Health Care Complaints Commission v Mitchell

The application before the Tribunal

1. This is an application for disciplinary findings and orders against Mr Mitchell brought under the Health Practitioners National Law NSW (Psychology). The application is made by the Health Care Complaints Commission (the Applicant). The application attaches a Complaint dated 1 April 2015 ("the Complaint"). The Complaint makes five individual Complaints against Mr Mitchell. Complaints One, Two, Three and Five are each supported by a specific set of particulars.
2. In addition there was some overlap of and reliance on the particulars between Complaints. In support of Complaint Two the particulars of Complaint One were repeated and relied upon. In support of Complaint Four, the particulars of Complaint One, Two and Three were repeated and relied upon individually and cumulatively. Complaint Five relied upon Mr Mitchell's conduct as set out in Complaints One, Two and Three.
3. Finally there was an amendment to page 2 of the Complaint to accurately reflect the amendment made to Practice Condition 4 by the Psychology Council on 9 October 2012.
4. The first complaint alleges that Mr Mitchell is guilty of unsatisfactory professional conduct within the meaning of s.139B(1)(c) in that he has contravened conditions to which his registration was subject.
5. The second complaint alleges Mr Mitchell is guilty of unsatisfactory professional conduct within the meaning of s.139B(1)(l) in that he has engaged in improper or unethical conduct relating to the practice or purported practice of psychology by giving false information.
6. The third complaint alleges Mr Mitchell is guilty of unsatisfactory professional conduct within the meaning of s.139B(1)(e) in that he has contravened section 34A(4) of the Health Care Complaints Act 1993 (the HCC) Act by failing to provide information.
7. Section 139B of the National Law defines unsatisfactory professional conduct. For present purposes the relevant provisions are contained in s.139B (1)(c), (e) and (l) and are as follows: Meaning of unsatisfactory professional conduct of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following- …(c) A contravention by the practitioner (whether by act or omission) of- (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. …(e) A contravention by the practitioner of section 34A(4) of the Health Care Complaints Act 1993. …(l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
8. The fourth complaint alleges Mr Mitchell is guilty of professional misconduct within the meaning of s.139E of the National Law in both or either of the ways to which s.139E refers by virtue of the conduct alleged in Complaints One, Two and Three.
9. Section 139E of the National Law provides: Meaning of professional misconduct [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means- 1. unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration, or 2. 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 the suspension or cancellation of the practitioner's registration.
10. The fifth complaint alleges that Mr Mitchell is not a suitable person to hold registration as a registered psychologist under s. 144(e) of the National Law.
11. If the complaints are found proven by the Tribunal, the Applicant requests the Tribunal to exercise its power to make disciplinary orders, adopting one or more of the options given by s.149C of the National Law (powers to suspend or cancel registration, make a prohibition order) for a period of two years.

The Hearing

1. The documentary material before the Tribunal comprised the Applicant's bundle of documents (two volumes) filed on 24 June 2015. At the hearing the Complaint was amended to accurately reflect Practice Condition 4 as it had been initially imposed by the Council before its amendment on the 9 October 2012. In addition an agreed statement of facts, filed on 24 June 2015, was amended and became an exhibit received into evidence at the hearing as well as several other exhibits also received into evidence at the hearing. Mr Mitchell did not provide any documents and did not seek to cross examine any person who had provided a witness statement. He gave oral evidence and made submissions to the Tribunal.
2. Mr Mitchell told the Tribunal that apart from one matter relevant to Complaint Two, he conceded all the matters contained in the amended statement of agreed facts.
3. In relation to the application he admitted that he had breached the Practice Conditions imposed by the Council (Complaint One), he had provided misleading information about his compliance with the Conditions (Complaint Two) and he failed to provide information to the HCCC in response to a notice issued by it (Complaint Three). He also indicated that in relation to Complaint Five he did not dispute the particulars relied upon in that he provided services as a psychologist during a period when he was not registered.

Complaint One: Breach of Practice Conditions

1. The breaches by Mr Mitchell of his Practice Conditions can be divided into three categories: supervision, practice and training.
2. The first category is in relation to supervision and arises from a breach by Mr Mitchell of Practice Condition 1, which imposed requirements on him to engage in individual supervision. As set out in particulars 1, 2 and 3 of Complaint One, Mr Mitchell failed to forward requisite details of a potential supervisor to the Council for approval, failed to undertake a minimum of two hours of individual supervision per fortnight with an approved supervisor and failed to authorise an approved supervisor to forward progress reports to the Council.
3. The evidence relied upon by the Applicant in relation to Mr Mitchell's breach of Condition 1 encompasses correspondence between the Council and Mr Mitchell as to his efforts to secure an approved supervisor. It should be noted that although Mr Mitchell attempted on a number of occasions to secure a supervisor he was unable to do so. Not surprisingly Mr Mitchell failed to undertake individual supervision with a supervisor approved by the Council, he failed to forward the name, contact details and curriculum vitae of the proposed supervisor to the Council for approval, and he failed to authorise his approved supervisor to forward supervision progress reports to the Council at six monthly intervals.
4. The second category is in relation to practice and arises from a breach by Mr Mitchell of Practice Condition 4, which prohibited him from offering counselling services to clients with psychological disorders. As detailed in particular 4 of Complaint One, Mr Mitchell offered counselling services to 24 different clients with psychological disorders on a total of 72 different occasions between 4 October 2012 and 8 May 2013. A spread sheet listing the patients who were treated by Mr Mitchell during this period formed part of the evidence. The evidence indicates that Mr Mitchell provided counselling services to these patients at the City Medical Centre and the CBD Medical Practice. In seeking payment Mr Mitchell used a relevant Medicare code for the provision of psychological services. These records were in evidence.
5. The third category is in relation to training and arises from a breach by Mr Mitchell of Practice Condition 5, which required him prior to resuming private practice work to satisfactorily complete intensive training in assessment procedures and report writing skills. There is no dispute that Mr Mitchell did not complete this training at any stage. Further between 4 October 2012 and 8 May 2013 he provided counselling to clients in a private practice setting but had not completed the requisite training.

Complaint Two: Unsatisfactory professional Conduct under s. 139B(1)(l)

1. The Applicant submits that the breach of conditions by Mr Mitchell as particularised in Complaint One are evidence of his engaging in improper or unethical conduct relating to the practice or purported practice of psychology.
2. In addition, the Applicant relies on particulars 2, 3 4 and 5 of Complaint Two as separate incidents demonstrating that Mr Mitchell engaged in improper or unethical conduct relating to the practice or purported practice of psychology. Particular 2 and 3 relate to two separate instances of false statements made by Mr Mitchell to the Council regarding his compliance with the Practice Conditions. Significantly, particular 2 concerns a false statement made by Mr Mitchell in the form of a statutory declaration. Particular 5 concerned a false statement made by Mr Mitchell to the Health Care Complaints Commission in response to an allegation that he had breached Practice Condition 4.
3. Particulars 3 and 4 were the subject of controversy between the parties at the hearing. The material in support of these particulars was detailed at paragraphs 52 and 53 of the agreed statement of facts.
4. Particular 3 alleged that on 21 May 2013 Mr Mitchell falsely stated in a telephone conversation with a representative of the Council that he had been in a supervision relationship with another practitioner which had ceased shortly beforehand and that he had seen the practitioner for supervision on a few occasions. The Tribunal notes that this allegation was denied by Mr Mitchell and is dealt with in more detail later in this decision.
5. Particular 4 related to an allegation that on 23 May 2013 Mr Mitchell had falsely stated in an email to the Psychology Council that he had been in a supervision relationship with another practitioner. At the hearing the Applicant withdrew this particular. An examination of the relevant email, which became an exhibit received into evidence at the hearing, did not support the particular as pleaded.
6. Mr Mitchell did not dispute that on 26 March 2013 he provided a false statutory declaration to the Council that he had complied with all the conditions imposed on him by the Council. Nor did he dispute that on 18 December 2013, in response to a letter from the Health Care Complaints Commission regarding an allegation that he had breached Practice Condition 4, he falsely stated in an email to the Commission that he had "worked exclusively in the corporate sector and have not treated private patients" between October 2012 and December 2013.

Complaint Three: Unsatisfactory professional conduct under s.139B(1)(e)

1. Section 34A(4) of the Health Care Complaints Act 1993 permits the Commission to issue a notice when it is investigating a complaint and is of the opinion that a person is capable of assisting the investigation. The person must comply with the notice unless that person has a reasonable excuse. Unsatisfactory professional conduct under the National Law includes a contravention by the practitioner of section 34A(4) of the Health Care Complaints Act 1993.
2. Complaint Three alleges that Mr Mitchell contravened this section when he failed to comply with a Notice issued to him on 14 February 2014 by the Commission under s 34A. The evidence indicates that a notice to give information and produce documents was emailed and served on Mr Mitchell. The notice was to be complied with by 20 February 2014. Mr Mitchell did not comply with the Notice.

Complaint Four: Professional misconduct

1. To support this complaint the Applicant relied on the particulars contained in Complaints One, Two and Three both individually and cumulatively. It submitted that the content of Complaints One and Two, when considered together, demonstrated sufficient seriousness for Complaint Four to be made out. In sum, it was argued that the conduct of Mr Mitchell by virtue of his failure to comply with the practice conditions imposed on his registration, provision of false information and failure to provide information when required to do so, constituted unsatisfactory professional conduct, and was sufficiently serious to amount to professional misconduct.

Complaint Five: Not a suitable person to hold registration as a registered psychologist

1. In relation to Complaint Five, the Applicant relies on what it says is the disregard shown by Mr Mitchell for his professional obligations. Specifically, his failure to comply with the practice conditions and provide information lawfully sought as set out in Complaints One and Three respectively. In addition it points to the dishonesty exhibited by his conduct in providing false information which forms the subject of Complaint Two. It argues that these matters establish that Mr Mitchell is "otherwise not a suitable person to hold registration in the practitioner's profession" pursuant to s 144(e) of the National Law.
2. Further, the Applicant relies upon Mr Mitchell's actions between 4 January 2013 and 3 February 2013 in that he provided services to clients as a psychologist when he was not registered (particular 3).
3. Finally, the Applicant points to Mr Mitchell's submission of claims to Medicare in which he held himself out to be a registered psychologist for services he provided to 12 different patients on 16 different occasions between 9 and 30 January 2013 (particular 4).
4. Evidence of particulars 3 and 4 included a spread sheet listing patients treated by Mr Mitchell during the period he was not registered, and was supported by relevant referral and Medicare documentation.

Mr Mitchell's evidence

1. Mr Mitchell gave evidence that he took his role as a psychologist seriously and referred to his past work experience including in the prison system. He had considerable difficulty in finding a supervisor in accordance with Condition 1. He unsuccessfully approached 3 people requesting them to supervise him and this made the task of complying with the conditions difficult. He claimed to have shown two prospective supervisors the Practice Conditions and they had stated that they were unsure how they could supervise him given the Conditions which had been placed on his practice. He did not show the Practice Conditions to the third person he approached. The evidence discloses that once the third person became aware of the Conditions she declined to act as a supervisor. He added that he thought it was a "grey area" and that he could continue to counsel people and be supervised.
2. Mr Mitchell claimed to have never been the subject of a complaint made by a person whom he had counselled. He also referred to his personal circumstances including a divorce and bankruptcy.
3. Mr Mitchell's evidence was to the effect that he understood the Practice Conditions which had been imposed on him. Further, although he had previously referred to his belief that it was a grey area he was aware that the conditions imposed prevented him from seeing anyone with a psychological disorder. Initially in cross examination, Mr Mitchell suggested that he did not think that providing counselling services per se was a clear breach of Practice Condition 4. However, after further questioning he conceded that he had reached the conclusion that it was a breach.
4. Upon further questioning from the Tribunal about the role a supervisor could have potentially played notwithstanding the Conditions placed on his Practice, Mr Mitchell acknowledged that there were areas where the supervisor could have been involved.
5. Mr Mitchell conceded that he did not mention the Practice Conditions imposed on him to the Medical Practices which had made referrals to him because he was concerned that it could result in a termination of these arrangements.
6. Mr Mitchell gave evidence that on 21 May 2013 in contrast to what had been asserted in the application (Complaint Two -particular 3) he had not claimed to an officer of the Council to have been in a supervision relationship that had ceased and had received supervision on a few occasions. He stated on a number of occasions in his evidence that the officer had misunderstood what he had said.
7. Mr Mitchell stated he did not seek a review of the Practice Conditions or lodge an appeal because he believed he would be able to secure a supervisor. Mr Mitchell did not claim nor did the evidence suggest that at any stage he approached the Council or any other external professional body for assistance in identifying a suitable supervisor.
8. Mr Mitchell stated that over the last three years the public exposure these matters have caused have resulted in the most shameful and humiliating experience of his life. He commented that he fully expected his registration to be cancelled. However, he asked the Tribunal to take into account that his registration had already been suspended for some 17 months.

Complaint One

1. The uncontested evidence is that on 9 July 2012 the Psychology Council of NSW (the Council) found Mr Mitchell guilty of unsatisfactory professional conduct within the meaning of s.139B of the National Law. As a result of that decision, and in accordance with s.148E of the National Law, on 28 September 2012 the Council imposed conditions on Mr Mitchell's registration as a psychologist. The conditions were subsequently amended on 9 October 2012. The conditions addressed areas of supervision, practice and training. It is not disputed that Mr Mitchell did not comply with the Practice Conditions.
2. The Tribunal accepts that Mr Mitchell had difficulty in securing a supervisor. However the Tribunal is not satisfied that this condition was so unworkable that it was not capable of being complied with. Although Mr Mitchell approached the Council to seek an amendment to Practice Condition 4 as it related to the nature and extent of the work he was able to do, he did not seek any assistance from the Council or any other external professional body with the identification of a supervisor. Nor did he seek a review of this condition or lodge an appeal. To the extent that Mr Mitchell's evidence could be said to raise the possibility that he was not in breach of the Practice Condition as it related to supervision because it was not capable of being complied with, the Tribunal rejects this suggestion.
3. In any event, and perhaps more significantly Mr Mitchell does not dispute that he breached practice condition 4 by continuing to offer counselling services to 24 clients in breach of Practice Condition 4. This occurred on a total of 72 different occasions between 4 October 2012 and 8 May 2013. Furthermore he did not complete further training as required by Practice Condition 5.
4. The Tribunal finds that Mr Mitchell breached the conditions imposed by the Council on his registration and specified in the complaint. The particulars of Complaint One are proven. In the Tribunal's view these were serious breaches over a considerable period of time. The goals of public protection and public confidence, to which the nature and extent of the conditions that were imposed on Mr Mitchell were directed, were undermined. The Tribunal finds having regard to s.139B(1)(c) of the National Law that this conduct can be categorised as unsatisfactory professional conduct. The Tribunal finds Complaint One is established.

Complaint Two

1. The uncontested evidence is that on 26 March 2013 Mr Mitchell provided a statutory declaration in which he falsely declared that he had complied with all of the conditions on his registration imposed on him by the Council. It is also uncontested that on 18 December 2013 in response to a letter from the Health Care Complaints Commission regarding an allegation that he had breached Practice Condition 4, Mr Mitchell falsely stated in an email to the Commission that he had "worked exclusively in the corporate sector and have not treated patients" between October 2012 and December 2013.
2. In relation to particular 3 it is alleged that on 21 May 2013 Mr Mitchell falsely stated in a telephone conversation with a representative of the Council that he had been in supervision relationship that had ceased and he had seen his supervisor for supervision on a few occasions. Mr Mitchell strongly denies this allegation and states that the officer has misunderstood what he said. Although this conversation can be seen in the light of the earlier false statutory declaration sworn by Mr Mitchell on 26 March 2013 that he was complying with the conditions imposed on his registration, in the Tribunal's view there is nothing to be gained by Mr Mitchell making this aspect of his evidence up. He has conceded far more serious allegations referred to in the Application and Complaints. The Tribunal accepts that it is possible that there may have been a misunderstanding about what Mr Mitchell said during this conversation.
3. As previously noted particular 4 was withdrawn at the hearing.
4. The Applicant submits that the false statements made by Mr Mitchell are individually and cumulatively capable of amounting to unsatisfactory professional conduct.
5. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral; 2. in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law.
6. There is no guidance in the National Law as to what is meant by "in the practice of psychology" however the Tribunal accepts the submission put forward by the Applicant that it should be given a purposive meaning and is a notion of broad scope which is capable of encompassing the conduct the subject of Complaint Two.
7. This interpretation is consistent with the case of Childs v Walton [1990] NSWCA 41, in which the meaning of the words "in the practice of medicine" in the now repealed Medical Practitioners Act 1938 were considered for the purposes of an allegation of professional misconduct. Samuels JA stated: "The phrase "in the practice of medicine" does not have a temporal meaning, but rather a qualitative or descriptive character. It does not circumscribe the period during which the conduct impugned must occur if it is to be capable of satisfying the prescription; it describes its nature. The conduct must be such as to demonstrate the lack of a quality (eg adequate knowledge) necessary in the practice of medicine…It need not be conduct which occurs in the course of treating a patient. The only requirement is that it must demonstrate one of the specified deficits…"
8. The Tribunal finds that particulars 1, 2 and 5 are proved. Mr Mitchell failed to comply with Practice Conditions imposed on his registration and then falsely represented to the Council and the Commission that he was complying with the conditions. Indeed Mr Mitchell provided a statutory declaration in which he knowingly falsely declared that he had complied with all of the Practice Conditions. In the Tribunal's view the totality of this conduct was improper and unethical. It was Mr Mitchell's duty to be candid and honest with the supervising authority, the Council. He did not give an accurate account of his compliance. The Tribunal is satisfied that Mr Mitchell is guilty of unsatisfactory professional conduct within the meaning of s.139B(1)(l) of the National Law in that he has engaged in improper or unethical conduct relating to the practice or purported practice of psychology. The Tribunal finds Complaint Two is established.

Complaint Three

1. Section 34A(4) of the Health Care Complaints Act permits the Commission to issue a notice when it is investigating a complaint and is of the opinion that a person is capable of assisting the investigation. The person must comply with the notice unless that person has a reasonable excuse. The uncontested evidence is that Mr Mitchell failed to comply with the notice issued to him by the Commission on 14 February 2014. This particular is made out. In the Tribunal's view compliance with such notices is an integral part of the proper functioning of the regulatory system. Mr Mitchell demonstrated a disregard for the Commission and its role. The Tribunal is satisfied that Mr Mitchell is guilty of unsatisfactory professional conduct under s.139B(1)(e) of the National Law by failing to comply with the Notice issued by the HCCC. The Tribunal finds Complaint Three is established.

Complaint Four

1. This complaint alleges Mr Mitchell is guilty of professional misconduct under section 139E of the National Law in that he has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration, or 2. engaged in 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 the suspension or cancellation of the practitioner's registration.
2. The Applicant submits that the conduct of Mr Mitchell as set out in the particulars of Complaint One, Two and Three, which if shown to constitute unsatisfactory professional conduct, is sufficiently serious to amount to professional misconduct. In sum, the submission is that the content of Complaints One to Three, when considered together, demonstrates sufficient seriousness for Complaint Four to be made out.
3. It has been held that the "gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards": see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.
4. There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s.139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: HCCC v Saedlounia [2013] NSWMT 13 at 43-50
5. Dishonesty on the part of the practitioner is not a requirement. Recklessness can be a sufficiently serious consideration to justify invoking sanctions to protect the public: Lee v HCCC [2012] NSWCA 80 at 67.
6. In Pillai v Messiter (No 2) (1989) 16 NSWLR 197 the Court of Appeal (referring to the earlier statutory test) described professional misconduct as including: "a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allinson [v General Council of Medical Education and Registration [1894] 1 QB 755] (at 760-761)." (per Kirby P at 200).
7. Mr Mitchell's conduct in breaching the Practice Conditions and his dishonesty in attempting to conceal, deny and mislead as to his breaches, when taken together, are of a very serious nature. They demonstrate a lack of insight into the need to act scrupulously with regard to his professional obligations and to show proper respect to the requirements of the Council imposed upon him. In the Tribunal's view it is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. The Tribunal is satisfied that Mr Mitchell is guilty of professional misconduct under section 139E of the National Law. The Tribunal finds Complaint Four is established. Complaint 5
8. The Tribunal has already found that Mr Mitchell was in breach of his Practice Conditions by providing counselling services to 24 different clients with psychological disorders on a total of 72 different occasions between 4 October 2012 and 8 May 2013.
9. In addition, the uncontested evidence is that between 4 January 2013 and 3 February 2013 Mr Mitchell provided services to clients as a psychologist when he was not registered as a psychologist. Further, Mr Mitchell made claims to Medicare in which he held himself out to be a registered psychologist for services he provided to 12 different patients on 16 different occasions during the period from 9 to 30 January 2013.
10. The Applicant submits that the combination of these matters and Mr Mitchell's conduct in dishonestly providing false and misleading statements to professional bodies (the Council and HCCC) demonstrates that he is not a suitable person to hold registration as a registered psychologist under s.144(e) of the National Law.
11. The content of "not a suitable person" is not defined but assistance can be obtained in the interpretation of that term from s 55 of the National Law, which sets out a number of circumstances in which a board of a health profession can decide whether a person is not a suitable person to hold registration in the profession. These relevantly include in s 55(1)(h)(i) that a person is "not a fit and proper person".
12. Looking at Mr Mitchell's conduct in its totality his failure to comply with his Practice Conditions was not isolated or spur of the moment. It involved the non-compliance with three practice conditions over a reasonably lengthy period of time. It was compounded through his own dishonest representations to the Council and the Commission regarding his compliance.
13. In the Tribunal's view Mr Mitchell has displayed a pattern of conduct in breaching the conditions, acting dishonestly in relation to that breach and failing to comply with the notice issued by the Commission. Mr Mitchell's conduct reveals a lack of respect for authority, responsibility and honesty that directly impacts on whether he is a fit and proper person to practice psychology. The fact that Mr Mitchell continued to see patients in breach of Practice Condition 4 also calls into question his care of his clients and insight into what is best for their care.
14. Of particular concern is that Mr Mitchell continued to provide services as a psychologist when he was not registered as a psychologist. The fact that he was willing to represent himself as registered in claims he made to Medicare, again demonstrates the disregard for his professional obligations.
15. The evidence does not suggest that the actions of Mr Mitchell can be explained as an error of judgment given the time frame of non-compliance with the conditions, several incidences of dishonesty and the willingness to practice as and hold himself out as a registered psychologist when he was not so registered. Rather, the evidence indicates Mr Mitchell has demonstrated serious deficiencies in judgment and good character.
16. The Tribunal is satisfied that all these matters demonstrate that Mr Mitchell is not a suitable person to hold registration as a registered psychologist under s.144(e) of the National Law. The Tribunal finds that Complaint Five is established.

Conclusions

1. This is regrettably a case where a practitioner, Mr Mitchell, has made a number of poor and cascading decisions. He did not comply with the Practice Conditions for supervision, practice and training. To make matters worse he continued to counsel clients at a time when he was not registered as a psychologist and sought to deceive both the Council and the Commission as to his compliance with the conditions that had been imposed. The Tribunal acknowledges that Mr Mitchell found it difficult to comply with the conditions for supervision. However he did not seek to remedy this by seeking a review or appealing the Conditions. He did not seek assistance in identifying a suitable supervisor. The Tribunal is satisfied that the conditions were capable of being complied with by Mr Mitchell but he chose not to do so.

Principles regarding protective orders

1. The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of part 8 of the National Law in relation to proven claims against registered health practitioners: see ss149A, 149B and 149C. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law. Since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: see Lee v HCCC at 34.
2. It has also been held that, in addition to the protection of the public being the paramount consideration, other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see, for example, Health Care Complaints Commission v Litchfield at 637; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184.
3. The Applicant seeks that the Tribunal make an order that Mr Mitchell's registration as a psychologist is cancelled for a period of two years: see s149C(1) of the National Law. It also seeks an order for costs.
4. The Tribunal has had regard to the fact that Mr Mitchell's registration was suspended on 29 May 2014. However having regard to the need to maintain the standards of the profession, and to deter others from engaging in like conduct in the Tribunal's view this is not a factor that should weigh into the period of cancellation that the Tribunal is minded to set. Further, given the gravity and duration of the misconduct in the Tribunal's view the most appropriate order which reflects the paramount consideration of the protection of the public is the cancellation of Mr Mitchell's registration as a psychologist for a period of two years.

Costs

1. The Applicant seeks an order that the Respondent pay its costs. The Complaints have been wholly proved. Notwithstanding Mr Mitchell's statement he is an undischarged bankrupt the Applicant is still entitled to an award for costs in its favour. Orders
2. Pursuant to s.149C(1) of the Health Practitioner Regulation National Law (NSW) ("the National Law") the Respondent's registration as a psychologist is cancelled from the date of this order.
3. Pursuant to s149C(7) the Health Practitioner Regulation National Law (NSW) the Respondent Practitioner may not make any application for review of Order 1 of these orders for a period of 2 years from the date of the orders.
4. The Registrar is requested to notify the Psychology Council of New South Wales of Orders 1 and 2 of these orders as soon as practicable.
5. The Respondent Practitioner is to pay the Applicant Commission's costs
6. An order pursuant to s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the names of the patients appearing in the Schedule to the Complaint of Patients A to AH

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

Amendments 27 May 2016 - Amended orders 1-3 from:

1. Pursuant to s.149C(4) of the Health Practitioner Regulation National Law (NSW) (the National Law), the Tribunal declares that the Respondent Practitioner's registration as a Psychologist on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency would have been cancelled from the date of this order if he had been currently registered.
2. Pursuant to 149C(4)(c) of the National Law the Tribunal directs that the National Board with which the Respondent Practitioner was registered is to record the fact that the Tribunal would have cancelled the Respondent Practitioner's registration in the National Register kept by the Board.
3. Pursuant to s149C(7) the Health Practitioner Regulation National Law (NSW) the Respondent Practitioner may not make an application for review of the order until at least 2 years from the date of this order.

Amended to:

1. Pursuant to s.149C(1) of the Health Practitioner Regulation National Law (NSW) ("the National Law") the Respondent's registration as a psychologist is cancelled from the date of this order.
2. Pursuant to s149C(7) the Health Practitioner Regulation National Law (NSW) the Respondent Practitioner may not make any application for review of Order 1 of these orders for a period of 2 years from the date of the orders.
3. The Registrar is requested to notify the Psychology Council of New South Wales of Orders 1 and 2 of these orders as soon as practicable. 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: 27 May 2016