct. While the safety of the public is the paramount consideration, any protective order must, nonetheless, be commensurate with the seriousness of the impugned conduct. The protection of the health and safety of the public must be the paramount consideration of the Tribunal.
In our view it is appropriate to cancel the respondent's registration, to direct that he not be entitled to apply for reregistration for a period of four years and to prohibit him from providing all health services as defined in s 4 of the Health Care Complaints Act 1993 (NSW) whether as public, private or volunteer services, unless and until he obtains re-registration as a psychologist.
[13]
Costs
At the hearing the Commissioner foreshadowed an application for costs. As we noted at the time, this is a costs jurisdiction, and if the applicant is successful, then usually costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282.
As noted above, we received a copy of a letter from the respondent's solicitors to the Commission' dated 12 June 2018 relating to costs. That letter states:
We understand the Commission seeks, amongst other things, an order that Dr Joffe's registration be cancelled, as well as an order requiring Dr Joffe to pay the Commission's costs of the Complaint.
As you would be aware, Dr Joffe sought to surrender his registration on 19 May 2017 by written request to the Psychology Council. Dr Joffe was advised by the Council that as there was a suspension imposed on his registration, he was unable to surrender my registration status. Nevertheless, the Council (and the Psychology Board) was at all times aware of Dr Joffe's intention to retire and surrender his registration. In this regard, we refer to the Statutory Declaration of Dr Joffe filed with NCAT in these proceedings.
In the circumstances, we consider it is unreasonable for the Commission to seek an order requiring Dr Joffe to pay its costs of the Complaint.
In Health Care Complaints Commission v Sullivan [2018] NSWCATOD 88, Mr Sullivan suggested that his co-operation with the Commission, and his voluntary surrender of his registration at the time of the s 150 proceedings, were factors that warranted no order being made. The Tribunal rejected that submission, and ordered Mr Sullivan to pay the Commission's costs.
Our preliminary view is that the respondent should pay the Commission's costs. However, if either party seeks some other order, it should provide submissions to the other party, and to the Tribunal, within 14 days of receiving these reasons. The other party may respond within 14 days. We think that any decision as to costs should be made "on the papers" and without a hearing. If either party thinks otherwise it should address that issue in their submissions.
[14]
Orders
For the above reasons we make the following orders:
1. Each of Complaints One, Two, Three and Four is established.
2. The respondent's registration is cancelled.
3. The respondent is not entitled to apply for reregistration for a period of four years.
4. The respondent is prohibited from providing all 'Health Services' as defined in s 4 of the Health Care Complaints Act 1993 (NSW) which includes the following services, whether provided as public, private or volunteer services, unless and until he obtains re-registration as a psychologist:
1. community health services;
2. counselling;
3. health education services;
4. mental health services;
5. hypnotherapy;
6. psychotherapy;
7. supervision or coaching of psychologists, psychology students or any allied health services; and
8. welfare services or any allied health services necessary to implement the above services.
1. The NSW Civil and Administrative Tribunal is the appropriate review body.
2. If, either party seeks some other order as to costs other than that the respondent pay the Commission's costs, it is to provide submissions to the other party, and to the Tribunal, by 16 August 2018. The other party may respond by 30 August 2018.
[15]
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: 02 August 2018
The purpose of the letter was to inform the respondent of the grounds for the proposed action and to provide the respondent with the opportunity to make submissions under s 40 of the HCC Act. The substance of the grounds of the proposed action was that there was evidence that the respondent had provided inadequate care and treatment and breached professional boundaries in relation to Patent A. Some 28 ways in which the respondent had done so were identified (which we group) as follows:
1. over-servicing Patient A, and charging fees which were unreasonable and inappropriate;
2. inappropriate or improper communications including:
1. inappropriately exchanging a large number of emails with Patient A during the therapeutic relationship;
2. disregarding professional boundaries by the increasingly personal nature of the emails he shared with Patient A and inappropriately focusing attention on Patient A's documentary film, including assuming co-ownership of the film;
3. receiving and making phone calls to Patient A while he was overseas, in circumstances where the respondent's clinical records contained no information to justify the phone calls nor do they include any related clinical notes;
4. inappropriately engaging in Skype sessions with Patient A to provide non- therapeutic advice while he was overseas;
5. inappropriately exchanging frequent Whatsapp messages, inappropriate in content, language and tone) with Patient A during the course of the therapeutic relationship;
1. improper or inappropriate clinical practice including:
1. inadequate record keeping;
2. inappropriately discarding contemporaneous clinical notes for the 713 consultations (50 minutes each) with Patient A;
3. inappropriately treating Patient A using a "psychoanalytic paradigm" for which he was not properly trained or qualified;
4. failing to formulate an appropriate treatment plan to address and manage Patient A's presenting issues of anxiety, which ultimately worsened thereby increasing his dependence on therapy;
1. inappropriate involvement in Patient A's filmmaking project, including:
1. inappropriately allowing the making of the documentary film to become the focal point of his consultations with Patient A from mid-2012 onwards, rendering those consultations non-therapeutic in nature;
2. inappropriately assuming roles as co-director, producer and writer in Patient A's documentary film;
3. inappropriately becoming involved in Patient A's documentary film by conducting research, reviewing documents, providing interview techniques and introducing him to trauma experts and potential investors, thereby breaching professional boundaries;
4. exploiting Patient A and breaching professional boundaries by inappropriately recommending to Patient A that he include the respondent in the credits of his documentary film;
5. failing to consider Patient A's welfare and putting the respondent's own interests first when he became involved in the documentary film funded by a mortgage on Patient A's home;
6. harming Patient A through his involvement in the film project by reinforcing his dependency on the respondent;
1. other ethical breaches including:
1. inappropriately involving himself in Patient A's financial and employment decisions in around 2013 by providing direction and advice on job descriptions and reviewing his resume in preparation for potential employment opportunities.;
2. abused his position of trust and inappropriately using his power in the therapeutic relationship;
3. inappropriately urging Patient A to reconnect with Judaism and Orthodox Judaism, in particular encouraging him to attend synagogue where the respondent worshipped;
4. accepting Patient A's invitation to attend religious ceremony at his home and to be introduced to his parents; and
5. inappropriately accepting three gifts from Patient A totaling approximately $1,000.00.
The Commission concluded that was overwhelming evidence that the respondent had breached his professional boundaries with Patient A while he was a patient under the respondent's therapeutic care, and that his conduct was improper and/or unethical and that he may not be a suitable person to hold registration as a psychologist in NSW.
On 27 April 2017, the Psychology Council conducted proceedings pursuant to s 150 of the National Law.
Prior to the hearing, the respondent provided lengthy written submissions to the Commission. The respondent's conclusion was stated as follows:
Overall, I believe that the therapy conducted provided [Patient A] with greater insight and understanding of his presenting issues. He acknowledged a greater sense of self in establishing a healthier relationship with his parents and brother. He was able to maintain and develop his career progression. He reacquainted himself with his creative role through his documentary project where he learnt about the origins of many of his anxieties. He was also able to improve his interpersonal relationship with women, establishing a meaningful relationship.
At the conclusion of the hearing, the Council suspended the respondent's registration.
On or about 27 April 2017, the respondent decided to retire from practice.
On or about 19 May 2017, the respondent replied to the Commission's letter of 6 April 2017. That letter is 20 pages in length. The respondent concedes that his involvement in Patient A's documents was "outside the therapeutic space" and "may have contributed to blurring of professional boundaries. However, the respondent maintained that he had always acted in Patient A's best interests and that his (that is the respondent's) conduct as solely motivated by a desire to assist Patient A with his mental health issues. The respondent states that the evidence referred to by the Commission was "largely based on [Patient A's] unsubstantiated assertions, and suggests that Patient A's mental health contributed to "distortion in his claims".
The respondent states that he had adequately demonstrated by reference to his clinical notes that he was a fit and proper person to act as a psychologist, although he had now retired and did not propose to act as a psychologist. He states that his retirement and its timing should not be construed as an admission or acceptance of any of the allegations made against him, or the appropriateness of the Council's decision to suspend his registration.
The respondent goes on to state that since his retirement he had received "overwhelming support" from current and former patients and doctors, and that those testimonials could be provided to the Commission if necessary.
In conclusion he states that after 41 years of practice in three countries, this was the first complaint ever made against him. He reiterates that he "strongly believes that all times [Patient A's] wellbeing was paramount, and at the forefront of [his] decisions".
On 19 May 2017, the respondent also wrote to the Psychology Board of NSW indicating that he wished to surrender his registration as a psychologist, effective immediately.
On 23 May 2017, the Australian Health Practitioner Regulation Agency wrote to the respondent informing him that his request to surrender his registration could not be considered while his registration remained suspended, and could only be considered once the suspension had been removed. A similar letter was sent to the Psychology Council and a similar response received.
On or about 29 May 2017, the Council published In its written reasons for decision for its decision to suspend the respondent's registration. The Council stated that the central issue for consideration was whether the respondent posed a risk to the safety or health of the public that warranted action to be taken and/or whether it was generally in the public interest for the Council to take action. To answer that question, the Council stated that it had to answer the following questions:
1. was the respondent's conduct and/or performance within accepted standards?
2. did the respondent's conduct and/or performance poise a risk to the safety or health of the public?
3. did the respondent's practice accord with the public interest.
As to question (1), the Council found that the respondent's conduct and/or performance was not of an acceptable standard. In reaching this conclusion, the Council considered: